UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICK HALTERMAN,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-1221-23-0231-W-1

DATE: August 13, 2024

THIS ORDER IS NONPRECEDENTIAL1

Renee S. Moore, Esquire, Rochester, New York, for the appellant.

Micah Yang, Esquire, San Diego, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

REMAND 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. For

the reasons discussed below, we GRANT the appellant’s petition for review,

REVERSE the initial decision’s finding that the appellant did not administratively

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
exhaust his alleged May 2022 disclosure, FIND that the appellant nonfrivolously

alleged that his May 2022 disclosure was protected and a contributing factor in

two of the personnel actions at issue, AFFIRM the remainder of the initial

decision, and REMAND the case to the Western Regional Office for further

adjudication in accordance with this Remand Order.

BACKGROUND

¶2 In November 2022, the appellant, a Deportation Officer, filed a

whistleblower reprisal complaint with the Office of Special Counsel (OSC).

Initial Appeal File (IAF), Tab 1 at 7, Tab 9 at 7, 20-36. OSC issued the appellant

a close-out letter, and the appellant timely filed an IRA appeal with the Board.

IAF, Tab 1. In response to the administrative judge’s order to submit evidence

and argument regarding the Board’s jurisdiction, the appellant alleged that the

agency retaliated against him for two protected disclosures he made in May and

July 2022, respectively, as well as a grievance he filed in June 2022 through six

personnel actions, specifically: (1) the May 2022 discontinuation of his Health

Improvement Program (HIP) privileges; (2) the July 2022 suspension of his law

enforcement authorities and assignment to administrative duties; (3) his July 2022

decertification from certain overtime privileges; (4) the July 2022 notice of

proposed removal based on his alleged misconduct; (5) the October 2022

mitigation of his proposed removal to a 14-day suspension; and (6) his Fiscal

Year (FY) 2022 performance appraisal. IAF, Tab 3, Tab 9 at 4-18.

¶3 The administrative judge dismissed the appeal for lack of jurisdiction

without holding a hearing. Initial Appeal File (IAF), Tab 12, Initial Decision

(ID). The administrative judge found that the appellant did not exhaust

administrative remedies for the alleged May and July 2022 disclosures, but that

he did exhaust administrative remedies for the June 2022 grievance and all six

personnel actions. ID at 5-7. The administrative judge then found that, because

the June 2022 grievance did not seek to remedy whistleblower reprisal, the

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alleged reprisal for the grievance fell in the category of prohibited personnel

practices under 5 U.S.C. § 2302(b)(9)(A)(ii) over which the Board lacked IRA

jurisdiction under 5 U.S.C. § 1221(a). ID at 7-8 (citing McCray v. Department of

the Army, 2023 MSPB 10, ¶ 12). The administrative judge found the appellant’s

argument that the grievance amounted to a protected disclosure unavailing, on the

ground that disclosures made in the course of exercising grievance rights could

only receive protection under 5 U.S.C. § 2302(b)(9), and not under 5 U.S.C.

§ 2302(b)(8). ID at 8 (citing McCray, 2023 MSPB 10, ¶ 18). 

¶4 The appellant filed a petition for review in which he challenges the

administrative judge’s adverse exhaustion findings. Petition for Review (PFR)

File, Tab 1. The agency filed a response. Id., Tab 3.

ANALYSIS

The appellant exhausted administrative remedies for his alleged May 2022

disclosure.

¶5 An appellant in an IRA appeal must exhaust administrative remedies by

seeking corrective action from OSC before seeking corrective action from the

Board. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The

substantive requirements of exhaustion are met when an appellant has provided

OSC with sufficient basis to pursue an investigation. Id. The purpose of

requiring an appellant to exhaust his remedies with OSC before filing an IRA

appeal with the Board is to give OSC the opportunity to take corrective action

before involving the Board in the case. Id. Thus, the Board’s jurisdiction over an

IRA appeal is limited to those issues that have been previously raised with OSC.

Id.

¶6 The administrative judge found that the appellant did not exhaust

administrative remedies regarding the May 2022 disclosure because his OSC

complaint identified the date of his whistleblowing exclusively as June 30, 2022,

while his vague reference to earlier conversations did not sufficiently notify OSC

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of the May 2022 disclosure. ID at 5-6. We disagree with the administrative

judge’s conclusion, which overlooked the portion of the appellant’s OSC

complaint that raised his alleged May 2022 disclosure. In his OSC complaint, the

appellant asserted that he emailed a grievance on June 30, 2022, to an Assistant

Field Office Director (AFOD) alleging a collective bargaining agreement

violation in the management of Deportation Officers’ workloads. IAF, Tab 1

at 88, Tab 9 at 25-26, 28-29. The appellant also alleged in his OSC complaint

that he disclosed during a verbal conversation with a Supervisory Detention and

Deportation Officer (SDDO) that, among other things, he and other Deportation

Officers were not properly screening cases, and his management’s reports based

on expired “call-ups” were based on false information. IAF, Tab 9 at 29.

Although the appellant did not explain to OSC, as he did during the Board appeal,

that this conversation occurred in the beginning of May 2022, id. at 10, the

complaint provided OSC with a sufficient basis to investigate the alleged

conversation as separate and distinct whistleblowing from the appellant’s

June 30, 2022 emailed grievance. The appellant’s failure to provide the date of

the conversation in his OSC complaint was immaterial under these circumstances,

as an appellant may give a more detailed account of his whistleblowing activities

before the Board than he did to OSC. Chambers, 2022 MSPB 8, ¶ 10. We thus

find that the appellant exhausted administrative remedies for his alleged May

2022 disclosure.2

2

 On review, the appellant, who was represented throughout his Board appeal, submits

an amicus brief filed in a different case, which he did not submit below, to support his

argument that the administrative judge failed to consider that he was pro se when he

filed his OSC complaint in analyzing exhaustion. PFR File, Tab 1 at 10-11, 19-48.

Because the appellant does not show this new evidence was previously unavailable

despite due diligence, we need not consider it or the arguments therein. Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 213-14 (1980). Nevertheless, for the above reasons, we find the

exhaustion requirement satisfied for the appellant’s claimed May 2022 disclosure, even

without giving his pro se status special consideration.

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¶7 We agree with the administrative judge, however, that the appellant did not

exhaust his administrative remedies for his claimed July 2022 disclosure. Even

reading the appellant’s OSC complaint broadly, we agree with the administrative

judge that the complaint neither claimed nor suggested that the appellant—who

knew how to inform OSC of protected disclosures he made or activities he

engaged in, IAF, Tab 9 at 25-26, 28-29—made a protected disclosure in July

2022. ID at 6.

The appellant nonfrivolously alleged that his May 2022 disclosure was protected

 under 5 U.S.C. § 2302(b)(8).

¶8 If an appellant has exhausted his administrative remedies before OSC, he

can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging

that: (1) he made a protected 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)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. A nonfrivolous

allegation of a protected whistleblowing disclosure is an allegation of fact that, if

proven, would show that the appellant disclosed a matter that a reasonable person

in his position would believe evidenced one of the categories of wrongdoing

specified in 5 U.S.C. § 2302(b)(8). Skarada v. Department of Veterans Affairs,

2022 MSPB 17, ¶ 12.

¶9 The appellant explained below that he reasonably believed his alleged May

2022 disclosure evidenced, among other things, a violation of policy regarding

the reporting of case-vetting and expired “call-ups,” i.e., events in immigration

removal proceedings which did not occur by their statutory deadlines. IAF, Tab 9

at 10-12. The appellant further explained that management’s reports of expired

call-ups, which were based on data falsified by officers, disguised the statuses of

removal subjects. Id. at 12. Based on these assertions, we find that a reasonable

person in the appellant’s position would have believed his alleged May 2022

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disclosure evidenced, at minimum, a violation of law, rule, or regulation. See

Johns v. Department of Veterans Affairs, 95 M.S.P.R. 106, ¶¶ 9-10

(2003) (finding that an allegation that employees made false statements to Federal

agencies regarding firearms qualification scores nonfrivolously alleged a

disclosure of a violation of law, rule, or regulation). We thus find that the

appellant nonfrivolously alleged that he made a disclosure protected under

5 U.S.C. § 2302(b)(8).

The appellant nonfrivolously alleged that his May 2022 disclosure was a

contributing factor in the agency’s decision to take a personnel action.

¶10 To satisfy the contributing factor criterion at the jurisdictional stage, an

appellant need only raise a nonfrivolous allegation that the fact of, or content of,

the protected disclosure or activity was one factor that tended to affect the

personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to

establish this criterion is the knowledge/timing test, under which an employee

may nonfrivolously allege that the disclosure or activity was a contributing factor

in a personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure or activity, and that the

personnel action occurred within a period of time such that a reasonable person

could conclude that the disclosure or activity was a contributing factor in the

personnel action. Id., ¶ 15. 

¶11 One of the actions which the appellant alleged constituted whistleblower

reprisal was the discontinuation of his HIP privileges. IAF, Tab 9 at 16.

According to local agency policy, various employees, including Deportation

Officers, were permitted under the HIP to use up to three duty hours per week for

physical exercise. IAF, Tab 11 at 580-83. With his response to the jurisdictional

order, the appellant attached a May 11, 2022 email from the SDDO to whom he

claimed to have made the early May 2022 disclosure informing him that, “[a]s

discussed during [their] meeting,” his HIP privileges were being discontinued to

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provide him more time to address the high number of expired call-ups on his

docket. IAF, Tab 9 at 40. 

¶12 We find that the appellant nonfrivolusly alleged that the discontinuation of

his HIP privileges, which the agency granted to Deportation Officers and other

employees in the appellant’s location based on a general practice, qualified as a

personnel action as a “decision concerning . . . benefits” under 5 U.S.C. § 2302(a)

(2)(A)(ix). See Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶¶ 18-19 (2001)

(finding that a showing that an agency denied a request for administrative leave in

circumstances in which it had a general practice of granting such leave

establishes the denial of a benefit under 5 U.S.C. § 2302(a)(2)(A)(ix)). Further,

the SDDO was alleged to have known of the appellant’s early May 2022

disclosure as its purported recipient and to have discontinued the appellant’s HIP

privileges less than 10 days later, while the SDDO’s email indicates that he

possibly discontinued the appellant’s HIP privileges in response to the appellant’s

disclosure. IAF, Tab 9 at 16, 40. The appellant thus nonfrivolously alleged that

his May 2022 disclosure was a contributing factor in the discontinuation of his

HIP privileges through both the knowledge/timing test and objective evidence.

See Cooper v. Department of Veterans Affairs, 2023 MSPB 24, ¶ 20 (stating that

personnel actions alleged to have begun within 1 to 2 years of an appellant’s

protected disclosures satisfy the timing prong of the knowledge/timing test). 

¶13 We find that the appellant did not, however, nonfrivolously allege that his

May 2022 disclosure was a contributing factor in the remaining personnel actions

through the knowledge/timing test. None of those other actions was taken by the

SDDO to whom the appellant made the disclosure, and apart from conclusory

assertions that the remaining personnel actions constituted whistleblower reprisal

based on their timing, the appellant did not allege that the individuals responsible

for those actions actually knew of his alleged May 2022 disclosure. IAF, Tab 9 at

13-18, 29. 

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¶14 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

personally directed at the proposing or deciding official, and whether those

individuals had a desire or motive to retaliate against the appellant. Chambers,

2022 MSPB 8, ¶ 15; Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15

(2012). The appellant claimed that a second SDDO retaliated against him through

his performance appraisal based on the issue of expired call-ups—the subject of

his alleged May 2022 disclosure. IAF, Tab 9 at 10, 13-14. The appellant’s FY

2022 performance appraisal contained a September 2022 note from this other

SDDO stating that the appellant “needs improvement on timeliness of clearing out

case call-ups,” while asserting that the appellant needed “moderate supervisory

oversight” due to this deficiency. IAF, Tab 11 at 83. The appellant was rated

“fully successful” in the custody operations performance element based on these

and other assessments. Id. at 82-83. From the available record, except for this

one instance, the appellant had only received “outstanding” or “excellent” ratings

on his individual performance elements, including on the custody operations

element in previous years. Id. at 81-94, 150-92. Further, the appellant claimed

that the rating SDDO was among those responsible for the reporting of false callup numbers, which could evidence retaliatory motive if proven. IAF, Tab 9 at 13.

On this record, we find that the appellant non-frivolously alleged that his May

2022 disclosure was a contributing factor in his FY 2022 performance appraisal, a

personnel action under 5 U.S.C. § 2302(a)(2)(A)(viii).

¶15 The appellant did not, however, nonfrivolously allege that his May 2022

disclosure was a contributing factor in the remaining personnel actions, even

considering the factors set forth in Dorney. Those personnel actions—the July

2022 suspension of his law enforcement authorities and assignment to

administrative duties, the July 2022 decertification of his administratively

uncontrollable overtime privileges, the July 2022 notice of proposed removal, and

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the October 2022 14-day suspension—stemmed from allegations that he showed a

co-worker a video of a sexual nature on his cellphone at a retirement party, then

lacked candor when questioned about his actions during the resulting

investigation. IAF, Tab 1 at 82-85, Tab 9 at 6-7, 37-38, Tab 11 at 37-39, 131-34,

385-86. The record indicates that the agency’s reasons for taking the personnel

actions were strong. See Dorney, 117 M.S.P.R. 480, ¶ 15 (stating that evidence

pertaining to the strength or weakness of the agency’s reasons for taking the

personnel action is relevant in determining the contributing factor criterion).

Even accepting as true, as we must at this stage, the appellant’s argument that the

co-worker’s report was not credible, the appellant’s own admissions to possessing

intimate videos on his phone, as well as other evidence the appellant either filed

himself or did not contest below, tends to confirm his misconduct. IAF, Tab 1 at

57-59, 63-65, Tab 9 at 17, Tab 11 at 116-17, 224, 278. Although the deciding

official did not sustain either specification of the lack of candor charge, the

evidence supporting the charge—which the appellant also either filed himself or

did not contest below—was still strong. IAF, Tab 1 at 19-21, 41-43, 83, Tab 11

at 131, 305. Further, the investigation into the appellant’s misconduct leading to

the personnel actions, which concluded in May 2022, began well before the

appellant’s May 2022 disclosure. 3 IAF, Tab 11 at 262-70.

3

 We recognize the warning of the U.S. Court of Appeals for the Federal Circuit in

Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020that

jurisdiction over a whistleblower reprisal appeal must be determined based on whether

an appellant alleged sufficient factual matter, accepted as true, to state a claim that is

plausible on its face, and that the Board may not deny jurisdiction by crediting the

agency’s interpretation of the evidence. Here, we are careful to only consider the

agency’s documentary submissions to the extent they do not contradict the allegations

the appellant offers in support of jurisdiction. See Ferdon v. U.S. Postal Service,

60 M.S.P.R. 325, 329 (1994) (stating that the Board may consider an agency’s

documentary submissions in determining whether an appellant has made a nonfrivolous

allegation of jurisdiction, but to the extent the agency’s evidence constitutes mere

factual contradiction of the appellant’s otherwise adequate prima facie showing of

jurisdiction, the Board may not weigh evidence and resolve conflicting assertions of the

parties and the agency’s evidence may not be dispositive).

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¶16 Finally, the appellant’s description of his May 2022 disclosure did not

allege wrongdoing by any specific person, and the officials the appellant claimed

were involved in the wrongdoing evidenced by his disclosure did not include the

officials responsible for the remaining personnel actions. 4 IAF, Tab 9 at 10, 13.

The appellant thus did not nonfrivolously allege contributing factor for the

remaining personnel actions through retaliatory motive or any other evidence

upon which contributing factor may be shown.

The appellant established jurisdiction over his appeal, which we remand for

adjudication on the merits.

¶17 For these reasons, we find that the appellant established jurisdiction over

his appeal and we remand it for further adjudication. On remand, the

administrative judge shall hold the appellant’s requested hearing. IAF, Tab 1

at 2. He shall then determine whether the appellant met his burden of proving by

preponderant evidence that he made his claimed May 2022 disclosure—the only

alleged whistleblowing remaining at issue—and that it was protected under

5 U.S.C. § 2302(b)(8). If the administrative judge finds that the appellant made a

protected disclosure, he shall decide whether the appellant established that the

disclosure was a contributing factor in a personnel action, with the May 2022

discontinuation of his HIP privileges and his FY 2022 performance appraisal

being the only nonfrivolously alleged personnel actions within the Board’s

jurisdiction. If the appellant establishes by preponderant evidence that he made a

4

 The appellant alleged that the individuals who served him with, or conveyed to him

the contents of, the July 2022 memorandum that suspended his law enforcement

authorities, placed him on administrative duties, and effectively disallowed him from

working overtime—the AFOD and the rating SDDO for his FY 2022 performance

appraisal—were responsible for the false call-up reports he disclosed. IAF, Tab 9

at 6-7, 13. But the record shows that the officials involved in the decision to take the

personnel actions effected by the July 2022 memorandum were different officials whom

the appellant neither identified in his claimed disclosure nor alleged to have any

retaliatory motive against him. IAF, Tab 11 at 37-38, 385-86. The evidence we

consider here is entirely consistent with the July 2022 memorandum—which the

appellant filed into the record and which identifies its issuing official—being served on

or communicated to him by his immediate supervisors, as he asserts. IAF, Tab 9 at 13,

37-38.

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protected disclosure that was a contributing factor in a personnel action, then the

administrative judge shall determine whether the agency established by clear and

convincing evidence that it would have taken the personnel action in the absence

of the disclosure.

ORDER

¶18 For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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