UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KEITH REILLY,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

DC-1221-22-0093-W-1

DATE: April 24, 2024

THIS ORDER IS NONPRECEDENTIAL1

Jacob Madison Small, Esquire, McLean, Virginia, for the appellant.

Alisa Reff and Ian Andrew Spreat, Esquire, Washington, D.C., 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,

REVERSE the administrative judge’s finding that the appellant did not establish

jurisdiction over his claim as set forth below, AFFIRM the remainder of the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
initial decision as MODIFIED to supplement the administrative judge’s analysis

of contributing factor, and REMAND the appeal to the Atlanta Regional Office

for further adjudication in accordance with this Remand Order. 

BACKGROUND 

At the time relevant to this appeal, the appellant was employed as a

Criminal Investigator with the agency’s Office of Inspector General (OIG).

Initial Appeal File (IAF), Tab 9 at 40. In August of 2016, the appellant was

assigned a new first-line supervisor, who, according to the appellant, immediately

began harassing him, rejecting his work reports, taking credit for his

accomplishments, threatening him with a performance improvement plan, and

requiring him to engage in unnecessary travel. Id. at 5, 16-21, 26. Within a few

months, on January 10, 2017, the appellant contacted the OIG’s Internal Affairs

Office about his supervisor’s behavior and communicated to agency officials that

the stress of the alleged harassment was affecting his physical health. Id. at 6,

21. The next day, the Assistant Inspector General advised the appellant that,

based on his representations regarding his medical condition, his authority to

carry a firearm was restricted pending submission of medical documentation from

his physician and the results of a fitness for duty examination. Id. at 7-8, 21, 117.

Soon thereafter, the appellant submitted a letter from his physician requesting

that he be relieved of his duties due to anxiety and panic disorder. Id. at 37. The

appellant was also given a fitness-for-duty examination and was deemed

physically fit for duty but not mentally fit for duty based on Generalized Anxiety

Disorder, Panic Disorder, and Delusional Disorder. Id.; IAF, Tab 11 at 28. 

Around the same time, the appellant submitted a claim for workers’

compensation benefits based on the above-referenced medical conditions. IAF,

Tab 9 at 7, 24, 37. Less than a month later, he emailed his U.S. senator asking

for assistance expediting his workers’ compensation claim and reporting that he

had complained of harassment to the agency. Id. at 7, 39. Thereafter, the Office

of Workers’ Compensation Programs (OWCP) denied his claim, and the agency,

2
in May 2017, proposed his removal for his medical inability to perform his job.

Id. at 24, 40-42. However, the appellant and the agency agreed that the appellant

would be carried in a leave without pay status while he applied for disability

retirement and awaited a decision from the Office of Personnel Management

(OPM). Id. at 43-44. In January 2018, the appellant requested reinstatement,

asserting that his physicians felt that he could return to work, but a few days later,

OPM approved the appellant’s application for disability retirement. Id. at 45-46.

As such, the agency declined the appellant’s request for reinstatement. Id.

at 47-48. 

The appellant filed a complaint with the Office of Special Counsel (OSC),

and, following OSC’s close-out letter on August 7, 2018, he filed an IRA appeal

with the Board. See Reilly v. Department of Labor, MSPB Docket No.

PH-1221-18-0492-W-1, Initial Appeal File, Tab 1. In that appeal, the appellant

asserted that the agency took the above-referenced actions, including declining to

reinstate him, in reprisal for his January 10, 2017 communication with the OIG

and for disclosing the alleged harassment by his supervisor to a U.S. senator. Id.

Following the appellant’s request to voluntarily withdraw the appeal, the

administrative judge in that matter issued an initial decision on January 31, 2019,

dismissing the appeal as withdrawn with prejudice. Id., Tab 11. 

While that appeal was pending with the administrative judge, the appellant

filed a second complaint with OSC reiterating his claims from his first complaint

and additionally asserting that, beginning in 2018, the agency did not select him

for positions or limited the types of candidates who could apply for certain

positions to exclude him from being eligible to apply in reprisal for his

January 10, 2017 communication with OIG and February 2017 communication

with a U.S. senator. IAF, Tab 9 at 31-34. After OSC issued its close-out letter,

the appellant filed the instant appeal with the Board on November 24, 2021,

arguing that, in reprisal for his January 10, 2017 communications with OIG and

his February 2017 letter to a U.S. senator, the agency refused his request for

3
reinstatement, failed to select him for one vacancy, and improperly limited the

types of candidates who could apply for three other vacancies. IAF, Tab 1 at 6,

Tab 9 at 10. 

Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 12, Initial Decision (ID). The appellant has filed a petition for review of the

initial decision, and the agency has responded. Petition for Review (PFR) File,

Tabs 1, 3. The appellant has replied to the agency’s response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over an IRA appeal under the Whistleblower

Protection Enhancement Act if the appellant has exhausted his administrative

remedies before OSC and makes nonfrivolous allegations of the following: (1) he

engaged in whistleblowing activity by making a protected disclosure 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). Edwards v. Department of

Labor, 2022 MSPB 9, ¶ 8; Salerno v. Department of the Interior, 123 M.S.P.R.

230, ¶ 5 (2016). One way to establish the contributing factor criterion is the

knowledge/timing test, under which an employee may nonfrivolously allege 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. Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶ 15; Salerno, 123 M.S.P.R. 230, ¶ 13.

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

exhausted his administrative remedy with respect to two of the four vacancy

announcements enumerated by the appellant in his Board appeal: Vacancy

4
Announcement No. MS-19-HRC-SC-016, for which the appellant asserted he was

not selected, and Vacancy Announcement No. MS-19-OIG-OSI-13, for which the

appellant asserted the agency limited the types of candidates who could apply to

exclude him.2 ID at 6-7. The administrative judge further found that, although

the appellant nonfrivolously alleged that he engaged in protected activity with

respect to his January 10, 2017 OIG communication and made a protected

disclosure with respect to his February 2017 communication with a U.S. senator,

he failed to nonfrivolously allege that the disclosure or activity was a contributing

factor in a personnel action. ID at 7-10. Finally, he found that the appellant’s

allegation that the agency refused to reinstate him in reprisal for his disclosures

or activity was barred under the doctrine of res judicata based on his prior Board

appeal.3 ID at 11. 

Specifically, regarding the contributing factor element, the administrative

judge found that the appellant failed to nonfrivolously allege that his February

2017 disclosure to a U.S. senator was a contributing factor in the agency’s actions

regarding the two vacancies because the appellant did not allege that any agency

official responsible for his nonselection for Vacancy Announcement No.

MS-19-HRC-SC-016 or the structuring of the eligibility criteria in Vacancy

Announcement No. MS-19-OIG-OSI-13 to exclude the appellant had knowledge

of the disclosure. ID at 9. Regarding the appellant’s January 2017

2

 The appellant does not dispute the administrative judge’s finding that he only

exhausted two of the four vacancies. Rather, he indicates on review that he has since

exhausted the remaining vacancies with OSC and that he has filed another IRA appeal

concerning those vacancy announcements. PFR File, Tab 4 at 5-6. An administrative

judge dismissed that other IRA appeal without prejudice in an initial decision. Reilly v.

Department of Labor, MSPB Docket No. DC-1221-22-0531-W-2, Initial Decision

(Dec. 20, 2023). The appellant subsequently petitioned the U.S. Court of Appeals for

the Fourth Circuit for review. Reilly v. Merit Systems Protection Board, No. 24-1240

(4th Cir. pet. for review filed Mar. 21, 2024).

3

 The appellant has not challenged this finding on review, and we discern no basis to

disturb it. See Brown v. Department of the Navy, 102 M.S.P.R. 377, ¶ 10 (2006)

(finding that a dismissal with prejudice based on a withdrawal of an appeal generally is

considered a final decision, and relitigating such an appeal is barred by res judicata). 

5
communication with the OIG, the administrative judge found that the official

responsible for the nonselection for Vacancy Announcement No.

MS-19-HRC-SC-016 did not have knowledge of the appellant’s communication

with OIG, and that the appellant therefore failed to nonfrivolously allege the

contributing factor element. Id. Finally, the administrative judge found that,

although the appellant nonfrivolously alleged that the agency official responsible

for structuring Vacancy Announcement No. MS-19-OIG-OSI-13 in a way that

precluded the appellant’s application had knowledge of the appellant’s January

2017 OIG activity, that vacancy announcement was issued 2 years after the OIG

communication, which the administrative judge concluded “is generally too

lengthy a time to satisfy the timing element.” ID at 10. He also concluded that

the vacancy announcement did “not appear to be part of a continuum of related

personnel actions” that began in closer proximity to the alleged protected activity.

Id.; see Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 23 (2013)

(reasoning that, for jurisdictional purposes, the timing component of the

knowledge/timing test may be satisfied when the agency engaged in a continuum

of related personnel actions that began shortly after the appellant’s alleged

disclosure or activity). Accordingly, he found that the appellant failed to

nonfrivolously allege the contributing factor element in this regard. ID at 10. 

On review, the appellant only challenges the administrative judge’s finding

that he failed to nonfrivolously allege that his January 2017 OIG activity was a

contributing factor in the agency’s decision to limit the types of applicants who

could apply to Vacancy Announcement No. MS-19-OIG-OSI-13. 4 PFR File,

4

 We agree with the administrative judge that the appellant’s allegation that he disclosed

information to the agency’s OIG constitutes a nonfrivolous allegation of protected

activity under 5 U.S.C. § 2302(b)(9)(C). ID at 8. Regarding the appellant’s alleged

February 2017 disclosure to a U.S. senator, such a disclosure only became protected

under 5 U.S.C. § 2302(b)(8)(C) following the passage of the National Defense

Authorization Act for Fiscal Year 2020 and is otherwise only protected when it includes

allegations of wrongdoing that the employee reasonably believes evidences a violation

of 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. See Pub. L.

6
Tab 1 at 11-15. Specifically, he disagrees with the administrative judge’s

discussion regarding the continuum of personnel actions, arguing that the agency

began to engage in reprisal against him within 6 months of his January 2017 OIG

activity when it restricted his ability to carry a firearm, required him to submit to

a fitness for duty examination, failed to support his OWCP claims, proposed his

removal for medical inability to perform his duties, and refused to reinstate him.

Id. Thus, based on an alleged continuum of related activity, he argues that he met

the timing prong of the knowledge/timing test. 

We need not decide whether the administrative judge erred with respect to

whether the appellant nonfrivolously alleged a continuum of retaliatory actions

because we otherwise find that the appellant nonfrivolously alleged that the

agency issued Vacancy Announcement No. MS-19-OIG-OSI-13 within such a

time that a reasonable person could conclude that his January 2017 OIG activity

was a contributing factor to that action. Indeed, the appellant contacted OIG in

January 2017, and the agency issued the vacancy announcement in early January

2019—2 years after his alleged protected activity. IAF, Tab 9 at 50-51. The

Board has consistently found that personnel actions that occur within 1 -2 years of

an alleged protected disclosure or activity satisfy the timing prong of the

knowledge/timing test. See Salazar v. Department of Veterans Affairs,

No. 116-92, § 5721, 133 Stat. 1198, 2175 (2019). We need not determine whether this

provision is retroactive or whether the appellant’s disclosure involved allegations of

such wrongdoing, thereby making it protected, because, as explained below, we

otherwise agree that he failed to nonfrivolously allege that the disclosure was a

contributing factor to a personnel action. Similarly, we discern no error in the

administrative judge’s implicit finding that the appellant nonfrivolously alleged that the

nonselection for Vacancy Announcement No. MS-19-HRC-SC-016 and the agency’s

structuring of eligibility criteria in Vacancy Announcement No. MS-19-OIG-OSI-13

constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A). See Weed v. Social

Security Administration, 113 M.S.P.R. 221, ¶¶ 13-17 (2010) (reasoning that an agency’s

use of a particular hiring process as a part of a scheme that would deny a whistleblower

the opportunity to seek an appointment constitutes a personnel action); Reeves v.

Department of the Army, 99 M.S.P.R. 153, ¶ 15 (2005) (explaining that a nonselection

is a personnel action for purposes of the whistleblower protection statutes).

Accordingly, these findings remain undisturbed upon remand. 

7
2022 MSPB 42, ¶ 32; Wilson v. Department of Veterans Affairs, 2022 MSPB 7,

¶ 41; Salerno, 123 M.S.P.R. 230, ¶ 14; Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶ 21 (2015); Schnell v. Department of the Army, 114 M.S.P.R.

83, ¶ 22 (2010). Therefore, we find that the appellant nonfrivolously alleged the

timing prong of the knowledge/timing test. 5 Because we agree with the

administrative judge that the appellant nonfrivolously alleged that the agency

official responsible for limiting the types of applicants who could apply for the

vacancy had knowledge of his OIG activity, ID at 10; IAF, Tab 9 at 11-12,

118-19, we conclude that the appellant nonfrivolously alleged both components of

the knowledge/timing test, thereby nonfrivolously alleging that his January 2017

OIG activity was a contributing factor in the agency’s decision to effectively

exclude him from the application pool for Vacancy Announcement No.

MS-19-OIG-OSI-13. See Chambers, 2022 MSPB 8, ¶ 15. Based on the

foregoing, we find that the Board has jurisdiction over this claim, and we remand

this appeal for a hearing on the merits. 6 See Graves v. Department of Veterans

5

 Because we find that the appellant met the timing prong of the knowledge/timing test

based on the initial communication with OIG, we need not address his argument on

review that his attorneys’ subsequent communications with OIG should control the

timing analysis. PFR File, Tab 1 at 16. 

6

 Regarding the administrative judge’s other findings that the appellant failed to

nonfrivolously allege that his February 2017 disclosure to a U.S. senator was a

contributing factor to either alleged personnel action, or that his January 2017 OIG

activity was a contributing factor in his nonselection for Vacancy Announcement

No. MS-19-HRC-SC-016, the administrative judge’s analyses for those findings appear

to be based on the appellant’s failure to nonfrivolously allege knowledge on the part of

a relevant agency official of the protected disclosure and activity, and thus, his failure

to meet the knowledge/timing test. ID at 9. However, the knowledge/timing test is not

the only way to satisfy the contributing factor standard. Dorney v. Department of the

Army, 117 M.S.P.R. 480, ¶ 14 (2012). Other relevant evidence includes 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

officials, and whether these individuals had a desire or motive to retaliate against the

appellant. Id., ¶ 15. The appellant has not alleged that his February 2017 disclosure to

a U.S. senator implicated any of the relevant agency officials or that the agency

officials responsible for either alleged personnel action had any desire or motive to

retaliate against the appellant. Additionally, the appellant has not alleged that the

agency’s reasons for not selecting him for one of the vacancy announcements and

8
Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant is entitled to

a hearing on the merits if, after exhausting his remedy with OSC, he makes

nonfrivolous allegations that he engaged in protected activity that was a

contributing factor in a personnel action). 

ORDER

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

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

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

limiting the types of candidates who could apply for the other were particularly weak.

Accordingly, we ultimately agree with the administrative judge that the appellant failed

to nonfrivolously allege contributing factor with respect to these claims. 

9