UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DORED SHIBA,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

CH-1221-16-0285-W-1

DATE: February 8, 2023

THIS ORDER IS NONPRECEDENTIAL1

Christina Abraham, Esquire, Chicago, Illinois, for the appellant.

Lynn N. Donley, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Tristan L. Leavitt, Member

REMAND ORDER

¶1 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 and 

 

1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 

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

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

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

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

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

with this Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In 2003, the appellant voluntarily resigned from his Federal employment 

with the Social Security Administration for medical reasons and began receiving 

a Federal Employees Retirement System (FERS) disability retirement annuity in 

2004. Initial Appeal File (IAF), Tab 1 at 11, Tab 7 at 2; Shiba v. Department of 

Homeland Security, MSPB Docket No. CH-0752-10-0761-I-1, Initial Appeal File 

(0761 IAF), Tab 7 at 21. In 2007, he was hired by the Department of Homeland 

Security (the agency) but, 2 months later, filed a claim for a workplace injury. 

0761 IAF, Tab 6 at 10, Tab 7 at 21. The Office of Workers’ Compensation 

Programs (OWCP) accepted his injury as compensable, and the agency placed 

him in a leave without pay (LWOP) status. Id. 

¶3 After 3years of being in an LWOP status, the agency removed him based on 

his unavailability for work. 0761 IAF, Tab 7 at 22, Tab 14, Initial Decision 

(0761 ID) at 2. He appealed to the Board, and an administrative judge issued an 

initial decision reversing the appellant’s removal after he produced new medical 

documents suggesting that he could return to work. 0761 ID at 2, 4. Neither 

party appealed, and the initial decision became the Board’s final decision. 

Following his reinstatement in November 2010, the appellant filed a notice of 

recurrence with OWCP. Petition for Review (PFR) File, Tab 1 at 5, Tab 3 at 13. 

It appears that, in response to OWCP’s inquiry regarding why he believed his 

prior injury had recurred, the appellant admitted that he had never recovered. 

PFR File, Tab 3 at 15. Instead, he “pressure[d] [his] physicians into releasing 

[him] to work” so that he could keep his job. Id. He stated that he had obtained 

the medical documentation that he submitted in his prior appeal in order to have 

the Board reverse his termination. Id. 
3

¶4 The appellant alleges that OWCP accepted the recurrence as compensable, 

and he again went on LWOP. Id. In September 2011, the agency’s Office of 

Inspector General (OIG) commenced an investigation regarding the appellant. 

IAF, Tab 8 at 7-8. In August 2014, the agency terminated the appellant, treating 

him as an at-will reemployed annuitant. IAF, Tab 1 at 7-8. The termination 

decision was made by a District Director who assumed his position 2 weeks prior 

to the termination. IAF, Tab 1 at 9; PFR File, Tab 3 at 7, Tab 4 at 6-7. The 

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

reprisal for his workplace injury, his prior Board appeal, a statement he made to 

his direct supervisor about agency employees being rude to the public, and 

disclosures he made to his second-line supervisor and a city mayor. IAF, Tab 1 

at 4, 22, Tab 7 at 3-5. After the OSC issued a close-out letter, he filed this IRA 

appeal alleging reprisal for protected activity and disclosures. IAF, Tab 1

at 4, 25. 

¶5 The administrative judge notified the appellant of his jurisdictional burden

and ordered him to submit evidence and argument on the jurisdictional issue. 

IAF, Tab 3. After the appellant responded and the agency replied, the 

administrative judge issued an initial decision dismissing the appeal for lack of 

jurisdiction. IAF, Tab 14, Initial Decision (ID) at 10. She found that the 

appellant failed to make a nonfrivolous allegation that he engaged in protected 

activity or that he made protected disclosures that were a contributing factor in 

the OIG investigation or his termination. ID at 1, 4-8. Specifically, she found 

that his alleged workplace injury and statements regarding rude employees

were not protected disclosures, and that his prior Board appeal was not a 

protected activity. ID at 4-8. She found that he nonfrivolously alleged that his 

disclosures of his ill treatment to a city mayor, and to his supervisor of bribes 

accepted by agency employees, were protected. ID at 7-8. However, she found 

that the appellant failed to nonfrivolously allege that the agency officials who 
4

initiated the investigation or his termination were aware of his protected 

disclosures. ID at 9.

¶6 The appellant has petitioned for review. PFR File, Tab 1. He argues that 

the administrative judge erred in finding that he did not engage in protected 

activity when he filed his prior Board appeal. Id. at 6-8. Further, he disagrees 

with her finding that he failed to nonfrivolously allege that the OIG investigation 

was the result of his protected activities and disclosures. Id. at 9. He also 

presents new evidence and argument pertaining to Board jurisdiction over his 

claim that his termination was in reprisal for a protected disclosure. PFR File,

Tab 1 at 9, 28, Tab 4 at 8-10. The agency has responded to the petition for 

review, and the appellant has replied. PFR File, Tabs 3-4. 

¶7 To establish Board jurisdiction over an IRA appeal based on whistleblower 

reprisal, the appellant must exhaust his administrative remedies before OSC2and 

make 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, fail to take, or threaten 

to take a personnel action as defined by 5 U.S.C. § 2302(a). Bishop v.

Department of Agriculture, 2022 MSPB 28, ¶ 13. A nonfrivolous allegation is an 

assertion that, if proven, could establish the matter at issue. 5 C.F.R. 

§ 1201.4(s);

3

see also Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 

1368-69 (Fed. Cir. 2020).

4

 

 

2

The administrative judge found that the appellant duly exhausted his claims before the 

OSC, ID at 2-4, and the parties do not challenge this finding. We decline to disturb this 

finding on review. 

3

The regulation further provides that an allegation generally will be considered 

nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation 

that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the 

legal issues in the appeal. 5 C.F.R. § 1201.4(s). Pro forma allegations are insufficient 
5

¶8 On review, the appellant disagrees with the administrative judge’s finding 

that his prior Board appeal could not qualify as protected activity because it was: 

(1) adjudicated prior to the effective date of the Whistleblower Protection 

Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 202, 126 Stat. 1465, 

1476; and (2) outside the scope of the predecessor statute. 5 ID at 4-5. The 

appellant argues that his prior Board appeal constitutes protected activity under 

5 U.S.C. § 2302(b)(9)(A)(i), regardless of when it was adjudicated, because the 

District Director’s termination decision was made after the effective date of the 

WPEA. PFR File, Tab 1 at 6-8, Tab 4 at 7-8. We need not reach this issue, given 

that section 2302(b)(9)(A)(i) applies only to claims that seek to remedy 

whistleblowing reprisal, Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 

365, ¶ 7 (2013), and the appellant’s prior Board appeal contained no 

whistleblowing reprisal claim, 0761 IAF, Tab 1 at 5; 0761 ID. Therefore, the 

administrative judge’s conclusion that the appellant’s prior Board appeal was not 

protected activity is correct regardless of whether it is assessed under the WPEA 

or the predecessor statute.6

 

to meet the nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6 

(2016), aff’d, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by 

Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20 n.11. 

4 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals 

for the Federal Circuit on these types of whistleblower issues. However, pursuant to 

the All Circuit Review Act Pub. L. No. 115 195, 132 Stat. 1510, appellants may file 

petitions for judicial review of Board decisions in whistleblower reprisal cases with any 

circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). 

Therefore, we must consider these issues with the view that the appellant may seek 

review of this decision before any appropriate court of appeal. 

5

The WPEA, which became effective on December 27, 2012, expanded the grounds on 

which an appellant may file an IRA appeal with the Board. WPEA § 101(b)(1)(A); 

Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Under the 

WPEA, an appellant may file an IRA appeal concerning reprisal based on certain 

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

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

6 On review, the appellant also alleges that he was denied accommodation for his 

medical restrictions immediately after he was returned to work as a result of his success 
6

¶9 The appellant also reiterates that the OIG investigated him in retaliation for 

a protected disclosure. PFR File, Tab 1 at 5, 7, 9. One way of proving the 

contributing factor element is the knowledge/timing test. Pridgen v. Office of 

Management and Budget, 2022 MSPB 31, ¶ 63. To satisfy the knowledge/timing 

test, the employee submits evidence showing that the official taking the personnel 

action knew of the disclosure or activity and that the personnel action occurred 

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

disclosure or activity was a contributing factor in the personnel action. Id. We 

agree with the administrative judge that the appellant failed to make a 

nonfrivolous allegation under the knowledge/timing test that a protected 

disclosure was a contributing factor in the investigation because he merely stated 

that “someone” in the agency referred him to the OIG for an investigation but 

did not identify or connect this individual to his protected disclosure. ID at 9; 

PFR File, Tab 1 at 5, 7, 9; IAF, Tab 1 at 22, Tab 7 at 4-5. As noted, in the 

context of whistleblowing, the Board has found that an appellant must make 

specific and detailed allegations; vague, conclusory, unsupported, and pro forma 

allegations of alleged wrongdoing do not meet the nonfrivolous pleading 

standard. El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015), aff’d per 

curiam, 663 F. App’x 921 (Fed. Cir. 2016). 

¶10 If the appellant fails to satisfy the knowledge/timing test, the Board 

considers other evidence, such as that pertaining to the strength or weakness of 

the agency’s reasons for taking the personnel action, whether the whistleblowin g 

 

in his prior Board appeal. PFR File, Tab 1 at 5. However, because the alleged denial of 

accommodation predates the appellant’s protected disclosure regarding bribery, he 

cannot meet his burden to nonfrivolously allege jurisdiction. Rumsey v. Department of 

Justice, 120 M.S.P.R. 259, ¶ 27 (2013) (observing that, when alleged personnel actions 

predate an appellant’s disclosures, the appellant cannot prove contributing factor under 

any theory). In addition, it does not appear that the appellant exhausted this claim or 

raised it below. IAF, Tab 7 at 4-5 & Exhibit B at 6; ID at 4; Chambers v. Department 

of Homeland Security, 2022 MSPB 8, ¶ 10 (the Board’s jurisdiction in an IRA appeal is 

limited to issues previously raised before OSC, although an appellant may give a more 

detailed account of their whistleblowing before the Board than they did to OSC).
7

was personally directed at the proposing or deciding officials, and whether those 

individuals had a desire or motive to retaliate against the appellant. Pridgen, 

2022 MSPB 31, ¶ 65. The administrative judge did not analyze those other 

considerations in determining whether the appellant nonfrivolously alleged that 

he was subjected to an OIG investigation in reprisal for his protected disclosure. 

Nonetheless, having considered this alternative method of proving contributing 

factor, we find no basis to disturb the administrative judge’s finding that the 

Board lacks jurisdiction over this alleged personnel action. The appellant h as 

failed to allege that any agency official with knowledge of a protected disclosure 

referred him to the OIG. PFR File, Tab 1 at 5. Without knowledge of the 

disclosures, the unidentified person who the appellant alleges contacted the OIG 

cannot have relied on a protected disclosure in doing so, and could not have a 

desire or motive to retaliate based on a protected disclosure. 

¶11 Nevertheless, we find it appropriate to remand this matter, given that the 

appellant offers new argument and evidence in support of his allegation that the 

District Director was influenced by the appellant’s second-line supervisor, to 

whom the appellant alleged he made a protected disclosure regarding bribery. 7 

PFR File, Tab 1 at 9, 17, 28. The agency argues that the evidence offered by the 

appellant is not new within the meaning of 5 C.F.R. § 1201.115(d) because it was 

available to him months before the issuance of the initial decision and could have 

been raised below. PFR File, Tab 3 at 8. The agency is correct that the Board 

generally will not consider an argument raised for the first time in a petition for 

review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Banks v. Department of 

the Air Force, 4 M.S.P.R. 268, 271 (1980). However, because the evidence is 

 

7

Specifically, he points to the District Director’s response to an interrogatory served 

during the appellant’s equal employment opportunity proceeding, in which the District 

Director stated that he “consulted” with the second-line supervisor in connection with 

the appellant’s termination. PFR File, Tab 1 at 28. 
8

material to the issue of Board jurisdiction, a matter that can be raised at any time 

during the Board’s proceedings, we will consider the appellant’s new argument 

and evidence on review. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, 

¶ 5 (2016). 

¶12 As pertinent here, an appellant may establish an official’s constructive 

knowledge of his disclosure by demonstrating that an individual with actual 

knowledge of the disclosure influenced the official accused of taking the 

retaliatory action. Bradley v. Department of Homeland Security, 123 M.S.P.R. 

547, ¶ 15 (2016). The appellant has offered evidence of, and asserted that, his 

protected disclosure regarding bribery was a contributing factor because the 

deciding official taking the action might have had constructive knowledge of the 

disclosure. Therefore, we find that he has made a nonfrivolous allegation of 

Board jurisdiction, id., ¶ 16, and we remand this appeal for adjudication on the 

merits of that issue. 

¶13 Should the appellant prevail on remand, however, it appears that he may not 

be entitled to back pay or reinstatement. His employment status as a reemployed 

annuitant and, consequently, an at-will employee, was neither litigated below nor 

raised in his prior Board appeal, in which his removal was reversed.8 0761 ID; 

PFR File, Tab 3 at 5; 5 U.S.C. § 3323(b)(1). If the appellant was a reemployed 

annuitant at the time of his prior separation, the Board did not have jurisdiction to 

order his reinstatement in his earlier chapter 75 appeal. See McDonald v. Mabee, 

243 U.S. 90 (1917) (finding that a civil judgment issued by a court that lacked 

personal jurisdiction over the defendant was void); Garza v. Department of the 

Navy, 119 M.S.P.R. 91, ¶ 9 (2012) (finding that the Board lacks jurisdiction over 

 

8

The appellant alleges for the first time on review that he stopped being a reemployed 

annuitant in 2009. Compare PFR File, Tab 4 at 5 (arguing that, once the appellant 

cancelled his disability retirement benefits, he was no longer an at-will employee), with 

IAF, Tab 1 at 25, Tab 7 at 2 (alleging below and in his OSC complaint that the 

appellant has remained a reemployed annuitant throughout his employment with 

the agency).
9

the separation of a FERS reemployed annuitant). Further, the initial decision in 

the prior Board appeal might be invalid as having been obtained by fraud on the 

Board, given that the administrative judge in that appeal premised her 

determination on medical documents that the appellant may have known falsely 

stated he could return to work as perhaps evidenced by his acknowledgment that 

he “pressure[d] [his] physicians into releasing [him] to work.” 0761 ID at 2; PFR 

File, Tab 3 at 13-15; see Fed. R. Civ. Pro. 60(d)(3) (empowering Federal courts to 

“set aside” judgments “for fraud on the court”); see also Sabio v. Department of 

Veterans Affairs, 124 M.S.P.R. 161, ¶ 27 (2017) (observing that the Board may 

look to the Federal Rules of Civil Procedure as nonbinding guidance). 

¶14 Because the issues of jurisdiction and fraud on the Board in the prior Board 

appeal may affect whether the appellant is eligible for reinstatement or back pa y 

in this IRA appeal, the administrative judge should develop the record as needed 

to determine the appropriate scope of corrective action in the event that the 

appellant prevails. 

ORDER

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

for further adjudication in accordance with this Remand Order.9 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board

 

9

The remand initial decision will incorporate the findings from this order and include a 

notice of appeal rights for all claims raised by the appellant.