UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 37

Docket No. DC-1221-14-0364-W-1

Mark Abernathy,

Appellant,

v. 

Department of the Army,

Agency. 

November 15, 2022

Mark Abernathy, Hermitage, Tennessee, pro se. 

Tracy A. Allred, APO, AE, for the agency. 

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has petitioned for review of an initial decision that dismissed 

his individual right of action (IRA) appeal for lack of jurisdiction. The agency 

has cross-petitioned for review. For the reasons that follow, we GRANT the 

appellant’s petition for review, DENY the agency’s cross petition for review, 

VACATE the initial decision, and REMAND the appeal for further adjudication 

consistent with this Opinion and Order. 
2

BACKGROUND

¶2 The appellant worked for the agency as a contractor. Initial Appeal File 

(IAF), Tab 1 at 15. In August 2012, he filed a complaint with the agency’s Office 

of Inspector General (OIG) alleging that agency officials had misappropriated 

funds. IAF, Tab 6 at 3. Later in 2012, he learned that he was not being selected 

for a position with the agency.

1

 IAF, Tab 1 at 15. The appellant filed a 

complaint with the Office of Special Counsel (OSC) alleging that his nonselection 

was in reprisal for his protected disclosure to OIG. 2 Id. at 11-24. After OSC 

informed the appellant of the results of its investigation he filed this IRA appeal. 

IAF, Tab 1 at 1-5, 25-27. 

¶3 In response to a show cause order issued by the administrative judge, the 

agency argued that the Board lacks jurisdiction over the appeal. IAF, Tab 10. 

The agency argued that the appellant’s disclosure was not protected under 

5 U.S.C. § 2302(b)(8) because he was neither an employee, nor an applicant, at 

the time he made it. IAF, Tab 10 at 6. The agency also argued that the failure to 

refer the appellant to the selecting official for the position in question was not a 

“personnel action” that could form the basis of an IRA appeal. Id. at 7. 

¶4 The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She rejected the 

agency’s argument regarding the nonreferral to the selecting official, finding that 

the appellant had alleged a failure to appoint him, which is a personnel action

 

1 Both the agency and the administrative judge stated that the open period for this 

vacancy announcement was in September 2014. IAF, Tab 10 at 6, Tab 11, Initial

Decision at 3. However, this was a typographical error. The vacancy announcement 

reflects that it was actually open in September 2012. IAF, Tab 10 at 11. 

2

The appellant indicated in his initial appeal that he filed his OSC complaint in 

April 2013, IAF, Tab 1 at 5, but it appears that he actually filed it in December 2012, 

see id. at 21-22 (OSC complaint form dated December 12, 2012), or January 2013, see

id. at 25 (OSC letter indicating that the complaint was received on January 3, 2013). 

Nonetheless, the exact filing date has no bearing on our decision. 
3

under 5 U.S.C. § 2302(a). ID at 5-6. However, she agreed with the agency that 

the appellant’s disclosure to OIG was not protected because he was not an

employee or applicant at the time he made it. ID at 6. 

¶5 The appellant has filed a timely petition for review of the initial decision. 

Petition for Review (PFR) File, Tab 1. He argues that the administrative judge’s 

interpretation of the statutory language, under which an individual must be 

an employee or applicant at the time of his disclosure to qualify for protection 

against reprisal, greatly limits the protections available to applicants. Id. at 4. 

The agency has responded in opposition to the petition for review. PFR File, 

Tab 3. The agency has also cross-petitioned for review, arguing that the 

administrative judge erred in finding that the appellant alleged a covered 

personnel action. Id. at 6. 

¶6 After the close of the record on review, the Board invited interested parties 

to submit amicus briefs addressing whether disclosures made when an individual 

is neither a Federal employee, nor an applicant for Federal employment, are 

protected under the Whistleblower Protection Act of 1989 (WPA), Pub. L.

No. 101-12, 103 Stat. 16, and the Whistleblower Protection Enhancement Act of 

2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. Notice of Opportunity to 

File Amicus Briefs, 81 Fed. Reg. 2913 (Jan. 19, 2016); PFR File, Tab 6. Four 

individuals and entities, including OSC, have filed briefs in response. PFR File, 

Tabs 7-10.3 OSC subsequently requested and received permission to file an 

additional pleading. PFR File, Tabs 12, 14. In its additional pleading, OSC 

argues that a provision of the National Defense Authorization Act for Fiscal 

Year 2018 (2018 NDAA), Pub. L. No. 115-91, 131 Stat. 1283, resolved the 

question on which the Board invited amicus briefs by specifically providing that a 

disclosure made before an individual was appointed to a position or applied for 

 

3 Amicus briefs were received from OSC, the National Employment Lawyers 

Association, Walsh & Son, LLP, and Peter Broida.
4

appointment may be protected. PFR File, Tab 15. The Board gave the parties an 

opportunity to respond to OSC’s additional pleading, PFR File, Tab 14, but 

neither party did so. 

ANALYSIS

¶7 To establish the Board’s jurisdiction over this IRA appeal, the appellant 

must have exhausted his administrative remedies before OSC and make 

nonfrivolous allegations that: (1) he made a disclosure protected under 5 U.S.C. 

§ 2302(b)(8); and (2) the disclosure 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). Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).4 

There is no dispute that the appellant exhausted his administrative r emedies 

before OSC. IAF, Tab 1 at 11-27. For the reasons set forth below, we find that 

the appellant has also made the required nonfrivolous allegations to establish 

jurisdiction over his IRA appeal. 

The appellant has nonfrivolously alleged that he made a protected disclosure 

under 5 U.S.C. § 2302(b)(8). 

¶8 At the time all of the material events in this matter occurred, 5 U.S.C. 

§ 2302(b)(8) protected: 

(A) any disclosure of information by an employee or applicant which 

the employee or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of 

authority, or a substantial and specific danger to public health 

or safety,

 

4 All of the material events in this matter occurred before the expansion of IRA appeal

rights in the WPEA took effect on December 27, 2012. WPEA, Pub. L. No. 112-199, 

§ 202, 126 Stat. 1465, 1476; Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 

677, ¶ 6 (2014). Thus, in this case, we will apply the pre-WPEA standards concerning 

the scope of an IRA appeal. See Scoggins v. Department of the Army, 123 M.S.P.R. 

592, ¶ 7 (2016); Colbert, 121 M.S.P.R. 677, ¶¶ 6-7. 
5

if such disclosure is not specifically prohibited by law and if such 

information is not specifically required by Executive order to be kept 

secret in the interest of national defense or the conduct of foreign 

affairs; or

(B) any disclosure to the Special Counsel, or to the Inspector 

General of an agency or another employee designated by the head of 

the agency to receive such disclosures, of information which the 

employee or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) 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.A. § 2302(b)(8) (2008).5 The question before us is whether, under that 

provision, the Board may have jurisdiction to consider the appellant’s 

whistleblower reprisal claim even though he was not a Federal employee or 

applicant for employment at the time he made his disclosure. 

¶9 In Greenup v. Department of Agriculture, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), 

the Board found that it had jurisdiction over the appellant’s claim that the agency 

failed to select her for a position in retaliation for disclosures she made when she 

was neither an employee nor an applicant. The Board in Greenup quoted the 

language of 5 U.S.C. § 2302(b)(8)(A), including the reference to a “disclosure of 

information by an employee or applicant,” but nevertheless found that the statute 

does not specify that the disclosure must have been made when the individual 

seeking protection was either an employee or an applicant for employment. 

Greenup, 106 M.S.P.R. 202, ¶ 8. In Weed v. Social Security Administration, 

113 M.S.P.R. 221, ¶¶ 8-12 (2010), the Board again held that, at the time of 

 

5

The WPEA amended the definition at 5 U.S.C. § 2302(b)(8)(A)(i) by striking “a 

violation” and inserting “any violation,” and it amended 5 U.S.C. § 2302(b)(8)(B)(i) by 

striking “a violation” and inserting “any violation (other than a violation of this 

section).” WPEA, Pub. L. No. 112-199, § 101(a)(1), 126 Stat. 1465. We find that these 

amendments do not change the result in this case. See Mudd v. Department of Veterans 

Affairs, 120 M.S.P.R. 365, ¶ 5 n.3 (2013). 
6

making a disclosure, an individual need not be an employee or applicant for 

employment at the agency that took the alleged retaliatory action in order to 

qualify for protection under the WPA as a whistleblower. The Board cited its 

prior holding in Greenup in support of its holding in Weed. Id., ¶ 12. 

¶10 In this case, the Board requested amicus briefs addressing whether it should 

reconsider its precedent in light of an apparent conflict with three nonprecedential 

cases by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).

6

 

The amici unanimously urged the Board to follow its existing precedent. 

PFR File, Tab 7 at 2-3, Tab 8 at 7-16, Tab 9 at 4-6, Tab 10 at 22. Having 

considered the submissions of the parties and amici, we see no re ason to overrule 

our precedent in Greenup and Weed. Under that precedent, the appellant’s 

disclosures are not excluded from whistleblower protection simply because 

he was neither a Federal employee, nor an applicant for employment, when he 

made them. We stress that this holding is not limited to Federal contractors, but 

 

6

Specifically, the Board observed that Greenup and Weed appear to conflict with the 

Federal Circuit’s decisions in Nasuti v. Merit Systems Protection Board, 376 F. App’x 

29, 33-34 (Fed. Cir. 2010); Guzman v. Office of Personnel Management, 53 F. App’x

927, 929 (Fed. Cir. 2002); and Amarille v. Office of Personnel Management, 

28 F. App’x 931, 933 (Fed. Cir. 2001). However, nonprecedential decisions of the 

Federal Circuit are not binding on the Board. Weed v. Social Security Administration, 

110 M.S.P.R. 468, ¶ 11 (2009). Further, under 5 U.S.C. § 7703(b)(1)(B):

A petition to review a final order or final decision of the Board that raises 

no challenge to the Board’s disposition of allegations of a prohibited 

personnel practice described in section 2302(b) other than practices 

described in section 2302(b)(8), or (b)(9)(A)(i), (B), (C), or (D) shall be 

filed in the [Federal Circuit] or any court of appeals of competent 

jurisdiction. 

Thus, it is possible that the Board’s decision in such a case would be reviewed not by 

the Federal Circuit, but instead by a different court of appeals. Chambers v. 

Department of Homeland Security, 2022 MSPB 8, ¶ 10 n.6. 
7

applies to any individual who makes a whistleblowing disclosure at any time 

before becoming a Federal employee or applicant for employment.7 

¶11 In its additional pleading, OSC argues that a provision in the NDAA for 

Fiscal Year 2018 (2018 NDAA), Pub. L. No. 115-91, § 1097(c)(1)(B)(i)(III),

131 Stat. 1283, 1618 (2017), which went into effect after the close of the record 

on review, should be applied in this case. PFR File, Tab 15. That provision

states that a disclosure shall not be excluded from protection under 5 U.S.C. 

§ 2302(b)(8) because “the disclosure was made before the date on which the 

individual was appointed or applied for appointment to a position.” 5 U.S.C. 

§ 2302(f)(1)(F). OSC argues that this provision clarifies existing law and should 

therefore be applied to all pending cases. PFR File, Tab 15 at 2-3. 

¶12 The new statutory language confirms the Board’s interpretation of the prior 

statutory language, as set forth in Greenup, and therefore the result is the same 

 

7

Employees of contractors have additional whistleblower protections under 41 U.S.C. 

§ 4712, which provides: 

An employee of a contractor, subcontractor, grantee, or subgrantee or 

personal services contractor may not be discharged, demoted, or otherwise 

discriminated against as a reprisal for disclosing to a person or body 

described in paragraph (2) information that the employee reasonably 

believes is evidence of gross mismanagement of a Federal contract or 

grant, a gross waste of Federal funds, an abuse of authority relating to a 

Federal contract or grant, a substantial and specific danger to public 

health or safety, or a violation of law, rule or regulation related to a 

Federal contract (including the competition for or negotiation of a 

contract) or grant. 

41 U.S.C. § 4712(a)(1). The recourse for such a violation is to submit a complaint to

the Inspector General of the relevant agency, who will either determine that the 

complaint does not warrant investigation or investigate the complaint and submit a 

report to the head of the agency. 42 U.S.C. § 4712(b)(1)-(2). The head of the agency 

will then determine whether there is a sufficient basis to conclude that reprisal for

whistleblowing took place, and issue an order denying or granting relief accordingly. 

42 U.S.C. § 4712(c)(1). Upon exhaustion of remedies with the head of the agency, the 

aggrieved employee may appeal the matter to Federal district court. 42 U.S.C. 

§ 4712(c)(2). 
8

regardless of whether we apply the new statutory language. Under both Greenup 

and the 2018 NDAA, the appellant’s disclosure to OIG before he was an applicant 

for employment may be protected whistleblowing if it otherwise meets the 

requirements of 5 U.S.C. § 2302(b)(8). Therefore, we need not determine 

whether to apply this particular 2018 NDAA provision to this or any other

pending cases. 

¶13 At the jurisdictional stage, the appellant is burdened only with making a 

nonfrivolous allegation that he reasonably believed that his disclosure evidenced 

a violation of 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 individual 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 individual could 

reasonably conclude that the actions evidenced a violation of law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). See 

Schoenig, 120 M.S.P.R. 318, ¶ 8. The appellant’s disclosure to OIG involved the 

purchase of video equipment with funds designated for Overseas Contingency 

Operations (OCO). IAF, Tab 1 at 25, Tab 6 at 3. The appellant believed that the 

purchase violated acquisition regulations because the equipment was to be used 

for purposes other than OCO. IAF, Tab 6 at 3. We find that the appellant has 

nonfrivolously alleged that he reasonably believed he was disclosing a violation 

of a regulation. See Kutty v. Department of Housing & Urban Development, 

96 M.S.P.R. 590, ¶¶ 7-11 (2004) (finding a nonfrivolous allegation of a protected 

disclosure when the appellant disclosed her belief that her supervisor had violated 

acquisition regulations). 

The appellant has nonfrivolously alleged that his disclosure was a contributing 

factor in a personnel action. 

¶14 On cross petition for review, the agency argues that its failure to refer the 

appellant to the selecting official in connection with the position for which he 
9

applied is not a “personnel action” for purposes of the Board’s IRA jurisdiction. 

PFR File, Tab 3 at 6. We disagree. An appointment is among the personnel 

actions specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(A)(i). We 

agree with the administrative judge that the appellant has made a nonfrivolous 

allegation that the agency’s failure to refer him to the selecting official 

constitutes the failure to appoint him for purposes of the Board’s jurisdiction over 

his IRA appeal. ID at 5-6; see Dorney v. Department of the Army, 117 M.S.P.R. 

480, ¶ 6 (2012) (stating that an allegation of a failure to appoint is an allegation 

of a failure to take a personnel action). 

¶15 To satisfy the contributing factor criterion at the jurisdictional stage in an 

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

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

personnel action in any way. Mudd, 120 M.S.P.R. 365, ¶ 10. 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 taking 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. 

The Board has held that personnel actions occurring within 1 to 2 years after the 

protected disclosures are sufficient to meet the timing portion of the test. 

Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 41. The knowledge 

portion of the knowledge-timing test can be met with allegations of either actual 

or constructive knowledge. See 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. Dorney, 117 M.S.P.R. 480, ¶ 11. 
10

¶16 The appellant alleges that the Deputy Director, who was both one of the 

subjects of his disclosure and the selecting official for the position for which he 

had applied, informed the appellant in September 2012 that he was not going to 

select the appellant because he had become “too confrontational.” IAF, Tab 6 

at 3. This alleged conversation took place the month after the appellant made his 

disclosure to OIG. Id. The appellant alleges that he learned of his nonreferral 

3 days later. Id. We find that the appellant’s allegations are sufficient to meet 

the contributing factor criterion under the knowledge-timing test at the 

jurisdictional stage. 

ORDER

¶17 Having found that the appellant has met his jurisdictional burdens, we 

remand this case to the regional office for further adjudication8in accordance 

with this Opinion and Order. If the appellant establishes the elements of his 

claim by preponderant evidence, the Board will order corrective action unless the 

agency demonstrates by clear and convincing evidence that it would have taken

 

8

The record reflects that the parties in this case are in Europe and the United States,

and that the appellant did not request a hearing. The appellant, who is pro se, should be 

advised on remand that an in-person hearing is not required and that a hearing may be 

conducted by either video conferencing or by telephone. See 5 U.S.C. § 7701(a)(1); 

Koehler v. Department of the Air Force, 99 M.S.P.R. 82, ¶¶ 6-13 (2005). 
11

the same personnel action9absent the disclosure. Weed, 113 M.S.P.R. 221, ¶ 23. 

The agency will have an opportunity to make that showing on remand. 

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

 

9

It appears that the appellant also raised three other vacancy announcements for which 

he applied, and for which no selections were made, before OSC. IAF, Tab 1 at 26. It 

is not entirely clear from the appellant’s submissions below whether he is attempting to 

raise those nonselections as additional personnel actions in this IRA appeal. IAF,

Tab 6. On remand, the administrative judge should clarify whether the appellant is 

raising additional personnel actions in addition to the nonreferral discussed herein.