UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 53

Docket No. DA-1221-15-0060-W-1

Rebstock Consolidation,

1

Appellants,

v.

Department of Homeland Security,

Agency.

September 29, 2015

Kris W. Kobach, Kansas City, Kansas, for the appellants. 

J. Douglas Whitaker, Esquire, Omaha, Nebraska, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellants have filed a petition for review of the initial decision, which

dismissed their consolidated individual right of action (IRA) appeals for lack of 

jurisdiction. For the reasons that follow, we DENY the appellants’ petition for 

review and AFFIRM the initial decision. 

 

1 This consolidation consists of the following appeals: Christopher L. Crane v. 

Department of Homeland Security, MSPB Docket No. DE-1221-15-0043-W-1; David A. 

Engle v. Department of Homeland Security, MSPB Docket No. DA-1221-15-0039-W-1; 

Samuel Martin v. Department of Homeland Security, MSPB Docket No. DA-1221-15-

0040-W-1; and Tre I. Rebstock v. Department of Homeland Security, MSPB Docket No. 

DA-1221-15-0041-W-1.
2

BACKGROUND

¶2 The appellants serve as law enforcement officers with the agency’s 

Immigration and Customs Enforcement component. Consolidation Appeal File 

(CAF), Tab 8 at 21, 24-25. As law enforcement officers, the appellants are 

responsible for, among other things, executing arrest warrants for immigration 

violations. Id. at 24-25. The appellants, collectively, filed a complaint with the 

Office of Special Counsel (OSC) alleging that they were threatened with 

disciplinary action if they refused to follow several agency memoranda that 

provided guidance on the exercise of prosecutorial discretion in enforcing Federal 

immigration law. Id. at 28, 33-34. In their OSC complaint, the appellants 

asserted that the agency’s memoranda violated existing Federal immigration law, 

the Administrative Procedures Act, and several provisions of the U.S. 

Constitution, and that they believed they would be disciplined if they failed to 

follow the memoranda, which they asserted would be a violation of 5 U.S.C. 

§ 2302(b)(9)(D). Id. at 26, 33-34, 37-44. 

¶3 OSC issued close-out letters informing the appellants of their rights to seek 

corrective action from the Board. Id. at 68-83. The appellants each filed timely 

IRA appeals, which the administrative judge consolidated. CAF, Tab 2. The 

administrative judge provided the appellants notice of how to establish the 

Board’s jurisdiction over their consolidated appeal, and the appellants and the 

agency submitted responses to the jurisdictional order. CAF, Tabs 9-10, 12. 

Without holding a hearing, the administrative judge dismissed the consolidated 

appeal for lack of jurisdiction. CAF, Tab 13, Initial Decision (ID). In his initial 

decision, the administrative judge found that all of the events giving rise to the 

consolidated appeal occurred prior to the December 27, 2012 effective date of the 

Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.

No. 112-19, 126 Stat. 1465, and that they thus were not entitled to rely upon the 

WPEA’s expanded grant of jurisdiction to file an IRA appeal alleging a violation 

of section 2302(b)(9)(D). ID at 4. The administrative judge further found that, to 
3

the extent any of the acts at issue occurred after the WPEA’s effective date, the 

appellants failed to nonfrivolously allege that they engaged in protected activity 

under section 2302(b)(9)(D) or that the agency threatened to take any personnel 

action against them based upon their alleged protected activity. ID at 5-6. 

¶4 The appellants have filed a petition for review arguing that they have new 

evidence demonstrating that they have been threatened with disciplinary action if 

they do not follow the agency’s memoranda and directives. See Petition for 

Review (PFR) File, Tab 1 at 10-16. In their petition for review, the appellants 

also renew their argument that the agency’s guidance violates several Federal 

statutes and the U.S. Constitution and that they will be subject to disciplinary 

action if they refuse to follow the agency’s memoranda and policy directives. Id.

at 22-23. The agency has filed a response in opposition, and the appellants have 

filed a reply. 2

 PFR File, Tabs 3-4. 

ANALYSIS

The WPEA’s expanded grant of jurisdiction to file an IRA appeal concerning an 

alleged violation of 5 U.S.C. § 2302(b)(9)(D) does not apply retroactively to 

pre-WPEA conduct. 

¶5 Pursuant to the WPEA, which became effective on December 27, 2012, 

Congress expanded the grounds on which an appellant may file an IRA appeal 

with the Board. See Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 

629, ¶ 9 (2014); see WPEA § 101(b)(1)(A). Prior to the enactment of the WPEA, 

an appellant only could file an IRA appeal with the Board based on allegations of 

whistleblower reprisal under 5 U.S.C. § 2302(b)(8). See Wooten v. Department 

of Health & Human Services, 54 M.S.P.R. 143, 146 (1992), superseded by statute 

 

2 In their reply, the appellants assert that they have a second category of new evidence 

further supporting their claim that they have been threatened with disciplinary action. 

See PFR File, Tab 4 at 10-12. As explained below, because the appellants have not 

presented this allegation of a threatened personnel action to OSC, this allegation is not 

properly before the Board in the instant IRA appeal. 
4

as stated in Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 5 

(2014). Following the WPEA’s enactment, however, an appellant also may file 

an IRA appeal with the Board concerning alleged reprisal based on certain other 

classes of protected activity as defined in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), 

and (D). 5 U.S.C. § 1221(a); Hooker, 120 M.S.P.R. 629, ¶ 9. 

¶6 Here, the appellants filed a complaint with OSC alleging a violation of

section 2302(b)(9)(D), and thereafter filed an IRA appeal with the Board raising 

the same allegations. See CAF, Tab 1, Tab 8 at 21-46. Section 2302(b)(9)(D) 

bars, among other things, taking or threatening to take a personnel action based 

on an employee’s refusal “to obey an order that would require the individual to 

violate a law.” 5 U.S.C. § 2302(b)(9)(D). 

¶7 Filing an IRA appeal based on an alleged violation of

section 2302(b)(9)(D) is one of the new bases for filing an IRA appeal with the 

Board under the WPEA. 5 U.S.C. § 1221(a); Hooker, 120 M.S.P.R. 629, ¶ 9. 

The Board has declined to give retroactive effect to the other new IRA appeal 

rights provided under the WPEA for alleged violations of

section 2302(b)(9)(A)(i), (B), or (C). See Colbert v. Department of Veterans 

Affairs, 121 M.S.P.R. 677, ¶ 7 (2014) (sections 2302(b)(9)(A)(i) and (C)); 

Hooker, 120 M.S.P.R. 629, ¶¶ 11-15 (section 2302(b)(9)(B)). Consistent with 

those decisions, and applying the analytical framework set forth in Landgraf v. 

USI Film Products, 511 U.S. 244 (1994), we find that, prior to the enactment of 

the WPEA, the Board lacked jurisdiction over allegations of reprisal for the 

protected activity described in section 2302(b)(9)(D) raised in an IRA appeal. 

Accordingly, we decline to give retroactive effect to the expanded grant of 

jurisdiction to file an IRA appeal concerning an alleged violation of

section 2302(b)(9)(D) based upon conduct that took place prior to the WPEA’s 

December 27, 2012 effective date, as doing so would increase a party’s liability 

for past conduct as compared to pre-WPEA liability. See Miller v. Federal

Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 15 (2014), aff’d, No. 
5

2015-3054, 2015 WL 4681015 (Fed. Cir. Aug. 6, 2015); Colbert, 121 M.S.P.R. 

677, ¶ 7; Hooker, 120 M.S.P.R. 629, ¶ 15. 

¶8 Thus, to the extent the appellants allege that the agency violated

section 2302(b)(9)(D) prior to December 27, 2012, the WPEA would not apply to, 

and the Board would lack jurisdiction over, any such challenge under the 

pre-WPEA standards. 3

 See Miller, 122 M.S.P.R. 3, ¶ 15 4; see also Colbert, 

121 M.S.P.R. 677, ¶ 7; Hooker, 120 M.S.P.R. 629, ¶ 15.

To the extent the appellants are challenging the agency’s actions occurring on or 

after the WPEA’s effective date, the appellants have failed to nonfrivolously 

allege that the Board has jurisdiction over their consolidated IRA appeal. 

¶9 To secure corrective action from the Board in an IRA appeal, an appellant 

first must seek corrective action from OSC. See Carney, 121 M.S.P.R. 446, ¶ 4. 

If an appellant exhausts his administrative remedies with OSC, then he must 

establish Board jurisdiction by nonfrivolously alleging that he engaged in activity

protected by the WPEA and that the protected activity was a contributing factor 

in a challenged personnel action. Id., ¶¶ 5, 7; see Aquino v. Department of 

Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014). Regarding the contributing 

factor element, to establish Board jurisdiction over an IRA appeal, an appellant 

must nonfrivolously allege that an individual with authority took, failed to take, 

or threatened to take or failed to take any personnel action, as defined by 

5 U.S.C. § 2302(a)(2)(A), based upon the appellant’s protected activity. 

 

3 As explained above, prior to the effective date of the WPEA, an appellant could only 

file an IRA appeal with the Board concerning alleged whistleblower reprisal under

section 2302(b)(8). See, e.g., Wooten, 54 M.S.P.R. at 146. We have reviewed the 

appellants’ OSC complaint and OSC’s close-out letter and find that the appellants 

did not allege that they engaged in any form of protected whistleblowing under

section 2302(b)(8). See CAF, Tab 8 at 21-46, 68-71. 

4 Similar to Miller, the fact that the appellants filed their IRA appeals with the Board 

after the WPEA’s effective date does not change the outcome of this appeal to the 

extent they are challenging the agency’s conduct that occurred prior to the WPEA’s 

effective date. See Miller, 122 M.S.P.R. 3, ¶ 15 n.5. 
6

5 U.S.C. § 2302(b)(9). Once an appellant establishes jurisdiction over his IRA 

appeal, he is entitled to a hearing on the merits of his claim, which he must prove 

by preponderant evidence. See Carney, 121 M.S.P.R. 446, ¶ 11; Aquino, 

121 M.S.P.R. 35, ¶¶ 9-10. 

¶10 We agree with the administrative judge that the appellants failed to 

nonfrivolously allege that an individual with authority threatened to take 

disciplinary action against them for failing to follow the agency’s memoranda and 

policy directives concerning the enforcement of Federal immigration law. 5

 See

ID at 5-6. The Board has held that the term “threaten” in section 2302 should be 

interpreted broadly. Campo v. Department of the Army, 93 M.S.P.R. 1, ¶ 5 

(2002). Applying this broad construction, the Board has found threatened 

personnel actions where a counseling memorandum warned of possible future 

discipline, id., ¶¶ 7-8, and where a supervisor stated that an employee should not 

expect the same performance rating he had received the year before, Special 

Counsel v. Hathaway, 49 M.S.P.R. 595, 600, 608 (1991), aff’d, 981 F.2d 1237

(Fed. Cir. 1992). An appellant’s generalized assertions and fears of discipline, 

without reference to any specific matter, however, fall below the modest standard 

for alleging a threatened personnel action. See Godfrey v. Department of the 

Air Force, 45 M.S.P.R. 298, 303 (1990). 6

 

 

5 Disciplinary action is one of the categories of personnel action expressly included 

within section 2302(a)(2)(A). 5 U.S.C. § 2302(a)(2)(A)(iii). 

6 The appellants advance on review that the controlling question is whether a reasonable 

person would believe that the agency threatened to take a personnel action. See PFR 

File, Tab 4 at 10. Although the Board employs a reasonable person standard when 

considering whether an employee has made a protected whistleblowing disclosure under

section 2302(b)(8), this standard does not apply to whether an appellant has 

nonfrivolously alleged that the agency threatened to take a personnel action in violation 

of section 2302. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015); 

Godfrey, 45 M.S.P.R. at 303. 
7

¶11 Here, the appellants have alleged only that they believe they will face 

disciplinary action if they disregard the agency’s memoranda. See, e.g., CAF,

Tab 8 at 35 (“[Appellant] Martin believes that he faces the threat of disciplinary 

action if he follows federal law . . . contrary to [the agency’s memoranda].”); see 

also CAF, Tab 11 at 8-9 (“I fear that if I follow federal law . . . I will be 

suspended and ultimately terminated.”). Totally lacking from the appellants’ 

submissions, however, is any reference to a verbal or written statement, 

admonishment, or notice from the agency that they risk possible disciplinary 

action if they do not follow the agency’s guidance. See Godfrey, 45 M.S.P.R. 

at 303 (“some concrete manifestation—(such as) ‘mere harassment and threat’—

is required”) (emphasis in original). The appellants thus have offered nothing to 

support their claim of threatened discipline other than their own subjective 

suspicions that they could be disciplined. Abstract concerns about possible 

disciplinary action, without any evidence that the agency actually has threatened 

or suggested it would take such action, do not constitute nonfrivolous allegations 

that the agency threatened to take a personnel action in violation of section 2302. 

See id.; see also Daniels v. Department of Veterans Affairs, 105 M.S.P.R. 248, 

¶ 8 (2007) (finding that the agency’s suggestion that an employee might not be 

qualified for her job did not constitute a threatened personnel action). 

¶12 The appellants’ assertion, that they fear disciplinary action “based upon 

official communications to them . . . from their superiors, past events, and public 

sources,” CAF, Tab 8 at 33, does not change our conclusion. As the 

administrative judge acknowledged in his initial decision, ID at 3, vague, 

conclusory, and unsupported allegations do not satisfy the Board’s nonfrivolous 

pleading standard, see Aviles v. Merit Systems Protection Board, No. 14-60645, 

2015 WL 5010031, at *8 (5th Cir. Aug. 24, 2015); Linder v. Department of 

Justice, 122 M.S.P.R. 14, ¶ 14 (2014); McDonnell v. Department of Agriculture, 

108 M.S.P.R. 443, ¶ 7 (2008). We concur with the administrative judge that the 

appellants’ assumption, that they may face disciplinary action based upon “past 
8

events” and “public sources,” does not constitute a nonfrivolous allegation that 

they were threatened with a personnel action. Additionally, the appellants’ 

oblique reference to implied threats of discipline in “official communications,” 

standing alone, fails to nonfrivolously allege that the agency threatened to take a 

personnel action. See McDonnell, 108 M.S.P.R. 443, ¶ 7; see also Rzucidlo v. 

Department of the Army, 101 M.S.P.R. 616, ¶ 17 (2006). As the Board’s 

decisions make clear, despite the broad reading afforded to the term “threatened,” 

the agency must take some action signifying its intent to take a personnel action. 

See Gergick v. General Services Administration, 43 M.S.P.R. 651, 656 (1990) 

(adopting the dictionary definition of the term “threaten”). We thus agree with 

the administrative judge that the appellants failed to nonfrivolously allege that 

the agency threatened to take a personnel action against them. 

¶13 Finally, we also agree with the administrative judge that the appellants 

have failed to nonfrivolously allege that they engaged in protected activity under

section 2302(b)(9)(D) by refusing to obey an order. 7

 ID at 6. We fully concur 

with the administrative judge’s well-reasoned findings that the appellants failed 

to allege that any of them actually refused to follow any supervisor’s order, and,

absent a nonfrivolous allegation that they engaged in such protected activity, they 

cannot establish the Board’s jurisdiction over their consolidated IRA appeal. See

generally Carney, 121 M.S.P.R. 446, ¶ 7. 

The appellants’ new evidence submitted on petition for review does not compel a 

different result. 

¶14 In their petition for review, the appellants argue that new evidence supports 

their claim that they will face disciplinary action if they fail to follow the 

agency’s memoranda. See PFR File, Tab 1 at 9-16. Specifically, they assert that,

 

7 In reaching this finding, we offer no opinion whether the agency’s guidance and 

memoranda on the enforcement of Federal immigration law violate a law for the 

purposes of establishing a violation of section 2302(b)(9)(D). 
9

during a nationally televised address in February 2015, the President stated that 

agency employees who disagree with the agency’s policy directives concerning 

the enforcement of Federal immigration laws will “be answerable to the head of 

the Department of Homeland Security,” and that “there are going to be 

consequences” for those who refuse to follow such policies. Id. at 10. 

Additionally, in their reply, the appellants assert that the Director of Immigration 

and Customs Enforcement testified before Congress in April 2015 that employees 

would be disciplined if they did not follow the agency’s directives concerning the 

enforcement of Federal immigration law. See PFR File, Tab 4 at 10-11. 

¶15 The Board generally will not grant a petition for review based upon new 

evidence absent a showing that the new evidence is of sufficient weight to 

warrant an outcome different than that of the initial decision. Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980). We agree that the statements 

submitted on review constitute new evidence because they were unavailable prior 

to the issuance of the initial decision. However, we find neither statement 

warrants a different outcome than that of the initial decision because both 

statements were made several months after OSC closed its inquiry into the 

appellants’ complaint. Typically, in an IRA appeal, the Board only may consider 

those charges of wrongdoing that the appellant presented before OSC, and it 

may not consider any subsequent recharacterization of those charges put forth in 

submissions to the Board. See Jessup v. Department of Homeland Security, 

107 M.S.P.R. 1, ¶ 7 (2007). Because the evidence on review presented by the 

appellants concerns events that occurred after they filed their complaint with 

OSC, they could not have submitted these issues to OSC for its consideration. 

The allegations involving the appellants’ new evidence, therefore, are not 
10

properly before the Board in this appeal, and they do not warrant a different 

outcome. 8

 We thus decline to consider the appellants’ new evidence on review. 

ORDER

¶16 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)).

NOTICE TO THE APPELLANTS REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision 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 under 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 the United States Court of Appeals for the Federal Circuit or any 

court of appeals of competent jurisdiction to review this final decision. 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 

 

8 We disagree with the appellants’ argument on review that the principles of economy 

and efficiency require the Board to consider these newly raised allegations in the first 

instance. See PFR File, Tab 4 at 14. The parties’ remaining motions concerning the 

introduction of new evidence are denied. See PFR File, Tabs 5-6. 
11

choose to file, be very careful to file on time. You may choose to request review 

of the Board’s decision in the United States Court of Appeals for the Federal 

Circuit or any other court of appeals of competent jurisdiction, but not both. 

Once you choose to seek review in one court of appeals, you may be precluded 

from seeking review in any other court. 

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 respective websites, which can be accessed through 

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

If you are interested in securing pro bono representation for an appeal to 

the United States Court of Appeals for the Federal Circuit, you may visit our 

website at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services
12

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.