                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 53

                            Docket No. DA-1221-15-0060-W-1

                                Rebstock Consolidation, 1
                                        Appellants,
                                             v.
                          Department of Homeland Security,
                                          Agency.
                                    September 29, 2015

           Kris W. Kobach, Kansas City, Kansas, for the appellants.

           J. Douglas Whitaker, Esquire, Omaha, Nebraska, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellants have filed a petition for review of the initial decision, which
     dismissed their consolidated individual right of action (IRA) appeals for lack of
     jurisdiction. For the reasons that follow, we DENY the appellants’ petition for
     review and AFFIRM the initial decision.

     1
       This consolidation consists of the following appeals: Christopher L. Crane v.
     Department of Homeland Security, MSPB Docket No. DE-1221-15-0043-W-1; David A.
     Engle v. Department of Homeland Security, MSPB Docket No. DA-1221-15-0039-W-1;
     Samuel Martin v. Department of Homeland Security, MSPB Docket No. DA-1221-15-
     0040-W-1; and Tre I. Rebstock v. Department of Homeland Security, MSPB Docket No.
     DA-1221-15-0041-W-1.
                                                                                      2

                                      BACKGROUND
¶2         The appellants serve as law enforcement officers with the agency’s
     Immigration and Customs Enforcement component. Consolidation Appeal File
     (CAF), Tab 8 at 21, 24-25.      As law enforcement officers, the appellants are
     responsible for, among other things, executing arrest warrants for immigration
     violations. Id. at 24-25. The appellants, collectively, filed a complaint with the
     Office of Special Counsel (OSC) alleging that they were threatened with
     disciplinary action if they refused to follow several agency memoranda that
     provided guidance on the exercise of prosecutorial discretion in enforcing Federal
     immigration law.    Id. at 28, 33-34.    In their OSC complaint, the appellants
     asserted that the agency’s memoranda violated existing Federal immigration law,
     the Administrative Procedures Act, and several provisions of the U.S.
     Constitution, and that they believed they would be disciplined if they failed to
     follow the memoranda, which they asserted would be a violation of 5 U.S.C.
     § 2302 (b)(9)(D). Id. at 26, 33-34, 37-44.
¶3         OSC issued close-out letters informing the appellants of their rights to seek
     corrective action from the Board. Id. at 68-83. The appellants each filed timely
     IRA appeals, which the administrative judge consolidated. CAF, Tab 2. The
     administrative judge provided the appellants notice of how to establish the
     Board’s jurisdiction over their consolidated appeal, and the appellants and the
     agency submitted responses to the jurisdictional order.        CAF, Tabs 9-10, 12.
     Without holding a hearing, the administrative judge dismissed the consolidated
     appeal for lack of jurisdiction. CAF, Tab 13, Initial Decision (ID). In his initial
     decision, the administrative judge found that all of the events giving rise to the
     consolidated appeal occurred prior to the December 27, 2012 effective date of the
     Whistleblower    Protection   Enhancement    Act   of   2012    (WPEA),   Pub.   L.
     No. 112-19, 126 Stat. 1465, and that they thus were not entitled to rely upon the
     WPEA’s expanded grant of jurisdiction to file an IRA appeal alleging a violation
     of section 2302(b)(9)(D). ID at 4. The administrative judge further found that, to
                                                                                            3

     the extent any of the acts at issue occurred after the WPEA’s effective date, the
     appellants failed to nonfrivolously allege that they engaged in protected activity
     under section 2302(b)(9)(D) or that the agency threatened to take any personnel
     action against them based upon their alleged protected activity. ID at 5-6.
¶4         The appellants have filed a petition for review arguing that they have new
     evidence demonstrating that they have been threatened with disciplinary action if
     they do not follow the agency’s memoranda and directives.              See Petition for
     Review (PFR) File, Tab 1 at 10-16. In their petition for review, the appellants
     also renew their argument that the agency’s guidance violates several Federal
     statutes and the U.S. Constitution and that they will be subject to disciplinary
     action if they refuse to follow the agency’s memoranda and policy directives. Id.
     at 22-23. The agency has filed a response in opposition, and the appellants have
     filed a reply. 2 PFR File, Tabs 3-4.

                                            ANALYSIS
     The WPEA’s expanded grant of jurisdiction to file an IRA appeal concerning an
     alleged violation of 5 U.S.C. § 2302 (b)(9)(D) does not apply retroactively to
     pre-WPEA conduct.
¶5         Pursuant to the WPEA, which became effective on December 27, 2012,
     Congress expanded the grounds on which an appellant may file an IRA appeal
     with the Board. See Hooker v. Department of Veterans Affairs, 120 M.S.P.R.
     629 , ¶ 9 (2014); see WPEA § 101(b)(1)(A). Prior to the enactment of the WPEA,
     an appellant only could file an IRA appeal with the Board based on allegations of
     whistleblower reprisal under 5 U.S.C. § 2302 (b)(8). See Wooten v. Department
     of Health & Human Services, 54 M.S.P.R. 143 , 146 (1992), superseded by statute


     2
       In their reply, the appellants assert that they have a second category of new evidence
     further supporting their claim that they have been threatened with disciplinary action.
     See PFR File, Tab 4 at 10-12. As explained below, because the appellants have not
     presented this allegation of a threatened personnel action to OSC, this allegation is not
     properly before the Board in the instant IRA appeal.
                                                                                            4

     as stated in Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446 , ¶ 5
     (2014). Following the WPEA’s enactment, however, an appellant also may file
     an IRA appeal with the Board concerning alleged reprisal based on certain other
     classes of protected activity as defined in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C),
     and (D). 5 U.S.C. § 1221 (a); Hooker, 120 M.S.P.R. 629 , ¶ 9.
¶6            Here, the appellants filed a complaint with OSC alleging a violation of
     section 2302(b)(9)(D), and thereafter filed an IRA appeal with the Board raising
     the same allegations. See CAF, Tab 1, Tab 8 at 21-46. Section 2302(b)(9)(D)
     bars, among other things, taking or threatening to take a personnel action based
     on an employee’s refusal “to obey an order that would require the individual to
     violate a law.” 5 U.S.C. § 2302 (b)(9)(D).
¶7            Filing   an   IRA     appeal   based    on      an     alleged    violation   of
     section 2302(b)(9)(D) is one of the new bases for filing an IRA appeal with the
     Board under the WPEA.          5 U.S.C. § 1221 (a); Hooker, 120 M.S.P.R. 629 , ¶ 9.
     The Board has declined to give retroactive effect to the other new IRA appeal
     rights      provided   under      the   WPEA       for        alleged     violations   of
     section 2302(b)(9)(A)(i), (B), or (C).     See Colbert v. Department of Veterans
     Affairs, 121 M.S.P.R. 677 , ¶ 7 (2014) (sections 2302(b)(9)(A)(i) and (C));
     Hooker, 120 M.S.P.R. 629 , ¶¶ 11-15 (section 2302(b)(9)(B)).              Consistent with
     those decisions, and applying the analytical framework set forth in Landgraf v.
     USI Film Products, 511 U.S. 244 (1994), we find that, prior to the enactment of
     the WPEA, the Board lacked jurisdiction over allegations of reprisal for the
     protected activity described in section 2302(b)(9)(D) raised in an IRA appeal.
     Accordingly, we decline to give retroactive effect to the expanded grant of
     jurisdiction to file an IRA appeal concerning an alleged violation of
     section 2302(b)(9)(D) based upon conduct that took place prior to the WPEA’s
     December 27, 2012 effective date, as doing so would increase a party’s liability
     for past conduct as compared to pre-WPEA liability.              See Miller v. Federal
     Deposit Insurance Corporation, 122 M.S.P.R. 3 , ¶ 15 (2014), aff’d, No.
                                                                                           5

     2015-3054, 2015 WL 4681015 (Fed. Cir. Aug. 6, 2015); Colbert, 121 M.S.P.R.
     677 , ¶ 7; Hooker, 120 M.S.P.R. 629 , ¶ 15.
¶8         Thus, to the extent the appellants allege that the agency violated
     section 2302(b)(9)(D) prior to December 27, 2012, the WPEA would not apply to,
     and the Board would lack jurisdiction over, any such challenge under the
     pre-WPEA standards. 3      See Miller, 122 M.S.P.R. 3 , ¶ 15 4; see also Colbert,
     121 M.S.P.R. 677 , ¶ 7; Hooker, 120 M.S.P.R. 629 , ¶ 15.
     To the extent the appellants are challenging the agency’s actions occurring on or
     after the WPEA’s effective date, the appellants have failed to nonfrivolously
     allege that the Board has jurisdiction over their consolidated IRA appeal.
¶9         To secure corrective action from the Board in an IRA appeal, an appellant
     first must seek corrective action from OSC. See Carney, 121 M.S.P.R. 446 , ¶ 4.
     If an appellant exhausts his administrative remedies with OSC, then he must
     establish Board jurisdiction by nonfrivolously alleging that he engaged in activity
     protected by the WPEA and that the protected activity was a contributing factor
     in a challenged personnel action.       Id., ¶¶ 5, 7; see Aquino v. Department of
     Homeland Security, 121 M.S.P.R. 35 , ¶ 9 (2014).          Regarding the contributing
     factor element, to establish Board jurisdiction over an IRA appeal, an appellant
     must nonfrivolously allege that an individual with authority took, failed to take,
     or threatened to take or failed to take any personnel action, as defined by
     5 U.S.C. § 2302 (a)(2)(A), based upon the appellant’s protected activity.


     3
       As explained above, prior to the effective date of the WPEA, an appellant could only
     file an IRA appeal with the Board concerning alleged whistleblower reprisal under
     section 2302(b)(8). See, e.g., Wooten, 54 M.S.P.R. at 146. We have reviewed the
     appellants’ OSC complaint and OSC’s close-out letter and find that the appellants
     did not allege that they engaged in any form of protected whistleblowing under
     section 2302(b)(8). See CAF, Tab 8 at 21-46, 68-71.
     4
       Similar to Miller, the fact that the appellants filed their IRA appeals with the Board
     after the WPEA’s effective date does not change the outcome of this appeal to the
     extent they are challenging the agency’s conduct that occurred prior to the WPEA’s
     effective date. See Miller, 122 M.S.P.R. 3, ¶ 15 n.5.
                                                                                             6

      5 U.S.C. § 2302 (b)(9). Once an appellant establishes jurisdiction over his IRA
      appeal, he is entitled to a hearing on the merits of his claim, which he must prove
      by preponderant evidence.         See Carney, 121 M.S.P.R. 446 , ¶ 11; Aquino,
      121 M.S.P.R. 35 , ¶¶ 9-10.
¶10         We agree with the administrative judge that the appellants failed to
      nonfrivolously allege that an individual with authority threatened to take
      disciplinary action against them for failing to follow the agency’s memoranda and
      policy directives concerning the enforcement of Federal immigration law. 5 See
      ID at 5-6. The Board has held that the term “threaten” in section 2302 should be
      interpreted broadly.    Campo v. Department of the Army, 93 M.S.P.R. 1 , ¶ 5
      (2002).    Applying this broad construction, the Board has found threatened
      personnel actions where a counseling memorandum warned of possible future
      discipline, id., ¶¶ 7-8, and where a supervisor stated that an employee should not
      expect the same performance rating he had received the year before, Special
      Counsel v. Hathaway, 49 M.S.P.R. 595 , 600, 608 (1991), aff’d, 981 F.2d 1237
      (Fed. Cir. 1992). An appellant’s generalized assertions and fears of discipline,
      without reference to any specific matter, however, fall below the modest standard
      for alleging a threatened personnel action.       See Godfrey v. Department of the
      Air Force, 45 M.S.P.R. 298 , 303 (1990). 6




      5
       Disciplinary action is one of the categories of personnel action expressly included
      within section 2302(a)(2)(A). 5 U.S.C. § 2302(a)(2)(A)(iii).
      6
       The appellants advance on review that the controlling question is whether a reasonable
      person would believe that the agency threatened to take a personnel action. See PFR
      File, Tab 4 at 10. Although the Board employs a reasonable person standard when
      considering whether an employee has made a protected whistleblowing disclosure under
      section 2302(b)(8), this standard does not apply to whether an appellant has
      nonfrivolously alleged that the agency threatened to take a personnel action in violation
      of section 2302. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015);
      Godfrey, 45 M.S.P.R. at 303.
                                                                                       7

¶11         Here, the appellants have alleged only that they believe they will face
      disciplinary action if they disregard the agency’s memoranda. See, e.g., CAF,
      Tab 8 at 35 (“[Appellant] Martin believes that he faces the threat of disciplinary
      action if he follows federal law . . . contrary to [the agency’s memoranda].”); see
      also CAF, Tab 11 at 8-9 (“I fear that if I follow federal law . . . I will be
      suspended and ultimately terminated.”).      Totally lacking from the appellants’
      submissions, however, is any reference to a verbal or written statement,
      admonishment, or notice from the agency that they risk possible disciplinary
      action if they do not follow the agency’s guidance. See Godfrey, 45 M.S.P.R.
      at 303 (“some concrete manifestation—(such as) ‘mere harassment and threat’—
      is required”) (emphasis in original). The appellants thus have offered nothing to
      support their claim of threatened discipline other than their own subjective
      suspicions that they could be disciplined.      Abstract concerns about possible
      disciplinary action, without any evidence that the agency actually has threatened
      or suggested it would take such action, do not constitute nonfrivolous allegations
      that the agency threatened to take a personnel action in violation of section 2302.
      See id.; see also Daniels v. Department of Veterans Affairs, 105 M.S.P.R. 248 ,
      ¶ 8 (2007) (finding that the agency’s suggestion that an employee might not be
      qualified for her job did not constitute a threatened personnel action).
¶12         The appellants’ assertion, that they fear disciplinary action “based upon
      official communications to them . . . from their superiors, past events, and public
      sources,” CAF, Tab 8 at 33, does not change our conclusion.                As the
      administrative judge acknowledged in his initial decision, ID at 3, vague,
      conclusory, and unsupported allegations do not satisfy the Board’s nonfrivolous
      pleading standard, see Aviles v. Merit Systems Protection Board, No. 14-60645,
      2015 WL 5010031, at *8 (5th Cir. Aug. 24, 2015); Linder v. Department of
      Justice, 122 M.S.P.R. 14 , ¶ 14 (2014); McDonnell v. Department of Agriculture,
      108 M.S.P.R. 443 , ¶ 7 (2008). We concur with the administrative judge that the
      appellants’ assumption, that they may face disciplinary action based upon “past
                                                                                       8

      events” and “public sources,” does not constitute a nonfrivolous allegation that
      they were threatened with a personnel action.       Additionally, the appellants’
      oblique reference to implied threats of discipline in “official communications,”
      standing alone, fails to nonfrivolously allege that the agency threatened to take a
      personnel action. See McDonnell, 108 M.S.P.R. 443 , ¶ 7; see also Rzucidlo v.
      Department of the Army, 101 M.S.P.R. 616 , ¶ 17 (2006).           As the Board’s
      decisions make clear, despite the broad reading afforded to the term “threatened,”
      the agency must take some action signifying its intent to take a personnel action.
      See Gergick v. General Services Administration, 43 M.S.P.R. 651 , 656 (1990)
      (adopting the dictionary definition of the term “threaten”). We thus agree with
      the administrative judge that the appellants failed to nonfrivolously allege that
      the agency threatened to take a personnel action against them.
¶13         Finally, we also agree with the administrative judge that the appellants
      have failed to nonfrivolously allege that they engaged in protected activity under
      section 2302(b)(9)(D) by refusing to obey an order. 7 ID at 6. We fully concur
      with the administrative judge’s well-reasoned findings that the appellants failed
      to allege that any of them actually refused to follow any supervisor’s order, and,
      absent a nonfrivolous allegation that they engaged in such protected activity, they
      cannot establish the Board’s jurisdiction over their consolidated IRA appeal. See
      generally Carney, 121 M.S.P.R. 446 , ¶ 7.
      The appellants’ new evidence submitted on petition for review does not compel a
      different result.
¶14         In their petition for review, the appellants argue that new evidence supports
      their claim that they will face disciplinary action if they fail to follow the
      agency’s memoranda. See PFR File, Tab 1 at 9-16. Specifically, they assert that,


      7
        In reaching this finding, we offer no opinion whether the agency’s guidance and
      memoranda on the enforcement of Federal immigration law violate a law for the
      purposes of establishing a violation of section 2302(b)(9)(D).
                                                                                        9

      during a nationally televised address in February 2015, the President stated that
      agency employees who disagree with the agency’s policy directives concerning
      the enforcement of Federal immigration laws will “be answerable to the head of
      the Department of Homeland Security,” and that “there are going to be
      consequences” for those who refuse to follow such policies.             Id. at 10.
      Additionally, in their reply, the appellants assert that the Director of Immigration
      and Customs Enforcement testified before Congress in April 2015 that employees
      would be disciplined if they did not follow the agency’s directives concerning the
      enforcement of Federal immigration law. See PFR File, Tab 4 at 10-11.
¶15         The Board generally will not grant a petition for review based upon new
      evidence absent a showing that the new evidence is of sufficient weight to
      warrant an outcome different than that of the initial decision. Russo v. Veterans
      Administration, 3 M.S.P.R. 345 , 349 (1980).       We agree that the statements
      submitted on review constitute new evidence because they were unavailable prior
      to the issuance of the initial decision.    However, we find neither statement
      warrants a different outcome than that of the initial decision because both
      statements were made several months after OSC closed its inquiry into the
      appellants’ complaint. Typically, in an IRA appeal, the Board only may consider
      those charges of wrongdoing that the appellant presented before OSC, and it
      may not consider any subsequent recharacterization of those charges put forth in
      submissions to the Board.     See Jessup v. Department of Homeland Security,
      107 M.S.P.R. 1 , ¶ 7 (2007). Because the evidence on review presented by the
      appellants concerns events that occurred after they filed their complaint with
      OSC, they could not have submitted these issues to OSC for its consideration.
      The allegations involving the appellants’ new evidence, therefore, are not
                                                                                           10

      properly before the Board in this appeal, and they do not warrant a different
      outcome. 8 We thus decline to consider the appellants’ new evidence on review.

                                             ORDER
¶16         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
      § 1201.113 (c)).

                         NOTICE TO THE APPELLANTS REGARDING
                             YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      United States Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order.      See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims   of   prohibited   personnel    practices   under    5 U.S.C.    § 2302 (b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request the United States Court of Appeals for the Federal Circuit or any
      court of appeals of competent jurisdiction to review this final decision. The court
      of appeals must receive your petition for review within 60 days after the date of
      this order. See 5 U.S.C. § 7703 (b)(1)(B) (as rev. eff. Dec. 27, 2012). If you

      8
        We disagree with the appellants’ argument on review that the principles of economy
      and efficiency require the Board to consider these newly raised allegations in the first
      instance. See PFR File, Tab 4 at 14. The parties’ remaining motions concerning the
      introduction of new evidence are denied. See PFR File, Tabs 5-6.
                                                                                  11

choose to file, be very careful to file on time. You may choose to request review
of the Board’s decision in the United States Court of Appeals for the Federal
Circuit or any other court of appeals of competent jurisdiction, but not both.
Once you choose to seek review in one court of appeals, you may be precluded
from seeking review in any other court.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm .
Additional   information    about   the   United States   Court    of   Appeals   for
the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov .
Of particular relevance is the court’s “Guide for Pro Se Petitioners and
Appellants,” which is contained within the court’s Rules of Practice , and Forms
5, 6, and 11.     Additional information about other courts of appeals can be
found at their respective     websites,    which    can   be      accessed   through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
      If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
                                                                               12

provided by any attorney nor warrants that any attorney will accept representation
in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
