UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JEAN A. MATIAS,

Appellant,

v.

DEPARTMENT OF HOMELAND

SECURITY,

Agency.

DOCKET NUMBERS

SF-1221-13-0178-W-2

SF-1221-13-0493-W-1

DATE: April 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jean A. Matias, Honolulu, Hawaii, pro se. 

Jessica A. Neff, Washington, D.C., for the agency.

Reagan N. Clyne, Springfield, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied her request for corrective action in these joined individual right of action

(IRA) appeals. Generally, we grant petitions such as this one only when: 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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). 
2

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the judge’s rulings during either the

course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. See Title 5 of the Code of Federal Regulations, section 1201.115

(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and

based on the following points and authorities, we conclude that the petitioner has

not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED by this Final Order to find that the appellant’s disclosure number 15 

was protected, we AFFIRM the initial decision. 

BACKGROUND

¶2 Beginning in April 2007, the appellant served as the GS-15 Assistant

Special Agent in Charge (ASAIC) of the U.S. Secret Service’s Honolulu field

office (HFO). Matias v. Department of Homeland Security, MSPB Docket No.

SF-1221-13-0178-W-1, Initial Appeal File (IAF1), Tab 5, Vol. 3 at 384. Her

direct supervisor was A.J., Special Agent in Charge (SAIC) of the HFO, her

second-level supervisor was C.M., Deputy Assistant Director (DAD) of the

Office of Investigations (INV),

2 and her third-level supervisor was M.M.,

Assistant Director (AD) of the INV. 3

 Id., Vol. 2 at 10; IAF1, Tab 8, Vol. 6,

 2 C.M. was DAD of the INV from July or August 2008 until 2010, when he transferred 

to the position of DAD of the Office of Strategic Intelligence and Information (OSII). 

Hearing Transcript (HT) at 55. Effective February 10, 2013, he was reassigned to the 

position of Assistant Director (AD) of the OSII. See IAF1, Tab 12 at 96. 

3 Effective October 25, 2010, M.M. was reassigned to the position of AD of the Office 

of Administration (ADM). See IAF1, Tab 8, Vol. 6, Agency File, Part 3 at 56. 
3

Agency File, Part 3 at 57; HT at 55. In 2008 and 2009, the appellant reported to

C.M. that A.J. had engaged in “malfeasance, violation of Federal law and

harassment.” IAF1, Tab 5, Vol. 2 at 10. Based on the reports of the appellant

and other HFO employees, C.M., with M.M.’s concurrence, assigned two SAICs

to conduct a fact-finding investigation involving personnel assigned to the HFO. 

IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 35; HT at 79. 

¶3 From January 5-8, 2009, the SAICs conducted 30 interviews in Honolulu in

support of the investigation. IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 35. 

During her interview on January 5, 2009, the appellant reported, inter alia, that: 

the HFO had 10 revolving memberships at a private gym where A.J. exercised

every day even though there was a gym in the HFO, id. at 43; A.J. saw no value

in ensuring that Special Agents (SAs) could access Hawaii Department of Motor

Vehicles (DMV) records directly from the HFO, stating that they could obtain the

same information by going to the DMV, id.; and Foreign Service Nationals

(FSNs) were using government-owned vehicles (GOVs) for their home-to-work

(HTW) transportation, id. at 45. The appellant also told the fact-finders that A.J.

was too old (68 years old), was born on a pineapple plantation, and “need[ed] to

go.” Id. at 47. In addition, she disclosed that she had taken money from the

Confidential Fund to provide travel advances to agents because no one with

authority to issue drafts was available. Id. 

¶4 Following the investigation, the appellant bid on and was selected for a

lateral reassignment to the GS-15 position of ASAIC of the INV’s Criminal

Investigative Division (CID) in Washington, D.C., to be effective August 30,

2009.4

 IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 18, 29. The appellant asked to

be excused from that position when she was unable to sell her home in Honolulu

 4 The record indicates that the position was open for bid from February 26, 2009, to 

March 12, 2009. IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 28-29. On April 14, 2009, 

the agency announced that the appellant had been selected for the position. Id. at 

17-18. 
4

without taking a substantial loss. IAF1, Tab 5, Vol. 2 at 50; HT at 453-54. By

then, however, her position as ASAIC of the HFO had been filled by someone

else. IAF1, Tab 5, Vol. 2 at 50; HT at 454-55. With the agency’s assistance, in

January 2010, the appellant obtained a GS-15 position at the Hawaii Department

of Homeland Security State and Local Fusion Center (Fusion Center) in

Honolulu. IAF1, Tab 5, Vol. 2 at 50; HT at 455-60. 

¶5 In the meantime, C.M. issued a memorandum dated August 14, 2009,

advising the appellant of his decision to suspend her for 1 day, effective

August 21, 2009, for Unauthorized Use of Confidential Funds and Making

Inappropriate Comments. IAF1, Tab 5, Vol. 2 at 157-58. On August 18, 2009,

the appellant filed an administrative grievance of her suspension, which was

denied by P.M., AD of the Office of Protective Research, 5

on November 23,

2009. Id. at 160-63. 

¶6 On December 4, 2009, the appellant filed a complaint with the Office of

Special Counsel (OSC) alleging that the agency had suspended her for 1 day in

reprisal for whistleblowing and for filing a grievance of the suspension. See

IAF1, Tab 5, Vol. 2 at 98. After exhausting her remedies with OSC, the appellant

filed an IRA appeal with the Board, which was dismissed as settled in an initial

decision. 6

 Matias v. Department of Homeland Security, SF-1221-10-0588-W-1,

Initial Decision (June 29, 2010) (suspension ID); see IAF1, Tab 8, Vol. 6, Agency 

File, Part 4 at 6-8 (copy of the settlement agreement). 

¶7 Thereafter, the appellant expressed interest in other positions, but she was

not selected for them. See, e.g., IAF1, Tab 5, Vol. 3 at 454-57 (September 9,

2011 email from the appellant expressing interest in the GS-15 positions of

 5 P.M. subsequently served as AD of the Office of Government and Public Affairs 

(GPA) from October 9, 2011, until February 10, 2013, when he was reassigned to the 

position of AD of the INV. See IAF1, Tab 8, Vol. 6, Agency File, Part 3 at 101, Tab 12 

at 96. 

6 That decision became the Board’s final decision on August 3, 2010, when neither 

party filed a petition for review. Suspension ID at 2. 
5

Resident Agent in Charge (RAIC) of the London resident office and ASAIC of

the Rome field office), 458-62 (December 28, 2011 email announcing the

selectees for those positions). On January 6, 2012, the appellant applied for the

Department of Homeland Security (DHS) Fellows Program, a leadership

development program, id. at 356-63, but she was not selected to participate, see

id. at 366-67. 

¶8 On March 1, 2012, the appellant filed a complaint with OSC alleging that

she was reassigned to the Fusion Center and was not selected for promotion to a

Senior Executive Service (SES) position,

7 reassignment to other GS-15 positions,

or participation in the DHS Fellows Program in reprisal for her disclosures in

2008 and 2009, her August 2009 grievance, and her Board appeal. IAF1, Tab 8,

Vol. 5, Agency File, Part 2 at 4-26. In the appellant’s November 26, 2012

response to OSC’s November 9, 2012 letter advising her of its preliminary

determination to close its inquiry into her allegations, she identified the following

16 disclosures: 

(1) A.J. nicknamed her “Madame Bulldog”;

(2) A.J. permitted illegal/improperly staffed applicant panel

interviews in violation of Secret Service policy; 

(3) A.J. allowed for the payment of an undercover telephone line

without a telephone attached for 10 years;

(4) A.J. allowed for an unmonitored/excessive HFO annual utility bill

of $66,608.21, which the appellant reduced to $12,289 for Fiscal

Year 2008;

(5) A.J. placed a performance expectation letter in an employee’s

personnel file without the approval of the Secret Service’s employee

relations branch;

 7 The Office of Personnel Management certified the appellant as eligible for an SES 

position on December 30, 2008. See Matias v. Department of Homeland Security, 

MSPB Docket No. SF-1221-13-0493-W-1, Initial Appeal File (IAF2), Tab 19 at 4; HT 

at 9. 
6

(6) A.J. had a private gym membership paid for by the Secret Service

and he left work early every day to exercise there;

(7) A.J. denied the purchase of search warrant breaching tools, which

caused delays, downtime and distraction from the Secret Service’s

mission, resulting in a lack of efficacy and efficiency;

(8) A.J. denied SAs access to the Hawaii Driver’s License System,

stating that computer access to drivers’ license information was

unnecessary, as there were other investigative tools available and

SAs could go to the DMV for the information;

(9) 12 of the HFO’s 21 official Secret Service vehicles were not

equipped with police lights/siren packages for emergency/response

purposes;

(10) The HFO regularly engages in excessive official travel to

destinations that are farther from Hawaii and closer to Europe, New

York, or Chicago, resulting in the purchase of business-class airline

tickets, excessive travel, and excessive overtime expenses. The

HFO’s district lines require reevaluation;

(11) A.J. failed to discipline an SA assigned to the Federal Bureau of

Investigation (FBI) Joint Terrorism Task Force who did not

participate in any HFO cases or perform other duties for the Secret

Service;

(12) A.J. failed to have the HFO’s administrative personnel properly

cross-trained with the appropriate authority and access;

(13) A.J. allowed the HFO’s Administrative Officer to dispense

confidential funds in the absence of the Confidential Fund Cashier

and the Assistant Confidential Fund Cashier, which is a violation of

Secret Service policy;

(14) A.J. misused his GOV by using it to go shopping once a week;

(15) A.J. gave foreign nationals working for Secret Service offices in

Hong Kong and Bangkok official Secret Service vehicles for their

daily commute to work. This is a violation of federal law;
7

(16) A.J. used derogatory names when referring to FBI supervisors

(male and female) and to the female Health and Human Services

(HHS) supervisor. 

Id., Agency File, Part 1 at 114-16, 135-38.

¶9 On November 28, 2012, OSC terminated its inquiry into the appellant’s

allegations and issued her a closure letter and notice of Board appeal rights. 

IAF1, Tab 8, Vol. 5, Agency File, Part 1 at 111-12. The appellant timely filed an

IRA appeal on January 8, 2013, and requested a hearing. IAF1, Tab 1. 

¶10 On January 25, 2013, the agency announced appointments to six SES

positions; however, the appellant was not one of the appointees.

 IAF1, Tab 12 at

96-97. The appellant filed another OSC complaint on March 7, 2013, alleging

that she was not selected for any of the SES positions announced on January 25,

2013, in reprisal for her disclosures. Id. at 81-95. In light of the appellant’s new

OSC complaint, the administrative judge issued a March 27, 2013 initial decision

dismissing her IRA appeal without prejudice to refiling, noting that the parties

agreed that the personnel actions at issue in the appellant’s appeal 8 and her new

OSC complaint should be adjudicated together for administrative efficiency. 

IAF1, Tab 16. On May 3, 2013, OSC issued a closure letter regarding the

appellant’s March 7, 2013 complaint. IAF2, Tab 1 at 11. On May 21, 2013, the

appellant filed an IRA appeal with the Board and requested a hearing. Id. at 3. 

The same day, she refiled her January 2013 IRA appeal. Matias v. Department of

Homeland Security, MSPB Docket No. SF-1221-13-0178-W-2, Refiled Appeal

 8 These personnel actions are the appellant’s assignment to the Fusion Center in January 

2010, her nonselection for participation in the 2012 DHS Fellows Program, and her 

nonselection for the following positions between December 2010 and September 2012: 

(1) SES SAIC of the HFO in December 2010, IAF1, Tab 5, Vol. 3 at 432; (2) GS-15 

RAIC of the London resident office in December 2011, id., Vol. 4 at 458, 460; 

(3) GS-15 ASAIC of the Rome field office in December 2011, id. at 458, 462; (4) SES 

SAIC of the Technical Security Division (TSD), Office of Technical Development and 

Mission Support (TEC) in August 2012, IAF1, Tab 8, Vol. 5, Part 2 at 54; (5) SES 

SAIC of the HFO in August 2012, id.; (6) GS-15 ASAIC of the Rome field office in 

September 2012 , IAF1, Tab 8, Vol. 5, Part 2 at 66; and (7) GS-15 Deputy SAIC of the 

Chicago field office in September 2012, id. at 65; see IAF1, Tab 11 at 5, Tab 12 at 9. 
8

File (RAF), Tab 1. The administrative judge joined the two appeals. IAF2, Tab

26. 

¶11 Following a hearing, the administrative judge issued an initial decision in

which she found that the Board has jurisdiction over the joined appeals but

denied the appellant’s request for corrective action. RAF, Tab 21, Initial

Decision (ID) at 2. The administrative judge found that disclosures (2), (6),

9

(11), (13), and (14) were protected, but not the remainder, ID at 16-29, and that

the appellant had proved by preponderant evidence that her disclosures were a

contributing factor in each personnel action at issue, ID at 29-32. However, the

administrative judge found that the agency proved by clear and convincing

evidence that it would have taken the same personnel actions in the absence of

the protected disclosures. ID at 32-51. 

¶12 On petition for review, the appellant challenges the administrative judge’s

findings that several of her disclosures were not protected, Petition for Review

(PFR) File, Tab 1 at 8-12, and that the agency proved by clear and convincing

evidence that it would have taken the same actions in the absence of her

whistleblowing activity, id. at 12-20. She also contends that the fact-finding

investigation was improper, id. at 5-6, and that the administrative judge

improperly denied her witness requests, id. at 9, 14-17. The agency has filed a

response in opposition to the petition for review. PFR File, Tab 2. 

ANALYSIS

¶13 In an IRA appeal, after establishing the Board’s jurisdiction, 10 the appellant

then must establish a prima facie case of whistleblower retaliation by proving by

 9 As indicated above, this disclosure consists of the following two statements regarding 

A.J.: (1) he had a private gym membership paid for by the Secret Service; and (2) he 

left work early every day. IAF1, Tab 8, Vol. 5, Agency File, Part 1 at 115. The 

administrative judge found that only the second statement was a protected disclosure. 

See ID at 20-21. 

10 We discern no reason to disturb the administrative judge’s finding that the appellant 

established jurisdiction over these appeals. See ID at 2. 
9

preponderant evidence that: (1) she made a disclosure described under 5 U.S.C.

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

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

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1); Webb

v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the appellant

meets that burden, the Board shall order such corrective action as it considers

appropriate unless the agency shows by clear and convincing evidence that it

would have taken the same personnel action in the absence of the protected

disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the Interior,

116 M.S.P.R. 17, ¶ 12 (2011). Clear and convincing evidence is “that measure or

degree of proof that produces in the mind of the trier of fact a firm belief as to the

allegations sought to be established.” 5 C.F.R. § 1209.4(d). 

The appellant made protected disclosures.

¶14 A protected disclosure is a disclosure that an appellant reasonably believes

evidences a 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)(A); Chambers v. Department of

the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008). A reasonable belief exists if a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that the actions of the

government evidence one of the categories of wrongdoing listed in section

2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). To

establish that she made a protected disclosure, the appellant need not prove that

the matter disclosed actually established one of the types of wrongdoing listed

under section 2302(b)(8)(A); rather, she must show that the matter disclosed was

one which a reasonable person in her position would have believed evidenced any

of the situations specified in 5 U.S.C. § 2302(b)(8). Chavez v. Department of

Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). 
10

¶15 As noted above, the administrative judge found that the appellant proved by

preponderant evidence that the following disclosures were protected: all of

disclosures (2), (11), (13), and (14), and a portion of disclosure (6) pertaining to

A.J.’s work schedule. ID at 16-17, 21, 26-27. The agency has not filed a cross

petition for review contesting the administrative judge’s findings regarding these

disclosures. The appellant does not challenge on review the administrative

judge’s finding that she failed to prove by preponderant evidence that disclosure

(3) was protected. ID at 18. Thus, we will limit our discussion to the remaining

disclosures. 

¶16 Disclosures (1) and (16) involve A.J.’s alleged remarks about the appellant

(disclosure (1)) and employees of other agencies (disclosure (16)). See IAF1,

Tab 8, Vol. 5, Agency File, Part 1 at 115-16. Regarding disclosure (1), the

administrative judge found that the appellant did not disclose an abuse of

authority when she informed C.M. and the fact-finders that A.J. had nicknamed

her Madame Bulldog. ID at 16 (citing IAF1, Tab 5, Vol. 2 at 155, 194). An

abuse of authority occurs when there is an arbitrary or capricious exercise of

power by a federal official or employee that adversely affects the rights of any

person or that results in personal gain or advantage to himself or to preferred

other persons. Chavez, 120 M.S.P.R. 285, ¶ 22. We agree with the

administrative judge’s finding that a disinterested observer could not reasonably

conclude that A.J. calling the appellant Madame Bulldog constituted an arbitrary

or capricious exercise of power that adversely affected her rights. ID at 16. As

the administrative judge noted, A.J. did not threaten the appellant's career or take

any other unwarranted actions against her, and the appellant did not describe the

context or circumstances surrounding the remark. ID at 16. Thus, although A.J.

may have behaved unprofessionally by referring to the appellant as Madame

Bulldog, the appellant failed to prove that a disinterested observer could

reasonably conclude that A.J.’s use of this nickname constituted an abuse of his

authority. 
11

¶17 As for disclosure (16), we agree with the administrative judge that the

appellant did not prove by preponderant evidence that she reasonably believed

that A.J.’s use of derogatory names to refer to employees of other agencies

constituted an abuse of his authority. ID at 29 (citing RAF, Tab 14 at 64). In

particular, the appellant disclosed that, during a conversation with her, A.J.

referred to a female HHS employee as “Bart Simpson,” and referred to the FBI as

the “Honolulu field office.” 11 ID at 29 (citing RAF, Tab 14 at 62-63). Again,

although A.J.’s remarks may have been unprofessional, a disinterested observer

could not reasonably conclude that they constituted an abuse of his authority. 

¶18 Regarding disclosure (4), that the HFO had an excessive utility bill because

of A.J.’s decision to designate the HFO a 24-hour per day operation and run the

utilities around the clock, we agree with the administrative judge that the

appellant failed to prove by preponderant evidence that a reasonable person

would believe that this decision constituted gross mismanagement or resulted in a

gross waste of funds. ID at 19-20. “Gross mismanagement” is more than de

minimis wrongdoing or negligence; it means a management action or inaction

that creates a substantial risk of significant adverse impact on the agency’s ability

to accomplish its mission. See Cassidy v. Department of Justice, 118 M.S.P.R.

74, ¶ 8 (2012). It does not include management decisions that are merely

debatable. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 16 (2007). 

Likewise, the Board has defined a gross waste of funds as “a more than debatable

expenditure that is significantly out of proportion to the benefit reasonably

expected to accrue to the government.” MaGowan v. Environmental Protection

Agency, 119 M.S.P.R. 9, ¶ 7 (2012) (quoting Downing v. Department of Labor,

98 M.S.P.R. 64, ¶ 11 (2004), aff’d, 162 F. App’x 993 (Fed. Cir. 2006)). 

 11 The transcript of the appellant’s July 20, 2013 deposition indicates that she reported 

that A.J. referred to the FBI as the “Honolulu field office.” RAF, Tab 14 at 62-63. In 

addressing disclosure (16) in her petition for review, however, the appellant alleges that 

A.J. referred to the FBI’s Honolulu field office as the “Homolulu Office” because the 

female SAIC supposedly “lived non-traditional lifestyles.” PFR File, Tab 1 at 12. 
12

¶19 Applying these standards, the administrative judge correctly found that the

appellant’s complaint about the HFO’s utility bills did not disclose gross

mismanagement because the decision to designate the office a round-the-clock

operation, and thus incur higher utility bills, was a debatable management

decision within A.J.’s discretion, and there were legitimate reasons for his

decision. ID at 19-20. In that regard, the administrative judge noted the

appellant acknowledged that sometimes employees had to work evenings and

weekends, and that computer equipment was required to be stored at certain

temperatures. ID at 19 (citing RAF, Tab 14 at 20-21; HT at 26). 

¶20 As for whether the appellant’s complaint about the utility bill constituted a

protected disclosure of a gross waste of funds, we agree with the administrative

judge that the expenditure was debatable because the higher bill was based on

A.J.’s decision to designate the office a “24/7 operation”—a decision that was

within his discretion and that he had legitimate reasons for making. ID at 19. 

Moreover, in light of the fact that HFO employees were sometimes required to

work in the evenings and on weekends, and computers were required to be stored

at certain temperatures, this expenditure was not “significantly out of proportion”

to the benefit reasonably expected to accrue to the government. Thus, we agree

with the administrative judge’s finding that the higher cost did not reflect a gross

waste of funds. ID at 19. Therefore, we find that the appellant did not prove that

disclosure (4) was a protected disclosure. 

¶21 Regarding disclosure (5), that A.J. placed a performance expectation letter

in an SA’s personnel file without having the letter approved by the Secret

Service’s employee relations branch, the administrative judge found that the

appellant did not prove that a reasonable person would believe this situation

resulted in a violation of a law, rule, or regulation, or any other category of

wrongdoing. ID at 20. In making this finding, the administrative judge noted

that M.M. testified that an SAIC “certainly” has the authority to place a

reprimand or letter of counseling in an employee’s file, ID at 20 (citing HT at
13

194), and that the appellant cited no law, rule, or regulation requiring that the

employee relations branch approve the performance expectation letter at issue, ID

at 20. Instead, the appellant testified that it was merely her “understanding” that

the process must be coordinated with employee relations. ID at 20 (citing HT at

27-28). In addition, the administrative judge noted that the appellant

acknowledged that she was unaware of whether A.J. had discussed the letter with

employee relations. ID at 20. 

¶22 We agree with the administrative judge that the appellant failed to prove

that this disclosure was protected. To make a protected disclosure of a violation

of law, rule, or regulation, an employee must identify the specific law, rule, or

regulation that was violated. Langer v. Department of the Treasury, 265 F.3d

1259, 1266 (Fed. Cir. 2001). Although an individual need not identify a statutory

or regulatory provision by particular title or number when the statements and

circumstances surrounding the making of those statements clearly implicate an

identifiable violation of law, rule, or regulation, id., disclosure (5) falls short of

this broad standard. Further, a disinterested observer could not reasonably

conclude that this disclosure evidenced any other category of wrongdoing listed

in 5 U.S.C. § 2302(b)(8). 

¶23 Regarding disclosure (6), that the Secret Service paid for A.J.’s membership

in a private gym, as previously noted, the appellant informed the fact-finders that

the HFO had 10 revolving memberships at a private gym even though there was a

gym at the HFO. IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 43. We agree with

the administrative judge that the private gym memberships were not a gross waste

of funds, nor did they evidence an abuse of authority or gross mismanagement. 

ID at 20-21. As the appellant acknowledged during her hearing testimony, SAs

are required to meet physical fitness standards, the private gym had facilities in

locations within the HFO’s jurisdiction that SAs could use during foreign travel,

and the 10 memberships cost a total of about $5,000.00 per year. HT at 29-31. 

Given these circumstances, the expenditure on the gym memberships was not
14

“significantly out of proportion to the benefit reasonably expected to accrue to

the government” and, thus, we find that it was not a gross waste of funds. 

¶24 We also agree with the administrative judge that, as SAIC of the HFO, A.J.

had the discretion to obligate the gym memberships and that the appellant simply

disagreed with A.J. about the value of having such memberships when there was

a gym available to HFO employees at no charge. ID at 21. Thus, a disinterested

observer with knowledge of the facts known to the appellant could not reasonably

believe that the gym memberships evidenced an abuse of authority or gross

mismanagement. 

¶25 Disclosures (7)-(9) involve A.J.’s decisions not to obtain the following

equipment and resources for the HFO: search warrant breaching tools (disclosure

(7)); access to Hawaii DMV records (disclosure (8)); and police lights and sirens

for the 10 GOVs in the HFO’s fleet without them (disclosure (9)). The

appellant’s disclosures do not reveal anything more than the questioning of

management decisions that are merely debatable. Therefore, we agree with the

administrative judge that a reasonable person could not find that the decisions

described in these disclosures constituted gross management. 

¶26 We also agree with the administrative judge that these disclosures did not

evidence a danger to public safety. Disclosures regarding danger to the public

must be both substantial and specific to be protected. Miller v. Department of

Homeland Security, 111 M.S.P.R. 312, ¶ 6 (2009). Factors to be considered in

determining if a disclosed danger is sufficiently substantial and specific to be

protected include the likelihood of harm, when the alleged harm may occur, and

the potential consequences of the harm. Id. Disclosure of an imminent event is

protected, but disclosure of a speculative danger is not. Id. 

¶27 Regarding the breaching tools, the administrative judge noted that M.M.

testified that SAs worked with local law enforcement in executing search

warrants when breaching tools were necessary, and local police usually had such

tools. ID at 22 (citing HT at 234-35). Similarly, the appellant acknowledged in
15

her testimony that on the two occasions when agents in the HFO needed

breaching tools, they borrowed them from another agency and successfully

executed the search warrants. HT at 33. In light of this testimony, we agree with

the administrative judge that the appellant, at most, disclosed a speculative

danger with little likelihood of harm. ID at 22-23. Thus, we find that disclosure

(7) was not protected as a disclosure of a danger to public safety. 

¶28 We also agree with the administrative judge that the appellant’s complaint

regarding the lack of lights and sirens on 10 GOVs in the HFO’s fleet (disclosure

(9)), at most, disclosed a speculative danger. ID at 24. As the administrative

judge noted, the appellant acknowledged that emergencies were not routine and

she provided no information identifying a substantial and specific danger that

could result from not having every GOV equipped with lights and sirens. ID at

24 (citing HT at 36). Thus, we find that this disclosure was not protected as a

disclosure of a danger to public safety.

¶29 Regarding disclosure (10), that the geographic boundaries of the Secret

Service’s districts required reevaluation because the Honolulu district is too

large, thereby resulting in excessive travel expenses, the purchase of

business-class airline tickets, and excessive overtime expenses, we agree with the

administrative judge that this complaint was not a protected disclosure. ID at

25-26. In making this finding, the administrative judge noted that the decision

regarding how best to define the geographic boundaries of the agency’s districts

was within the discretion of agency officials overseeing the agency’s operations

on a global scale. ID at 25. Although the appellant disagreed with the way in

which the districts were defined, she did not show that a disinterested observer

could reasonably believe that the way in which the agency defined its geographic

districts created a substantial risk of adverse impact on the agency’s ability to

accomplish its mission, or evidenced any other category of wrongdoing set forth

in 5 U.S.C. § 2302(b)(8). Further, it is unclear, and the appellant does not
16

explain, how the size of the Honolulu district resulted in the purchase of

business-class airline tickets. 

¶30 Regarding disclosure (12), that the HFO’s administrative personnel were

not properly cross-trained, the administrative judge found that a reasonable

person could not believe the lack of cross-training evidenced a violation of a law,

rule, or regulation, an abuse of authority, or gross mismanagement. ID at 27. 

Rather, the administrative judge found that the appellant pointed out

inefficiencies and suggested improving the functioning of the office by

cross-training the administrative staff. ID at 27. We agree with the

administrative judge. Although the failure to cross-train the HFO’s

administrative personnel arguably reduced the HFO’s efficiency, the appellant did

not prove that a disinterested observer could reasonably believe that the lack of

cross-training created a substantial risk of significant adverse impact upon the

agency’s ability to accomplish its mission. Consequently, we find that the

appellant’s complaint about lack of cross-training among the HFO’s

administrative personnel was not a protected disclosure of gross mismanagement,

nor was it a protected disclosure of any other category of wrongdoing identified

in 5 U.S.C. § 2302(b)(8). 

¶31 Regarding disclosure (15), that A.J. allowed FSNs working for the Secret

Service’s offices in Hong Kong and Bangkok to use GOVs for their HTW

transportation, the administrative judge found that the appellant did not prove

that she reasonably believed that allowing FSNs to use GOVs violated a law, rule,

or regulation, or evidenced any other category of wrongdoing. ID at 29. The

statutory provision governing the use of GOVs for HTW transportation,

31 U.S.C. § 1344, generally prohibits such use unless it is for an “official

purpose.”12 The Secret Service’s policy governing the use of GOVs for HTW

 12 Pursuant to 31 U.S.C. § 1344(a)(2), HTW transportation, when approved in writing 

by an agency head, is for an official purpose when such transportation is: (A) required 

for the performance of field work, or (B) essential for the safe and efficient 
17

transportation—the HTW Transportation Determination Plan—is set forth in

Agency Directive Section AOD-04(03) of the Secret Service’s Administrative

Manual [AOD-04(03)], entitled “Home To Work Driving Authority.” See IAF2,

Tab 16, Vol. 5 at 410-18. The plan, which was approved by the Secretary of the

Treasury, authorizes the use of GOVs for HTW transportation by designated

personnel in specific categories, including employees designated for off-duty or

emergency response, such as physical security specialists and structural

engineers. Id. at 410-11. 

¶32 In support of her finding that this disclosure was not protected, the

administrative judge noted the following: M.M. testified that FSNs were

designated as off-duty or emergency response personnel within the meaning of

the policy, ID at 29; the appellant acknowledged during her testimony that the

FSNs might have to assist Secret Service employees by responding to emergency

situations, ID at 28-29 (citing HT at 44-45); and when the appellant brought the

issue to A.J.’s attention, he explained that the FSNs’ use of the vehicles was in

full compliance with policy, and had been approved by the INV, ID at 28 (citing

IAF1, Tab 5, Vol. 3 at 240, 317; IAF2, Tab 16, Vol. 5 at 425). 

¶33 Under the statute, however, the test for a protected disclosure is whether the

appellant had a reasonable belief that she was disclosing a violation of law, rule,

or regulation when she made the disclosure, not in light of events or

conversations occurring thereafter. See Webb, 122 M.S.P.R. 248, ¶ 13 (citing

5 U.S.C. § 2302(b)(8)). The record shows that A.J. did not notify the appellant

that the FSNs’ use of the vehicles was in full compliance with agency policy and

had been approved by the INV until January 9, 2009, i.e., 4 days after she made

this disclosure during her interview with the fact-finders. See IAF1, Tab 5, Vol.

3 at 240, Tab 8, Vol. 6, Agency File, Part 4 at 42, 45. Thus, it appears that the

appellant was not aware of this information at the time of her disclosure. 

 

performance of intelligence, counterintelligence, protective services, or criminal law 

enforcement duties.
18

¶34 Moreover, AOD-04(03) states that the policy governing the use of GOVs

for HTW transportation applies to all employees and offices of the Secret

Service. See IAF2, Tab 16, Vol. 5 at 410. Although the appellant acknowledged

during the hearing that FSNs might have to assist Secret Service employees by

responding to emergency situations, see HT at 44-45, she also testified that she

believed FSNs were either employees or contract employees of the State

Department, i.e., not the Secret Service. Id. at 44. In light of this testimony, the

scope of the agency policy governing the use of GOVs for HTW transportation,

and the evidence indicating that the appellant was not informed until after her

disclosure that the INV had approved the FSNs’ use of GOVS for HTW

transportation, we find that the appellant reasonably believed that the use of

GOVs for HTW transportation by the FSNs in Hong Kong and Bangkok was a

violation of law, rule, or regulation. Accordingly, we find that disclosure (15)

was protected and modify the initial decision regarding this matter. 

The appellant’s disclosures were a contributing factor in the personnel actions. 

¶35 To prevail in an IRA appeal before the Board, an appellant must prove by

preponderant evidence that her disclosure was a contributing factor in a personnel

action. Chavez, 120 M.S.P.R. 285, ¶ 27. The term “contributing factor” means

any disclosure that affects an agency’s decision to threaten, propose, take, or not

take a personnel action with respect to the individual making the disclosure.

Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 31

(2011); 5 C.F.R. § 1209.4(c). The most common way of proving the contributing

factor element is the “knowledge/timing test.” Chavez, 120 M.S.P.R. 285, ¶ 27. 

Under that test, an appellant can prove that her disclosure was a contributing

factor in a personnel action through evidence that the official taking the personnel

action knew of the whistleblowing disclosure and took the personnel action

within a period of time such that a reasonable person could conclude that the

disclosure was a contributing factor in the personnel action. Id. Once an

appellant has satisfied the knowledge/timing test, she has demonstrated that a
19

protected disclosure was a contributing factor in a personnel action. Gonzalez v.

Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008). 

¶36 Regarding the knowledge prong of the knowledge/timing test, the record

reflects that at least two agency officials involved in the selections at issue in

these appeals13

were aware of the appellant’s whistleblowing disclosures and/or

protected activities. Specifically, P.M. was a member of the board and, for two

of the selections at issue in this appeal (the December 2011 selections for the

London RAIC and Rome ASAIC positions), C.M. represented an AD on the board

because that AD was unavailable at that time. IAF1, Tab 8, Vol. 6, Agency File,

Part 3 at 102-03; HT at 75-76. As the administrative judge found, P.M. was

aware of the appellant’s disclosures and her grievance, in which she alleged

reprisal for those disclosures, because he was the agency official who denied her

grievance. ID at 32 (citing IAF1, Tab 5, Vol. 4 at 505); see IAF1, Tab 5, Vol. 2

 13 As explained in the initial decision, the selection process for the positions at issue in 

these appeals involved either an advisory board (for the GS-15 lateral assignments) or 

the Executive Resources Board (for the SES positions). See ID at 7-8. Both boards 

were comprised of the Secret Service’s Deputy Director, Chief of Staff, and the ADs for 

its eight directorates. ID at 7, 8 n.6 (citing HT at 130, 335-36). Because the advisory 

board and the Executive Resources Board were comprised of the same members, we 

will refer to both boards interchangeably as the board, as the administrative judge did in 

the initial decision. See ID at 8 n.6. For GS-15 lateral reassignments, employees 

indicated their interest in an open assignment on the mainframe computer system, the 

AD of the office with responsibility over the vacancy recommended a candidate for 

consideration by the board, and, after discussing the recommended candidate and other 

candidates who had expressed an interest in the position, the board recommended a 

candidate for consideration by the Secret Service’s Director and Deputy Director. ID at 

7 (citing HT at 63-64, 66, 76, 142-43; IAF1, Tab 5, Vol. 4 at 484; Tab 8, Vol. 6 at 115). 

The Director could concur with the recommendation or select a candidate from a list of 

best qualified candidates. ID at 7 (citing IAF1, Tab 8, Vol. 6 at 115). For promotions 

from the GS-15 level to the SES level, the board made recommendations to the 

Director, who then made the final selection decision. ID at 8. For each of the GS-15 

and SES selections at issue in these appeals, the Director concurred with the board’s 

recommendations. ID at 7-8. 

Regarding the selection process for the 2012 DHS Fellows Program, as explained in the 

initial decision, the Secret Service did not select the participants for the program. ID at 

38. Rather, the participants were selected by a panel of 13 managers from across DHS. 

ID at 38 (citing IAF1, Tab 5, Vol. 3 at 366; HT at 433). 
20

at 160-63. The administrative judge also correctly found that C.M. knew about

the appellant’s disclosures and protected activities because he received the

written summary of the 2009 fact-finding investigation, which detailed the

appellant’s disclosures, he was the proposing and deciding official for the

appellant’s 1-day suspension, and he acknowledged during his testimony that he

was aware of the appellant’s OSC complaint and the Board appeal challenging

her suspension. ID at 31-32 (citing HT at 86-87, 90); see IAF1, Tab 5, Vol. 2 at

129-31, 157-58. 

¶37 Turning to the timing prong of the knowledge/timing test, the administrative

judge found that the agency’s nonselection decisions and other personnel actions

occurred within a period of time such that a reasonable person could conclude

that the disclosures were a contributing factor in the personnel actions. ID at 32

(citing Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001)

(finding that the appellant’s disclosures were a contributing factor in her removal

when they were made approximately 21 months prior). 

¶38 We agree. As noted above, the appellant made her disclosures in January

2009, filed the grievance of her suspension in August 2009, and filed the IRA

appeal challenging her suspension in December 2010. The first of the personnel

actions at issue in these appeals, her reassignment to the Fusion Center, occurred

in January 2010, and the first of the nonselections at issue occurred in December

2010, when her successor as ASAIC of the HFO was selected as SAIC of the

HFO. See IAF1, Tab 5, Vol. 3 at 432. The Board has held that a personnel action

taken within 1 to 2 years of a disclosure meets the timing element of the

knowledge/timing test. Ontivero v. Department of Homeland Security,

117 M.S.P.R. 600, ¶ 23 (2012). Thus, we discern no reason to disturb the

administrative judge’s finding that the appellant has proven that her disclosures

were a contributing factor in each personnel action at issue. 
21

The agency proved by clear and convincing evidence that it would have taken the

same actions in the absence of the appellant’s whistleblowing. 

¶39 Because the appellant met her burden to establish a prima facie case of

whistleblowing, the burden shifted to the agency to prove by clear and convincing

evidence that it would have taken the same personnel actions in the absence of

her whistleblowing. See Jenkins v. Environmental Protection Agency,

118 M.S.P.R. 161, ¶ 16 (2012). In determining whether an agency has met this

burden, the Board will consider the following factors: (1) the strength of the

agency’s evidence in support of its 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. 

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999);

Azbill v. Department of Homeland Security, 105 M.S.P.R. 363, ¶ 17 (2007). 

Evidence only clearly and convincingly supports a conclusion when it does so in

the aggregate considering all the pertinent evidence in the record and despite the

evidence that fairly detracts from that conclusion. Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). 

A. The strength of the agency’s evidence in support of its actions. 

¶40 The Board has recognized that the first of the three Carr factors, set forth

above, does not apply straightforwardly when, as here, the personnel action is not

disciplinary and, therefore, does not require supporting evidence of misconduct. 

See Azbill, 105 M.S.P.R. 363, ¶ 18. As the administrative judge noted, in such

circumstances, the Board considers the broader question of whether the agency

had legitimate reasons for its action when addressing the strength of the agency’s

evidence in support of its action. ID at 33 (citing Azbill, 105 M.S.P.R. 363, ¶ 18,

and Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006)). 

¶41 Regarding the first Carr factor, the administrative judge found that the

agency’s evidence in support of its actions was strong. ID at 46. In making this
22

finding, the administrative judge considered the hearing testimony and

documentary evidence regarding each of the personnel actions at issue in these

appeals.14 See ID at 33-46. The administrative judge found that agencies have

wider latitude to use subjective criteria when filling managerial positions,

especially at the SES level. ID at 46. The administrative judge concluded that,

because the positions at issue are high-level leadership positions involving a great

deal of discretion, trust, and responsibility, the agency’s use of subjective

criteria, such as leadership and interpersonal skills, does not detract from the

strength of its evidence. Id. 

¶42 The administrative judge further found that the agency explained in detail

its reasons for selecting other candidates instead of the appellant, and that these

reasons were legitimate. ID at 46. In that regard, the administrative judge noted

that A.S., who was AD of the INV from January 2010 until April 2012, when he

became Deputy Director of the Secret Service, testified that the appellant had a

protection assignment with President Ronald Reagan, but she had no supervisory

experience on a protective detail nor did she have any specialized skills, technical

ability, or specialized computer skills, experience with an Electronic Crimes Task

Force, or other cyber-related experience. ID at 46-47 (citing HT at 402-03); see

ID at 35 (citing IAF1, Tab 5, Vol. 4 at 482, Tab 8, Vol. 6, Agency File, Part 3 at

5; HT at 368, 370)). In addition, the administrative judge noted that the board

members had the following concerns about the appellant’s ability to hold an SES

position: (1) she did not manage agency employees in her position at the Fusion

 14 With the exception of the appellant’s assignment to the Fusion Center, all of the 

personnel actions at issue in this appeal involve selection decisions; namely, the 

decisions not to select the appellant for various positions or for the 2012 DHS Fellows 

Program. Regarding the Fusion Center assignment, the administrative judge found that 

the agency proved by clear and convincing evidence that it would have reassigned the 

appellant to the Fusion Center even absent her protected disclosures, as the agency’s 

action was in response to decisions that the appellant made for personal reasons, not in 

response to her whistleblowing. ID at 34. The appellant does not challenge this finding 

on review, and we see no reason to reexamine it. 
23

Center; (2) she had declined a stepping stone position in headquarters15; and

(3) she had “issues” while employed at the HFO. ID at 47. 

¶43 As noted above, our reviewing court has provided guidance that a proper

analysis of the clear and convincing evidence issue requires that all the evidence

be weighed together; i.e., both the evidence that supports the agency’s case and

the evidence that detracts from it. Whitmore, 680 F.3d at 1368. Consistent with

this guidance, the administrative judge here considered that the appellant’s

“issues” related at least in part to her complaints about A.J. and the HFO’s

Administrative Officer, which included her protected disclosures. ID at 47

(citing Whitmore, 680 F.3d at 1368). The administrative judge found, however,

that the appellant’s issues also included her inappropriate comments about A.J.’s

age, her misuse of confidential funds, her discipline for those matters, and other

information provided by HFO employees during the fact-finding investigation,

which called into question her judgment and leadership skills. ID at 47 (citing

IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 42-75). In addition, as the

administrative judge noted, the evidence showed that the agency’s concerns

regarding the appellant’s management skills predated her protected disclosures

and protected activities, as the appellant’s supervisor documented his concerns

with her interpersonal skills and diplomacy when dealing with employees in

2006-2007.16 ID at 47 (citing IAF2, Tab 15 at 48 (page number generated by fax

machine)). In sum, the administrative judge found little persuasive evidence

suggesting that the appellant’s protected disclosures or activities resulted in the

 15 In September 2012, P.M. offered the appellant the GS-15 position of DAD of the 

ADM, which the appellant declined for personal reasons. See IAF 1, Tab 5, Vol. 3 at 

395. The person who occupied that position after the appellant declined it was 

promoted directly from that position to one of the SES appointments at issue. See

IAF2, Tab 6 at 80. 

16 The appellant’s supervisor during this time frame was the then-DAD of the Office of 

Protective Operations. See IAF2, Tab 15 at 48 (page number generated by fax 

machine). 
24

concerns expressed by the board regarding her ability to manage people in a

high-level management or executive position. ID at 47. 

¶44 In assessing the strength of the agency’s evidence, the administrative judge

also considered the appellant’s claim that the agency engaged in actions that

showed a pattern of reprisal. See ID at 48-49. The actions cited by the appellant

in support of this claim included the denial of her request to attend training

events, ID at 48 (citing IAF1, Tab 5, Vol. 3 at 370), and the authorization of the

fact-finding investigation which, she contended, did not conform to the Human

Resources and Training Manual, Investigation of Alleged Employee Misconduct,

ID at 49 (citing IAF2, Tab 21 at 16). 

¶45 The administrative judge found that these events did not demonstrate a

pattern of reprisal against the appellant. ID at 49. Rather, the administrative

judge found that the record showed that the appellant was regarded as a valued

employee. ID at 49. To that end, the administrative judge noted that, among

other things, the agency awarded the appellant an assignment she requested in

2009, released her from that assignment at her request, assisted her in locating a

GS-15 position in Honolulu, and offered her a position as DAD of the ADM in

2012. ID at 49. 

¶46 Although the administrative judge did not make any explicit credibility

determinations, she clearly credited the agency officials’ testimony, regarding

their reasons for selecting other candidates instead of the appellant, by finding

that those reasons were legitimate and that the agency’s evidence in support of its

selection decisions was strong. See ID at 46. The appellant challenges these

implied credibility findings on review, alleging that, during their testimony,

agency officials “made stories” about their reasons for recommending other

candidates instead of her and made statements about her that were untrue. See

generally PFR File, Tab 1 at 13-19. In particular, the appellant alleges that A.S.,

who recommended the candidates who were ultimately selected for the London

RAIC and Rome ASAIC positions in December 2011, “made stories” about why
25

he recommended those candidates, and she asserts that A.S.’s recommendations 

were “biased.” Id. at 13-14. Similarly, she argues that M.M. and another

selecting official, the TEC AD, “made stories” regarding why another candidate

was selected for the SAIC-TSD position in August 2012. Id. at 15. She also

alleges that, during his testimony regarding the selection for the SAIC-TSD

position, M.M. “made a story” about her conduct during her tenure as the Paris

Field Office (PFO) ASAIC when he stated that she was disruptive in the PFO and

with foreign counterparts in Belgium. Id. 

¶47 The Board will not disturb an administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions of credibility. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997); see also Broughton v. Department of Health &

Human Services, 33 M.S.P.R. 357, 359 (1987). The Board must give deference to

an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing, and may overturn such determinations only when it has

“sufficiently sound” reasons for doing so.

17 Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002); see McCarthy v. International Boundary &

Water Commission, 116 M.S.P.R. 594, ¶ 45 (2011) (in a whistleblower reprisal

case, the Board is required to apply appropriate deference to an administrative

judge’s credibility findings consistent with the principles contained in Haebe), 

aff’d, 497 F. App’x 4 (Fed Cir. 2012). 

¶48 The appellant has set forth no evidence to support her assertions or

otherwise substantively challenge the administrative judge’s implied credibility

 17 A noted above, the administrative judge did not make any explicit credibility 

determinations in the initial decision. A fortiori, she did not make any explicit 

demeanor-based credibility determinations. Nonetheless, she heard live testimony and 

her implied credibility determinations must be deemed to be at least implicitly based 

upon witness demeanor. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 

(2009). 
26

findings. These assertions are thus mere disagreement with the administrative

judge’s implied credibility determinations and, as such, provide no basis to

disturb the initial decision. 

¶49 On review, the appellant also reasserts her argument from below that the

January 2009 fact-finding investigation was improper because it did not comply

with the Secret Service’s manual regarding investigations of employee

misconduct. PFR File, Tab 1 at 5; IAF2, Tab 21 at 16-17. She further asserts

that no witnesses were placed under oath during the interviews conducted as part

of the investigation, none of the interviews were recorded, no one was allowed to

read the reports of the interviews, and there were no stated consequences for any

untruthful information or statements. PFR File, Tab 1 at 6. 

¶50 However, the record indicates that the appellant supported C.M.’s decision

to conduct an investigation. See IAF1, Tab 5, Vol. 3 at 306 (December 19, 2008

email from the appellant thanking C.M. for his “arranging the ‘fact finders’”). 

Although she is now clearly dissatisfied with the results of the investigation, her

objections provide no reason to disturb the initial decision. 

B. Evidence of the agency’s motive to retaliate. 

¶51 Turning to the second Carr factor—the existence and strength of any

retaliatory motive on the part of the officials who were involved in the decision in

question—the administrative judge noted that there were multiple agency

officials who testified that the appellant’s whistleblowing did not allege

wrongdoing on their part, did not implicate them, and they were not disciplined

as a result of her disclosures. ID at 49 (citing HT at 97, 154-55, 279-80, 236,

323-24, 400-01, 424-25). The administrative judge found, however, that the

appellant’s whistleblowing did implicate these individuals to some extent, as they

were high-level management officials of the Secret Service. ID at 49-50 (citing

Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 23 (2010) (finding

that comments generally critical of the agency’s leadership would reflect poorly

on officials responsible for monitoring the performance of the field staff and
27

making sure that agency regulations are carried out correctly and consistently));

see Chambers, 116 M.S.P.R. 17, ¶ 69 (finding motive to retaliate because the

appellant’s disclosures reflected on the responsible agency officials as

representatives of the general institutional interests of the agency). The

administrative judge also noted that C.M. had issued the 1-day suspension that

was the subject of both the appellant’s first IRA appeal and her August 2009

grievance. ID at 50. Therefore, the administrative judge found that there was

some motive to retaliate on the part of the agency officials involved in the

selection decisions. ID at 50. 

¶52 The administrative judge found, however, that A.J. seemed to be the

individual with the most motive to retaliate because he was the subject of the

appellant’s disclosures and other complaints and, presumably, he was verbally

counseled regarding some of those matters. ID at 50; see IAF1, Tab 5, Vol. 2 at

118-22. By contrast, the appellant’s disclosures were not aimed at the agency’s

higher-level management officials who sat on the board, nor were they highly

critical of the agency’s leadership. ID at 50. Therefore, as the administrative

judge found, although the board members and C.M. had some motive to retaliate

based on their positions in leadership, they did not have a high level of motive to

retaliate, as A.J. may have had. ID at 50. In addition, the administrative judge

found that there was little evidence to support the appellant’s claim that A.J. was

a close personal friend of some of the board members, or that these purported

friendships influenced the board’s selection decisions. ID at 51. 

¶53 On review, the appellant does not specifically address the administrative

judge’s findings that the agency officials involved in her selection decisions had

some motive to retaliate, but that their motive was not as strong as that of A.J.,

nor does she challenge the administrative judge’s findings that there was little

evidence that A.J. influenced the board members in their selection decisions. 

Based on our examination of the record, we find no reason to disturb the

administrative judge’s findings regarding the second Carr factor.
28

C. The agency’s treatment of similarly-situated nonwhistleblowers. 

¶54 Regarding the third Carr factor, the administrative judge noted that there

was little record evidence regarding the agency’s treatment of similarly-situated

nonwhistleblowers. ID at 51. This factor has obvious relevance when the action

in question is a disciplinary action, i.e., when the appellant claims he was

punished or punished more harshly than nonwhistleblowers who were not

punished or punished more leniently. It has much less relevance when, as here,

the contested action is a nonselection, as it would be highly unlikely that the

selectee would also have made protected disclosures. Consequently, the third

Carr factor is not a significant factor in our analysis. 

¶55 The record reflects that the administrative judge in this case considered the

relevant evidence as a whole under the Whitmore standard, made findings of fact

and credibility determinations supported by the record, and concluded that the

agency proved by clear and convincing evidence that it would have made the

same selection decisions even in the absences of the appellant’s protected

disclosures. ID at 32-51. We find that the appellant has set forth no basis on

review to disturb these findings. 

The administrative judge did not abuse her discretion by denying the appellant’s

witness requests. 

¶56 Although her argument is somewhat unclear, the appellant appears to

contend on review that the administrative judge improperly denied her witness

requests for two agency officials.

18 PFR File, Tab 1 at 9, 17; see IAF2, Tab 14 at

7-8, 25, 30-31. We disagree. An administrative judge has wide discretion to

control the proceedings, including the authority to exclude testimony he believes

would be irrelevant, immaterial, or unduly repetitious. Sanders v. Social Security

 18 The appellant also seems to assert that two other individuals should have been 

allowed as witnesses. See PFR File, Tab 1 at 14, 16. However, the appellant’s apparent 

contention that these individuals should have been allowed to testify is unavailing 

because the appellant did not request either of them as a witness during the proceedings 

below. 
29

Administration, 114 M.S.P.R. 487, ¶ 10 (2010). The Board will not disturb an

administrative judge’s decision to deny a party’s proposed witnesses unless such

denial constitutes an abuse of discretion. Dangerfield v. U.S. Postal Service,

77 M.S.P.R. 678, 684-85 (1998). The administrative judge disapproved these

agency officials as witnesses based on her finding that they did not appear to

have testimony that was relevant to the accepted issues and/or their testimony

appeared to be duplicative of other witnesses. IAF2, Tab 26 at 1. We discern no

abuse of discretion by the administrative judge in denying the appellant’s witness

requests for those reasons. In any event, the appellant did not timely object to the

administrative judge’s ruling denying these agency officials as witnesses and,

therefore, is precluded from doing so on review. See Tarpley v. U.S. Postal

Service, 37 M.S.P.R. 579, 581 (1988). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request further review of this final decision. There are several options for further

review set forth in the paragraphs below. You may choose only one of these

options, and once you elect to pursue one of the avenues of review set forth

below, you may be precluded from pursuing any other avenue of review. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination claims

by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit

your request by regular U.S. mail, the address of the EEOC is: 

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013
30

If you submit your request via commercial delivery or by a method requiring a

signature, it must be addressed to: 

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time. 

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and

29 U.S.C. § 794a. 

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your

discrimination claims, but you do want to request review of the Board's decision
31

without regard to your discrimination claims, you may request review of this final

decision on the other issues in your appeal by the United States Court of Appeals

for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or by any court of appeals of competent jurisdiction. The

court of appeals must receive your petition for review within 60 days after the

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If

you choose to file, be very careful to file on time. 

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information about the United States Court of Appeals for the Federal

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is

contained within the court's Rules of Practice, and Forms 5, 6, and 11. 

Additional information about other courts of appeals can be found at their
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respective websites, which can be accessed through

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board