UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2016 MSPB 30 

Docket No. CH-1221-15-0517-W-1 

Cleophas Bradley, Jr., 

Appellant, 

v. 

Department of Homeland Security, 

Agency. 

September 1, 2016 

Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant. 

Robert Gerleman, Washington, D.C., for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Mark A. Robbins, Member 

OPINION AND 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, 

REVERSE the initial decision, and REMAND the case to the regional office for 

further adjudication in accordance with this Order. 

BACKGROUND 

¶2 The appellant is employed at the Federal Protective Service (FPS or the 

agency) as a GS-14 Deputy Regional Director for Region 5. Initial Appeal File 

(IAF), Tab 4 at 16. The appellant filed a previous IRA appeal alleging that he 

had been retaliated against for making protected whistleblowing disclosures when 
2

the agency conducted a series of investigations and issued him a letter of 

counseling. Bradley v. Department of Homeland Security, MSPB Docket 

No. CH-1221-14-0831-W-2, Initial Decision (Feb. 4, 2015). The appellant’s 

prior IRA appeal was dismissed based on a finding that he had not made a 

nonfrivolous allegation that the agency took a personnel action as defined by 

5 U.S.C. § 2302(a)(2). Id. 

¶3 The appellant filed the current IRA appeal, identifying the same protected 

disclosures and retaliatory actions, and additionally alleging that he was not 

selected for the Region 5 Director position in retaliation for whistleblowing 

disclosures. IAF, Tab 1. The administrative judge issued a show cause order 

advising the appellant of the jurisdictional requirements for an IRA appeal based 

on retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8). IAF, Tab 3. 

She directed the appellant to identify the protected disclosures and personnel 

actions that were the subject of his IRA appeal and to present evidence and 

argument establishing a nonfrivolous allegation of jurisdiction. Id. at 6-7. The 

administrative judge granted the agency’s motion to stay discovery pending a 

ruling on jurisdiction. IAF, Tab 16. 

¶4 After considering the parties’ jurisdictional submissions, the administrative 

judge issued a decision, without holding a hearing, finding that the appellant 

failed to make a nonfrivolous allegation of jurisdiction because he had not 

nonfrivolously alleged that his disclosures were a contributing factor in the 

agency’s decision not to select him for the Director position. IAF, Tab 19, Initial 

Decision (ID) at 10-13. Applying the doctrine of collateral estoppel, the 

administrative judge declined to address the appellant’s allegations that he was 

subjected to retaliatory investigations and a retaliatory letter of counseling 

because those personnel actions were raised in his prior appeal. ID at 7-10. 

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The appellant also has filed numerous documents relating to his 

claims as a supplement to his petition for review. PFR File, Tab 2. The agency 
3

has filed an opposition arguing that the appellant’s petition does not satisfy the 

criteria for review. PFR File, Tab 4. 

ANALYSIS 

¶6 The Board has jurisdiction over an IRA appeal based on whistleblower 

reprisal under the Whistleblower Protection Act (WPA) if the appellant has 

exhausted his administrative remedies before the Office of Special Counsel 

(OSC) and makes nonfrivolous allegations of the following: (1) he engaged in 

whistleblowing activity by making a protected disclosure; and (2) the disclosure 

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

personnel action.1

 Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 

(Fed. Cir. 2001). A nonfrivolous allegation is an assertion that, if proven, could 

establish the matter at issue. Lewis v. Department of Defense, 123 M.S.P.R. 255, 

¶ 7 (2016); 5 C.F.R. § 1201.4(s). Whether allegations are nonfrivolous is 

determined on the basis of the written record. Usharauli v. Department of 

Health & Human Services, 116 M.S.P.R. 383, ¶ 19 (2011). Any doubt or 

ambiguity as to whether the appellant made nonfrivolous jurisdictional 

allegations should be resolved in favor of finding jurisdiction. Id. The parties 

do not dispute, and we find no reason to disturb, the administrative judge’s 

finding that the appellant sought corrective action from OSC based on his 

allegation that he was being retaliated against for whistleblowing disclosures, and 

he did not receive notice within 120 days that OSC would seek corrective action 

 

1

 The Whistleblower Protection Enhancement Act (WPEA) clarified, in relevant part, 

that a disclosure made to a supervisor or to a person who participated in the activity 

that is the subject of the disclosure, or a disclosure made during the normal course of 

duties of an employee are not excluded from 5 U.S.C. § 2302(b)(8). Day v. Department 

of Homeland Security, 119 M.S.P.R. 589, ¶¶ 18-26 (2013). 
4

on his behalf.2

 IAF, Tab 1 at 7, 22-24, Tab 4 at 10-41; see 5 U.S.C. 

§ 1214(a)(3)(B). 

The appellant nonfrivolously alleged that he made protected disclosures. 

¶7 A protected disclosure is a disclosure of information that the appellant 

reasonably believes evidences any violation of any law, rule, or regulation, gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial 

and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8). At the 

jurisdictional stage, the appellant only is burdened with making a nonfrivolous 

allegation that he reasonably believed that his disclosure evidenced one of the 

circumstances described in 5 U.S.C. § 2302(b)(8). Schoenig v. Department of 

Justice, 120 M.S.P.R. 318, ¶ 8 (2013). The proper test for determining whether 

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

whether a disinterested observer with knowledge of the essential facts known to 

and readily ascertainable by the employee could reasonably conclude that the 

disclosure evidenced one of the circumstances described in 5 U.S.C. 

§ 2302(b)(8). Schoenig, 120 M.S.P.R. 318, ¶ 8. 

¶8 The administrative judge found that, by a generous reading of the 

appellant’s OSC complaint, he alleged that he made approximately nine protected 

disclosures between March 23 and September 2, 2011.3

 ID at 8. The appellant 

 

2

 The administrative judge also found that, to the extent that the appellant’s filings 

before the Board contained additional alleged whistleblowing disclosures that were not 

included in the complaint to OSC, they could not be considered because there was 

insufficient evidence showing that the appellant had exhausted his remedies on those 

allegations before OSC. ID at 6-7. We agree with this finding. 

3

 The administrative judge also found that additional alleged disclosures that occurred 

after the personnel actions at issue could not have been a contributing factor in those 

personnel actions. ID at 8 n.2. We find no reason to disturb this finding on review. 

See Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27 (2011) 

(finding that disclosures occurring after the personnel actions at issue could not have 

been contributing factors in those actions). 
5

identified ten disclosures in the complaint he filed with OSC.4

 IAF, Tab 4 

at 16‐32. The appellant argues that all of the disclosures identified are protected. 

PFR File, Tab 1 at 4. He also argues that he cannot address the “deficiencies” in 

the disclosure that the administrative judge found was not protected because she 

did not state which disclosure she found not protected. Id. at 5. After careful 

consideration of the appellant’s OSC complaint, we find that he nonfrivolously 

alleged that he made the following protected disclosures: 

1. An email that the appellant wrote was forwarded by his first-level 

supervisor to the FPS Director, Deputy Director, and Chief of 

Staff, in which he reported that ten contract security officers 

had not received updated suitability determinations in violation of 

the terms of the contract and FPS policies and procedures, IAF, 

Tab 4 at 17; 

2. On March 30, 2011, the appellant’s first-level supervisor 

disclosed to the FPS Deputy Director that he and the appellant 

had determined that 224 contract security officers within the 

Region did not have the appropriate suitability determinations and 

172 security officers were improperly working on the regional 

contracts, id. at 18; 

3. On May 10 and 18, 2011, the appellant’s first-level supervisor 

disclosed to the Assistant Director of Field Operations that he and 

the appellant had determined that 224 contract security officers 

within the Region did not have the appropriate suitability 

 

4

 He also stated that his witness interview with OSC regarding his supervisor’s 

complaint was a contributing factor in the agency’s decision not to select him for the 

position at issue. IAF, Tab 4 at 32. The appellant was interviewed by OSC on 

August 9, 2012, and provided OSC with documents on October 11, 2012. Id. at 25. 

The WPEA went into effect later, on December 27, 2012. Miller v. Federal Deposit 

Insurance Corporation, 122 M.S.P.R. 3, ¶ 14 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 

2015), cert. denied, 136 S. Ct. 1510 (2016). The IRA appeals rights section of the 

WPEA as it pertains to the prohibited personnel practices described at 5 U.S.C. 

§ 2302(b)(9)(B)-(C) does not apply retroactively. Colbert v. Department of Veterans 

Affairs, 121 M.S.P.R. 677, ¶ 7 (2014). 
6

determinations and 172 security officers were improperly 

working, id. at 18-19;5

 

4. The appellant and his first-level supervisor disclosed to the FPS 

Director that the March 18, 2011 incident in which an explosive 

device passed through building security in Detroit was not solely 

the responsibility of contractors, and Federal employees also 

appeared to have contributed to the incident, id. at 19-20; 

5. The appellant disclosed to an Assistant General Counsel that the 

Director of FPS provided false testimony to Congress, id. at 20; 

and 

6. The appellant and his first-level supervisor wrote a memorandum 

for the FPS Director describing the details of the March 18, 2011 

incident in which an explosive device passed through building 

security in Detroit, detailing their disclosures concerning the 

investigation of this incident, and stating the possibility of 

disciplinary action as a result of this incident, id. at 22-23. 

We find that the appellant nonfrivolously alleged that a reasonable person would 

have believed that disclosures (1)-(4) and (6) disclosed a violation of law, rule, or 

regulation, gross mismanagement, and a substantial and specific danger to public 

health and safety. In addition, we find that the appellant nonfrivolously alleged 

that a reasonable person would have believed that disclosure (5) disclosed a 

violation of law, rule, or regulation. 

¶9 For the following reasons, we find that the appellant failed to 

nonfrivolously allege that he made any other protected disclosures. The 

 

5

 The appellant describes the alleged May 18 disclosure as a reminder of the May 10 

disclosure to the same individual. IAF, Tab 4 at 19. The appellant enumerated them as 

separate disclosures #3 and #4 in his complaint. Id. at 18-19. For purposes of our 

jurisdictional analysis at this stage of the proceeding, we find that the appellant has 

made a nonfrivolous allegation that the information disclosed on these dates evidenced 

a violation of law, rule, or regulation, gross mismanagement, and a substantial and 

specific danger to public health and safety, and that the agency at least perceived the 

appellant as a whistleblower based on his supervisor’s disclosure of information 

attributable to the appellant. See, e.g., Rumsey v. Department of Justice, 120 M.S.P.R. 

259, ¶ 7 (2013) (stating that one who is perceived as a whistleblower is entitled to the 

protection of the WPA, even if he has not made protected disclosures). 
7

disclosure the appellant identified as “disclosure #7” describes a meeting in 

which he and his supervisor disputed the claims of the FPS Director, Deputy 

Director, and Assistant Director of Field Operations that they were not aware that 

FPS employees were implicated in the incident involving an explosive device that 

occurred on March 18, 2011. IAF, Tab 4 at 22. The appellant’s description of 

this meeting does not include an allegation of a disclosure of information. If, as 

the appellant alleges, the Director, Deputy Director, and Assistant Director of 

Field Operations already knew that FPS employees were involved in the incident 

prior to this meeting, then he has not alleged a communication or transmission of 

information. An alleged disagreement about what information was known by the 

attendees, even if proven, could not meet the statutory definition of a 

“disclosure.” 5 U.S.C. § 2302(a)(2)(D). 

¶10 In the disclosure that the appellant identified as “disclosure #9,” he alleges 

that the Assistant Director of Field Operations ordered him and his first-level 

supervisor to shut down their investigation into whether FPS employees 

committed misconduct in connection with the March 18, 2011 explosive device 

incident. IAF, Tab 4 at 23. The appellant asserts that, in response, he told the 

Assistant Director of Field Operations that he “was not the fall guy” and asked 

the Assistant Director of Field Operations to put his directive in writing. Id. The 

appellant further contends that his first-level supervisor advised the Director that 

the instruction to shut down the investigation was “inappropriate.” Id. The 

appellant’s description of his statements does not constitute a nonfrivolous 

allegation of a protected disclosure. In his pleadings, the appellant asserts that he 

was told to shut down the investigation to “cover up” the fact that the FPS 

Director had provided false testimony to Congress, and that there was “a 

violation of law, rule or regulation; substantial[,] specific danger to public health 

or safety, abuse of authority, and gross waste of funds.” Id. at 23, 35. However, 

he did not allege that he conveyed these concerns to anyone at the time of the 

events in question. While the appellant claims that his first-level supervisor told 
8

the Director that shutting down the investigation was “inappropriate,” he does not 

contend that he personally made such a statement. Thus, the appellant’s 

description of the incident he identified as disclosure #9 does not constitute a 

nonfrivolous allegation that he made a protected disclosure within the 

Board’s jurisdiction. 

¶11 The disclosure the appellant identified as “disclosure #10” describes a 

conference call that he was asked to attend “in silence.” IAF, Tab 4 at 24-25. 

During the call, other agency managers allegedly discussed the improper storage 

of classified materials by two FPS employees in Region 5, who had missed 

required annual training on this topic. Id. There was some discussion about who 

was responsible for ensuring that the employees were trained, and the appellant 

allegedly wrote on a note pad that it was a headquarters, and not a regional, 

responsibility. Id. The alleged difference of opinion concerning a policy, i.e., 

whether headquarters or the regional office was responsible for ensuring that FPS 

employees were properly trained, is not a nonfrivolous allegation of a protected 

disclosure. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015) 

(stating that, even under the expanded protections afforded to whistleblowers 

under the WPEA, general philosophical or policy disagreements are not protected 

unless they separately constitute a protected disclosure of one of the categories of 

wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)). 

The appellant has made a nonfrivolous allegation that his disclosures were a 

contributing factor in his nonselection for the Director position. 

¶12 The appellant argues that the administrative judge erred by finding that he 

had not made a nonfrivolous allegation that his protected disclosures were a 

contributing factor in his nonselection for the Director position. PFR File, Tab 1 

at 4-6. The administrative judge found that the appellant had failed to 

nonfrivolously allege that his disclosures were a contributing factor because he 

had not satisfied the knowledge/timing test. ID at 10-13; see 5 U.S.C. 

§ 1221(e)(1). Specifically, the administrative judge found that, because the 
9

members of two panels that reviewed and scored the résumés of applicants for the 

Director position had no actual knowledge about the appellant’s disclosures, the 

appellant had not met his burden of showing that his disclosures were a 

contributing factor in the nonselections. ID at 12. The appellant argues that the 

first selection panel’s knowledge is irrelevant, given that the first time the 

vacancy was announced he was referred to the selecting official and interviewed 

for the position, and the selecting official had actual knowledge of his protected 

disclosures. PFR File, Tab 1 at 5. The appellant further argues that the second 

time the position was advertised, the interviewer and all of the selection panel 

members had imputed knowledge about his protected disclosures. Id. 

¶13 To satisfy the contributing factor criterion at the jurisdictional stage of an 

IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact 

or the content of the protected disclosure was one factor that tended to affect the 

personnel action in any way. Salerno v. Department of the Interior, 123 M.S.P.R. 

230, ¶ 13 (2016). One way to establish this criterion is the knowledge/timing 

test, under which an employee may nonfrivolously allege that the disclosure was 

a contributing factor in a personnel action through circumstantial evidence, such 

as evidence that the official who took the personnel action knew of the disclosure 

and that the personnel action occurred within a period of time such that a 

reasonable person could conclude that the disclosure was a contributing factor in 

the personnel action. Id. 

¶14 The administrative judge stated that the obvious bar to the appellant’s 

claims of reprisal is that he has not alleged that the panel members had actual 

knowledge of his disclosures. ID at 11. We do not agree. The language of 

5 U.S.C. § 1221(e)(1) makes clear that the knowledge/timing test is not the only 

way for an appellant to satisfy the contributing factor standard, and the legislative 

history of that statute indicates that the knowledge/timing test is but “one of the 

many possible ways” to satisfy the standard. Powers v. Department of the Navy, 
10

69 M.S.P.R. 150, 156 (1995) (citing S. Rep. No. 622, 103d Cong., 

2d Sess. 8 (1994)). 

¶15 An appellant can show that a protected disclosure was a contributing factor 

in a personnel action by proving that the official taking the action had 

constructive knowledge of the protected disclosure. Aquino v. Department of 

Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). An appellant may establish an 

official’s constructive knowledge of a protected disclosure by demonstrating that 

an individual with actual knowledge of the disclosure influenced the official 

accused of taking the retaliatory action. Id. Lack of knowledge by a single 

official is not dispositive. Dorney v. Department of the Army, 117 M.S.P.R. 480, 

¶ 12 (2012). Rather, we must determine whether the agency took a wrongful 

personnel action against the appellant and whether that action should be 

corrected. Id. 

¶16 The appellant alleges that senior agency officials with knowledge about his 

protected disclosures conspired with others not to select him for the Director 

position. IAF, Tab 1 at 40-41. At this stage, the appellant can meet his burden of 

proof without specifically identifying which management officials were 

responsible for the reprisal. See Cahill v. Merit Systems Protection Board, 

821 F.3d 1370, 1373-75 (Fed. Cir. 2016). The burden to establish jurisdiction is 

the appellant’s, but, when the personnel action at issue is a nonselection, the 

evidence concerning who was involved in the selection process, what they knew 

about the appellant’s protected disclosures, and who may have influenced their 

decision is exclusively within the agency’s possession. See Parker v. Department 

of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007) (finding 

discovery appropriate to obtain materials in the agency’s possession that were 

potentially relevant to an employment practices claim regarding a nonselection 

for a position). The appellant claims that he was interviewed for the position by 

the selecting officials, while the agency asserts that the decision not to select the 

appellant was made by a panel. Compare IAF, Tab 1 at 39, with IAF, Tab 10 
11

at 28-29. This factual dispute cannot be resolved in favor of the agency in 

determining whether the appellant has made a nonfrivolous allegation of 

jurisdiction. Ingram v. Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010) 

(stating that, in assessing whether the appellant has made nonfrivolous 

allegations, the administrative judge may consider the agency’s documentary 

evidence; however, to the extent the agency’s evidence constitutes mere factual 

contradiction of the appellant’s allegations, the administrative judge may not 

weigh evidence and resolve conflicting assertions and the agency’s evidence 

may not be dispositive). The appellant further alleges that he was interviewed for 

the position by the Deputy Director and Director, two managers who were the 

subject of several of his disclosures, and was told after the interview that the 

Director “felt as if [he] did not have a proper vision to be in the position.” IAF, 

Tab 4 at 30; PFR File, Tab 1 at 5. 

¶17 Given the nature of the personnel action at issue, and reading the 

appellant’s allegations in context with the entire record, we find that he has 

nonfrivolously alleged that his whistleblowing disclosures were a contributing 

factor in the agency’s decision not to select him for the Director position. 

ORDER 

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

for further adjudication. On remand, the administrative judge shall permit the 

parties to complete discovery prior to conducting a hearing on the merits. 

FOR THE BOARD: 

______________________________ 

Jennifer Everling 

Acting Clerk of the Board 

Washington, D.C.