UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LI YE CAI,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

NY-1221-22-0060-W-1

DATE: April 22, 2024

THIS ORDER IS NONPRECEDENTIAL1

Li Ye Cai, Middle Village, New York, pro se.

Elizabeth Connelly, Esquire, and Frank Charles Sharp, Esquire,

New York, New York, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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,

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
VACATE the initial decision, and REMAND the case to the field office for

further adjudication in accordance with this Remand Order.

BACKGROUND

The appellant is employed as a GS-12 Information Technology Specialist

(ITS) in the Office of Information and Technology (OIT) for Customs and Border

Protection (CBP), domiciled at John F. Kennedy International Airport. Cai v.

Department of Homeland Security, MSPB Docket No. NY-1221-22-0060-W-1,

Initial Appeal File (IAF), Tab 1 at 1. On March 20, 2020, the then-Governor of

New York signed an executive order, commonly referred to as “New York State

on PAUSE,” aimed at “assur[ing] uniform safety for everyone” in light of the

spread of the coronavirus. N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.8 (2020);

IAF, Tab 6 at 7-8; New York State, Governor Cuomo Signs the “New York State

on Pause” Executive Order (Mar. 20, 2020) (March 20, 2020 Announcement),

 https://www.governor.ny.gov/news/governor - cuomo - signs - new - york - state - pause -

 executive - order#:~:text=Governor%20Cuomo%20also%20announced

%20%22Matilda’s,and%20those%20with%20underlying%20illnessess. The

executive order limited activities such as in-person business operations. N.Y.

Comp. Codes R. & Regs. tit. 9, § 8.202.8; IAF, Tab 6 at 7-10. A Governor’s

Office announcement regarding this executive order also announced, “Matilda’s

Law.” IAF, Tab 6 at 7, 9-10; March 20, 2020 Announcement. According to the

announcement, individuals 70 years or older generally were required to stay at

home. IAF, Tab 6 at 7, 9-10; March 20, 2020 Announcement. However, the

executive order itself did not include this provision. N.Y. Comp. Codes R. &

Regs. tit. 9, § 8.202.8.

That same day, the OIT Area Manager emailed a temporary telework

schedule for the following 8 weeks, beginning on March 23, 2020. IAF, Tab 6

at 64. Pursuant to this schedule, the appellant, who at the time was 72 years old,

was to work in the office for 4 of the following 8 weeks. Id. In contrast, two

2
younger coworkers were each scheduled to work in the office 2 of the 8 weeks.

Id.

On March 24, 2020, the appellant emailed the OIT Area Manager, the

Regional Director of OIT, and an agency official, objecting to the schedule on the

basis that he was at a higher risk of contracting COVID-19 due to his age and

informing them that the New York Governor was advising that New Yorkers

“stay away from senior citizens.” IAF, Tab 6 at 61-63. He attached to his emails

a newspaper article stating that the New York Governor “said his most critical

request of New Yorkers is to stay away from the most vulnerable,” including

“people who are over 70.” Id. at 61-62. The appellant alleges that on March 25,

2020, one of his more junior colleagues fell ill from COVID-19. 2 Id. at 4.

On April 3, 2020, the OIT Area Manager sent out a new in-office schedule,

covering the following 9 weeks, beginning on April 6, 2020. IAF, Tab 15

at 67-69. This schedule designated one of nine employees to cover each week,

with the appellant scheduled to be in the office the week of May 25, 2020. Id.

at 68. On April 9, 2020, the appellant’s first-level supervisor sent an email to the

appellant and others advising that the prior day “a special cleaning company

[came] and wiped down all the desks in the OIT area and computer room. Once

this was completed, they fogged the area with a disinfectant.” Id. 

Thereafter, the appellant claims he made disclosures and engaged in

activities as follows: (1) on July 7, 2020, he emailed the CBP Commissioner,

IAF, Tab 6 at 4-5; (2) on September 16, 2020, he emailed New York City

Councilmember Robert Holden, id. at 55; (3) in October 2020, he filed a

complaint with the New York State Division of Human Rights, id. at 36-45;

(4) on October 13, 2020, he emailed the office of U.S. Representative Grace

Meng, id. at 17-20; (5) in November 2020, he filed an Office of Special Counsel

(OSC) complaint (MA-21-000299), which he appears to have amended around

January 2021, Cai v. Department of Homeland Security, MSPB Docket No. NY2

 According to the appellant, his coworker later passed away. IAF, Tab 6 at 55.

3
0752-22-0142-I-1 (2022 removal appeal), Initial Appeal File (0142-I-1 AF),

Tab 18 at 6; (6) on May 6, 2021, he emailed U.S. Senator Kirsten Gillibrand, IAF,

Tab 6 at 50; (7) on June 21, 2021, he filed an OSC complaint (DI-21-000600)

alleging prohibited personnel practices, 0142-I-1 AF, Tab 1 at 32-35; (8) on

August 13, 2021, after receiving a final determination from OSC in his MA-21-

00299 complaint, he filed his first IRA appeal with the Board, Cai v. Department

of Homeland Security, MSPB Docket No. NY-1221-21-0142-W-1 (2021 IRA

appeal), Initial Appeal File (0142-W-1 AF), Tab 1; (9) on August 18, 2021, he

disclosed information to the agency’s Office of Inspector General (OIG), IAF,

Tab 6 at 52-53; (10) in 2021, he participated in another OSC investigation

involving an unidentified coworker, IAF, Tab 5 at 8; and (11) on November 24,

2021, he filed his first chapter 75 appeal over his removal, raising an affirmative

defense of whistleblower reprisal, Cai v. Department of Homeland Security,

MSPB Docket No. NY-0752-22-0020-I-1, Initial Appeal File (0020 IAF), Tab 1

at 5. The aforementioned complaints included allegations that, in March 2020,

the agency placed him at risk and violated the executive order and Matilda’s Law

when an on-site schedule required him to work in the office twice as often as

younger colleagues, and the agency failed to clean and disinfect the premises

after his colleague fell ill. IAF, Tab 5 at 8, Tab 6 at 4-5, 17-20, 45, 53, 55;

0142-I-1 AF, Tab 1 at 32-33, Tab 18 at 6; 0020 IAF, Tab 1 at 5. 

According to the appellant, as a result of his disclosures and activity, he

was subjected to retaliation, including the following: (1) on January 14, 2021,

the agency issued him a proposed removal and placed him on administrative duty;

(2) on August 5, 2021, the agency offered him a last chance agreement (LCA);

and (3) on August 27, 2021, the agency issued him a removal decision. IAF,

Tab 5 at 6.

The appellant submitted the underlying whistleblower reprisal complaint to

OSC in December 2021, which was assigned the complaint number

MA-22-000502. Id. at 10-32. OSC issued him a final determination letter on

4
January 21, 2022, and closed its investigation into his complaint. IAF, Tab 1

at 4-5.

The appellant then filed this IRA appeal with the Board. IAF, Tab 1. The

administrative judge thereafter issued an order setting forth the appellant’s

burden to establish jurisdiction over his appeal. IAF, Tab 4. The appellant

submitted a response, providing information regarding the aforementioned

disclosures and activities and the personnel actions at issue. IAF, Tab 5 at 4-6.

He also attached to his response a copy of his OSC complaint form and a written

summary of his claims that he provided to OSC, a copy of OSC’s final

determination letter, and the “evidence and amendments filed with OSC.” IAF,

Tab 5 at 8-32, Tab 6. The agency responded to the appellant’s submission. IAF,

Tab 10 at 4-18. 

The administrative judge issued an initial decision, dismissing the appeal

for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID) at 2, 15. She found

that the appellant had exhausted the alleged personnel actions at issue as well as

the alleged protected disclosures and activities enumerated above, except the

July 7, 2020 email to the CBP Commissioner. ID at 10-11. The administrative

judge also concluded that the appellant had failed to nonfrivolously allege that he

made a protected disclosure. ID at 15. She did not separately address whether

any of his alleged disclosures might constitute protected activities within the

Board’s IRA jurisdiction. Id. Finally, she concluded, without providing an

explanation, that the appellant had failed to nonfrivolously allege that any

protected disclosures and activities were a contributing factor in a personnel

action. Id.

The appellant has filed a petition for review of the initial decision. Cai v.

Department of Homeland Security, MSPB Docket No. NY-1221-22-0060-W-1,

Petition for Review (PFR) File, Tab 1. The agency has filed a response, to which

the appellant replied. PFR File, Tabs 3-4. On review, the appellant disputes the

administrative judge’s determination that the appellant failed to nonfrivolously

5
allege that he made a protected disclosure. PFR File, Tab 1 at 4-6. He also

asserts that some of the matters the administrative judge treated as protected

disclosures were protected activities. Id. at 6. He reargues that he established

that his protected disclosures and activities were contributing factors in the

personnel actions taken against him because the timing of the personnel actions

coincided with the timing of when the agency learned about his disclosures and

activities. Id. at 7; IAF, Tab 5 at 4-5. 

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his remedies before OSC and makes nonfrivolous allegations that

(1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in a

protected activity 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). Gabel

v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 5.

We address on review the appellant’s March 24, 2020 disclosures, which the

administrative judge overlooked.

On review, the appellant alleges that the investigation that led to his

removal began after his March 24, 2020 disclosure to a union official. PFR File,

Tab 1 at 5; IAF, Tab 6 at 58-59. The administrative judge did not identify or

address the appellant’s March 24, 2020 emails in the initial decision. ID at 9-15.

We find it appropriate to do so here. 

Pro se pleadings are to be construed liberally. Ingram v. Department of the

Army, 114 M.S.P.R. 43, ¶ 15 (2010). In a jurisdictional order, the administrative

judge instructed the appellant to identify all of his protected disclosures and

activities. IAF, Tab 4 at 7. The appellant did not list in his response his

March 24, 2020 email to a union official, or similar emails to management on the

same day, as an alleged protected disclosure or activity. IAF, Tab 5 at 5.

6
Further, they were not identified by OSC in its January 21, 2022 letter advising

the appellant that it was closing its investigation into his claims. Id. at 8-9.

However, in the documentation that he submitted in support of his jurisdictional

response, he provided copies of these emails, as well as a summary of his claims

that he submitted to OSC that identified the emails on a list of “Protected

Disclosures/Activities.” IAF, Tab 5 at 12-13, Tab 6 at 3, 58-63. We find this

documentation was sufficient to raise the March 24, 2020 emails. Therefore, we

address them on review.

The administrative judge erred in finding that the appellant had not exhausted all

of his alleged disclosures. 

The administrative judge found that the appellant exhausted his alleged

disclosures, activities, and personnel actions with OSC, with two exceptions—the

March 24, 2020 emails, which, as indicated above, she did not address, and his

July 7, 2020 email to the CBP Commissioner. ID at 11. The parties do not

dispute the administrative judge’s determination that the appellant exhausted the

remaining matters, and we discern no basis to disturb those findings on review.

We further conclude that the appellant exhausted his March 24, 2020 emails and

July 7, 2020 alleged disclosure.

An appellant satisfies the exhaustion requirement when he has provided

OSC with a sufficient basis to pursue an investigation into his allegations of

whistleblower reprisal. Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through his initial

OSC complaint or correspondence with OSC. Id., ¶ 11. Alternatively, exhaustion

may be proven through other sufficiently reliable evidence, such as an affidavit or

declaration attesting that the appellant raised with OSC the substance of the facts

in his appeal. Id. An appellant must prove exhaustion by preponderant evidence.

Id.

In finding that the appellant did not exhaust his July 2020 alleged

disclosure, the administrative judge declined to rely on evidence the appellant

7
stated that he submitted to OSC. ID at 11. This evidence included the summary

of his claims that he provided to OSC. IAF, Tab 5 at 10-32. In the summary, he

referred to his July 7, 2020 email to the CBP Commissioner and stated, “I attach

the complete correspondence with [the CBP Commissioner].” Id. at 10. The

appellant also provided with his jurisdictional response below a copy of the

July 7, 2020 email, which he declared under penalty of perjury he had submitted

to OSC. IAF, Tab 6 at 3-5. The appellant’s OSC complaint and summary of

claims, and his statement that he submitted the July 7, 2020 email to OSC, were

sufficient to prove he exhausted the July 7, 2020 email. Further, as discussed

above, the appellant identified to, and exhausted with, OSC his March 24, 2020

emails. Accordingly, we find that the appellant established by preponderant

evidence that he exhausted his March 24 and July 7, 2020 emails.

The appellant made nonfrivolous allegations that he engaged in protected activity.

In her initial decision, the administrative judge found that the appellant

failed to nonfrivolously allege that any of his communications regarding the

agency’s failure to take appropriate safety precautions, in violation of COVID

guidelines, constituted protected disclosures. ID at 15. She did not issue a

finding as to whether the appellant engaged in protected activity with respect to

any of those complaints. On review, the appellant argues that this was error and

that his complaints were protected. PFR File, Tab 1 at 4-6. We agree in part, as

discussed below.

In the final decision in the appellant’s 2022 removal appeal, we concluded

that the appellant proved by preponderant evidence that he engaged in the

following protected activities under 5 U.S.C. § 2302(b)(9): (5) his November

2020 OSC complaint (MA-21-000299); (7) his June 21, 2021 OSC complaint

(DI-21-000600); (8) his August 13, 2021 IRA Board appeal; (9) his August 18,

2021 OIG complaint; and (11) his November 2021 chapter 75 removal appeal, in

8
which he raised a claim of whistleblower reprisal. 3

 Cai v. Department of

Homeland Security, MSPB Docket No. NY-0752-22-0142-I-1, Final Order

(0142-I-1 Final Order) (Jan. 26, 2024). The nonfrivolous allegation standard

needed to establish jurisdiction here is lower than the preponderance of the

evidence standard needed to prove the appellant’s claims on the merits. See

Ingram, 114 M.S.P.R. 43, ¶¶ 10, 20 (explaining that an appellant who made

nonfrivolous allegations that he made a protected disclosure that was a

contributing factor in a personnel action was required to prove his claims on the

merits by preponderant evidence). Because in the 2022 removal appeal, we found

that the appellant proved that he engaged in this protected activity by

preponderant evidence, we find that he necessarily met his jurisdictional burden

with respect to the same claims. 

The appellant is collaterally estopped from asserting jurisdiction over

 disclosures (1), (2), (3), (4), and (6), and protected activity (10).

Although not raised by either party on review, we find that the appellant is

collaterally estopped from claiming what is identified above as alleged protected

disclosures (1), (2), (3), (4), and (6) and protected activity (10). Collateral

estoppel, or issue preclusion, is appropriate when the issue is identical to that

involved in the prior action, the issue was actually litigated in the prior action,

the determination of the issue in the prior action was necessary to the resulting

judgment, and the party against whom issue preclusion is sought had a full and

fair opportunity to litigate the issue in the prior action, either as a party to the

earlier action or as one whose interests were otherwise fully represented in that

action. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016),

aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed.

Cir. 2017). The Board has held that collateral estoppel may be grounds for

dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a

3

 For the sake of clarity, we will continue to use the numbering we assigned to the

appellant’s disclosures and activities earlier in this decision. See supra pp. 3-4

9
prior decision is afforded collateral estoppel effect and the appellant provides no

other valid basis of Board jurisdiction. Id. Further, when an appellant fails to

prove a claim by preponderant evidence in an earlier appeal, he is barred by

collateral estoppel from asserting jurisdiction over the same claim in a second

appeal. Id., ¶ 16. The Board will not adjudicate the claim a second time even if

the lower nonfrivolous pleading standard would otherwise apply at the

jurisdictional stage. Id.

In the 2022 removal appeal, we found that the appellant failed to prove that

the following were protected disclosures: (2) his September 16, 2020 email to

Councilmember Holden; (3) his October 2020 New York State Division of Human

Rights complaint; (4) his October 13, 2020 email to Representative Meng; and

(6) his May 6, 2021 email to Senator Gillibrand. We also found that the appellant

failed to prove that his 2021 participation in a separate OSC investigation

involving another colleague, identified as activity (10), was a protected activity.

0142-I-1 Final Order. The issue of whether these matters were protected

disclosures or activity under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or

(D) is identical to the issue here, and our decision in the removal appeal is now a

final decision. See 5 C.F.R. § 1201.113(c) (providing that if the Board grants a

petition for review, the decision of the Board is final if it disposes of the entire

action). Further, the issue was adjudicated on the merits after a hearing was held

at the appellant’s request. 0142-I-1 AF, Tab 1 at 2, Tab 33, Hearing Compact

Disc. Resolving whether these claims constituted protected disclosures and

activity was necessary to the resulting determination to deny corrective action in

connection with the appellant’s removal. He had a full opportunity to litigate the

matter as a party in that action. Therefore, we find that the Board lacks

jurisdiction over these alleged disclosures and activity.

Similarly, in an initial decision issued in the appellant’s 2021 IRA appeal,

an administrative judge found that the appellant failed to nonfrivolously allege

that his email to the CBP Commissioner, identified as disclosure (1), above, was

10
protected. 0142-W-1 AF, Tab 32, Initial Decision (0142-W-1 ID) at 4-5. That

determination was necessary to the administrative judge’s dismissal of the appeal

for lack of jurisdiction, and the appellant was a party. 0142-W-1 ID at 1, 7;

0142-W-1 AF, Tab 1 at 1. Neither party filed a petition for review, and that

decision is now final. 0142-W-1 ID at 7; see 5 C.F.R. § 1201.113(a) (providing

that an initial decision generally will become the Board’s final decision absent a

timely filed petition for review). Thus, we find that the appellant is also

collaterally estopped from relitigating disclosure (1).4

The appellant nonfrivolously alleged that his March 24, 2020 emails were

protected disclosures.

A protected disclosure is one that an appellant reasonably believes

evidences any 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. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans

Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining

whether an employee had a reasonable belief that his disclosures were protected

is whether a disinterested observer in his position with knowledge of the essential

facts known to and readily ascertainable by the employee could reasonably

conclude that the actions evidenced any of the conditions set forth in 5 U.S.C.

§ 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶¶ 5, 8. Concerning a disclosure of a

danger to public health or safety, the inquiry into whether a disclosed danger is

sufficiently substantial and specific to warrant protection under whistleblower

protection laws is guided by several factors, including (1) “the likelihood of harm

resulting from the danger,” (2) “when the alleged harm may occur,” and (3) “the

nature of the harm,” i.e., “the potential consequences.” Chambers v. Department

4

 In the initial decision issued in the appellant’s 2021 IRA appeal, the administrative

judge also found that the appellant failed to nonfrivolously allege that his emails to

Representative Meng, identified as disclosure (4) above, were protected. 0142-W-1 ID

at 5-6. Thus, in addition to being collaterally estopped based on the 2022 removal

appeal, we find that the appellant is also collaterally estopped from relitigating

disclosure (4) based on his 2021 IRA appeal.

11
of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008). The appellant does not

have to prove that harm occurred, but rather nonfrivolously allege that he

reasonably believed the potential for harm was readily foreseeable. See Chavez v.

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 21 (2013) (finding that an

appellant proved that her disclosure that nurses were not changing patients’

dressings was protected, regardless of whether harm actually occurred, because it

is readily foreseeable that failure to change such dressings could result in

infection). Because the administrative judge did not identify the appellant’s

March 24, 2020 emails as alleged protected disclosures, she did not make

findings as to whether the appellant met his jurisdictional burden. 

We find that a reasonable person in the appellant’s position with

knowledge of the facts known to him on March 24, 2020, could have reasonably

concluded that the agency’s actions evidenced a substantial and specific danger to

public health or safety, or any of the conditions set forth in 5 U.S.C. § 2302(b)(8).

At that time, the guidance provided by the Centers for Disease Control and the

New York Governor was that senior citizens over the age of 70 should shelter in

place due to risk of serious injury or death cause by the COVID-19 pandemic.

IAF, Tab 6 at 8-10, 60-62. In the appellant’s emails to the OIT Area Manager

and union representative, he objects to the original telework schedule, which had

him scheduled to work in the office twice as often as his younger colleagues, on

the basis that he was over the age of 70 and therefore in the “most vulnerable”

population. IAF, Tab 6 at 58, 63. The perceived likelihood of severe personal

and public harm from the virus—including the harm of death—was high and

imminent at the time. In fact, the news article the appellant attached to his

March 24, 2020 emails reflected that 5,151 people in New York City had tested

positive for the virus and approximately 29 people had died. IAF, Tab 6 at 61. 

In a comparable situation, the Board has found that the risk of danger posed

by individuals with explosives or other prohibited items bypassing airport

checkpoints was substantial and specific. Aquino v. Department of Homeland

12
Security, 121 M.S.P.R. 35, ¶¶ 14-17 (2014). Similarly, the U.S. Court of Appeals

for the Federal Circuit concluded that a chief of police reasonably believed that

the reduction in the number patrol officers on the Baltimore-Washington Parkway

from four to two led to an increase in traffic accidents, and thus created a danger

to public health and safety. Chambers v. Department of the Interior, 602 F.3d

1370, 1373, 1378-79 (Fed. Cir. 2010). We find that the likelihood, imminence,

and severity of the harm in this case are at least as high as in Aquino and

Chambers. Under these circumstances, we believe that the appellant has

nonfrivolously alleged that he made a protected disclosure with respect to his

March 2020 emails.5

The appellant nonfrivolously alleged that he was subjected to a personnel action.

The administrative judge found that the only alleged personnel action

before her was the appellant’s removal because the appellant was collaterally

estopped from re-raising his proposed removal in this appeal and because a

settlement offer of an LCA is not a personnel action. ID at 10. The

administrative judge did not address whether the appellant’s placement on

administrative duty could constitute a personnel action. The parties do not

dispute the administrative judge’s findings on review. Nonetheless, we revisit

5

 In connection with the appellant’s later alleged disclosures, the administrative judge

observed that, despite its name, Matilda’s Law consisted of a series of

recommendations, rather than an actual “law.” ID at 13; see Allutto v. Commissioner of

Labor, 176 N.Y.S.3d 877, 879 (N.Y. App. Div. 2022) (concluding that “Matilda’s Law,

despite its moniker, is not an enacted law”). She also found that the executive order

and Matilda’s Law did not apply to the agency and that the appellant could not

reasonably have believed that they did. ID at 12-15. In light of our finding here that

the appellant nonfrivolously alleged that he reasonably believed that his March 24, 2020

disclosure evidenced a substantial and specific danger to public health or safety, we

need not address the parties’ arguments regarding whether he also nonfrivolously

alleged that he reasonably believed that this disclosure evidenced that the agency

violated a law, rule, or regulation. PFR File, Tab 1 at 4, Tab 3 at 4; see Gabel,

2023 MSPB 4, ¶ 6 (stating that a nonfrivolous allegation of a protected whistleblowing

disclosure is an allegation of facts that, if proven, would show that the appellant

disclosed a matter that a reasonable person in her position would believe evidenced one

of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)).

13
them here because the issue of the Board’s jurisdiction is always before it and

may be raised sua sponte by the Board at any time during a Board proceeding.

Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 8 (2013).

We disagree that the appellant is collaterally estopped from re-raising his

proposed removal, and we find that he has nonfrivolously alleged that his

proposed removal and contemporaneous assignment from his ITS duties to

administrative duties constituted personnel actions. We further conclude that the

appellant is barred by res judicata from challenging his removal in this appeal.

We agree with the administrative judge that the appellant failed to nonfrivolously

allege that the offer of an LCA here constituted a personnel action. 

The appellant is not collaterally estopped from raising his proposed

removal in this appeal. The determination of whether the appellant

nonfrivolously alleged that his proposed removal was a personnel action was not

necessary to the dismissal of his 2021 IRA appeal for lack of Board jurisdiction.

See Hau, 123 M.S.P.R. 620, ¶ 13. In fact, the administrative judge in that case

found that the appellant’s proposed removal constituted a personnel action.

0142-W-1 ID at 4. She dismissed the appeal for lack of jurisdiction based on her

conclusion that the appellant had failed to establish jurisdiction over a protected

disclosure. Id. at 4-7. Thus, the appellant is not precluded from pursuing a claim

regarding his proposed removal. 

Moreover, a proposed removal is a threatened personnel action over which

the Board has IRA jurisdiction. See Grubb v. Department of the Interior,

96 M.S.P.R. 361, ¶ 25 (2004). Similarly, the appellant has nonfrivolously alleged

that while his proposed removal was pending, he was involuntarily assigned to

administrative duties. IAF, Tab 7 at 15. While the appellant does not provide

any specific information about how his duties changed, any doubt or ambiguity as

to whether he made nonfrivolous jurisdictional allegations should be resolved in

favor of finding jurisdiction. Skarada v. Department of Veterans Affairs,

2022 MSPB 17, ¶ 6. Therefore, we conclude he met his burden here. See

14
5 U.S.C. § 2302(a)(2)(A)(iv) (defining “personnel action” for purposes of an IRA

appeal to include “a detail, transfer, or reassignment”).

Regarding the settlement offer of an LCA, the appellant alleged that

between January and August 5, 2021, he received three offers of an LCA with

copies of a removal decision and was informed that if he did not accept the last

chance agreement and waive his pending complaints against the agency, the

agency would officially issue the removal decision. IAF, Tab 16 at 12;

0142-I-1 AF, Tab 7 at 88. A threatened action can constitute a personnel action

when it warns of future discipline. 5 U.S.C. § 2302(b)(8)-(9) (prohibiting a threat

to take a personnel action because of a protected activity or disclosure); see

Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,

¶ 10 (2015) (explaining that the term “threaten” in 5 U.S.C. § 2302 should be

interpreted broadly and can encompass warnings of possible future discipline). 

However, the administrative judge found that the agency’s offer of an LCA

was not a threat to take a personnel action. ID at 10. The appellant appears to

dispute this finding on review, observing that the agreement would have required

him to withdraw all complaints. PFR File, Tab 4 at 8. We decline to disturb the

administrative judge’s determination. Cf. Marler v. Department of Veterans

Affairs, 58 M.S.P.R. 116, 122-23 (1993) (describing an offer to mitigate an action

that would otherwise be taken in exchange for an agreement not to file an appeal

as “merely an early settlement offer”).

As a matter of public policy, the Board encourages settlement agreements,

including LCAs, in resolving disputes without litigation. Kelley v. Department of

the Air Force, 50 M.S.P.R. 635, 640 (1991); see Delorme v. Department of the

Interior, 124 M.S.P.R. 123, ¶ 17 (2017) (observing that public policy favors

settlement agreements, which serve to avoid unnecessary litigation and to

encourage fair and speedy resolution of issues); Tackett v. Department of the Air

Force, 80 M.S.P.R. 624, ¶ 6 (1999) (explaining that the Board has long

recognized that an appellant’s waiver of appeal rights in an LCA is consistent

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with public policy). Settlement offers are inadmissible in the merits of a case.

Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 3 n.2 (2016). Even beyond

these public policy and evidentiary considerations, the practical effect of the last

chance agreement offer would have been to lower the planned penalty of removal

to a 14-day suspension.6 0142-I-1 AF, Tab 7 at 88; IAF, Tab 7 at 8. Had the

appellant accepted the LCA, his removal would have been held in abeyance for a

period of 3 years, during which time he would have agreed not to engage in any

misconduct. IAF, Tab 7 at 8-9. In the event the appellant engaged in

misconduct, the agency would implement his removal and the appellant’s right to

challenge the removal would be waived. Id. Thus, we decline to find that the

agency’s settlement offer to the appellant of an LCA constitutes a personnel

action.

Lastly, although a removal is a personnel action under 5 U.S.C.

§ 2302(a)(2)(A)(iii), that claim is now barred under res judicata because the issue

of whether the appellant was removed in retaliation for his whistleblower

activities was already decided in the 0142-I-1 chapter 75 appeal. Res judicata

precludes parties from relitigating issues that were, or could have been, raised in

the prior action and is applicable if: (1) the prior judgment was rendered by a

forum with competent jurisdiction; (2) the prior judgment was a final judgment

on the merits; and (3) the same cause of action and the same parties or their

privies were involved in both cases. Peartree v. U.S. Postal Service, 66 M.S.P.R.

332, 337 (1995). Here, the Board’s final decision in the 2022 removal appeal was

decided on the merits, and it specifically stated that the decision was a “Final

Order.” 0142-I-1 Final Order. The Board has held that generally an individual

who appeals his removal directly to the Board is barred by res judicata from

bringing, after exhausting his administrative remedies, a second whistleblower

appeal challenging the same removal action. Ryan v. Department of the Air

6

 After the appellant challenged his removal in his 2022 removal appeal, the

administrative judge mitigated the penalty to a 30-day suspension. 0142-I-1 ID at 1,

7-8. We have affirmed that finding in a separate final decision. 0142-I-1 Final Order.

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Force, 113 M.S.P.R. 27, ¶ 13 (2009); see Sabersky v. Department of Justice,

91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002) (finding that an individual who appeals his

removal directly to the Board is barred by res judicata from bringing, after

exhausting the OSC process, an IRA appeal alleging that the same removal action

was motivated by whistleblower reprisal), aff’d per curiam, 61 Fed. Appx. 676

(Fed. Cir. 2003). Thus, we find that the elements of res judicata are satisfied, and

the appellant is therefore precluded from challenging the removal action once

again in this IRA appeal. The only personnel actions properly before us are the

appellant’s proposed removal and placement on administrative duty. 

The appellant nonfrivolously alleged that his March 2020 protected disclosure

was a contributing factor in the proposed removal and placement on

administrative duty. 

The administrative judge concluded, without providing an explanation, that

the appellant failed to nonfrivolously allege that his protected disclosures or

activity contributed to a personnel action. ID at 15. 

An appellant’s protected activity is a contributing factor if it in any way

affects an agency’s decision to take, or fail to take, a personnel action. Dorney v.

Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant

may establish the contributing factor criterion is the knowledge/timing test, under

which he submits evidence showing 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. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 63. The Board has held that a

personnel action taken within approximately 1 to 2 years of an appellant’s

disclosures or activity satisfies the timing portion of the knowledge/timing test.

Id.

The appellant alleged that his March 24, 2020 emails to a union official and

management caused the agency to propose his removal on January 14, 2021. IAF,

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Tab 5 at 6, 12-13, 15. Therefore, the appellant’s allegations are sufficient to meet

his jurisdictional burden as to the timing prong of the knowledge/timing test, as it

concerns his proposed removal and placement on administrative duty.

We also conclude that the appellant nonfrivolously alleged that the agency

official who proposed his removal had constructive knowledge of the appellant’s

March 24, 2020 disclosures. An appellant can show that a disclosure or activity

was a contributing factor in a personnel action by proving that the official taking

the action had constructive knowledge of the disclosure or activity. Dorney,

117 M.S.P.R. 480, ¶ 11. An appellant may establish constructive knowledge by

demonstrating that an individual with actual knowledge of the disclosure

influenced the official accused of taking the retaliatory action. Id. The record

below reflects that the appellant sent one of his March 24, 2020 emails directly to

the OIT Area Manager. IAF, Tab 6 at 63. The appellant alleged that the OIT

Area Manager, who was a subject of this disclosure, provided information that led

to his proposed removal. IAF, Tab 16 at 6. Thus, the appellant has made

nonfrivolous allegations regarding the knowledge prong of the knowledge/timing

test.

In cases such as this one, when the appellant has alleged multiple personnel

actions, the Board has jurisdiction when the appellant exhausts his administrative

remedies before OSC and makes a nonfrivolous allegation that at least one

alleged personnel action was taken in reprisal for at least one alleged protected

disclosure or activity. Skarada, 2022 MSPB 17, ¶ 13. Therefore, we find it

appropriate to remand this appeal for a determination on the merits. Before

proceeding to the merits, the administrative judge should make findings as to

whether the appellant has met his burden to nonfrivolously allege that protected

activities (5), (7), (8), (9), or (11) was a contributing factor in the proposed

removal and placement on administrative duty. If so, she should adjudicate those

matters on the merits as well. 

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ORDER

For the reasons discussed above, we remand this case to the field 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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