MSPB Case Report (Februay 28, 2014)
From: MSPB Decisions List (MSPB-DECISIONSLIST-L@LISTSERV.MSPB.GOV) on behalf of Coleman, Jocelyn (Jocelyn.Coleman@MSPB.GOV) This sender
is in your safe list.
Sent: Fri 2/28/14 3:53 PM
A new Case Report has been posted to the public website.
In Jones v. Department of the Navy, 2014 MSPB 10, the Board reversed the agency's indefinite suspension, which had been effected on the basis that the
appellant had lost his eligibility to occupy a sensitive position. The indefinite suspension was effected by Shipyard officials, but the agency's Central
Adjudication Facility was the only entity with the authority to rule on the appellant's eligibility to occupy a sensitive position.
In Clarke v. Department of Veterans Affairs, 2014 MSPB 11, a majority of the Board agreed with the administrative judge's finding that the appellant had
failed to exhaust his administrative remedy with OSC with respect to 6 of his 8 alleged disclosures, and denied his request for corrective action as to the
other disclosures on the merits. In her dissenting opinion, Vice Chairman Wagner explained why she would have found that the appellant exhausted his
OSC remedy with respect to 5 of the 6 contested disclosures. The majority decision also pointed out that, pursuant to an amendment made by the WPEA,
the Board may not proceed to the clear and convincing evidence test unless it has first made a finding that the appellant established his prima facie case of
reprisal for protected whistleblowing.
Nasuti v. Department of State, 2014 MSPB 12, was before Board remand from the Federal Circuit to address the appellant's contention that his
employment was terminated because he made a whistleblowing disclosure alleging that substandard and inadequate body armor was being supplied to
State Department employees en route to Iraq. Specifically, the court asked the Board to decide whether section 101 of the WPEA applies retroactively
and, if so, whether the appellant had alleged a protected disclosure under the new statute. The Board answered both questions in the affirmative and
remanded the case to the regional office for adjudication on the merits.
In DeLeon v. Department of the Army, No. 2013-3129, the Federal Circuit ruled that it lacks jurisdiction to review an arbitration decision brought by NAFI
On a personal note, I want to say that it has been an honor and a privilege to draft and post the Case Reports for our employees and the ListServ
community for the past seven years. I have been informed that, starting with the next Report, preparation of the Case Reports is being transferred to the
Office of General Counsel.
MSPB Published Decisions Issued For Most Recent Three Month Period
If you no longer wish to receive this message or need to make a change of address,
please click on the following link:
Change of Address/Unsubscribe
Follow us on Twitter at www.twitter.com/USMSPB
Case Report for February 28, 2014
Change Font Size: + + + + +
Note: These summaries are descriptions prepared by individual MSPB employees. They do
not represent official summaries approved by the Board itself, and are not intended to provide
legal counsel or to be cited as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
Appellant: Douglas C. Jones
Agency: Department of the Navy
Decision Number: 2014 MSPB 10
Docket Number: DC-0752-12-0562-I-1
Issuance Date: February 24, 2014
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
- Eligibility to Occupy a Sensitive Position
The appellant petitioned for review of an initial decision that affirmed his indefinite
suspension. The appellant is employed as a Rigger at the Norfolk Naval Shipyard (NNSY), a
position that requires eligibility to occupy a sensitive position as a condition of employment, and
also requires that the incumbent possess a security clearance. In March 2012, the agency's
Central Adjudication Facility (DON CAF) issued a Letter of Intent (LOI) to deny the appellant
eligibility for access to classified information and assignment to a sensitive position. The LOI
included a Statement of Reasons for the preliminary determination. The agency subsequently
suspended the appellant's access to classified information, and proposed and effected an
indefinite suspension on a charge of ineligibility to occupy a sensitive position. The suspension
was to remain in effect until a final decision was issued by DON CAF. On appeal to the Board,
the administrative judge affirmed the indefinite suspension based on the written record.
Holdings: The Board granted the appellant's petition for review, reversed the initial decision,
and ordered the agency to cancel the indefinite suspension and restore the appellant to
1. Within the agency, DON CAF is the sole entity responsible for establishing eligibility for
access to classified information and/or assignment to a sensitive position.
2. NNYS itself lacked the authority to find the appellant ineligible to occupy a sensitive position
because only DON CAF may make such a determination. Because the appellant had not been
found ineligible to occupy a sensitive position at the time the agency indefinitely suspended him,
the agency's charge fails, and the action cannot be sustained.
Appellant: Colin Clarke
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 11
Docket Numbers: NY-1221-10-0226-W-2 and NY-1221-11-0169-W-2
Issuance Date: February 27, 2014
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Exhaustion of OSC Remedy
The appellant petitioned for review of an initial decision that dismissed his IRA appeals. In
February 2008, the appellant was appointed to the part-time excepted service position of
Physician at a VA Medical Center pursuant to 38 U.S.C. § 7405(a)(1). His employment was
terminated in late 2009 based on the appellant's failure to meet the agency's requirement that
all physicians maintain an unrestricted license to practice medicine. After twice seeking
corrective action from the Office of Special Counsel (OSC), the appellant filed two IRA appeals
with the Board. The first alleged that his employment was terminated because of 8
whistleblowing disclosures. The second IRA appeal alleged that the agency denied his request
for reinstatement to service in reprisal for making a disclosure to the agency's Office of
Inspector General and to OSC. The administrative judge found that the appellant established
jurisdiction over his first IRA appeal. The judge determined that the appellant failed to exhaust
his administrative remedy with OSC with respect to 6 of his 8 disclosures. Notwithstanding this
determination, the judge proceeded to find, in the alternative, that the appellant failed to
establish that these constituted protected disclosures. The judge similarly found that the
appellant failed to establish that his other 2 disclosures were protected. While the judge thus
concluded that the appellant failed to establish that he made any protected disclosures, he
proceeded to determine in the alternative that, assuming the appellant had engaged in activity
protected by the WPA, he met his burden of establishing that such activity was a contributing
factor in his termination, but that the agency proved by clear and convincing evidence that it
would have terminated the appellant absent any protected whistleblowing activity. The judge
dismissed the second IRA appeal for lack of jurisdiction, a determination that was not
challenged on review.
Holdings: The Board, Vice Chairman Wagner dissenting in part, affirmed the initial decision as
modified, and denied the appellant's request for corrective action:
1. As a Physician appointed under 38 U.S.C. § 7405(a)(1)(A), the appellant cannot appeal his
termination directly to the Board. He can, however, bring an IRA appeal in which the only issue
before the Board is whether the termination was in reprisal for whistleblowing activity.
2. The judge correctly determined that the appellant failed to establish that he exhausted his
administrative remedy with respect to six of his alleged disclosures.
a. To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must inform
OSC of the precise ground of his charge of whistleblowing, giving OSC a sufficient basis to
pursue an investigation that might lead to corrective action.
b. After acknowledging receipt of the appellant's complaint, OSC advised the appellant that the
information he provided concerning his alleged disclosures was "quite brief," and that additional
information was required in order for it to determine whether he made protected disclosures. In
response, the appellant stated that, considering the statutory time constraints, he would not try to
detail all of the disclosures, but would more fully describe one of them. OSC subsequently
made a preliminary determination that it could not determine that a violation of 5 U.S.C. §
2302(b)(8) occurred, in part, because the appellant had provided insufficient information to
demonstrate that he made a protected disclosure, and because, when asked to describe in
detail the information he disclosed, he declined to do so. OSC's preliminary determination
letter provided the appellant with another opportunity "to describe these disclosures, in detail."
The appellant's response to this letter did not provide any further detail.
3. Because the appellant failed to establish that proceedings before OSC were exhausted with
respect to these 6 alleged disclosures, the Board lacks jurisdiction to reach the question
whether these alleged disclosures were protected.
a. Exhaustion with OSC is a jurisdictional prerequisite to Board consideration of the substance
of allegedly protected disclosures, and the scope of an IRA appeal is limited to those
disclosures raised before OSC.
b. The Board noted that 5 U.S.C. § 1221(e)(2), as amended, provides that corrective action
cannot be ordered if, "after a finding that a protected disclosure was a contributing factor," the
agency demonstrates by clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure. Under this amendment, the Board may not
proceed to the clear and convincing evidence test unless it has first made a finding that the
appellant established his prima facie case.
4. The Board denied the appellant's request for corrective action on the merits, vacating the
alternative findings and conclusions from the initial decision concerning the alleged disclosures
that the appellant failed to raise with sufficient specificity in his request for corrective action with
In a separate opinion, Vice Chairman Wagner agreed with the majority that, when an IRA
appellant fails to exhaust his administrative remedy with OSC, the Board may not proceed to
determining whether the agency demonstrated by clear and convincing evidence that it would
have taken the same personnel action absent the disclosures. She dissented from the
majority's finding that the appellant had failed to exhaust his OSC remedy with respect to six
alleged disclosures. She explained why she would have found that the appellant satisfied his
duty to give OSC a sufficient basis to pursue an investigation that might lead to corrective action
with respect to five of the six disclosures in question.
Appellant: Matthew J. Nasuti
Agency: Department of State
Decision Number: 2014 MSPB 12
Docket Number: DC-1221-12-0321-M-1
Issuance Date: February 27, 2014
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Retroactive Application of the WPEA
- Protected Disclosures - to Whom Made
- Contributing Factor - Constructive Knowledge
This case was before the Board from the U.S. Court of Appeals for the Federal Circuit to
address the appellant's contention that his employment was terminated because he made a
protected whistleblowing disclosure alleging that substandard and inadequate body armor was
being supplied to State Department Employees en route to Iraq. Specifically, the court asked
the Board to decide whether section 101 of the Whistleblower Protection Enhancement Act of
2012 (WPEA) applies retroactively and, if so, whether the appellant had alleged a protected
disclosure under the new statute.
The appellant was employed for a very short period by the State Department's Iraq Transition
Assistance Office (ITAO). He alleged that, during that brief employment, he "raised objections
to multiple officials in the ITAO, including assistants to [the] ITAO Personnel Director [the ITAO
Personnel Director made the decision to terminate the appellant's employment] that the body
armor being supplied to State Department employees en route to Iraq was substandard and
inadequate. The court reversed the Board's rulings that the appellant had failed to exhaust his
OSC remedy as to this claim, that the claim was precluded under the doctrine of collateral
estoppel, and that the appellant failed to adequately allege a "substantial and specific danger to
public health or safety." Regarding the Board's apparent conclusion that the appellant's
disclosures were inadequate because they were made to persons without authority to address
the problem, the court noted that section 101 of the WPEA broadened the scope of protected
disclosures under the WPA, and stated that "the Board should decide in the first instance
whether the new statute applies retroactively and whether, if so, Nasuti has alleged a protected
disclosure under the new statute."
Holdings: The Board (Member Robbins did not participate) held that section 101 of the WPEA
does apply to this case retroactively, that the disclosure would have been protected prior to the
enactment of the WPEA, that the appellant satisfied the final jurisdictional element of making a
nonfrivolous allegation that the protected disclosure was a contributing factor in the decision to
terminate his employment, and remanded the case to the regional office for adjudication on the
1. Although section 101 of the WPEA does not specifically address whether a disclosure lacks
protection unless it is made to a person with authority to address the problem, the legislative
history makes clear that section 101 was intended to reverse any decisions so holding.
2. The Board has held in previous cases that it will apply section 101 of the WPEA to cases
pending before the Board when the WPEA was enacted.
3. Even before the enactment of the WPEA, neither the Federal Circuit nor the Board had
recently interpreted the WPA to preclude protection for a disclosure unless it was made to a
person with actual authority to remedy the wrongdoing.
4. The Board found that the appellant had satisfied the final jurisdictional element -- that
he made a nonfrivolous allegation that his disclosure was a contributing factor in the agency's
decision to terminate his employment.
a. An employee may demonstrate that a disclosure was a contributing factor in a covered
personnel action through circumstantial evidence, such as the acting official's knowledge of the
disclosure and the timing of the personnel action.
b. An appellant may also show that a protected disclosure was a contributing factor by proving
that the official taking the action had constructive knowledge of the protected disclosure, even if
the official lacked actual knowledge. One way of establishing constructive knowledge is by
demonstrating that an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action.
c. The appellant alleged that he made his disclosures regarding substandard and inadequate
body armor to his Iraq Orientation Class to the Foreign Service Institute, which included one
Senior Diplomat and a number of foreign service officers and middle managers who had orders
for Iraq, and that he also made these disclosures to another individual in the ITAO, and "to
others within the ITAO, Office of Legal Counsel and [Department of State] Inspector General."
d. Although the Board did not see definitive evidence in the record showing that the ITAO
Personnel Director had actual knowledge of the appellant's disclosures, it saw no affirmative
statement by her that she was not aware of these disclosures. Given the apparent widespread
dissemination of the disclosures, the Board concluded that the appellant nonfrivolously alleged
that the agency was aware of his disclosure when it made the decision to terminate his
employment, and that his disclosure was a contributing factor in that decision.
5. In light of the above findings, the Board remanded the case to the regional office for
adjudication on the merits.
Petitioners: Jesus H. DeLeon and Cheryl Williams
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2013-3129
Issuance Date: February 24, 2014
- NAFI Employees
The case was on appeal to the court from an arbitrator's decision affirming the removal of
DeLeon and Williams on misconduct charges. They were cooks at the Army's Fort Riley
installation, which is a non-appropriated fund instrumentality (NAFI), and they were paid through
non-appropriated funds. The issue in the agency's motion to dismiss the case for lack of
jurisdiction was whether the relevant statute, 5 U.S.C. § 7121(f), provides for the court to
exercise jurisdiction over NAFI employees.
Holdings: The court that it did not possess jurisdiction to entertain a petition for review of an
arbitrator's decision brought by NAFI employees:
1. Section 7121(f) is the court's sole jurisdictional grant for review of an arbitrator's award.
2. Jurisdiction under the first sentence of this statute, which provides for review of arbitration
decisions "in the same manner and under the same conditions as if the matter had been
decided by the [Merit Systems Protection] Board," runs headlong into 5 U.S.C. § 2105(c), which
excludes NAFI employees from appealing adverse actions to the MSPB.
3. Jurisdiction does not obtain under the second sentence of § 7121(f), which extends review to
matters arising under "other personnel system," because section 7121 is not an affirmative
grant of the remedies specified elsewhere; it merely allows an employee to choose the statutory
route in lieu of the negotiated grievance route when the former is otherwise available. As NAFI
employees, DeLeon and Williams had no route available to them other than the grievance
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in
the following cases:
Searcy v. Department of Agriculture, No. 2013-3175 (Feb. 21, 2014) (MSPB Docket No. AT4324-12-0759-I-1) (affirming the Board's decision, which dismissed Searcy's appeal as barred
by res judicata)
Conti v. Merit Systems Protection Board, No. 2013-3071 (Feb. 24, 2014) (MSPB Docket No.
NY-0752-09-0041-I-1) (affirming per Rule 36 the Board's decision, which dismissed Conti's
appeal for lack of jurisdiction)
Brent v. U.S. Postal Service, No. 2013-3072 (Feb. 24, 2014) (MSPB Docket No. CH-0752-100944-I-1) (affirming per Rule 36 the Board's decision, which affirmed Brent's removal on AWOL
McGee v. Department of Agriculture, No. 2013-3174 (Feb. 26, 2014) (MSPB Docket No. AT1221-10-0202-C-2) (affirming in part, vacating in part, and remanding for further proceedings
the Board's decision, which denied McGee's petition for enforcement of a settlement
U.S. Merit Systems Protection Board | Case Reports
To unsubscribe from the MSPB-DECISIONSLIST-L list, click the following link: