UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAVID J. MCCAULEY,

Appellant,

v. 

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency. 

DOCKET NUMBER

CH-1221-14-0721-W-1

DATE: February 18, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

David J. McCauley, Coral Springs, Florida, pro se. 

Kimberly Negley, Esquire, St. Louis, Missouri, for the agency. 

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

denied his request for corrective action.

2

 After fully considering the filings in 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 A substantial portion of the appellant’s petition for review is devoted to a discussion 

of his separate appeal alleging that he was not selected for a Medical Support Assistant 

position in violation of the Veterans Employment Opportunities Act of 1998 (VEOA). 
2

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. We dismiss the appeal in part for lack of jurisdiction and, 

regarding the parts of the appeal over which we have jurisdiction, we deny the 

appellant’s request for corrective action. 

BACKGROUND

¶2 The agency hired the appellant as a GS-5 Clerk in the Beneficiary Travel 

Office (BTO) in the Jefferson Barracks Division of the St. Louis Veterans Affairs 

Medical Center (VAMC) in St. Louis, Missouri. Initial Appeal File (IAF), Tab 9. 

The BTO reimburses veterans for travel costs incurred in coming to the VAMC 

for service. Id. While the appellant was at the Jefferson Barracks, he wrote a 

letter to the head of the agency alleging that the agency had not replaced a BTO 

Clerk who had left the agency, and identifying ways that the BTO could operate 

more efficiently. IAF, Tab 4, Exhibit (Ex.) 1. The appellant also provided 

veterans coming to the BTO who were complaining about long wait times with 

business-size envelopes addressed to the head of the agency so that they could 

directly communicate their concerns about the wait times. IAF, Tab 1. Shortly 

thereafter, the agency transferred the appellant to the BTO in the John Cochran 

Division (Cochran) of the VAMC. Id.

¶3 In December 2012, the appellant voluntarily transferred from the position at 

Cochran to a Medical Support Assistant (MSA) position in Bay Pines, Florida, to 

help his brother who was recovering from a serious motor cycle accident. By the 

 

The Board recently issued a decision on the appellant’s petition for review of the initial 

decision in that case. In a nonprecedential order, the Board remanded the case to the 

regional office for issuance of a jurisdictional notice, and, if the administrative judge 

finds that the Board has jurisdiction, development of the record to determine whether, 

through the agency’s reconstructed selection process, the appellant obtained all of the 

relief he could have obtained had he prevailed on his VEOA claim before the Board. 

McCauley v. Department of Veterans Affairs, MSPB Docket No. CH-3443-14-0099-I-3,

Final Order (July 8, 2015). 
3

appellant’s admission, he transferred without assurance from the VAMC that he 

could later return. Id. Sometime in 2013, the appellant attempted to return to the 

VAMC, and was told that applying for vacant positions was the only way he 

could return. IAF, Tab 9. The appellant applied for two vacancies, an MSA 

position and a Gardener position, and he was not selected for either one. 

¶4 The appellant filed an individual right of action (IRA) appeal alleging that 

the agency transferred him to Cochran, failed to noncompetitively transfer him 

back to the VAMC from Florida, and failed to select him for the MSA and 

Gardener positions in violation of the Whistleblower Protection Act (WPA). He 

asserted that the agency’s actions constituted retaliation for the following actions: 

(1) sending his letter to the head of the agency; (2) providing veterans who were 

complaining about long wait times with envelopes addressed to the head of the 

agency so that they could directly communicate their concerns; (3) reporting that 

his supervisor closed the BTO 15 minutes early; and (4) notifying the head of the 

agency that he needed police protection when he closed the BTO because a 

veteran had become violent when he was refused travel reimbursement. IAF, 

Tabs 1, 8. 

¶5 The appellant did not request a hearing. IAF, Tab 1. Based on the written 

submissions of the parties, the administrative judge found the appellant showed 

that he had exhausted administrative procedures before the Office of Special 

Counsel (OSC). IAF, Tab 28, Initial Decision (ID) at 4-5. She also found that 

the appellant could not have reasonably believed that the failure of the agency to 

timely replace a BTO Clerk at the Jefferson Barracks was gross mismanagement. 

However, she found that, because he made it known to high-level managers that 

he had complained to the head of the agency, he established that he was perceived 

as a whistleblower, and, as such, his letter to the head of the agency constituted a 

protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 7-9. Additionally, she 

found that the appellant’s providing envelopes to assist veterans with informing 

the head of the agency of their frustrations with long wait times was a protected 
4

activity under 5 U.S.C. § 2302(b)(9)(B) of the Whistleblower Protection 

Enhancement Act (WPEA), a provision that defines a protected activity as 

lawfully assisting any individual in the exercise of any appeal right granted by 

any law, rule, or regulation. ID at 7-9. 

¶6 The administrative judge further found that transfers and nonselections are 

personnel actions, and that, under the knowledge/timing test, the appellant

established that his disclosures were a contributing factor to his transfer. ID 

at 9-11. However, she found that, because the appellant failed to show that the 

agency officials who denied the appellant’s transfer from Florida to St. Louis and 

did not select him for the MSA and Gardener positions were aware of his 

disclosures, he failed to show that his disclosures were a contributing factor in 

those personnel actions. ID at 11-13. Finally, the administrative judge found that 

the agency established by clear and convincing evidence that it would have 

reassigned the appellant absent the perception of him as a whistleblower because 

his reassignment was voluntary. ID at 14-17.

ANALYSIS

¶7 Before addressing the merits of an IRA appeal, the Board first must 

determine whether all its jurisdictional requirements have been met. 

Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000). 

Moreover, the issue of Board jurisdiction is always before the Board and may be 

raised at any time. Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7 

(2010). 3 Thus, notwithstanding the administrative judge’s reaching the merits of 

the appeal, we find we must make a jurisdictional determination regarding the 

appellant’s IRA appeal. Further, the agency filed a motion to dismiss the appeal 

 3 Attached to the appellant’s petition for review are a number of documents, most of 

which are already in the record, and those that are not were available before the close of 

the record. We have not considered these documents except as they relate to the issue 

of Board jurisdiction. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 

(1980); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
5

for lack of jurisdiction. IAF, Tab 7. The administrative judge did not rule on the 

motion, and made no jurisdictional findings.

¶8 Generally, to establish jurisdiction over an IRA appeal regarding activity 

protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that he exhausted 

his administrative remedies before OSC and make nonfrivolous allegations that:

(1) he engaged in whistleblowing activity by making a protected disclosure 

under 5 U.S.C. § 2302(b)(8); and (2) the disclosure 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). Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 

1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298, 

¶ 12 (2002).

4

 

The appellant exhausted his administrative remedies regarding only some of 

his disclosures. 

¶9 Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective 

action from [OSC] before seeking corrective action from the Board” through an 

IRA appeal. To satisfy this requirement, an appellant must articulate to OSC the 

basis for his request for corrective action “with reasonable clarity and precision.” 

Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); 

see Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). 

Although an appellant may add further detail to his claims before the Board, see 

Briley v. National Archives & Records Administration, 236 F.3d 1373, 1378 (Fed.

Cir. 2001), he first must make a reasonably clear and precise claim with OSC, 

see, e.g., Mintzmyer v. Department of the Interior, 84 F.3d 419, 422 (Fed.

Cir. 1996). 

¶10 As noted, the appellant’s alleged protected disclosures are writing a letter to 

the head of the agency, providing veterans who were complaining about long wait 

 4 The administrative judge’s show cause order set forth the necessary jurisdictional 

elements of an IRA appeal under the WPA and the WPEA, including the elements 

required to establish that the appellant was perceived as a whistleblower. IAF, Tab 3. 
6

times with envelopes addressed to the head of the agency so that they could 

directly communicate their concerns, reporting that his supervisor closed the BTO 

15 minutes early, and notifying the head of the agency that he needed police 

protection when he closed the BTO because a veteran had become violent when 

he was refused travel reimbursement.

¶11 The appellant submitted a copy of the complaint that he filed with OSC and 

a copy of OSC’s letter notifying him that he may seek corrective action from the 

Board. IAF, Tabs 1, 4 at 11. 5

 In his complaint, he states that, in the fall of 2012, 

he directed veterans to complain to the head of the agency regarding issues that 

impacted their travel pay reimbursement. IAF, Tab 4 at 15-16. He also states 

that he had alerted the head of the agency about his transfer and nonselections. 

Id. at 16. OSC’s letter to the appellant identifies his alleged protected activity as 

sending a letter to the head of the agency concerning reimbursement policies and 

lack of staffing of the BTO, and directing veterans to complain to the head of the 

agency about travel pay reimbursement issues. IAF, Tab 1. 

¶12 The appellant’s submissions to OSC mention neither reporting that his 

supervisor closed the BTO 15 minutes early, nor notifying the head of the agency 

that he needed police protection when he closed the BTO because a veteran had 

become violent. Thus, we find that the appellant exhausted his administrative 

remedies before OSC only regarding writing a letter to the head of the agency and 

suggesting to veterans that they complain to the head of the agency about long

wait times in the BTO.

 5 The administrative judge mistakenly stated in the initial decision that the appellant 

did not submit a copy of his OSC complaint. ID at 5 n.3. The administrative judge’s 

error is of no legal consequence, however, because it did not adversely affect the 

appellant’s substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 

124, 127 (1981). 
7

The appellant failed to make a nonfrivolous allegation that writing his letter to 

the agency head was a protected activity. 

¶13 We first address whether the appellant made a nonfrivolous allegation that 

his letter to the head of the agency is a disclosure protected by

section 2302(b)(8). A protected disclosure is a disclosure of information that an 

appellant reasonably believes evidences a violation of any law, rule, or 

regulation, gross mismanagement, a gross waste of funds, an abuse of authority, 

or a substantial and specific danger to public health or safety. Schoenig v. 

Department of Justice, 120 M.S.P.R. 318, ¶ 8 (2013) (citing 5 U.S.C. 

§ 2302(b)(8)). At the jurisdictional stage, the appellant only is burdened with 

making a nonfrivolous allegation that he reasonably believed that his disclosure 

evidenced a violation of one of the circumstances described in 5 U.S.C. 

§ 2302(b)(8). Id. The proper test for determining whether an employee had a 

reasonable belief that his disclosure was protected is whether a disinterested 

observer with knowledge of the essential facts known to and readily ascertainable 

by the employee could reasonably conclude that the actions evidenced a violation

of one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.

¶14 In his September 24, 2012 letter to the head of the agency, the appellant 

notes that generally the BTO is staffed with two clerks, that one of the clerks had 

recently resigned, and states that, as the only clerk in the office, he cannot get 

time off to visit his brother in Florida who was seriously hurt in a motorcycle 

accident. IAF, Tab 7, Ex. 1. He also states that veterans are experiencing long 

wait times in the BTO and have expressed their concerns about the lack of 

staffing in that office. Id. He further identifies ways that he believes that the 

BTO could change to operate with one clerk. Id. Neither the appellant’s letter to 

the head of the agency nor his complaint filed with OSC identifies any category 

of disclosure found in section 2302(b)(8). Id.; IAF, Tab 4. In his response to the 

administrative judge’s jurisdictional order, the appellant, for the first time, uses 
8

the phrase “gross mismanagement” by his manager at the VAMC to characterize 

his disclosure. IAF, Tab 4 at 5. 

¶15 The Board has held, however, that it will not require, as a basis for its 

jurisdiction, that an appellant in an IRA appeal correctly label, in a whistleblower 

reprisal complaint to OSC, a category of wrongdoing under 5 U.S.C. § 2302(b)(8) 

that might be implicated by a particular set of factual allegations. Pulcini v. 

Social Security Administration, 83 M.S.P.R. 685, ¶ 8 (1999), aff’d, 250 F.3d 758

(Fed. Cir. 2000). Thus, we must examine the appellant’s allegations to determine 

the appropriate whistleblower category. See id. For the reasons discussed below, 

we find that the applicable (b)(8) categories are “abuse of authority” and 

“gross mismanagement.”

¶16 The Board has defined abuse of authority as “an arbitrary or capricious 

exercise of power by a Federal official or employee that adversely affects the 

rights of any person or that results in personal gain or advantage to himself or to 

preferred other persons.” Id., ¶ 9. The Board has stated that there is no 

de minimis standard for abuse of authority. Id. 

¶17 Gross mismanagement means a management action or inaction that creates a 

substantial risk of significant adverse impact upon the agency’s ability to 

accomplish its mission. Embree v. Department of the Treasury, 70 M.S.P.R. 79, 

85 (1996). It requires “more than de minimis wrongdoing or negligence,” and 

“does not include management decisions which are merely debatable,” nor does it 

“mean action or inaction which constitutes simple negligence or wrongdoing.” 

Id. “There must be an element of blatancy.” Id. Thus, the appellant has a higher 

burden of proof because of the standard applied to allegations of gross 

mismanagement. See id.; see also Smith v. Department of the Army, 80 M.S.P.R. 

311, ¶ 8 (1998).

¶18 The letter that the appellant wrote to the head of the agency is dated 

September 24, 2012. IAF, Tab 7, Ex. 1. In the letter, the appellant’s disclosure is 

that, as of the date of the letter, the agency had not hired a replacement for an 
9

employee who resigned earlier from his position in the BTO and that this caused 

long lines of veterans seeking travel reimbursement. Although the appellant 

does not give the exact date that this employee left the BTO, he indicates that the 

employee gave his 30-days’ notice sometime after June 22, 2012. Id. Thus, the 

longest time interval that the BTO operated with one clerk by the date of the 

appellant’s letter would have been from July 23 to August 24, 2012, an interval of 

only 2 months. We find that failure to fill a position for 2 months is not in and of 

itself an arbitrary and capricious exercise of authority, and the appellant has 

alleged no additional facts that, if proven, would show that the failure was 

arbitrary and capricious. See Pulcini, 83 M.S.P.R. 685, ¶ 8. Consequently, we 

find that the appellant’s disclosure fails to rise to a nonfrivolous allegation of an 

abuse of authority. Additionally, we find that a failure to fill a vacancy for 

2 months is merely a debatable management decision, or at most inaction that

constitutes simple negligence. See Embree, 70 M.S.P.R. at 85. Therefore, we 

likewise find that the appellant’s disclosure fails to rise to the level of a 

nonfrivolous allegation of gross mismanagement.

The appellant failed to make a nonfrivolous allegation that he was perceived as 

a whistleblower. 

¶19 Because the appellant’s letter was known to his managers, including the 

Associate Director of the VAMC, we also have considered whether the appellant 

made a nonfrivolous allegation that he was perceived as a whistleblower. One 

who is perceived as a whistleblower is entitled to the protection of the WPA, even 

if he has not made protected disclosures. Juffer v. U.S. Information 

Agency, 80 M.S.P.R. 81, ¶ 12 (1998). 

¶20 The Board has found that a variety of fact patterns can support a finding 

that an individual was perceived as a whistleblower. In Mausser v. Department of 

the Army, 63 M.S.P.R. 41, 44 (1994), the appellant compiled a list of “waste, 

fraud, and abuse,” “safety issues,” and violations of “government regulations” 

that he observed at the agency, with the intention of disclosing the list to the 
10

Inspector General after he completed his probationary period. Although the 

appellant never actually disclosed the list and was therefore not a whistleblower 

when the agency terminated him, the Board found that the agency may have 

perceived him as a whistleblower to the extent that the agency knew about the list 

and his intention to disclose it. Mausser, 63 M.S.P.R. at 44. In Thompson v. 

Farm Credit Administration, 51 M.S.P.R. 569, 581 (1991), the appellant 

disagreed with the agency Chairman’s public position on the agency’s financial 

condition, and he expressed his disagreement to various agency officials, 

including the Chairman himself. Although the appellant did not actually disclose 

his disagreement or the bases thereof to anyone outside the agency, and although 

he did not intend for the expression of his disagreement to constitute a 

whistleblowing disclosure, the Chairman still perceived the appellant as a 

whistleblower because he believed the appellant to be “a dangerous proponent of 

a view that could prove embarrassing—possibly evidencing mismanagement and 

abuse of discretion.” Id. In Holloway v. Department of the Interior, 82 M.S.P.R. 

435, ¶ 15 (1999), a local newspaper reported that the appellant had disclosed 

“fraud, waste and abuse” at his employing agency but did not discuss the 

particulars of the disclosures. The appellant alleged that his supervisor was 

aware of the newspaper article and took personnel actions against him because of 

it. Id. Therefore, the Board found in that case that even absent a showing that 

the appellant made any protected disclosures, he made a nonfrivolous allegation 

that his supervisor perceived him as a whistleblower because the supervisor was 

aware of the newspaper article labeling him as such. Id. 

¶21 Although the cases discussed above arose from widely different factual 

circumstances, they share a common element, i.e., that agency officials appeared 

to believe that the appellants engaged or intended to engage in whistleblowing 

activity. Thus, the analysis of whether an appellant was actually a whistleblower 

is different from the analysis of whether an appellant was perceived as a 

whistleblower. In cases falling under the former category, the Board will focus 
11

its analysis on the appellant’s perceptions and the disclosures themselves, i.e., 

whether he reasonably believed that his disclosures evidenced the type of 

wrongdoing listed under 5 U.S.C. § 2302(b)(8). See, e.g., Parikh v. Department 

of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 15-18, 22-23 (2011); Rzucidlo v. 

Department of the Army, 101 M.S.P.R. 616, ¶¶ 17-18 (2006). In cases falling 

under the latter category, the Board will focus its analysis on the agency’s 

perceptions, i.e., whether the agency officials involved in the personnel actions at 

issue believed that the appellant made or intended to make disclosures that 

evidenced the type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). See, e.g.,

Mausser, 63 M.S.P.R. at 44; Thompson, 51 M.S.P.R. at 581-82. In those cases, 

the issue of whether the appellant actually made protected disclosures is 

immaterial; the issue of whether the agency perceived the appellant as a 

whistleblower will essentially stand in for that portion of the Board’s analysis in 

both the jurisdictional and merits stages of the appeal. 

¶22 Therefore, to establish jurisdiction over an IRA appeal alleging that the 

agency retaliated against an appellant based on its perception that he was a 

whistleblower, he must show that he exhausted his remedies before OSC, and 

make a nonfrivolous allegation that the agency perceived him as a whistleblower, 

and that the agency’s perception was a contributing factor in its decision to take 

or not take the personnel action at issue. King v. Department of 

Army, 116 M.S.P.R. 689, ¶ 6 (2011). 

¶23 Here, the appellant stated in his OSC complaint that he was “called on the 

carpet” by the VAMC Assistant Director after he wrote the letter to the head of 

the agency. IAF, Tab 4 at 15. Under the circumstances where this allegedly 

being “called on the carpet” occurred before any alleged retaliatory action, we 

find that the appellant’s OSC complaint contained an allegation that he was 

perceived as a whistleblower, and thus he exhausted his administrative remedies 

as to this allegation. 
12

¶24 However, as noted above, the appellant’s letter fails to characterize the 

situation as falling under any of the (b)(8) categories. Thus, the circumstances 

here are unlike those in Mausser, 63 M.S.P.R. at 44, where the employee headed 

his list with a (b)(8) category “safety.” Further, the appellant failed to allege that 

the VAMC Assistant Director identified that the appellant’s letter related to any 

(b)(8) category. In fact, contrary to the assertion in the appellant’s OSC 

complaint that he was “called on the carpet,” he stated in his first response to the 

agency’s motion to dismiss for lack of jurisdiction that the Assistant Director 

“did indicate that I was not in trouble for the letter.” 6

 IAF, Tab 4 at 6. Therefore, 

the circumstances here are unlike those in Thompson, 51 M.S.P.R. at 584, where 

an agency official identified the employee’s disagreement with agency action as 

possibly implicating a (b)(8) category. Additionally, there is no outside reference 

to the appellant that characterized the situations mentioned in his letter to the 

head of the agency as any (b)(8) category. So, the circumstances here are unlike 

the situation in Holloway, 82 M.S.P.R. 433, ¶ 5, where a newspaper reported that 

the employee disclosed a (b)(8) category. 

¶25 Thus, we find that the appellant failed to make a nonfrivolous allegation 

that any agency officials involved believed that the appellant made or intended to 

make disclosures that evidenced the type of wrongdoing listed under 5 U.S.C. 

§ 2302(b)(8). See, e.g., Mausser, 63 M.S.P.R. at 44; Thompson, 51 M.S.P.R. 

at 581–82. 

 6 The administrative judge mistakenly refers to the appellant’s statements in his 

submissions as unsworn. See, e.g., ID at 16. The appellant’s submissions were e-filed. 

With each document that is e-filed, the question is asked “Do you declare, under 

penalty of perjury, that the facts stated in this pleading are true and correct.” IAF, 

Tab 3, Tab 8 at 3. Thus, all of the statements that the appellant made asserting facts 

that he knew from his personal knowledge and that he e-filed are sworn statements. We 

find that the administrative judge’s error does not affect the outcome of this case. In 

any event, we have considered the statements as sworn in making our decision. 
13

The appellant made a nonfrivolous allegation that the agency retaliated against 

him for activity protected under the WPEA. 

¶26 Section 101(b)(1)(A) of the WPEA amended 5 U.S.C. § 1221(a) to provide 

that an employee, former employee, or applicant for employment may seek 

corrective action from the Board regarding any personnel action taken, or 

proposed to be taken, against such employee, former employee, or applicant for 

employment, as a result of a prohibited personnel practice described in 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D). See Hooker v. Department of Veterans 

Affairs, 120 M.S.P.R. 629, ¶ 9 (2014) (discussing the scope of the WPEA 

amendments to title 5). Thus, to establish jurisdiction over an IRA appeal 

regarding activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), 

an appellant must prove that he exhausted his administrative remedies before 

OSC and make nonfrivolous allegations that: (1) he engaged in activity protected 

by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the 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). 

¶27 Here, as noted, the appellant exhausted his administrative remedies 

regarding his assertion that the agency retaliated against him for suggesting to 

veterans that they complain to the head of the agency about long wait times in the 

BTO. Further, as explained below, we find that the appellant made a 

nonfrivolous allegation that his distribution of envelopes addressed to the head of 

the agency was activity protected by section 2302(b)(9)(B) and that his protected 

activity was a contributing factor to the agency’s failure to noncompetitively 

transfer him back to the VAMC from Florida, and failure to select him for the 

MSA and Gardener positions. 

¶28 Section 2302(b)(9)(B) makes it unlawful for an individual to take, fail to 

take, or threaten to take a personnel action because of the employee “testifying 

for or otherwise lawfully assisting any individual in the exercise of any right 

referred to in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).” 5 U.S.C. § 2302(b)(9)(B). 
14

Section 2302(b)(9)(B) also bars reprisal for assisting another individual in the 

exercise of any appeal, complaint, or grievance right granted by law, rule, or 

regulation, and such a proceeding need not concern remedying a violation of 

whistleblower reprisal under section 2302(b)(8). See Carney v. Department of 

Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 n.3 (2014). For example, performing 

union-related duties, such as filing grievances and representing other employees 

in the grievance process, are protected activities under section 2302(b)(9). See 

Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 10 (2015). Also, under 

the WPEA, the Board has jurisdiction over claims of retaliation for lawfully 

assisting a coworker in a grievance proceeding granted by law, rule, or regulation,

even outside of the context of union-related duties. 

¶29 Title 38 of the Code of Federal Regulations, section 17.33(g) provides for 

patient grievances. Specifically, it provides that:

[e]ach patient has the right to present grievances with respect to 

perceived infringement of the rights described in this section or 

concerning any other matter on behalf of himself, herself or others, 

to staff members at the facility in which the patient is receiving care, 

other Department of Veterans Affairs officials, government officials, 

members of Congress or any other person without fear or reprisal. 

38 C.F.R. § 17.33(g). The appellant gave the envelopes to the veterans 

experiencing long wait times in the BTO so that they could express their 

frustration to the head of the agency, consistent with the grievance rights 

provided in section 17.33(g). Therefore, we find that he made a nonfrivolous 

allegation that he was assisting patients with a grievance right granted by law, 

rule, or regulation. 

¶30 The WPEA was signed into law on November 27, 2012, and it had an 

effective date of December 27, 2012. King v. Department of the 

Air Force, 119 M.S.P.R. 663, ¶ 3 (2013). The appellant’s alleged protected 

disclosure and alleged protected activity occurred prior to the effective date of the 

WPEA. Further, his transfer to Cochran occurred on December 6, 2012, prior to 
15

the effective date of the WPEA, and the Board does not have jurisdiction to 

determine whether the transfer constituted retaliation for activity protected under 

the WPEA. However, the agency’s failure to noncompetitively transfer the 

appellant back to the VAMC from Florida, and failure to select him for the MSA 

and Gardener positions occurred in 2013, after the effective date of the WPEA 

and the Board has jurisdiction to determine whether these actions constituted 

retaliation for activity protected by the WPEA. 

¶31 Each of the agency actions taken regarding the appellant after the effective 

date of the WPEA are personnel actions within the meaning of the WPEA. 

See 5 U.S.C. § 2302(a)(2)(A). Additionally, the appellant made a nonfrivolous

allegation that his protected activity was a contributing factor in the personnel 

actions. One way to establish this criterion is the knowledge/timing test, under 

which an employee may nonfrivolously allege that the protected activity 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 protected 

activity, 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. See Mason v. Department of Homeland 

Security, 116 M.S.P.R. 135, ¶ 26 (2011). In his response to the administrative 

judge’s Order on Jurisdiction, the appellant stated that he believed that the 

official responsible for each of these personnel actions took the action in reprisal 

for the appellant’s protected activity. IAF, Tab 4 at 4. The appellant’s protected 

activity occurred in September 2012, and the agency took the personnel actions at 

issue here within a year of the protected activity. The Board has held that 

personnel actions that were alleged to have begun within 1 year of the disclosures 

satisfy the “timing” component of the knowledge/timing test. See Mudd v. 

Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013). 
16

The appellant failed to prove by preponderant evidence that his protected activity 

was a contributing factor to the agency’s failure to noncompetitively transfer him 

back from Florida and to his nonselections for the MSA and Gardener positions. 

¶32 Although we find that the appellant has made a nonfrivolous allegation of 

retaliation for protected activity establishing jurisdiction over his IRA appeal 

under the WPEA, he has failed to establish a prima facie case. Only if the 

appellant makes out a prima facie case of reprisal for protected activity must the 

agency be given an opportunity to prove, by clear and convincing evidence, the 

affirmative defense that it would have taken the same personnel action in the 

absence of the protected activity. See 5 U.S.C. § 1221(e)(2); Schnell v. 

Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010). To establish a prima 

facie case under the WPEA, the appellant must prove, by preponderant evidence, 

that he engaged in protected activity and that the activity was a contributing 

factor in a personnel action against him. See 5 U.S.C. § 1221(e)(1); Chambers v. 

Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011). 

¶33 The agency does not dispute that the appellant distributed envelopes 

addressed to the head of the agency to veterans, directing them to complain to the 

head of the agency about travel pay reimbursement issues. Therefore, we find 

that the appellant established by preponderant evidence that he engaged in 

protected activity. However, the appellant failed to prove by preponderant 

evidence that his protected activity was a contributing factor in the personnel 

actions taken against him. The agency submitted affidavits from the officials that 

the appellant alleges retaliated against him by disallowing his transfer back to the 

VAMC from Florida and who did not select him for the MSA and Gardener 

positions. IAF, Tab 9 at 5-13. Each official stated that he had no knowledge of 

the appellant’s protected activity when he took the personnel action involving the 

appellant. The appellant did not rebut these affidavits, and thus, we find that he 

failed to establish by preponderant evidence the knowledge prong of the 

knowledge/timing test regarding the agency’s failure to transfer/reassign him 
17

back to the VAMC from Florida, and the agency’s failure to select him for the 

MSA and Gardener positions. 

¶34 The official involved in the agency’s decision not to transfer the appellant 

from Florida averred that he first heard of the appellant when he called in 2013 

requesting a reassignment/transfer to the VAMC from the Florida VAMC. Id.

at 6. The official stated further that, at that time, he had not heard about any of 

the appellant’s protected activity. Id. He stated that he informed the appellant

that the VAMC did not have an active reassignment/transfer program, and 

encouraged the appellant to apply for vacancies at the VAMC. Id. He stated that 

the decision not to transfer/reassign the appellant back to the VAMC had nothing 

to do with his protected activity. Id. Rather, the official stated that it had been a 

longstanding practice of the VAMC not to transfer/reassign employees back to the 

VAMC and it had declined to do so in other cases as well. Id. 

¶35 The official who did not select the appellant for the MSA position stated in 

an affidavit that he had no knowledge of the appellant’s protected activity when 

he made the selection for the MSA position. Id. at 10. Similarly, the official who 

did not select the appellant for the Gardener position stated in an affidavit that he 

received no information about the appellant other than his application and 

résumé, which did not include anything about the appellant’s protected activity. 

Id. at 13. 

¶36 Based on our review of the evidence, we conclude that, although the 

appellant exhausted his remedies with OSC regarding his disclosure in a letter to 

the head of the agency that the BTO failed to fill a clerk vacancy, he failed to 

make a nonfrivolous allegation that his disclosure was protected under the WPA. 

We also conclude that the appellant failed to make a nonfrivolous allegation that

he was perceived as a whistleblower, even though the fact that he wrote the letter 

to the head of the agency was known to his manager. Accordingly, we dismiss 

the appeal for lack of jurisdiction regarding these claims. 
18

¶37 We also conclude that the appellant exhausted his remedies with OSC 

regarding his activity of distributing envelopes to patients so that they could 

complain about long wait times in the BTO, and he made a nonfrivolous 

allegation that he had a reasonable belief that this activity is protected activity 

under the WPEA. 7

 However, for the reasons set forth above, we find that the 

appellant failed to make a prima facie case that the agency refused his request to 

noncompetitively transfer him back to the VAMC from Florida, and did not select 

him for the MSA and Gardener positions, in retaliation for his activity protected 

under 5 U.S.C. § 2302(b)(9)(B). Accordingly, we deny the appellant’s request for 

corrective action under the WPEA as to these personnel actions. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 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). 

 7 In a footnote in the initial decision, the administrative judge ruled on the appellant’s 

motion to compel the agency to produce copies of documents that he signed asking to 

be moved to Cochran. ID at 4 n.1; see IAF, Tab 14. She found, based on the agency’s 

responses, that the agency had no documents responsive to the appellant’s request. 

Because we do not need to reach the issue of whether the appellant’s move to Cochran 

was voluntary, we need not determine whether the administrative judge’s discovery 

ruling was an abuse of discretion. See Vaughn v. Department of the Treasury, 

119 M.S.P.R. 605, ¶ 15 (2013) (finding that an administrative judge has broad 

discretion in ruling on discovery matters and, absent an abuse of discretion, the Board 

will not find reversible error in such rulings). 
19

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 an appeal to 

the U.S. 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 
20

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board