                        UNITED STATES OF AMERICA
                     MERIT SYSTEMS PROTECTION BOARD


SAID I. HAKKI,                                   DOCKET NUMBER
                     Appellant,                  AT-1221-10-1043-W-3

             v.

DEPARTMENT OF                                    DATE: March 18, 2016
  VETERANS AFFAIRS,

              and,

DEPARTMENT OF STATE 1
            Agencies.



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Bruce J. Sperry, Plant City, Florida, for the appellant.

      Anne Joyce, Esquire, and Hollin Luh, Washington, D.C., for the
        Department of State.

      Dana C. Heck, Esquire, St. Petersburg, Florida, for the Department of
        Veterans Affairs.

1
  The Department of Veterans Affairs is the appellant’s former employing agency and
was originally the sole respondent agency in this individual right of action appeal. See
Hakki v. Department of Veterans Affairs, MSPB Docket No. AT-1221-10-1043-W-1,
Initial Appeal File (W-1 IAF), Tab 3, Tab 5, Subtab 4oo. The administrative judge
joined the Department of State (DOS) as a respondent agency based on the appellant’s
allegations that several of the personnel actions at issue in this appeal were influenced
by recommendations made by DOS employees who were motivated to retaliate against
him based on his whistleblower activity. W-1 IAF, Tab 33.
2
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member


                                      FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review. Therefore, we DENY the petition for review. Except as
     expressly MODIFIED by this Final Order to address whether the appellant met
     the contributing factor jurisdictional element of his IRA appeal, despite his
     failure to satisfy the knowledge/timing test for contributing factor, we AFFIRM
     the initial decision.

                                     BACKGROUND
¶2         The appellant was employed as a physician with the Department of Veterans
     Affairs (DVA) at its Bay Pines, Florida Medical Center. Hakki v. Department of
     Veterans Affairs, MSPB Docket No. AT-1221-10-1043-W-1, Initial Appeal File
     (W-1 IAF), Tab 5, Subtab 4oo. In March 2003, DVA granted him leave without
                                                                                             3

     pay (LWOP) so that he could assist the Department of Defense with the
     development of Governmental structures in Iraq.              Id., Subtabs 4kk, 4ll.    In
     May 2004, he was named president of the Iraqi Red Crescent Society (IRCS). 3
     W-1 IAF, Tab 1 at 22-23.         On March 6, 2007, DVA extended the appellant’s
     LWOP through December 31, 2008. W‑1 IAF, Tab 5, Subtab 4ee.
¶3           In 2008, various events occurred that affected the appellant’s tenure as
     president of the IRCS.        In January of 2008, the Iraqi Prime Minister’s Office
     (PM) issued orders purporting to take over the IRCS; however, it withdrew those
     orders after the appellant filed a defamation lawsuit in March 2008. W-1 IAF,
     Tab 1 at 24.       On July 7, 2008, the PM filed criminal charges against the
     appellant. Id.
¶4           In a July 25, 2008 letter, the appellant requested an extension of LWOP
     until December 31, 2010. W-1 IAF, Tab 1, Exhibit 4. On July 31, 2008, the PM
     issued an order dissolving the Administrative Committee of the IRCS. W-1 IAF,
     Tab 5, Subtab 4dd. The following day, DVA terminated the appellant’s LWOP
     and directed him to report for duty at Bay Pines on August 4, 2008.                   Id.,
     Subtab 4n at 64. The appellant did not return to duty and he filed a grievance on
     August 28, 2008, regarding the early termination of his LWOP. Id. at 63, 65-70.
     On September 26, 2008, DVA granted the appellant’s grievance and restored his
     LWOP through December 31, 2008, id. at 89-90; however, on October 3, 2008,
     DVA issued a letter advising the appellant that it was rescinding his LWOP
     effective November 3, 2008, id. at 91. The appellant filed a grievance of that
     action.    Id. at 96-101.    On October 28, 2008, DVA granted the grievance and
     again restored the appellant’s LWOP through December 31, 2008. Id. at 123‑24.
¶5           On December 19, 2008, the appellant requested LWOP through June 30,
     2009. IAF, Tab 5, Subtab 4z. DVA denied his request on December 23, 2008,
     and directed him to return to duty effective January 2, 2009. Id., Subtab 4y. The

     3
         The Red Crescent Society is roughly equivalent to the Red Cross in the United States.
                                                                                    4

     appellant filed a grievance regarding this denial on December 31, 2008, and he
     did not return to duty. Id., Subtab 4x. DVA denied the grievance on January 28,
     2009. Id., Subtab 4u. On June 22, 2009, the appellant requested LWOP for the
     period from July 1 through September 30, 2009. Id., Subtab 4n at 160‑61.
¶6         On July 8, 2009, DVA proposed removing the appellant for unauthorized
     absence on the grounds that he had been in an absent without leave (AWOL)
     status since January 2, 2009, due to his failure to report for duty.   W-1 IAF,
     Tab 5, Subtab 4p.    On September 29, 2009, while his proposed removal was
     pending, the appellant requested LWOP through December 31, 2009. W-1 IAF,
     Tab 17, Subtab 27.    DVA sustained the charge and removed the appellant
     effective November 30, 2009. W-1 IAF, Tab 5, Subtabs 4e, 4f.
¶7         On December 4, 2009, the appellant filed a complaint with the Office of
     Special Counsel (OSC) alleging, among other things, that DVA denied or failed
     to respond to his LWOP requests and removed him in reprisal for whistleblowing.
     W-1 IAF, Tab 1 at 10. In his complaint, the appellant alleged that between 2006
     and 2008, he made the following disclosures regarding medical and humanitarian
     issues in Iraq:
           (1) In 2006, he disclosed to the health attaché at the U.S. Embassy in Iraq
           (Embassy) that expensive medical equipment and furniture that had been
           paid for by the Department of State (DOS) had been left outside exposed to
           the elements for many months.
           (2) During meetings on July 31 and October 18 and 19, 2007, attended by
           DOS officials, he disclosed that the International Committee of the Red
           Cross (ICRC) was diverting funds and not spending funds in Iraq that had
           been provided by the U.S. for humanitarian projects in Iraq.
           (3) In November 2007, he wrote a letter to the PM (with copies to the head
           of the Iraqi Parliament, the U.S. Ambassador to Iraq, and the Commander
           General of the Multi-National Forces in Iraq) disclosing that the ICRC had
           failed to spend 90% of the approximately $400 million provided for
                                                                                        5

           humanitarian aid in Iraq, and he requested an investigation regarding the
           ICRC’s diversion of funds.
           (4) In weekly meetings during the fall of 2007 and early 2008 attended by
           DOS officials and Embassy employees, and in an October 19, 2007
           meeting, he disclosed that various clinics built by the U.S. had been looted
           or destroyed.
           (5) In meetings attended by a DOS official, he disclosed that he had
           submitted proposals for various projects in Iraq and that none of these
           projects was supported by the Embassy.
           (6) In a December 5, 2007 meeting attended by various DOS officials, he
           disclosed gross mismanagement of 10 medical clinics by the Iraqi Ministry
           of Health.
     Id. at 48-55.
¶8         After OSC closed its inquiry into his allegations, the appellant filed a timely
     IRA appeal with the Board.      Id. at 7.   On March 16, 2011, the administrative
     judge dismissed the appeal without prejudice so that the appellant could exhaust
     his administrative remedies with OSC regarding his additional claim that DVA
     had failed to grant his July 25, 2008 request for a 2-year extension of LWOP in
     reprisal for the purported disclosures he raised in his OSC complaint. W-1 IAF,
     Tab 34.   After exhausting his remedies with OSC regarding that claim, the
     appellant refiled his IRA appeal with the Board. Hakki v. Department of Veterans
     Affairs, MSPB Docket No. AT-1221-10-1043-W-2, Appeal File (W‑2 AF), Tab 1.
     The appeal again was dismissed without prejudice on March 30, 2012, and was
     refiled on May 16, 2012, following the completion of court‑ordered mediation in
     a related case. W-2 AF, Tab 26; Hakki v. Department of Veterans Affairs, MSPB
     Docket No. AT-1221-10-1043-W-3, Appeal File (W-3 AF), Tab 1.
¶9         While the appeal was pending before the Board, the appellant filed a
     complaint with OSC on November 6, 2012, alleging that DVA’s decision to
                                                                                              6

      cancel his LWOP on August 1, 2008, and order for him to return to duty, and his
      subsequent removal were in reprisal for disclosing that the ICRC was “in
      cahoots” with al Qaeda in Iraq. W-3 AF, Tab 76 at 56-72. The appellant asserted
      that he made this disclosure in a July 18, 2007 letter to the president of the ICRC
      that was forwarded to DOS, and during a July 31, 2007 meeting attended by R.A.,
      who worked at the Embassy and various other DOS officials. Id. at 70-71; see id.
      at 74-75.   By letter dated June 28, 2013, OSC terminated its inquiry into the
      appellant’s allegations. Id. at 82.
¶10       Without holding the requested hearing, the administrative judge dismissed the
      appeal for lack of jurisdiction. W-3 AF, Tab 82, Initial Decision (ID) at 1, 43. In
      his initial decision, the administrative judge found that the appellant proved by
      preponderant evidence that he exhausted his administrative remedies with OSC
      regarding his claim that his purported disclosures about the ICRC’s alleged
      diversion of funds, the damage and looting of the U.S.-built medical clinics, the
      improper storage of medical equipment and furniture, and the various projects the
      IRCS had proposed to DOS were contributing factors in DVA’s denial of his
      December 19, 2008 request for LWOP, DVA’s failure to act on the appellant’s
      LWOP requests of July 25, 2008, June 22, 2009, and September 29, 2009, and his
      removal. 4 ID at 18. In addition, the administrative judge found that the appellant
      established by a preponderance of the evidence that he exhausted his
      administrative remedies with OSC regarding his claim that his purported

      4
        Regarding the appellant’s claims that DVA retaliated against him for his disclosures
      by denying or failing to make a decision on his LWOP requests, the administrative
      judge explained that neither the Board, nor its reviewing court, have directly addressed
      the issue of whether the placement of an employee in an LWOP status constitutes a
      “personnel action” for the purposes of an IRA appeal. ID at 14. The administrative
      judge stated that, for the purpose of the jurisdictional analysis in this appeal, he would
      assume that the appellant raised a nonfrivolous allegation that DVA’s denial of or
      failure to act on his various LWOP requests constituted failure to take a “personnel
      action” as that term is defined in the Whistleblower Protection Act. ID at 16. In light
      of our disposition of the petition for review in this appeal, we need not resolve
      this issue.
                                                                                              7

      disclosure about the ICRC being “in cahoots” with al Qaeda in Iraq was a
      contributing factor in DVA’s August 1, 2008 decision to cancel his LWOP, its
      order that he return to duty, and his removal. 5 Id.
¶11       The administrative judge also found that the appellant nonfrivolously alleged
      that the following purported disclosures were protected: the disclosure about the
      improper storage of medical equipment and furniture, ID at 20-22; the disclosure
      about the ICRC’s alleged diversion of funds, ID at 22-23; the disclosure about the
      ICRC being “in cahoots” with al Qaeda in Iraq, ID at 23-24; and the disclosure
      about the looting and destruction of U.S.-built medical clinics in Iraq, ID
      at 25‑26. 6 The administrative judge further found, however, that the appellant
      failed to nonfrivolously allege that his protected disclosures were contributing
      factors in the personnel actions at issue in this appeal. ID at 26-43. Accordingly,
      the administrative judge dismissed the appeal for lack of jurisdiction. ID at 43.
¶12         The appellant has filed a petition for review of the initial decision. Petition
      for Review (PFR) File, Tab 1. DVA and DOS have filed a joint response to the
      petition for review. PFR File, Tab 4.

      5
        The administrative judge noted, however, that prior to filing his OSC complaints, the
      appellant had filed grievances under the negotiated grievance procedures of the
      applicable collective bargaining agreement regarding the following actions: (1) the
      instructions DVA issued on August 1, 2008, purportedly cancelling the appellant’s
      LWOP and directing him to report to work at Bay Pines on August 4, 2008; (2) DVA’s
      October 3, 2008 letter rescinding the appellant’s LWOP status effective November 3,
      2008, and directing him to return to duty on that date; and (3) DVA’s December 23,
      2008 denial of the appellant’s request for an additional 6 months of LWOP. ID at 18.
      The administrative judge explained that, pursuant to 5 U.S.C. § 7121(g)(2), once the
      appellant filed a written grievance in accordance with the parties’ negotiated procedure,
      he was thereafter precluded from seeking corrective action from OSC. ID at 18-19.
      Therefore, the administrative judge found, despite the fact that the appellant established
      that he exhausted his administrative remedies with OSC regarding these three actions,
      he failed to establish that these actions fall within the Board’s jurisdiction under the
      IRA provisions of 5 U.S.C. ch. 12, subch. III. ID at 19.
      6
        The administrative judge found that the appellant failed to nonfrivolously allege that
      his purported disclosure regarding DOS’s alleged failure to adopt the IRCS’s project
      proposals was protected. ID at 19-20. The appellant has not challenged this finding on
      review and we discern no reason to disturb it.
                                                                                           8

                                           ANALYSIS
¶13       To establish Board jurisdiction over an IRA appeal, an appellant must
      establish that he exhausted his OSC remedies and nonfrivolously allege that:
      (1) he made a protected disclosure; and (2) the disclosure was a contributing
      factor in the agency’s decision to take or fail to take a personnel action.
      Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 7 (2015);
      Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).               After
      establishing the Board’s jurisdiction in an IRA appeal, the appellant then must
      establish a prima facie case of whistleblower retaliation by proving by
      preponderant evidence that he made a protected disclosure that was a contributing
      factor in a personnel action taken against him. 5 U.S.C. § 1221(e)(1); Lu v.
      Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). The appellant
      has the right to a hearing to meet this burden.          Peterson v. Department of
      Veterans Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). If the appellant makes out a
      prima facie case, then the agency is given an opportunity to prove, by clear and
      convincing evidence, that it would have taken the same personnel action in the
      absence of the protected disclosure. 7 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R.
      335, ¶ 7.
¶14         The central issue in this appeal is whether the appellant met his burden of
      nonfrivolously alleging that any of his purported disclosures were a contributing
      factor in any of the personnel actions at issue.         Whether an appellant has
      presented nonfrivolous allegations is determined on the basis of the written
      record. Kahn v. Department of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008).
¶15         To satisfy the contributing factor criterion at the jurisdictional stage of the
      case, the appellant need only raise a nonfrivolous allegation that the fact of, or


      7
        All of the relevant events in this appeal that led to this appeal occurred before the
      December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of
      2012. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Even if we were to apply that
      statute, however, the result in this appeal would be the same.
                                                                                        9

      the content of, a protected disclosure was one factor that tended to affect the
      personnel action in any way.     Sherman, 122 M.S.P.R. 644, ¶ 8.       One way to
      establish this criterion is the knowledge/timing test, under which an employee
      may nonfrivolously allege that the disclosure was a contributing factor in a
      personnel action through circumstantial evidence, such as evidence that the
      official who took the personnel 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 personnel
      action. Id.
¶16         An appellant also may show that the protected activity was a contributing
      factor by proving that the official taking the action had constructive knowledge of
      the protected activity, even if the official lacked actual knowledge.      Nasuti v.
      Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish
      constructive knowledge by demonstrating that an individual with actual
      knowledge of the disclosure influenced the official accused of taking the
      retaliatory action.   Id.; Dorney v. Department of the Army, 117 M.S.P.R. 480,
      ¶ 11 (2012). The Supreme Court has adopted the term “cat’s paw” to describe a
      case in which a particular management official, acting because of an improper
      animus, influences an agency official who is unaware of the improper animus
      when implementing a personnel action. See id. (citing Staub v. Proctor Hospital,
      562 U.S. 411, 415-16, 419-23 (2011) (applying a cat’s paw approach to cases
      brought under the Uniformed Services Employment and Reemployment Rights
      Act of 1994)).    If the appellant fails to satisfy the knowledge/timing test, the
      Board must consider other evidence, such as that pertaining to the strength or
      weakness of the agency’s reasons for taking the personnel action, whether the
      whistleblowing was personally directed at the proposing or deciding officials, and
      whether those individuals had a desire or motive to retaliate against the appellant.
      Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013).
                                                                                       10

      The administrative judge correctly found that the appellant failed to
      nonfrivolously allege that any DVA official had actual knowledge of any of
      his disclosures.
¶17        In determining if the appellant met his jurisdictional burden regarding the
      contributing factor element of his appeal, the administrative judge first
      considered whether the appellant alleged that any DVA official had actual
      knowledge of his disclosures. ID at 26. The administrative judge noted that the
      appellant did not allege that he made his disclosures to or in the presence of any
      DVA employee, nor did he allege that anyone with knowledge of his disclosures
      communicated the substance of the disclosures to any DVA official. Id. The
      appellant does not contest these findings on review. Therefore, we find that the
      administrative judge properly found the appellant failed to nonfrivolously allege
      that any DVA official involved in the decisions regarding his LWOP requests or
      his removal had actual knowledge of his disclosures. Id.
      The administrative judge correctly found that the appellant failed to
      nonfrivolously allege that his purported disclosure to the health attaché was a
      contributing factor in any of the personnel actions at issue.
¶18        The    administrative    judge   then   considered    whether   the   appellant
      nonfrivolously alleged that any of his disclosures were a contributing factor in the
      personnel actions at issue based upon a theory of constructive knowledge.
      Regarding the appellant’s purported disclosure to the health attaché about the
      alleged improper storage of furniture and medical equipment, the administrative
      judge noted that the appellant did not allege that DOS transmitted any
      information provided by the health attaché to DVA in response to its requests for
      information about the appellant, nor did the appellant allege that he disclosed that
      furniture and equipment had been improperly stored to anyone other than the
      health attaché.   ID at 27.   Thus, the administrative judge found, the appellant
      failed to allege that any person with actual knowledge of the disclosure that the
      appellant made to the health attaché influenced any DVA employee involved in
      the decisions regarding the appellant’s LWOP requests or his removal. Id. The
                                                                                       11

      appellant does not challenge the administrative judge’s finding that he failed to
      nonfrivolously allege that his disclosure to the health attaché was a contributing
      factor in the personnel actions at issue in this appeal, and we discern no reason to
      disturb this finding.
      The appellant failed to nonfrivolously allege that his disclosures were a
      contributing factor in DVA’s failure to grant his July 25, 2008 request for a
      2‑year extension of LWOP.
¶19         The   administrative   judge     then   considered   whether   the   appellant
      nonfrivolously alleged that any of his other purported disclosures were a
      contributing factor to DVA’s failure to issue a decision regarding the appellant’s
      LWOP requests of July 25, 2008, June 22, 2009, and September 29, 2009, and the
      appellant’s removal.    ID at 27-41.     Regarding the appellant’s July 25, 2008
      LWOP request, the administrative judge found that, based on the appellant’s
      allegations, it appears that beginning in late July or early August of 2008, DVA
      asked DOS for information about the appellant’s status in Iraq for the purpose of
      deciding what actions to take regarding that request.          ID at 29-30.     The
      administrative judge further found that it appears that DVA relied on the
      information that DOS provided in deciding whether to grant the appellant’s
      requests for LWOP. ID at 30; see ID at 29-38 (describing the communications
      between DVA and DOS regarding the appellant following his July 25, 2008
      LWOP request).
¶20         However, the administrative judge found that, other than R.A., the appellant
      did not allege that any of the individuals to whom he made his disclosures were
      involved in submitting information to DVA regarding the appellant’s status and
      activities in Iraq. ID at 38. As for the information that R.A. provided about the
      appellant, the administrative judge noted that during his deposition, R.A.
      indicated that he provided information to DOS official T.B. in response to DVA’s
      questions regarding the appellant’s status. ID at 30; see W-3 AF, Tab 76 at 73.
      The administrative judge also noted that on July 30, 2008, R.A. sent the following
                                                                                    12

      reply to DOS employee M.S.’s July 29, 2008 email stating that she had shared
      with DVA the contents of a document that the Embassy had compiled about the
      appellant and had declined to offer DOS’s support for the appellant’s July 25,
      2008 LWOP request:
            [The appellant] has arrest warrants against him in an expanding,
            major corruption investigation.       His “leadership” has greatly
            damaged the effectiveness of the Iraqi Red Crescent. He has been
            using his “connections” to the [U.S. Government] to advance his
            interests in Iraq. [The appellant] has no role with USM-I. I believe
            that [M.S.] provided the right advice to the [DVA].
      ID at 30; see W-3 AF, Tab 75 at 131. The administrative judge further noted that
      on September 16, 2008, R.A. sent T.B. and two other DOS employees an email
      stating that: several of the Red Crescent chapters met in Sulymaniah, Iraq, on
      September 15, 2008, to elect new leadership; the Washington Post was working
      on a story “on this whole saga” and had been in touch with the appellant the
      previous day; and the appellant maintained that Iraq had dropped all charges
      against him. ID at 32; see W-3 AF, Tab 75 at 135.
¶21        The administrative judge noted, moreover, that on September 30, 2008,
      R.A. sent the following email to T.B., who forwarded the contents of the email
      to DVA:
            We understand from ICRC that [the appellant] resigned after the first
            [Sulymaniah] meeting deemed him ineligible to run. Neither we nor
            our contacts have seen a letter and we are not in contact with the
            participants of the meeting. I have not seen this in print in
            the media.
            The main point is that [the appellant] had now been ousted twice.
            First by the [PM] in the letter forwarded earlier and second by a sub
            set of the membership in [Sulymaniah]. This is [unclassified] and
            has been in the media. So whether [the appellant] acknowledges his
            ouster or not, does not change the fact that he has been ousted—
            twice.
      ID at 35; see W-3 AF, Tab 75 at 99, 101.
¶22        The   administrative   judge   found   that,   although   some   of   R.A.’s
      communications with other DOS employees were critical of the appellant and his
                                                                                     13

      performance as president of the IRCS, and some of the information DOS provided
      DVA may not have been supportive of the appellant and his management of the
      IRCS, the appellant did not allege that the information DOS provided in response
      to DVA’s requests for such information was other than the best, most accurate,
      and most comprehensive information it had available at the time. ID at 39. The
      administrative judge concluded that, given the absence of an allegation that DOS
      manipulated the information it provided DVA to cast the appellant in a more
      negative light than warranted by the actual information DOS had at its disposal,
      the appellant did not raise a nonfrivolous allegation that the factual information
      DOS provided DVA regarding his status influenced DVA’s failure to grant his
      request for an extension of LWOP. Id. (citing Aquino v. Department of Homeland
      Security, 121 M.S.P.R. 35, ¶ 21 (2014), and Staub, 562 U.S. at 422).
¶23        The administrative judge also found, however, that DOS provided more
      than merely factual information to DVA regarding the appellant. ID at 39. In
      that regard, the administrative judge noted that M.S. apparently advised DVA in
      July 2008, that DOS would not support the appellant’s request for an extension of
      LWOP, and T.B. apparently advised DVA in or around September 2008, that DOS
      did not consider the appellant’s presence in Iraq as serving the interests of the
      U.S. Government. Id.; see W-3 AF, Tab 75 at 131, 138.
¶24        As to whether M.S. or T.B. knew of the appellant’s purported disclosures,
      the administrative judge found that the record indicates that M.S. was aware of
      reports that the appellant had alleged that the ICRC was “up to no good” with
      al Qaeda in Iraq because she was copied on an email which asked whether the
      appellant had ever made such allegations. ID at 40 n.11; see W-3 AF, Tab 74
      at 89-91. The administrative judge found, however, that in his OSC complaint
      regarding this disclosure, the appellant did not identify DVA’s failure to approve
      his July 25, 2008 LWOP request as one of the personnel actions for which this
      disclosure was a contributing factor, and he did not allege that M.S. had actual
      knowledge of any of his other disclosures. ID at 40 n.11.
                                                                                          14

¶25      The administrative judge implicitly reasoned that, because the appellant
      did not exhaust his remedies with OSC regarding his claim that his disclosure
      about the ICRC “being in cahoots” with al Qaeda in Iraq was a contributing factor
      to the agency’s decision not to grant his July 2008 LWOP request, and he did not
      allege that M.S. or T.B. had knowledge of his other disclosures, the appellant
      did not allege that M.S. or T.B. had actual knowledge of any of the disclosures
      for which he exhausted his administrative remedies with OSC regarding DVA’s
      failure to approve his July 2008 LWOP request.           ID at 39-40.   Therefore, the
      administrative judge found, to the extent that the appellant’s submissions might
      be viewed as alleging that M.S. or T.B. influenced DVA’s decision regarding the
      appellant’s July 2008 LWOP request by indicating that DOS could not support the
      request and did not consider the appellant’s presence in Iraq as serving the
      interests of the U.S. Government, such allegations are insufficient to constitute a
      nonfrivolous allegation that DVA failed to grant the appellant’s request for an
      extension of LWOP based on an official’s constructive knowledge of the
      appellant’s disclosures.      ID at 40.    Accordingly, the administrative judge
      concluded, the appellant failed to raise a nonfrivolous allegation of facts which, if
      proven, could establish that his protected disclosures were a contributing factor in
      DVA’s failure to grant his July 2008 LWOP request. Id.
¶26      The   appellant   challenges    this   finding   on   review,   arguing   that   the
      administrative judge erred in concluding that he failed to allege that the
      information DOS provided in response to DVA’s requests for information about
      him was other than the best, most accurate, and most comprehensive information
      it had available at the time. PFR File, Tab 1 at 7. In support of this claim, the
      appellant asserts that DOS transmitted information to DVA that was not accurate
      when DVA relied on this information in deciding not to grant his July 2008
      LWOP request.     Id. at 5.   More specifically, he contends that DVA relied on
      DOS’s recommendation not to support his LWOP request in deciding not to
      respond to the request; however, when DOS notified DVA that it did not support
                                                                                    15

      the appellant’s July 25, 2008 LWOP request, the purported factual basis for
      DOS’s position—the July 31, 2008 dissolution of the ICRC’s governing Board by
      the PM—had not yet occurred. Id. at 6. Therefore, the appellant contends, the
      information that DOS provided DVA in furtherance of M.S.’s decision not to
      support the appellant’s July 25, 2008 LWOP request was manipulated by
      presenting facts that had not yet occurred. Id. at 7. The appellant then reasons
      that, because the purported factual basis for DOS’s decision not to support his
      LWOP request had not yet occurred when M.S. conveyed this decision to DVA,
      DOS knew at that time that there was no “legal basis” for its decision and the
      only “reasonable conclusion” is that DOS did not support his request in reprisal
      for his protected disclosures. Id. at 13.
¶27         We find this argument unpersuasive because it is based on a false premise;
      namely, that DOS’s purported reason for not supporting the appellant’s July 2008
      LWOP request was the dissolution of the ICRC’s governing board.        Although
      M.S.’s July 29, 2008 email shows that DOS did not support the appellant’s
      July 25, 2008 request even prior to the dissolution of the ICRC’s governing
      board, W‑3 AF, Tab 75 at 131, there is no evidence that DOS ever informed DVA
      that the dissolution of the board was why it did not support the appellant’s
      July 25, 2008 LWOP request. Based on our review of the record, we find that
      there is no evidence to support the appellant’s contention that DOS manipulated
      the facts to provide DVA with a negative recommendation about his July 2008
      LWOP request, nor is there any evidence indicating that the real reason for DOS’s
      lack of support for his request was his protected disclosures.
¶28         We similarly find unavailing the appellant’s argument on review that the
      information exchanged between R.A. and T.B. that was transmitted to DVA
      amounted to more than merely factual information about him. PFR File, Tab 1
      at 11. The appellant does not offer any argument or evidence to support this bare
      assertion.   His apparent contention that the information from R.A. that was
      conveyed to DVA through DOS employees included nonfactual information about
                                                                                       16

      him thus constitutes mere disagreement with the administrative judge’s explained
      findings and, as such, provides no reason to disturb the initial decision.      See
      Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 12 (2010) (stating that the
      appellant’s allegations constituted mere disagreement with the administrative
      judge’s explained factual findings and legal conclusions and therefore did not
      provide a basis for Board review).
¶29      The appellant further argues on review that the initial decision “acknowledged
      that [M.S.] and [T.B.] were made aware of the [a]ppellant’s disclosures” yet
      “concludes that [the] [a]ppellant ‘has not alleged that either [M.S.] or [T.B.] had
      actual knowledge of any of the disclosures . . . .’”      PFR File, Tab 1 at 9-10
      (quoting ID at 39). The appellant contends that M.S. was aware of the reports of
      his disclosures regarding al Qaeda and that T.B. “without question” was aware of
      his protected disclosures. PFR File, Tab 1 at 10.
¶30      Contrary to the appellant’s contention, the administrative judge did not
      acknowledge that T.B. was made aware of the appellant’s disclosures, and the
      appellant does not submit any evidence or argument in support of his bare
      assertion that T.B. was aware of his disclosures.     Further, the initial decision
      did not find that the appellant failed to allege that either M.S. or T.B. had actual
      knowledge of any of the disclosures.            Rather, as previously noted, it
      acknowledged that it appeared that M.S. was aware that the appellant had
      reportedly alleged that ICRC was “in cahoots” with al Qaeda in Iraq, but found
      that the appellant did not exhaust his administrative remedies before OSC
      regarding his claim that this disclosure was a contributing factor in DVA’s failure
      to grant his July 2008 LWOP request, see ID at 40 n.11, and that the appellant
      failed to allege that either M.S. or T.B. had actual knowledge of any of the
      disclosures for which he had exhausted his administrative remedies with OSC
      regarding DVA’s failure to approve his request for a 2-year extension of LWOP,
      ID at 39‑40.
                                                                                       17

¶31        As for M.S.’s knowledge of the appellant’s other disclosures, the appellant
      argues on review that M.S.’s statement in her July 29, 2008 email to DVA that
      “the Sakki saga continues” reflects that she was aware of his disclosures. PFR
      File, Tab 1 at 9 n.4; see W-3 AF, Tab 75 at 131. The appellant has not cited any
      evidence to support his bare assertion that M.S. was referring to the appellant’s
      disclosures when she used the term “saga,” nor is there any evidence indicating
      that M.S. was aware of any disclosure other than the appellant’s allegations
      regarding al Qaeda in Iraq.
¶32        On review, the appellant also challenges the administrative judge’s finding
      that, when he filed his OSC complaint regarding the disclosure that the ICRC was
      “in cahoots” with al Qaeda in Iraq, he did not allege that this disclosure was a
      contributing factor in DVA’s failure to approve his July 2008 request for an
      extension of LWOP. PFR File, Tab 1 at 8-9; see ID at 40 n.11. The appellant
      asserts that, in making this finding, the administrative judge failed to
      acknowledge that, in the complaint in question, the personnel actions that he
      claimed were taken in reprisal for this disclosure included all agency actions
      since “July 2008 and thereafter,” and not merely the August 1, 2008 cancellation
      of his LWOP. PFR File, Tab 1 at 8-9, see W-3 AF, Tab 76 at 61. The appellant
      contends that, because the cancellation of his LWOP did not occur until August 1,
      2008, the July 2008 date was intended to include DVA’s July 2008 decision not to
      act upon his request for a 2-year extension of LWOP. PFR File, Tab 1 at 9 n.3.
¶33        Based on our review of the record, we agree with the administrative judge
      that the appellant did not allege before OSC that DVA’s failure to approve his
      July 25, 2008 LWOP request was one of the personnel actions that was taken in
      reprisal for his purported disclosure that the ICRC was “in cahoots” with
      al Qaeda in Iraq. In the November 6, 2012 OSC complaint in which the appellant
      raised this disclosure, he clearly stated that the agency canceled his LWOP on
      August 1, 2008, and subsequently removed him in reprisal for this disclosure.
      W‑3 AF, Tab 76 at 72. Significantly, however, he did not clearly allege before
                                                                                           18

      OSC that DVA failed to act on his July 25, 2008 request for LWOP in reprisal for
      this disclosure. 8 Consequently, the administrative judge properly found that the
      appellant did not exhaust his administrative remedies before OSC regarding his
      claim that DVA failed to grant his July 2008 LWOP request in retaliation for his
      disclosure that the ICRC was “in cahoots” with al Qaeda in Iraq. ID at 40 n.11;
      see Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004) (explaining that,
      to meet the exhaustion requirement, the appellant must articulate with reasonable
      clarity and precision before OSC the basis of her request for corrective action).
      Accordingly, we discern no reason to disturb the administrative judge’s finding
      that the appellant failed to nonfrivolously allege that his protected disclosures
      were a contributing factor in DVA’s failure to grant his July 2008 LWOP request.
      ID at 40.
      The administrative judge correctly found that the appellant failed to
      nonfrivolously allege that any of his purported disclosures were a contributing
      factor in the remaining personnel actions at issue in this appeal.
¶34         Turning to the issue of whether the appellant nonfrivolously alleged, based
      on a constructive knowledge theory, that his protected disclosures were a
      contributing factor in the agency’s removal action and the failure to grant his
      June 22 and September 29, 2009 requests for LWOP, the administrative judge
      considered the communications between DOS and DVA relevant to each of these
      personnel actions. ID at 40-41. Regarding the appellant’s June 22, 2009 LWOP
      request, see W-1 IAF, Tab 5, Subtab 4n at 160-61, the administrative judge noted
      that the Bay Pines Medical Center’s Acting Human Resources Officer issued a
      brief dated June 23, 2009, and updated on June 24 and July 6, 2009, which states
      as follows:      there was an Iraqi arrest warrant for the appellant for
      misappropriation of funds while he served as president of the IRCS; and DOS had
      informed DVA that the Government of Iraq had recently filed an extradition
      8
        In contrast, in his January 28, 2011 OSC complaint, the appellant specifically alleged
      that the agency failed to act on his July 2008 LWOP request in reprisal for his other
      disclosures. W-2 AF, Tab 1 at 37‑38.
                                                                                      19

      request for the appellant with DOS. ID at 37-38, 41; see W-3 AF, Tab 76 at 219.
      The administrative judge found that the appellant did not allege that DOS misled
      DVA concerning his status with the IRCS, nor did he allege that the information
      DOS may have provided DVA regarding the arrest warrant and the extradition
      request was inaccurate or provided by DOS employees with actual knowledge of
      the appellant’s disclosures. ID at 41. Based on the analysis he applied in finding
      that the appellant failed to nonfrivolously allege that his disclosures were a
      contributing factor in DVA’s failure to grant his July 2008 LWOP request, the
      administrative judge found that the appellant failed to nonfrivolously allege that
      the DVA officials who failed to grant the appellant’s June 22, 2009 request for
      LWOP for the period from July 1 to September 30, 2009, had actual or
      constructive knowledge of his disclosures.      Id.   Therefore, the administrative
      judge found, the appellant failed to nonfrivolously allege that his disclosures
      were a contributing factor in DVA’s failure to grant his June 22, 2009 request for
      LWOP. Id. The appellant does not specifically challenge this finding on review
      and we discern no reason to disturb it.
¶35        Regarding the appellant’s September 29, 2009 LWOP request, W-1 IAF,
      Tab 17, Exhibit 27, the administrative judge noted that the record does not
      contain any evidence indicating that DVA had any communications with DOS
      regarding this LWOP request. ID at 41. The administrative judge correctly found
      that, in the absence of any allegation that DVA received additional input from
      DOS regarding the appellant’s September 29, 2009 request for LWOP, the
      appellant failed to nonfrivolously allege that his disclosures were a contributing
      factor in DVA’s failure to grant this request. ID at 41.
¶36        As for the appellant’s removal, the administrative judge noted that the
      appellant did not allege that DVA consulted any DOS employee regarding the
      decision to remove him. ID at 41-42. The administrative judge found that the
      appellant’s claims concerning his removal are intertwined with his claims
      regarding DVA’s failure to grant his LWOP requests because the dates covered
                                                                                       20

      by his July 2008 LWOP request include the time period during which he was
      charged as AWOL. ID at 42. The administrative judge explained that, if the
      appellant had established that DVA would have granted his requests for LWOP
      during the AWOL period but for his protected disclosures, he also would have
      established that his disclosures were a proximate cause for his removal, because
      DVA could not have properly charged him as AWOL during a period when he
      was in an approved leave status. Id.; see, e.g., Willis v. Department of Defense,
      105 M.S.P.R. 466, ¶ 19 (2007) (finding that an AWOL charge may not be
      sustained without evidence that an employee was absent and that his absence
      was not authorized or that his request for leave was properly denied).          The
      administrative judge correctly found that, given the appellant’s failure to
      nonfrivolously allege that his protected disclosures were a contributing factor in
      DVA’s failure to grant his request for a 2-year extension of LWOP, and the
      absence of any allegation that an individual with actual knowledge of the
      appellant’s protected disclosures influenced DVA regarding the removal decision
      itself, the appellant failed to nonfrivolously allege that his protected disclosures
      were a contributing factor in DVA’s decision to remove the appellant. ID at 42.
      We modify the initial decision to address whether the appellant met the
      contributing factor jurisdictional element of his IRA appeal notwithstanding his
      failure to satisfy the knowledge/timing test.
¶37        In sum, we agree with the administrative judge that the appellant failed to
      satisfy the knowledge prong of the knowledge/timing test for contributing factor
      under a theory of either actual or constructive knowledge. As previously noted,
      however, if an appellant fails to satisfy the knowledge/timing test, the Board must
      consider other evidence, such as that pertaining to the strength or weakness of the
      agency’s reasons for taking the personnel action, whether the whistleblowing was
      directed personally at the proposing or deciding official, and whether those
      individuals had a desire or motive to retaliate against the appellant.     Rumsey,
      120 M.S.P.R. 259, ¶ 26. Accordingly, we also have considered these factors in
                                                                                         21

      assessing whether the appellant met his jurisdictional burden regarding the
      contributing factor element of his appeal.
¶38         Based on our review of the record, we find that the agency had very strong
      reasons for denying the appellant’s LWOP requests and for removing him for
      unauthorized absence when he refused to return to duty following the expiration
      of his LWOP at the end of 2008. The Board has held that the question of granting
      LWOP to an employee is totally within the agency’s discretion.             Thomas v.
      Department of the Army, 23 M.S.P.R. 483, 484 (1984), aff’d, 776 F.2d 1062 (Fed.
      Cir. 1985).   At the time of the personnel actions at issue in this appeal, the
      appellant had been in an LWOP status for more than 5 years. Given the events of
      2008 involving the appellant and the PM, DVA acted within its discretion in
      finding that LWOP was no longer warranted and that the appellant should return
      to his position as a physician at the Bay Pines Medical Center. Moreover, the
      appellant’s disclosures were not directed personally at the proposing or deciding
      official, nor is there any evidence that those individuals had a desire or motive to
      retaliate against the appellant. Therefore, we agree with the administrative judge
      that the appellant failed to satisfy the contributing factor jurisdictional element of
      his IRA appeal, and the appeal must be dismissed for lack of jurisdiction.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. 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
                                                                                   22

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 review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. 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 choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. 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 the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
                                                                                 23

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 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.
