UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN EDWARDS ANDERSON,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DC-1221-12-0544-B-1

DATE: September 21, 2015

THIS ORDER IS NONPRECEDENTIAL1

Deryn Sumner, Esquire and Kevin L. Owen, Esquire, Silver Spring, 

Maryland, for the appellant.

Margo L. Chan, Esquire and Susan E. Gibson, Esquire, Alexandria, 

Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

denied his request for corrective action in his individual right of action (IRA)

appeal. For the reasons discussed below, we GRANT the petition for review and 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

REMAND the case to the regional office for further adjudication in accordance 

with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

Background and Procedural History

¶2 The appellant filed the instant IRA appeal challenging his reassignment 

from his position as the agency’s Employee Assistance Program (EAP) 

Administrator to that of a Program Manager in the agency’s Office of Tactical 

Operations based upon alleged whistleblower reprisal. Anderson v. Department 

of Justice, MSPB Docket No. DC-1221-12-0544-W-1, Initial Appeal File (W-1

IAF), Tab 1. In his appeal, the appellant alleged that he made a protected 

disclosure of a violation of law to several agency employees concerning a 

directive his supervisor issued, which he believed violated both the Privacy Act 

and the Health Insurance Portability and Accountability Act (HIPAA). Id. at 17. 

The appellant alleged that shortly after he made this disclosure, he was reassigned 

to the Program Manager position in reprisal for his protected whistleblowing.

¶3 The administrative judge initially dismissed the IRA appeal for lack of 

jurisdiction and, in a nonprecedential order, we remanded the appeal to the 

administrative judge, finding that the appellant nonfrivolously alleged that he 

made a protected disclosure of a violation of law under 5 U.S.C. § 2302(b)(8). 

Anderson v. Department of Justice, MSPB Docket No. DC-1221-12-0544-W-1,

Remand Order (Jan. 22, 2014). Following remand, the administrative judge held 

a 3-day hearing and issued a remand initial decision denying the appellant’s 

request for corrective action. Remand File (RF), Tab 33, Remand Initial Decision 

(RID). In his remand initial decision, the administrative judge found that,

although the appellant made a protected disclosure of a violation of law, he could 

not establish that the deciding official had knowledge of his disclosure when he 

decided to reassign him. RID at 54-64. Specifically, the administrative judge 

credited the deciding official’s testimony that he decided to reassign the appellant 
3

on February 6, 2012, and that he first learned of the appellant’s disclosure the 

following day when he received an email forwarded to him by the appellant’s 

first-line supervisor. RID at 54, 65. The administrative judge thus found that the 

appellant could not establish that his disclosure was a contributing factor in the 

agency’s decision to reassign him. RID at 64.

¶4 The appellant has filed a petition for review of the remand initial decision 

challenging the administrative judge’s conclusion that the agency official decided 

to reassign the appellant 1 day before learning of his disclosure. Petition for 

Review (PFR) File, Tab 1 at 15-22. On review, the appellant argues that the 

deciding official testified equivocally as to when he actually decided to reassign 

the appellant, and he asserts that there is sufficient evidence in the record to 

satisfy the knowledge/timing test and establish the contributing factor element of 

his claim. Id. The agency has filed an opposition to the petition for review 

arguing that the administrative judge’s factual and credibility determinations are 

entitled to deference and that the appellant has not proven that the deciding 

official knew of the disclosure when he made his decision to reassign the 

appellant. PFR File, Tab 3.

Standard of Review

¶5 In order to secure corrective action from the Board in an IRA appeal, an 

appellant must first seek corrective action from the Office of Special Counsel 

(OSC). Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 

(2014). If an appellant exhausts his administrative remedies with OSC, he then 

must establish Board jurisdiction by nonfrivolously alleging that he made a 

protected disclosure and that the disclosure was a contributing factor in the 

challenged personnel action. Id. If an appellant establishes jurisdiction over his 

IRA appeal, he is entitled to a hearing on the merits of his claim. Id. To prevail 

on the merits of his claim, the appellant must prove by preponderant evidence 

(1) that he reasonably believed he made a protected disclosure concerning one or 

more categories of wrongdoing enumerated in section 2302(b)(8), and (2) that his 
4

protected disclosure was a contributing factor in the challenged personnel action. 

Id., ¶ 10. 

¶6 If the appellant makes such a showing, the burden shifts to the agency to 

prove by clear and convincing evidence that it would have taken the same action 

in the absence of the disclosure. Id.; see 5 U.S.C. § 1221(e)(2). In determining if

an agency has met this burden, the Board will consider the following factors: 

(1) the strength of the agency’s evidence in support of the action; (2) the 

existence and strength of any motive to retaliate on the part of the agency 

officials who were involved in the decision; and (3) any evidence that the agency 

takes similar actions against employees who are not whistleblowers but who are 

otherwise similarly situated. Lu v. Department of Homeland 

Security, 122 M.S.P.R. 335, ¶ 7 (2015) (citing Carr v. Social Security 

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does not view 

these factors as discrete elements, each of which the agency must prove by clear 

and convincing evidence. Rather, the Board will weigh the factors together to 

determine whether the evidence is clear and convincing as a whole. Id.

The appellant established by preponderant evidence that he made a protected 

disclosure.

¶7 The administrative judge found, and we agree, that the appellant established 

by a preponderance of the evidence that he reasonably believed he made a 

protected disclosure of a violation of law under section 2302(b)(8). RID at 17-18. 

The record reflects that the appellant’s first-line supervisor requested that he 

provide a weekly accounting of his work assignments, including certain 

information about the cases he was working on and the issues presented by the 

employees who sought EAP assistance. See RF, Tab 8 at 17-18. In response, the 

appellant asserted that he believed the disclosure of such detailed information

violated both the Privacy Act and HIPAA, and he declined to provide the 

requested information. Id. at 16-17. We concur with the administrative judge 

that the appellant reasonably believed he made a protected disclosure of a 
5

violation of law under section 2302(b)(8) when he opposed his supervisor’s 

request for information that he believed violated the Privacy Act and HIPAA. See

Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 10 (2011) (finding a

disclosure was protected based on an alleged violation of the Privacy Act); RID 

at 17-18.

The appellant established by preponderant evidence that his protected disclosure 

was a contributing factor in his reassignment.

¶8 To establish the contributing factor criterion, an appellant must prove by 

preponderant evidence that the fact of, or content of, the protected disclosure was 

one fact that tended to affect the personnel action in any way. See Carey v. 

Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003). As noted above, 

the most common way of proving this element is through the knowledge/timing 

test, i.e., by showing that the official taking the action knew of the disclosure 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 action. 

Id.; see 5 U.S.C. § 1221(e)(1). The Board also has held, however, that there is no 

requirement that a deciding official change his decision to take a personnel action 

if he learns of an employee’s disclosure after making such a decision to take an 

action. See Finston v. Health Care Finance Administration, 83 M.S.P.R. 100, ¶ 5 

(1999).

¶9 Upon our review of the record, we cannot agree with the administrative 

judge that the appellant failed to establish that his disclosure was a contributing 

factor in his reassignment under the knowledge/timing test.

2

 RID at 64. In 

support of his finding on the contributing factor element, the administrative judge 

found that the deciding official decided to reassign the appellant on February 6, 

2012, and that he did not learn about the appellant’s disclosure until he received a 

forwarded email from the appellant’s supervisor the next day containing the 

 2 A reassignment is one of the specific personnel actions listed in section 2302 that may 

form the basis of an IRA appeal. See 5 U.S.C. § 2302(a)(2)(A)(iv).
6

appellant’s disclosure. RID at 54; see RF, Tab 8 at 16-17. The administrative 

judge thus credited the deciding official’s testimony that he decided to reassign 

the appellant prior to learning about his whistleblowing disclosure, and he 

concluded that the appellant’s disclosure could not have influenced the decision 

to take the challenged personnel action. RID at 54-64; see Orr v. Department of 

the Treasury, 83 M.S.P.R. 117, ¶ 15 (1999) (a protected disclosure made after a 

personnel action cannot serve as a contributing factor in the action), aff’d, 

232 F.3d 912 (Fed. Cir. 2000) (Table).

¶10 Upon reviewing the deciding official’s hearing testimony, however, we do 

not agree that the personnel action at issue was initiated or firmly decided upon 

by the deciding official prior to him learning about the appellant’s protected 

disclosure. 3

 Although we find no reason to differ with the administrative judge’s 

findings that the deciding official credibly testified that he decided he wanted to

reassign the appellant as of February 6th, the record reflects that the deciding 

official took no steps to initiate or implement that decision until after he learned 

of the appellant’s disclosure. In support of our conclusion, we note that the 

deciding official did not contact or meet with the agency’s general counsel’s 

office about reassigning the appellant until several days after learning about the

protected disclosure. See Hearing Compact Disc 2 (HCD-2); see also W-1 IAF, 

Tab 6 at 41. At the hearing, moreover, the deciding official testified that during 

his meeting with the Office of General Counsel he explored what other personnel 

actions, if any, he could take, and that he considered and rejected taking a 

 3 The record demonstrates that the appellant first learned of his reassignment on 

February 21, 2012, and that a Standard Form 50 (SF-50) was issued making his 

reassignment effective February 26, 2012. See RF, Tab 8 at 49, 52. Both actions 

post-date the deciding official learning of the appellant’s disclosure on February 7, 

2012. See id. at 16; but see Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 22 

(2014) (the date of an SF-50 is not necessarily the effective date of a challenged 

action).
7

performance-based action because of the amount of time it would take to effect 

such an action. HCD-2. 

¶11 Based upon this testimony, we cannot conclude that the deciding official 

decided on a firm course of action, initiated the appellant’s reassignment, or 

approved such an action prior to learning of the appellant’s disclosure. See, e.g.,

Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 12 (2013) (stating that 

the effective date of an adverse action is generally the date on which it was 

approved by an individual with proper authority) (citing Vandewall v. Department 

of Transportation, 52 M.S.P.R. 150, 155 (1991)); Fickie v. Department of the 

Army, 86 M.S.P.R. 525, ¶ 9 (2000) (finding that an action that was only 

“contemplated and in preparation” prior to a disclosure can serve as the predicate 

personnel action in an IRA appeal). Thus, under the knowledge/timing test, we 

find that the decision to reassign the appellant was made after the deciding 

official learned of the appellant’s disclosure and that the disclosure may have had 

some effect on the deciding official’s ultimate decision to reassign him. See

Carey, 93 M.S.P.R. 676, ¶ 10 (finding that an appellant need only prove that the 

fact or content of the disclosure was one of the factors that tended to affect the 

personnel action in any way).

¶12 We further find inapplicable the principle that a deciding official need not 

change his decision to take a personnel action upon subsequently learning about 

an employee’s protected disclosure for the first time. See Dean v. Department of 

the Army, 57 M.S.P.R. 296, 303 (1993) (stating that an agency may persist in 

taking disciplinary action decided upon prior to learning of a protected 

disclosure). As explained above, we find there is insufficient evidence in the 

record that the deciding official had firmly decided to reassign the appellant prior 

to learning of his disclosure; rather, we find that the deciding official continued 

to weigh and evaluate whether he would reassign the appellant or take some other 

action after learning of the disclosure. See HCD-2. Under these facts, where the 

decision to reassign the appellant had neither been initiated nor finalized prior to 
8

the deciding official learning of the disclosure, the decision to reassign the 

appellant is not exempted from review under Dean. See Fickie, 86 M.S.P.R. 525, 

¶ 9.

¶13 We similarly find this case distinguishable from Horton v. Department of 

the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995), superseded by statute on other 

grounds as stated in Day v. Department of Homeland Security, 119 M.S.P.R. 589

(2013). In Horton, the Federal Circuit found that the appellant could not 

establish the contributing factor element of his IRA appeal challenging his 

probationary termination because the termination action had been initiated 1 day 

prior to his disclosure. 4

 Id. Here, by contrast, there is no evidence that the 

deciding official initiated or took any steps toward effecting the appellant’s 

reassignment until after he learned of the disclosure. HCD-2. Thus, we find this 

case more analogous to Fickie where the appellant’s reassignment was only 

contemplated by the deciding official and in its preliminary phase when he 

learned of the appellant’s disclosure. See Fickie, 86 M.S.P.R. 525, ¶ 9.

¶14 Accordingly, because the appellant’s reassignment was neither initiated nor 

firmly decided upon at the time the deciding official learned of the appellant’s 

disclosure, we do not agree that the appellant has failed to establish that his 

protected disclosure was a contributing factor in his reassignment under the 

knowledge/timing test. We thus vacate the administrative judge’s finding that the 

appellant failed to establish that his disclosure was a contributing factor in his 

reassignment under 5 U.S.C. § 1221(e)(1).

 4 The court in Horton further relied on the fact that the appellant made his disclosure 

after learning of his termination. See Horton, 66 F.3d at 284. Following the enactment 

of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 

112-199, 126 Stat. 1465, an employee’s or applicant’s motive for making a disclosure 

does not preclude it from being protected under section 2302(b)(8). See 5 U.S.C.

§ 2302(f)(1)(C). Although an appellant’s motive for making a disclosure is immaterial

under the WPEA, we note that there does not appear to be any evidence that the 

appellant was aware that the deciding official was considering reassigning him when he 

made his disclosure. 
9

The appeal is remanded to the administrative judge for an assessment of whether 

the agency would have reassigned the appellant in the absence of his disclosure 

under the clear and convincing standard.

¶15 Having found that the appellant established that his protected disclosure 

was a contributing factor in his reassignment, the burden now shifts to the agency 

to establish by clear and convincing evidence that it would have taken the same 

personnel action in the absence of the protected disclosure. See 5 U.S.C.

§ 1221(e)(2); Aquino, 121 M.S.P.R. 35, ¶ 25. Because the administrative judge 

concluded that the appellant failed to establish the contributing factor element of 

his claim, he made no findings on the clear and convincing issue. RID at 64 n.67. 

Based upon the nature and timing of the agency’s action and the appellant’s 

disclosure, and the fact that the administrative judge heard more than 3-days of 

testimony, we believe the administrative judge is in the best position to make the 

necessary factual and credibility determinations in the first instance to decide if 

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

taken the same action in the absence of the appellant’s protected disclosure. See

Mithen v. Department of Veterans Affairs, 119 M.S.P.R. 215, ¶ 23 (2013)

(remanding the clear and convincing issue to the administrative judge for, among 

other things, credibility determinations). We accordingly remand the appeal to 

the administrative judge for an assessment of the clear and convincing issue under 

the standards articulated in Whitmore v. Department of Labor, 680 F.3d 1353, 

1368 (Fed. Cir. 2012). See Mithen, 119 M.S.P.R. 215, ¶ 24. Because the 

administrative judge held a hearing in the matter and correctly informed the 

parties of their respective burdens of proof beforehand, we deem the record 

complete. However, the administrative judge has the discretion to allow 

additional discovery and a supplemental hearing prior to issuing a new initial 

decision if he finds it necessary for proper adjudication. 
10

ORDER

¶16 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board