                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THASHA A. BOYD,                                  DOCKET NUMBER
                  Appellant,                          AT-3443-13-7178-I-1

                  v.

     DEPARTMENT OF LABOR,                             DATE: November 21, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thasha A. Boyd, Kennesaw, Georgia, pro se.

           Uche N. Egemonye, Atlanta, Georgia, for the agency.


                                             BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed   this   individual   right   of   action   (IRA)   appeal   regarding   her
     pre-appointment background investigation for lack of jurisdiction.            For the
     reasons discussed below, we GRANT the appellant’s 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
¶2         The appellant applied for several vacancies with the Department of
     Homeland Security (DHS), and was tentatively selected for a position in late
     2012, pending a background investigation.           Boyd v. Office of Personnel
     Management, MSPB Docket No. AT-0731-13-7162-I-1 (Boyd I), Initial Appeal
     File (IAF-I), Tab 1 at 5, 12; Boyd v. Department of Homeland Security, MSPB
     Docket No, AT-1221-13-3375-W-1, Initial Appeal File (IAF-III), Tab 4 at 20-21,
     Tab 6 at 20-21. DHS rescinded its tentative offer in April 2013. IAF-I, Tab 1
     at 12. DHS indicated that while there was an immediate need to fill the position
     in order to meet mission requirements, the agency was unable to determine how
     long it would take to complete its investigation into the appellant’s background.
     Id. Subsequently, the appellant filed an IRA appeal with the Board alleging that
     this rescission was the result of whistleblower disclosures she made in May 2010
     and April 2011, while employed at the Department of Labor (DOL). 2                 Id.
     at 5, 9-10.
¶3         The appeal was docketed as three separate cases against the Office of
     Personnel Management (OPM), DOL, and DHS, the three parties named by the
     appellant. See IAF-I (claim against OPM); Boyd v. Department of Labor, MSPB
     Docket No. AT-3443-13-7178-I-1 (Boyd II), Initial Appeal File (IAF-II) (claim



     2
       The appellant resigned from her DOL position in April 2012. In three prior Board
     appeals, she alleged that DOL constructively removed her and engaged in whistleblower
     retaliation. The Board dismissed the constructive removal appeal. Boyd v. Department
     of Labor, MSPB Docket No. AT-0752-12-0513-I-1, Final Order at 3-8 (Sept. 17, 2013).
     The Board reviewed her whistleblower retaliation claims, found that she failed to meet
     her burden of proof as to one and dismissed the other based upon judicial efficiency.
     Boyd v. Department of Labor, MSPB Docket Nos. AT-1221-12-0456-W-1 &
     AT-1221-12-0665-W-1, Final Order at 4, 7-11 (Sept. 17, 2013). The Federal Circuit
     affirmed those decisions. Boyd v. Department of Labor, 561 F. App’x 973 (Fed. Cir.
     2014) (Table); Boyd v. Department of Labor, 561 F. App’x 978 (Fed. Cir. 2014)
     (Table).
                                                                                             3

     against DOL); IAF-III (claim against DHS). We refer here to the appellant’s IRA
     claims against OPM and DOL as Boyd I and Boyd II, respectively.
¶4         For the appellant’s claims against OPM and DOL, the administrative judge
     issued show cause orders to the appellant to submit argument and evidence
     constituting nonfrivolous allegations falling within the Board’s jurisdiction.
     IAF-I, Tab 3; IAF-II, Tab 3. The appellant submitted responses for each. IAF-I,
     Tab 4; IAF-II, Tab 5.      Nevertheless, the administrative judge dismissed both
     cases for lack of jurisdiction.     IAF-I, Tab 11, Initial Decision (ID I); IAF-II,
     Tab 10, Initial Decision (ID-II).     The appellant has filed petitions for review.
     Boyd I, MSPB Docket No. AT-0731-13-7162-I-1, Petition for Review (PFR-I)
     File, Tab 1 (claim against OPM); Boyd II, MSPB Docket No. AT-3443-13-7178-I-
     1, Petition for Review (PFR-II) File, Tab 1 (claim against DOL). In this Order,
     we address the appellant’s claims against DOL in Boyd II.
¶5         The Board has jurisdiction over an IRA appeal if the appellant exhausts her
     administrative remedies before the Office of Special Counsel (OSC) 3 and makes
     nonfrivolous allegations that: (1) she made a disclosure described under 5 U.S.C.
     § 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
     was a contributing factor in the agency’s decision to take or fail to take a
     personnel action as defined by 5 U.S.C. § 2302(a).             5 U.S.C. §§ 1214(a)(3),
     1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
     Cir. 2001). For the first element, engaging in whistleblowing activity by making
     a protected disclosure, the Board has found that an individual who is perceived as
     a whistleblower is still entitled to the protections of the Whistleblower Protection


     3
       The administrative judge did not address this jurisdictional requirement in his initial
     decisions, see ID-I at 4-7; ID-II at 4-7, but the appellant’s appeal included letters from
     OSC indicating that she had filed a complaint and that OSC was closing its inquiry,
     IAF-I, Tab 1 at 13-15. Therefore, we find that the appellant exhausted her claims
     before OSC.
                                                                                        4

     Act (WPA), 4 even if she has not made protected disclosures. King v. Department
     of Army, 116 M.S.P.R. 689, ¶ 6 (2011).
¶6        In Boyd II, the appellant’s response to the show cause order alleged that two
     of her former supervisors at DOL were in positions to provide negative
     employment references for the DHS vacancy. IAF-II, Tab 5 at 4-5. She surmised
     that these DOL supervisors provided such references in retaliation for her alleged
     whistleblowing while employed there. Id. at 5. In her petition for review of
     Boyd II, the appellant argues that the administrative judge erred in finding that
     there was no evidence of DOL’s retaliating by providing negative information to
     OPM. PFR II, Tab 1 at 6. Moreover, she argues that DOL’s providing negative
     information, if any, was a “personnel action” under the WPA and that the
     administrative judge erred in finding otherwise. Id. at 6-9.
¶7        As detailed above, to establish jurisdiction in an IRA appeal as a
     whistleblower, an appellant must present a nonfrivolous allegation that she
     engaged in a protected disclosure or that she was perceived as a whistleblower.
     King, 116 M.S.P.R. 689, ¶¶ 6, 8. In her initial appeals, the appellant did not
     identify specific disclosures, but she did reference prior claims she had before the
     Board regarding her alleged whistleblowing. IAF-I, Tab 1 at 5 & n.3; IAF-II, Tab
     1 at 5 & n.3. She also alleged that OPM perceived her as a whistleblower because
     she had informed DHS that she was engaged in litigation with DOL over
     disclosures of fraud, waste, and abuse. IAF-I, Tab 4 at 6, 31-36. She speculated
     that OPM would have learned of this, id. at 6, but provided no supportive
     evidence.   To the contrary, her evidence of OPM’s background investigation
     contains no reference to these materials and no mention of whistleblowing. Id. at
     20-21. Nevertheless, in a prior case, the Board confirmed that the appellant had



     4
      The Whistleblower Protection Enhancement Act of 2012 (WPEA), which amended the
     WPA, became effective on December 27, 2012, before the appeal was filed in this case.
     The changes enacted by the WPEA do not affect the outcome of this appeal.
                                                                                             5

      made protected disclosures. 5 See Boyd, Docket Nos. AT-1221-12-0456-W-1 &
      AT-1221-12-0665-W-1, Final Order at 7 (Sept. 17, 2013).
¶8          Although the Board found her disclosures protected in a previous appeal,
      the appellant also must satisfy the second jurisdictional element, a nonfrivolous
      allegation that the disclosure was a contributing factor in an agency decision to
      take or fail to take a personnel action. King, 116 M.S.P.R. 689, ¶¶ 6, 9. We find
      that the appellant’s assertions, accepted as true, constituted a nonfrivolous
      allegation of jurisdiction that DOL’s actions amounted to a threatened or an
      actual denial of appointment and thus constituted a covered “personnel action”
      under our precedent.
¶9          In Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 23 (2012), the Board
      held that “blacklisting” an employee could constitute a personnel action within
      the meaning of the WPA. There, the appellant asserted that the agency retaliated
      against him for his protected disclosures, in part, by relieving him of his duties,
      denying him the opportunity to extend his appointment, and “blacklisting” him
      from future employment opportunities.           Id., ¶ 17.    The Board found that,
      construed broadly, “blacklisting” could constitute a failure to appoint, or a
      threatened failure to appoint, both of which are expressly covered personnel
      actions under the WPA, and, therefore, remanded the appeal for further
      adjudication. Id., ¶ 23.
¶10         It is well-established that an appointment to a position may be conditioned
      upon the completion of a background investigation and that information
      discovered in the course of that investigation may be the basis for the cancellation
      of an appointment. See Brown v. Social Security Administration, 118 M.S.P.R.

      5
        The protected disclosures were letters to the Government Accountability Office,
      requesting investigation into the operations of the Office of Foreign Labor Certification
      as it related to a lack of production standards, frequent breaks, pay inequality,
      questionable hiring practices, misuse of government equipment, and poor training.
      Boyd, MSPB Docket Nos. AT-1221-12-0456-W-1 & AT-1221-12-0665-W-1, Final
      Order at 3, n.4 (Sept. 17, 2013).
                                                                                       6

      128 (2012); 5 C.F.R. Parts 731, 736. However, this appeal involves more than a
      merely hypothetical effect from the dissemination of derogatory information.
      Taking the appellant’s assertions as true, the allegedly negative information
      clearly represented a direct and credible threat to the appellant’s conditional DHS
      appointment. This threat was not speculative, but rather, was comparable to the
      allegation of “blacklisting” deemed actionable in Mattil,       involving specific
      actions by an agency official to prevent the appellant’s employment in a
      particular position, and, therefore, could constitute a personnel action within the
      meaning of the WPA.
¶11         Because the appellant established jurisdiction over her IRA appeal in
      Boyd II, she is entitled a hearing on the merits.

                                            ORDER
¶12        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.
