                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN EDWARDS ANDERSON,                          DOCKET NUMBER
                 Appellant,                          DC-1221-12-0544-B-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 21, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Deryn Sumner, Esquire and Kevin L. Owen, Esquire, Silver Spring,
             Maryland, for the appellant.

           Margo L. Chan, Esquire and Susan E. Gibson, Esquire, Alexandria,
            Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action in his individual right of action (IRA)
     appeal. For the reasons discussed below, we GRANT the petition for review and


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
     Background and Procedural History
¶2        The appellant filed the instant IRA appeal challenging his reassignment
     from his position as the agency’s Employee Assistance Program (EAP)
     Administrator to that of a Program Manager in the agency’s Office of Tactical
     Operations based upon alleged whistleblower reprisal. Anderson v. Department
     of Justice, MSPB Docket No. DC-1221-12-0544-W-1, Initial Appeal File (W-1
     IAF), Tab 1.       In his appeal, the appellant alleged that he made a protected
     disclosure of a violation of law to several agency employees concerning a
     directive his supervisor issued, which he believed violated both the Privacy Act
     and the Health Insurance Portability and Accountability Act (HIPAA). Id. at 17.
     The appellant alleged that shortly after he made this disclosure, he was reassigned
     to the Program Manager position in reprisal for his protected whistleblowing.
¶3        The administrative judge initially dismissed the IRA appeal for lack of
     jurisdiction and, in a nonprecedential order, we remanded the appeal to the
     administrative judge, finding that the appellant nonfrivolously alleged that he
     made a protected disclosure of a violation of law under 5 U.S.C. § 2302(b)(8).
     Anderson v. Department of Justice, MSPB Docket No. DC-1221-12-0544-W-1,
     Remand Order (Jan. 22, 2014). Following remand, the administrative judge held
     a 3-day hearing and issued a remand initial decision denying the appellant’s
     request for corrective action. Remand File (RF), Tab 33, Remand Initial Decision
     (RID).   In his remand initial decision, the administrative judge found that,
     although the appellant made a protected disclosure of a violation of law, he could
     not establish that the deciding official had knowledge of his disclosure when he
     decided to reassign him. RID at 54-64. Specifically, the administrative judge
     credited the deciding official’s testimony that he decided to reassign the appellant
                                                                                     3

     on February 6, 2012, and that he first learned of the appellant’s disclosure the
     following day when he received an email forwarded to him by the appellant’s
     first-line supervisor. RID at 54, 65. The administrative judge thus found that the
     appellant could not establish that his disclosure was a contributing factor in the
     agency’s decision to reassign him. RID at 64.
¶4        The appellant has filed a petition for review of the remand initial decision
     challenging the administrative judge’s conclusion that the agency official decided
     to reassign the appellant 1 day before learning of his disclosure. Petition for
     Review (PFR) File, Tab 1 at 15-22. On review, the appellant argues that the
     deciding official testified equivocally as to when he actually decided to reassign
     the appellant, and he asserts that there is sufficient evidence in the record to
     satisfy the knowledge/timing test and establish the contributing factor element of
     his claim.   Id.   The agency has filed an opposition to the petition for review
     arguing that the administrative judge’s factual and credibility determinations are
     entitled to deference and that the appellant has not proven that the deciding
     official knew of the disclosure when he made his decision to reassign the
     appellant. PFR File, Tab 3.
     Standard of Review
¶5        In order to secure corrective action from the Board in an IRA appeal, an
     appellant must first seek corrective action from the Office of Special Counsel
     (OSC).   Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9
     (2014). If an appellant exhausts his administrative remedies with OSC, he then
     must establish Board jurisdiction by nonfrivolously alleging that he made a
     protected disclosure and that the disclosure was a contributing factor in the
     challenged personnel action. Id. If an appellant establishes jurisdiction over his
     IRA appeal, he is entitled to a hearing on the merits of his claim. Id. To prevail
     on the merits of his claim, the appellant must prove by preponderant evidence
     (1) that he reasonably believed he made a protected disclosure concerning one or
     more categories of wrongdoing enumerated in section 2302(b)(8), and (2) that his
                                                                                      4

     protected disclosure was a contributing factor in the challenged personnel action.
     Id., ¶ 10.
¶6         If the appellant makes such a showing, the burden shifts to the agency to
     prove by clear and convincing evidence that it would have taken the same action
     in the absence of the disclosure. Id.; see 5 U.S.C. § 1221(e)(2). In determining if
     an agency has met this burden, the Board will consider the following factors:
     (1) the strength of the agency’s evidence in support of the action; (2) the
     existence and strength of any motive to retaliate on the part of the agency
     officials who were involved in the decision; and (3) any evidence that the agency
     takes similar actions against employees who are not whistleblowers but who are
     otherwise    similarly   situated.      Lu    v.    Department     of    Homeland
     Security, 122 M.S.P.R. 335, ¶ 7 (2015) (citing Carr v. Social Security
     Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does not view
     these factors as discrete elements, each of which the agency must prove by clear
     and convincing evidence. Rather, the Board will weigh the factors together to
     determine whether the evidence is clear and convincing as a whole. Id.
     The appellant established by preponderant evidence that he made a protected
     disclosure.
¶7         The administrative judge found, and we agree, that the appellant established
     by a preponderance of the evidence that he reasonably believed he made a
     protected disclosure of a violation of law under section 2302(b)(8). RID at 17-18.
     The record reflects that the appellant’s first-line supervisor requested that he
     provide a weekly accounting of his work assignments, including certain
     information about the cases he was working on and the issues presented by the
     employees who sought EAP assistance. See RF, Tab 8 at 17-18. In response, the
     appellant asserted that he believed the disclosure of such detailed information
     violated both the Privacy Act and HIPAA, and he declined to provide the
     requested information. Id. at 16-17. We concur with the administrative judge
     that the appellant reasonably believed he made a protected disclosure of a
                                                                                            5

     violation of law under section 2302(b)(8) when he opposed his supervisor’s
     request for information that he believed violated the Privacy Act and HIPAA. See
     Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 10 (2011) (finding a
     disclosure was protected based on an alleged violation of the Privacy Act); RID
     at 17-18.
     The appellant established by preponderant evidence that his protected disclosure
     was a contributing factor in his reassignment.
¶8         To establish the contributing factor criterion, an appellant must prove by
     preponderant evidence that the fact of, or content of, the protected disclosure was
     one fact that tended to affect the personnel action in any way.           See Carey v.
     Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003). As noted above,
     the most common way of proving this element is through the knowledge/timing
     test, i.e., by showing that the official taking the action knew of the disclosure and
     that the personnel action occurred within a period of time such that a reasonable
     person could conclude that the disclosure was a contributing factor in the action.
     Id.; see 5 U.S.C. § 1221(e)(1). The Board also has held, however, that there is no
     requirement that a deciding official change his decision to take a personnel action
     if he learns of an employee’s disclosure after making such a decision to take an
     action. See Finston v. Health Care Finance Administration, 83 M.S.P.R. 100, ¶ 5
     (1999).
¶9         Upon our review of the record, we cannot agree with the administrative
     judge that the appellant failed to establish that his disclosure was a contributing
     factor in his reassignment under the knowledge/timing test. 2          RID at 64.     In
     support of his finding on the contributing factor element, the administrative judge
     found that the deciding official decided to reassign the appellant on February 6,
     2012, and that he did not learn about the appellant’s disclosure until he received a
     forwarded email from the appellant’s supervisor the next day containing the

     2
       A reassignment is one of the specific personnel actions listed in section 2302 that may
     form the basis of an IRA appeal. See 5 U.S.C. § 2302(a)(2)(A)(iv).
                                                                                         6

      appellant’s disclosure. RID at 54; see RF, Tab 8 at 16-17. The administrative
      judge thus credited the deciding official’s testimony that he decided to reassign
      the appellant prior to learning about his whistleblowing disclosure, and he
      concluded that the appellant’s disclosure could not have influenced the decision
      to take the challenged personnel action. RID at 54-64; see Orr v. Department of
      the Treasury, 83 M.S.P.R. 117, ¶ 15 (1999) (a protected disclosure made after a
      personnel action cannot serve as a contributing factor in the action), aff’d,
      232 F.3d 912 (Fed. Cir. 2000) (Table).
¶10        Upon reviewing the deciding official’s hearing testimony, however, we do
      not agree that the personnel action at issue was initiated or firmly decided upon
      by the deciding official prior to him learning about the appellant’s protected
      disclosure. 3 Although we find no reason to differ with the administrative judge’s
      findings that the deciding official credibly testified that he decided he wanted to
      reassign the appellant as of February 6th, the record reflects that the deciding
      official took no steps to initiate or implement that decision until after he learned
      of the appellant’s disclosure.   In support of our conclusion, we note that the
      deciding official did not contact or meet with the agency’s general counsel’s
      office about reassigning the appellant until several days after learning about the
      protected disclosure. See Hearing Compact Disc 2 (HCD-2); see also W-1 IAF,
      Tab 6 at 41. At the hearing, moreover, the deciding official testified that during
      his meeting with the Office of General Counsel he explored what other personnel
      actions, if any, he could take, and that he considered and rejected taking a




      3
        The record demonstrates that the appellant first learned of his reassignment on
      February 21, 2012, and that a Standard Form 50 (SF-50) was issued making his
      reassignment effective February 26, 2012. See RF, Tab 8 at 49, 52. Both actions
      post-date the deciding official learning of the appellant’s disclosure on February 7,
      2012. See id. at 16; but see Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 22
      (2014) (the date of an SF-50 is not necessarily the effective date of a challenged
      action).
                                                                                        7

      performance-based action because of the amount of time it would take to effect
      such an action. HCD-2.
¶11        Based upon this testimony, we cannot conclude that the deciding official
      decided on a firm course of action, initiated the appellant’s reassignment, or
      approved such an action prior to learning of the appellant’s disclosure. See, e.g.,
      Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 12 (2013) (stating that
      the effective date of an adverse action is generally the date on which it was
      approved by an individual with proper authority) (citing Vandewall v. Department
      of Transportation, 52 M.S.P.R. 150, 155 (1991)); Fickie v. Department of the
      Army, 86 M.S.P.R. 525, ¶ 9 (2000) (finding that an action that was only
      “contemplated and in preparation” prior to a disclosure can serve as the predicate
      personnel action in an IRA appeal). Thus, under the knowledge/timing test, we
      find that the decision to reassign the appellant was made after the deciding
      official learned of the appellant’s disclosure and that the disclosure may have had
      some effect on the deciding official’s ultimate decision to reassign him.       See
      Carey, 93 M.S.P.R. 676, ¶ 10 (finding that an appellant need only prove that the
      fact or content of the disclosure was one of the factors that tended to affect the
      personnel action in any way).
¶12        We further find inapplicable the principle that a deciding official need not
      change his decision to take a personnel action upon subsequently learning about
      an employee’s protected disclosure for the first time. See Dean v. Department of
      the Army, 57 M.S.P.R. 296, 303 (1993) (stating that an agency may persist in
      taking disciplinary action decided upon prior to learning of a protected
      disclosure). As explained above, we find there is insufficient evidence in the
      record that the deciding official had firmly decided to reassign the appellant prior
      to learning of his disclosure; rather, we find that the deciding official continued
      to weigh and evaluate whether he would reassign the appellant or take some other
      action after learning of the disclosure. See HCD-2. Under these facts, where the
      decision to reassign the appellant had neither been initiated nor finalized prior to
                                                                                           8

      the deciding official learning of the disclosure, the decision to reassign the
      appellant is not exempted from review under Dean. See Fickie, 86 M.S.P.R. 525,
      ¶ 9.
¶13          We similarly find this case distinguishable from Horton v. Department of
      the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995), superseded by statute on other
      grounds as stated in Day v. Department of Homeland Security, 119 M.S.P.R. 589
      (2013).    In Horton, the Federal Circuit found that the appellant could not
      establish the contributing factor element of his IRA appeal challenging his
      probationary termination because the termination action had been initiated 1 day
      prior to his disclosure. 4 Id.   Here, by contrast, there is no evidence that the
      deciding official initiated or took any steps toward effecting the appellant’s
      reassignment until after he learned of the disclosure. HCD-2. Thus, we find this
      case more analogous to Fickie where the appellant’s reassignment was only
      contemplated by the deciding official and in its preliminary phase when he
      learned of the appellant’s disclosure. See Fickie, 86 M.S.P.R. 525, ¶ 9.
¶14          Accordingly, because the appellant’s reassignment was neither initiated nor
      firmly decided upon at the time the deciding official learned of the appellant’s
      disclosure, we do not agree that the appellant has failed to establish that his
      protected disclosure was a contributing factor in his reassignment under the
      knowledge/timing test. We thus vacate the administrative judge’s finding that the
      appellant failed to establish that his disclosure was a contributing factor in his
      reassignment under 5 U.S.C. § 1221(e)(1).


      4
        The court in Horton further relied on the fact that the appellant made his disclosure
      after learning of his termination. See Horton, 66 F.3d at 284. Following the enactment
      of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No.
      112-199, 126 Stat. 1465, an employee’s or applicant’s motive for making a disclosure
      does not preclude it from being protected under section 2302(b)(8). See 5 U.S.C.
      § 2302(f)(1)(C). Although an appellant’s motive for making a disclosure is immaterial
      under the WPEA, we note that there does not appear to be any evidence that the
      appellant was aware that the deciding official was considering reassigning him when he
      made his disclosure.
                                                                                       9

      The appeal is remanded to the administrative judge for an assessment of whether
      the agency would have reassigned the appellant in the absence of his disclosure
      under the clear and convincing standard.
¶15         Having found that the appellant established that his protected disclosure
      was a contributing factor in his reassignment, the burden now shifts to the agency
      to establish by clear and convincing evidence that it would have taken the same
      personnel action in the absence of the protected disclosure.        See 5 U.S.C.
      § 1221(e)(2); Aquino, 121 M.S.P.R. 35, ¶ 25. Because the administrative judge
      concluded that the appellant failed to establish the contributing factor element of
      his claim, he made no findings on the clear and convincing issue. RID at 64 n.67.
      Based upon the nature and timing of the agency’s action and the appellant’s
      disclosure, and the fact that the administrative judge heard more than 3-days of
      testimony, we believe the administrative judge is in the best position to make the
      necessary factual and credibility determinations in the first instance to decide if
      the agency has established by clear and convincing evidence that it would have
      taken the same action in the absence of the appellant’s protected disclosure. See
      Mithen v. Department of Veterans Affairs, 119 M.S.P.R. 215, ¶ 23 (2013)
      (remanding the clear and convincing issue to the administrative judge for, among
      other things, credibility determinations). We accordingly remand the appeal to
      the administrative judge for an assessment of the clear and convincing issue under
      the standards articulated in Whitmore v. Department of Labor, 680 F.3d 1353,
      1368 (Fed. Cir. 2012).      See Mithen, 119 M.S.P.R. 215, ¶ 24.       Because the
      administrative judge held a hearing in the matter and correctly informed the
      parties of their respective burdens of proof beforehand, we deem the record
      complete.    However, the administrative judge has the discretion to allow
      additional discovery and a supplemental hearing prior to issuing a new initial
      decision if he finds it necessary for proper adjudication.
                                                                                   10

                                          ORDER
¶16        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                          ______________________________
                                              William D. Spencer
                                              Clerk of the Board
      Washington, D.C.
