UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2016 MSPB 23

Docket No. PH-1221-15-0449-W-1

Kinsman Corthell,

Appellant,

v.

Department of Homeland Security,

Agency.

June 7, 2016

Kinsman Corthell, Bow, New Hampshire, pro se.

Larry Zieff, Esquire, Williston, Vermont, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that 

dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For 

the reasons set forth below, we VACATE the initial decision and REMAND the 

appeal for further proceedings consistent with this Opinion and Order. 

BACKGROUND

¶2 On November 25, 2014, the appellant retired from his position as a 

Supervisory Criminal Investigator with the agency’s Office of Immigration and 

Customs Enforcement (ICE). Initial Appeal File (IAF), Tab 1 at 5. At some 

point thereafter, he filed a complaint with the Office of Special Counsel (OSC), 
2

in which he alleged that the agency retaliated against him for disclosing fraud, 

waste, and abuse. Id. at 11. According to the notice of appeal rights issued by 

OSC, the appellant identified the following disclosures: that an “employee was 

committing time fraud because she disappeared from the office for a couple [of] 

hours after lunch each day; that another employee was not producing the level of 

work [the appellant] expected because she was working from a different location; 

and that [the appellant] had concerns about a trainee and proposed that he be 

moved to a different office.” Id. He further alleged that management retaliated 

against him based on its perception that he reported other matters to the agency’s 

Office of Inspector General (OIG) concerning other employees under 

investigation. Id. He alleged that the agency took the following retaliatory 

actions: placing him under investigation by the Office of Professional 

Responsibility; reassigning him from the Manchester, New Hampshire office to 

the Boston, Massachusetts office; prohibiting him from contacting other ICE 

employees in Manchester; denying him access to email; proposing his removal; 

placing him on administrative leave; and coercing him into resigning from his 

position because of the manner in which he was treated when he was reassigned 

to the Boston office. Id. He also alleged before OSC that an agency attorney 

attempted to convince him to sign a waiver form with the promise that he would 

receive retirement credentials and his badge mounted in Lucite. Id. 

¶3 On May 28, 2015, OSC notified the appellant that it had closed its file, and 

advised him of his right to file an IRA appeal with the Board. Id. The appellant 

filed a timely Board appeal. Id. at 1. He attached a copy of the notice of appeal 

rights, which described the allegations he made before OSC, id. at 11, and further 

alleged that the agency took additional retaliatory actions, including ignoring his 

requests under the Freedom of Information Act, denying him per diem and 

lodging during his reassignment, and ignoring his requests for assistance under 

the Employee Assistance Program, id. at 2. He also alleged that the agency 

discriminated against him because of his age and his disclosure of medical issues. 
3

Id. On the appeal form, he indicated that he also was appealing an involuntary 

retirement, i.e., a constructive removal. Id. at 2. 1

 

¶4 On August 13, 2015, the administrative judge issued an order advising the 

appellant of the jurisdictional requirements for an IRA appeal based on a claim of 

retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8). IAF, Tab 6. He 

directed the appellant to file a statement, accompanied by evidence, addressing 

those jurisdictional requirements. Id. at 6-7. As to the appellant’s claim of 

retaliation for his perceived involvement in an OIG investigation, the 

administrative judge stated that the Board “has not yet decided whether an 

individual alleging a violation of 5 U.S.C. § 2302(b)(9) may gain protected status 

by claiming to have been perceived as having engaged in protected activity.” Id. 

at 5. 

¶5 The appellant did not respond to the administrative judge’s order below. 

Based on the written record, the administrative judge dismissed the appeal for 

lack of jurisdiction, finding that the appellant had failed to make a nonfrivolous 

allegation that he made a protected disclosure under 5 U.S.C. § 2302(b)(8). IAF, 

Tab 9, Initial Decision (ID).

2

 He further found that the appellant’s claims of 

discrimination did not provide an independent basis for Board jurisdiction. ID

at 5. 

¶6 On petition for review, the appellant submits numerous documents relating 

to his whistleblowing retaliation claims, including additional correspondence 

with OSC. Petition for Review (PFR) File, Tab 1. The agency has filed a 

 

1 The appellant also checked a box indicating that he was appealing a suspension of 

more than 14 days. IAF, Tab 1 at 2. It appears he did so in error, as he has not 

otherwise alleged in his pleadings that the agency suspended him. 

2 The administrative judge reasoned that the appellant’s disclosures were vague, 

conclusory, and lacked sufficient detail to constitute nonfrivolous allegations of 

protected disclosures. ID at 4-5. 
4

response, arguing that the appellant’s petition does not satisfy the criteria for 

review. PFR File, Tab 3. 

ANALYSIS

The Board may consider a request for corrective action under 5 U.S.C. § 1221

based on a claim that an agency took or failed to take a personnel action based on 

its perception that the appellant engaged in protected activity under 5 U.S.C. 

§ 2302(b)(9)(C).

¶7 The Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 

103 Stat. 16, as amended by the Whistleblower Protection Enhancement Act of 

2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, authorizes the Board to 

provide corrective action for certain prohibited personnel practices. Specifically, 

5 U.S.C. § 1221(a) provides an avenue for an employee, former employee, or 

applicant for employment to seek corrective action before the Board “with respect 

to any personnel action taken, or proposed to be taken against [him] as a result of 

a prohibited personnel practice described in [5 U.S.C. §] 2302(b)(8) or 

[§] 2302(b)(9)(A)(i), (B), (C), or (D)[.]” In the absence of a matter otherwise 

within the Board’s jurisdiction, an employee seeking relief under 5 U.S.C. 

§ 1221(a) first must seek corrective action with OSC before seeking corrective 

action before the Board. 3 5 U.S.C. §§ 1214(a)(3), 1221(a). In such a case, the 

Board proceeding is known as an IRA appeal. 

¶8 To establish jurisdiction in a typical IRA appeal, an appellant must show 

by preponderant evidence that he exhausted his remedies before OSC, and make

nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C. 

§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity 

 

3 If the appellant seeks corrective action regarding a personnel action that is otherwise 

appealable to the Board, he may bring the matter before the Board without first seeking 

corrective action before OSC. 5 U.S.C. § 1221(b). 
5

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). Linder v. Department of 

Justice, 122 M.S.P.R. 14, ¶ 6 (2014); 5 C.F.R. § 1201.57(a)(1), (c)(1); see

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 

Once jurisdiction is established, the appellant may be entitled to corrective action 

if he shows by preponderant evidence that he made a protected disclosure under 

5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D), and that the protected disclosure or activity

was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); 5 C.F.R. 

§ 1201.57(c)(4). However, the Board will not order corrective action if the 

agency then demonstrates by clear and convincing evidence that it would have 

taken the same personnel action in the absence of the protected disclosure or 

activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of Veterans Affairs, 

121 M.S.P.R. 221, ¶ 24 (2014); see Alarid v. Department of the Army, 

122 M.S.P.R. 600, ¶¶ 12-14 (2015) (applying the burden-shifting scheme of 

5 U.S.C. § 1221(e) to the reprisal for protected activity under 5 U.S.C. 

§ 2302(b)(9)(B)). 

¶9 This case differs from the typical IRA appeal in that the appellant alleges 

that the agency took personnel actions against him in part because of his 

protected disclosures under 5 U.S.C. § 2302(b)(8), but also in part because of its

mistaken belief that he engaged in activity protected under 5 U.S.C. 

§ 2302(b)(9)(C) by reporting matters to his agency’s OIG. Under the latter 

provision, it is a prohibited personnel practice for an agency to: 

take or fail to take, or threaten to take or fail to take, a personnel 

action with respect to any employee or applicant for employment 

because of . . . cooperating with or disclosing information to the 

Inspector General of an agency, or the Special Counsel, in 

accordance with applicable provisions of law[.] 

5 U.S.C. § 2302(b)(9)(C). We have not yet had the opportunity to address 

whether an appellant may seek corrective action under 5 U.S.C. § 1221(a) based 
6

on a claim of reprisal for perceived 5 U.S.C. § 2302(b)(9)(C) activity. For the 

reasons discussed below, we find that the Board is authorized to consider such 

a claim. 

¶10 First, the statute speaks to the motivation of the agency, forbidding the

agency to take or fail to take, or threaten to take or fail to take, a personnel action

with respect to any employee or applicant for employment because of

“cooperating with or disclosing information to the Inspector General of an 

agency.” 5 U.S.C. § 2302(b)(9)(C). It does not specify that the appellant 

actually must have engaged in the protected activity under 5 U.S.C. 

§ 2302(b)(9)(C) that motivated the agency. As to the Board’s jurisdiction,

5 U.S.C. § 1221(a) provides that, if the jurisdictional requirements are otherwise 

met, an employee may seek corrective action before the Board with respect to any

personnel action taken against that individual “as a result of a prohibited 

personnel practice” under 5 U.S.C. § 2302(b)(8) or § 2302(b)(9)(A)(i), (B), (C), 

or (D). 5 U.S.C. § 1221(a) (emphasis added). Thus, the statute does not require 

specifically that the prohibited personnel practice for which the appellant seeks 

corrective action involve a protected disclosure or protected activity on the part 

of the appellant. We find nothing in the legislative history of the WPA, which 

introduced 5 U.S.C. § 2302(b)(9)(C), or the WPEA, which extended the 

protections of the WPA to activity described at 5 U.S.C. § 2302(b)(9)(C), to 

suggest that Congress intended a narrower reading. 4 

¶11 Furthermore, a broad reading of the statute would harmonize with our 

existing case law holding that the protections of the WPA may be available to 

employees who did not make protected disclosures under 5 U.S.C. § 2303(b)(8), 

but were perceived as having done so. See King v. Department of the Army, 

 

4 See S. Rep. No. 112-155 at 1, which states that the WPEA “will strengthen the rights 

and protections for federal whistleblowers so that they can more effectively help root 

out waste, fraud and abuse in the federal government.” 
7

116 M.S.P.R. 689, ¶ 6 (2011). For example, we have found that the WPA may 

cover a “mistaken identity” scenario, in which the relevant agency official 

believed the appellant made disclosures that were in fact made by another 

individual. See, e.g., Special Counsel v. Department of the Navy, 46 M.S.P.R. 

274, 276, 278-80 (1990). As we explained in Special Counsel v. Department of 

the Navy, failure to provide an employee with the protections of the WPA in such

circumstances would discourage other employees from make protected 

disclosures, and such a chilling effect would contravene the purpose of the

statute. Id. at 278-79. Similarly, we find that to exclude from the Board’s 

jurisdiction claims of reprisal based on perceived 5 U.S.C. § 2302(b)(9)(C) 

activity would defeat the purpose of the statute by discouraging other employees 

from engaging in activity which Congress has found to be in the public interest. 

Although the protection in section 2309(b)(9) is for the activity of going to the 

OIG, it is actually the equivalent of protecting disclosures to the OIG. Given that 

the Board has long decided to protect disclosures it would be inconsistent not to 

protect this disclosure/activity as well. 

¶12 In sum, we find that 5 U.S.C. § 1221(a) authorizes the Board to consider a 

request for corrective action where the appellant alleges that the agency violated 

5 U.S.C. § 2302(b)(9)(C) by taking or failing to take a personnel action based on 

its perception that he engaged in activity protected under that statute. As with a 

claim of reprisal for perceived whistleblowing, the Board will not inquire 

regarding whether the appellant actually engaged in the protected activity; rather, 

the issue of whether the agency perceived the appellant to have engaged in the 

protected activity will stand in for that portion of the analysis at both the 

jurisdictional and merits stage of the appeal. See King, 116 M.S.P.R. 689, ¶ 8 

(describing the analysis to be applied in a claim of retaliation for 

perceived whistleblowing). 

¶13 Thus, to establish jurisdiction over an IRA appeal involving such a claim, 

the appellant must establish that he exhausted his remedies with OSC and make 
8

nonfrivolous allegations that the agency perceived him to have engaged in the 

protected activity and that its perception was a contributing factor in the agency’s 

decision to take or not take the personnel action at issue. See Linder, 

122 M.S.P.R. 14, ¶ 6. 5

 Once jurisdiction is established, the appellant may be 

entitled to corrective action if he shows by preponderant evidence that the 

agency’s perception that he engaged in activity under 5 U.S.C. § 2302(b)(9)(C) 

was a contributing factor in the decision to take or not take the personnel action. 

5 U.S.C. § 1221(e)(1); see King, 116 M.S.P.R. 689, ¶ 9. However, the Board 

will not order corrective action if, after finding the agency’s perception of the 

protected activity, the agency demonstrates by clear and convincing evidence that 

it would have taken the same personnel action in the absence of that perception. 

5 U.S.C. § 1221(e)(2); see King, 116 M.S.P.R. 689, ¶ 9. 

¶14 An appellant must receive explicit information on what is required to 

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection 

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Accordingly, we remand the case 

to provide the appellant notice of the requirements of establishing jurisdiction 

over this IRA appeal concerning his claim of retaliation for perceived 5 U.S.C. 

§ 2302(b)(9)(C) activity, and afford him the opportunity to provide evidence and 

argument on the issue. 6 See King, 116 M.S.P.R. 689, ¶ 11. 

 

5 In considering the contributing factor element, the perception of the responsible 

agency official will stand in for the knowledge component of the knowledge/timing test 

under 5 U.S.C. § 1221(e)(1). 

6 The appellant received notice below of the jurisdictional requirements for an IRA 

appeal alleging a violation of 5 U.S.C. § 2302(b)(8), IAF, Tab 6, and he failed to submit 

evidence and argument on that issue to the administrative judge. On review, the 

appellant submits a document that appears to show that he submitted a request for an 

extension of time to respond to the administrative judge’s order. PFR File, Tab 1 at 83. 

The Board’s records, however, do not indicate receipt of the appellant’s pleading. In 

any event, the document bears a facsimile transmittal date of September 8, 2015, 

sixteen days after the deadline set by the administrative judge for the appellant to 

respond to the jurisdictional order. Id.; IAF, Tab 6 at 7. The appellant has offered no 
9

The appellant’s decision to seek corrective action before OSC concerning his 

alleged involuntary retirement was not a binding election and does not preclude 

him from filing a separate constructive removal appeal. 

¶15 Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action 

appealable to the Board, and who alleges that he has been affected by a 

prohibited personnel practice other than a claim of discrimination under 5 U.S.C. 

§ 2302(b)(1), may elect one, and only one, of the following remedies: (1) an 

appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under the 

provisions of a negotiated grievance procedure; or (3) a complaint following the 

procedures for seeking corrective action from OSC under 5 U.S.C. chapter 12, 

subchapters II and III. Agoranos v. Department of Justice, 119 M.S.P.R. 498, 

¶ 14 (2013); see 5 C.F.R. § 1209.2(d)(1). 

¶16 Here, the appellant raised the matter of his alleged involuntary retirement 

with OSC before proceeding to the Board. IAF, Tab 1. Ordinarily, an individual 

who first requests corrective action from OSC will be deemed to have made a 

binding election to proceed in that forum. Agoranos, 119 M.S.P.R. 498, ¶ 14; 

5 C.F.R. § 1209.2(d). In such a case, the procedures for an IRA appeal apply, 

even if the contested personnel action would have been directly appealable to the 

Board. 5 C.F.R. § 1209.2(d)(2). In adjudicating the merits of such an IRA 

appeal, Board will limit its inquiry to issues listed at 5 U.S.C. § 1221(e), and 

will not consider affirmative defenses. 5 C.F.R. § 1209.2(c). Thus, if the 

appellant were to establish in the context of his IRA appeal that his retirement 

was involuntary, and thus tantamount to a removal, he could not pursue his 

discrimination claim, and any failure by the agency to provide him constitutional 

due process would not by itself entitle the appellant to a remedy.

 

explanation for his failure to respond or request an extension of time in a timely fashion 

below. Accordingly, only the appellant’s claim of retaliation for perceived 5 U.S.C. 

§ 2302(b)(9)(C) activity need be considered on remand. 
10

¶17 However, we have held that an election under 5 U.S.C. § 7121(g) is 

binding only if it was knowing and informed. Agoranos, 119 M.S.P.R. 498, ¶ 16. 

An agency’s failure to inform an employee fully of his potential appeal rights 

under 5 U.S.C. § 7121(g) and any limitation on those rights precludes a finding 

that the appellant made a knowing and informed election of remedies under that 

provision. Agoranos, 119 M.S.P.R. 498, ¶¶ 15-17. Here, the agency did not issue

a letter of decision or otherwise provide the appellant with the required notice,

and there is no indication that he was informed through some other means. See 

Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 10 (2015); Savage v. 

Department of the Army, 122 M.S.P.R. 612, ¶ 18 (2015). We therefore find that 

the appellant’s decision to seek corrective action with OSC does not preclude him

from filing an adverse action appeal under 5 U.S.C. chapters 75 and 77, while 

continuing to contest the remaining personnel actions in his IRA appeal. See 

Savage, 122 M.S.P.R. 612, ¶ 18. If the appellant elects to pursue his involuntary 

retirement claim separately from his IRA appeal, the adverse action appeal 

will not be subject to the jurisdictional requirements of an IRA appeal and 

will not be limited to the issues listed at 5 U.S.C. § 1221(a). See Savage, 

122 M.S.P.R. 61, ¶ 22. On remand, the administrative judge should determine 

whether the appellant wishes to pursue that course of action. 

ORDER

¶18 We vacate the initial decision and remand this appeal to the regional office. 

On remand, the administrative judge should first determine whether the appellant 

wishes to pursue his alleged involuntary retirement claim separately from his IRA 

appeal. If the appellant does so wish, the administrative judge should docket the 

alleged involuntary retirement claim as an adverse action appeal under 

chapters 75 and 77 and adjudicate that appeal. The administrative judge also 

should provide the appellant notice of the jurisdictional requirements for an IRA 

appeal based on a claim of retaliation for perceived 5 U.S.C. § 2302(b)(9)(C) 
11

activity and afford him an opportunity to present evidence and argument on 

the issue. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.