UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2011 MSPB 39 

Docket No. AT-1221-09-0728-W-1 

David R. Mason, 

Appellant, 

v. 

Department of Homeland Security, 

Agency. 

March 21, 2011 

David R. Mason, Gallatin, Tennessee, pro se. 

Steven M. Tapper, Esquire, Atlanta, Georgia, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

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

dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For 

the reasons set forth below, we GRANT the appellant’s petition, VACATE the 

initial decision, and REMAND this appeal to the Atlanta Regional Office for 

further adjudication consistent with this Opinion and Order. 

BACKGROUND

¶2 The appellant is a Financial Specialist with the Transportation Security 

Administration (TSA) in the Department of Homeland Security. Initial Appeal 

 
2

File (IAF), Tab 6 at 23. After seeking corrective action from the Office of 

Special Counsel (OSC), he timely filed an IRA appeal seeking corrective action 

under the Whistleblower Protection Act (WPA). IAF, Tab 1, Tab 10 at 297-98. 

In it, he alleged that he made protected disclosures concerning an allegedly 

improper taxi fare receipt; a $251.87 purchase made on a government purchase 

card that exceeded the available balance of the agency’s allocation for the 

quarter, and therefore possibly constituted an Anti-Deficiency Act (ADA) 

violation; an allegedly improper purchase without prior approval and in excess of 

available funds for the quarter, constituting a possible ADA violation; allegedly 

fraudulent travel vouchers; and an allegedly improper change in the scope of a 

contract. IAF, Tab 1 at 6-10. 

¶3 The appellant further asserted the agency took the following personnel 

actions in retaliation for his disclosures: (1) a Letter of Reprimand, IAF, Tab 1 at 

4, 11; (2) a Letter of Guidance and Direction, Id. at 11; see IAF, Tab 10 at 132-

33; (3) denial of trainings or education, IAF, Tab 1 at 11; (4) denial of 

compensatory time, awards, and overtime, id.; (5) significant changes in his job 

duties, including asking the appellant to switch to a Program Analyst position, 

IAF, Tab 7 at 5-6; (6) a non-compliant and prejudicial Performance Evaluation 

Review (PER) and Supplemental Work Plan (SWP), IAF, Tab 1 at 11, Tab 7 at 6-

7; (7) denial of a grievance 1 remedy and failure to provide a second step 

 

1

 During 2008, the appellant filed five internal grievances, some of which appear to 

have been related to the disclosures set forth above. These were internal grievances 

governed by TSA Management Directive § 1100.77-2. See IAF, Tab 7 at 14. Through 

this grievance process, an employee files a written grievance with the First Step 

Official, who is usually the employee’s first-line supervisor, and may file a second-step 

grievance with the Second Step Official, who is usually the employee’s second-line 

supervisor. See IAF, Tab 7 at 14-15. This internal grievance process is separate and 

distinct from a negotiated grievance procedure, which is governed by 5 U.S.C. § 7121. 

It is undisputed that the appellant is not covered by a collective bargaining agreement. 

See IAF, Tab 6 at 21. Thus, by filing the grievances, the appellant made no election of 

remedies pursuant to 5 U.S.C. § 7121(g) that would preclude Board jurisdiction over 

this appeal. See Devera v. Smithsonian Institution, 100 M.S.P.R. 653, ¶ 12 n.6 (2005). 
3

grievance response, IAF, Tab 7 at 5-6; and (8) defamatory statements, threats, 

and humiliation, id. at 5. 

¶4 The appellant also requested a stay, which the agency and administrative 

judge construed as a request to stay the Letter of Reprimand. Stay Request (SR) 

File, Tab 1 at 11-12, Tab 4 at 4, Tab 5. The administrative judge denied the stay 

request. SR File, Tab 5. 

¶5 The administrative judge issued an order apprising the appellant of the 

jurisdictional requirements in an IRA appeal 2

 and ordering the parties to submit 

evidence and argument on the jurisdictional issue. IAF, Tab 9. After receiving 

the parties’ responses, but without holding the requested hearing, the 

administrative judge issued an initial decision that dismissed the IRA appeal for 

lack of jurisdiction and denied the appellant’s request for corrective action. 3 

Initial Decision (ID) at 2, 8. She determined that the appellant’s taxi fare 

disclosure was not protected. ID at 4. With regard to the appellant’s remaining 

disclosures, the administrative judge determined that disclosures made to the 

agency’s Office of the Inspector General (OIG) or to OSC could not have 

contributed to any personnel actions in this matter because they all occurred prior 

to the OIG and OSC disclosures. ID at 4-5, 7-8. She further concluded that the 

latter four disclosures to management were not protected because they were part 

of the appellant’s normal duties. ID at 5-6. Further, the administrative judge 

 

2

 We note that the administrative judge incorrectly indicated that the appellant need 

only make a nonfrivolous allegation that he exhausted his OSC administrative remedies 

as part of his jurisdictional burden. IAF, Tab 9 at 2. This issue is discussed in detail 

below. 

3

 An appellant’s entitlement to corrective action under the WPA concerns the merits of 

his IRA appeal. See Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010). 

The Board may only address the merits after it has found jurisdiction over the appeal. 

See Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000). 

Thus, the administrative judge’s determination that the appellant failed to establish 

Board jurisdiction over his appeal is at odds with her denial of corrective action. 
4

determined that the purchase card disclosure was not protected because the 

appellant stated only that there was a “possible” ADA violation. ID at 7. 

¶6 The appellant filed a petition for review of this decision alleging, among 

other things, that the administrative judge erred in finding that his disclosures 

were not protected, and that new evidence will be available when OIG responds 

to his Freedom of Information Act (FOIA) request and when the agency complies 

with his previous discovery requests for which he filed a motion to compel. See

Petition for Review (PFR) File, Tab 1. The agency responded in opposition. PFR 

File, Tab 3. 

ANALYSIS

¶7 The Board has jurisdiction over an IRA appeal if the appellant has 

exhausted his or her administrative remedies before OSC and makes nonfrivolous 

allegations that: (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. Yunus v. Department 

of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Conclusory, vague, or 

unsupported allegations are insufficient to qualify as nonfrivolous allegations of 

IRA jurisdiction. McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, 

¶ 7 (2008). In cases involving multiple alleged protected disclosures and 

personnel actions, an appellant establishes Board jurisdiction over his IRA appeal 

when he makes a nonfrivolous allegation that at least one alleged personnel 

action was taken in reprisal for at least one alleged protected disclosure. Baldwin 

v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 6 (2010). If the appellant 

establishes Board jurisdiction over his IRA appeal by exhausting his remedies 

before OSC and making the requisite nonfrivolous allegations, he has the right to 

a hearing on the merits of his claim. Spencer v. Department of the Navy, 327 

F.3d 1354, 1356 (Fed. Cir. 2003); Rusin v. Department of the Treasury, 92 

M.S.P.R. 298, ¶ 20 (2002). 
5

Exhaustion

¶8 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective 

action from OSC before seeking corrective action from the Board. Baldwin, 113 

M.S.P.R. 469, ¶ 8. The Board may only consider those disclosures of information 

and personnel actions that the appellant raised before OSC. Id. To satisfy the 

exhaustion requirement, the appellant must inform OSC of the precise ground of 

his charge of whistleblowing, giving OSC a sufficient basis to pursue an 

investigation that might lead to corrective action. Kukoyi v. Department of 

Veterans Affairs, 111 M.S.P.R. 404, ¶ 13 (2009). An appellant may demonstrate 

exhaustion through his initial OSC complaint, evidence that he amended the 

original complaint, including but not limited to OSC’s determination letter and 

other letters from OSC referencing any amended allegations, and the appellant’s 

written responses to OSC referencing the amended allegations. Id. 

¶9 The administrative judge incorrectly informed the appellant that he only 

needed to make a nonfrivolous allegation that he exhausted his OSC 

administrative remedies as part of his jurisdictional burden. IAF, Tab 9 at 2. 

However, the appellant must prove exhaustion. Yunus, 242 F.3d at 1371; Rusin, 

92 M.S.P.R. 298, ¶ 12. In the initial decision, the administrative judge wrote that 

to establish jurisdiction over an IRA appeal, “the appellant must show that: (1) 

he raised the same issue(s) before OSC, and proceedings before OSC were 

exhausted,” ID at 3, but she gave no further explanation and made no findings on 

exhaustion. See ID. Further, the administrative judge failed to advise the pro se 

appellant of the means by which he may show that he has satisfied the exhaustion 

requirement, informing him only that he “must specifically identify what 

disclosures and what personnel actions he brought to OSC and provide evidence 

of such.” IAF, Tab 9 at 2-3. An appellant must receive explicit information on 

what is required to establish an appealable jurisdictional issue. Burgess v. Merit 

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Because the 

administrative judge did not clearly advise the appellant of the proper 
6

jurisdictional burden for satisfying the exhaustion requirement or explain how he 

could show that he satisfied that burden, the deficiencies were not cured by either 

the initial decision or any agency pleading, and she made no findings regarding 

exhaustion, the appeal must be remanded to allow the parties an opportunity to 

submit evidence and argument regarding the exhaustion issue. Kukoyi, 111 

M.S.P.R. 404, ¶¶ 14, 17; Hudson v. Department of Veterans Affairs, 104 M.S.P.R. 

283, ¶¶ 7-8 (2006). 

¶10 As set forth below, we find based on the current record that the appellant 

exhausted his OSC remedies with respect to some of the disclosures and 

personnel actions that he alleged before the Board. The exhaustion issue for the 

remainder must be adjudicated on remand. 

¶11 The appellant filed Form OSC-12 Disclosures of Information with OSC’s 

Disclosure Unit, alleging each of the five above-referenced disclosures. IAF, Tab 

10 at 40-48, 167-174, 183-191, 215-223, 256-264. Additionally, on December 

10, 2008, he filed two Form OSC-11 Complaints of Possible Prohibited Personnel 

Practices (“OSC complaints”) with OSC’s Complaints Examining Unit seeking 

corrective action under the WPA.4

 IAF, Tab 10 at 51-64, 113-126. 

¶12 In one OSC complaint, the appellant alleged that on April 24, 2008, he 

disclosed a possible ADA violation concerning an unapproved expenditure on a 

government purchase card to Federal Security Director (FSD) W. Paul Armes, 

filed a grievance on June 27, 2008, and reported the alleged wrongdoing to OIG 

on October 10, 2008. IAF, Tab 10 at 116, 120, 122. He alleged that in reprisal 

for making this disclosure, the agency took or failed to take the following 

actions: (1) issued the Letter of Guidance and Direction; (2) denied him training 

or education; (3) denied him awards; (4) significantly altered his duties and 

moved him “outside the Operations group”; (5) issued an inaccurate PER; and (6) 

 

4

 In this Opinion and Order, “OSC” refers to OSC’s Complaints Examining Unit unless 

otherwise noted. 
7

denied his grievance and failed to issue a second-step grievance decision. Id. at 

119, 122. 

¶13 In the other OSC complaint, the appellant alleged that on March 9, 2007, 

he disclosed to Assistant FSD (AFSD) Ken Meyer that “[a] potentially fraudulent 

receipt was submitted for a $160 taxi fare. It was a single receipt presented to 

cover 2 $80 taxi rides that constituted a round trip. The rides occurred on two 

different days (2/26/2007 and 3/1/2007). The transaction was apparently cash.” 

IAF, Tab 10 at 58. He alleged that he filed a grievance on April 15, 2008, and 

reported the alleged wrongdoing to OIG on July 9, 2008. Id. at 54. The appellant 

contended that in reprisal for making this disclosure, the agency allegedly took or 

failed to take the following actions: (1) FSD Armes made comments about the 

appellant’s “customer service” during their April 2008 meeting about the taxi fare 

receipt; (2) the agency significantly changed his duties on December 13, 2007; 

(3) the agency denied his December 5, 2007, May 20, and July 14, 2008 requests 

for training or education; (4) the agency overloaded him with new duties and 

denied his requests for compensatory time on May 23, 27, and 30, and July 16, 

2008; and (5) the agency issued PERs on December 12, 2007, and June 24, 2008, 

which contained inaccuracies and did not comply with management directives. 

Id. at 58, 60. 

¶14 OSC apprised the appellant of its preliminary determination to close its 

inquiry into his claims, specifically referencing the taxi fare and purchase card 

disclosures, 5

 and the alleged personnel actions of the inaccurate PER process, 

significant changes to his duties, the Letter of Guidance and Direction, and the 

Letter of Reprimand. IAF, Tab 10 at 282-284. OSC then closed its investigation 

into the appellant’s claims, and apprised him of his right to seek corrective action 

with the Board. Id. at 297-298. 

 

5

 Additionally, OSC referred to the appellant’s June 19, 2008 disclosure of a potential 

breach concerning the failure of a vendor to inspect meter facilities. IAF, Tab 10 at 

282. The appellant did not raise this claim before the Board. See IAF, Tabs 1, 7, 10. 
8

¶15 The current record indicates that the appellant exhausted his OSC remedies 

with respect to the taxi fare disclosure and his allegations that, in retaliation for 

that disclosure, the agency made comments about his “customer service” during 

an April 2008 meeting; significantly changed his duties on December 13, 2007; 

denied his December 5, 2007, May 20, and July 14, 2008 requests for training or 

education; overloaded him with new duties and denied his requests for 

compensatory time on May 23, 27, and 30, and July 16, 2008; and issued 

inaccurate PERs on December 12, 2007, and June 24, 2008. Id. at 58, 60. He 

further exhausted with OSC his allegations that, in retaliation for his purchase 

card disclosure, the agency issued the Letter of Guidance and Direction; denied 

him trainings or education; denied him awards; significantly altered his duties 

and moved him “outside the Operations group”; issued an inaccurate PER; and 

denied his grievance and failed to issue a second-step grievance decision. Id. at 

119, 122. He also raised before OSC the Letter of Reprimand, but it is unclear 

with which disclosure this personnel action was associated. Id. at 282. 

¶16 With respect to the travel voucher, work order, and change-in-scope 

disclosures, the current record indicates that the appellant raised them solely 

before OSC’s Disclosure Unit in Form OSC-12s. IAF, Tab 10 at 167-174, 215-

223, 256-264. Unlike OSC’s Complaints Examining Unit, the Disclosure Unit 

does not review allegations of prohibited personnel practices. See id. at 161. 

Thus, making disclosures to OSC’s Disclosure Unit does not satisfy the 

exhaustion requirement under 5 U.S.C. § 1214(a)(3). See Sabbagh v. Department 

of the Army, 110 M.S.P.R. 13, ¶¶ 10-15 (2008); Clemente v. Department of 

Homeland Security, 101 M.S.P.R. 519, ¶¶ 7-13 (2006). On remand, the appellant 

will have a further opportunity to show that he exhausted his administrative 

remedies with respect to these and any other remaining allegations. 

Disclosures

¶17 Protected whistleblowing occurs when an appellant makes a disclosure that 

he reasonably believes evidences a violation of law, rule, or regulation, gross 
9

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

and specific danger to public health and safety. See 5 U.S.C. § 2302(b)(8); 

5 C.F.R. § 1209.4(b); Baldwin, 113 M.S.P.R. 469, ¶ 12. The appellant is not 

required to identify the particular statutory or regulatory provision that the 

agency allegedly violated when his statements and circumstances of those 

statements clearly implicate an identifiable law, rule, or regulation. Rather, at the 

jurisdictional stage, he is only burdened with nonfrivolously alleging that he 

reasonably believed that his disclosure evidenced a violation of one of the 

circumstances described in 5 U.S.C. § 2302(b)(8). Baldwin, 113 M.S.P.R. 469, 

¶ 12. 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 actions evidenced a violation of a 

law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C. 

§ 2302(b)(8). Id.

Purchase Card Disclosure 

¶18 On April 24, 2008, the appellant informed FSD Armes that an employee 

purchased $251.87 in administrative supplies, which exceeded the $13.20 

available balance of the agency’s allocation for the second quarter, and therefore 

possibly constituted an ADA violation. IAF, Tab 10 at 192; see IAF, Tab 6 at 15. 

The appellant made similar disclosures to OIG on October 10 and 14, 2008, and 

to OSC on December 29, 2008. IAF, Tab 10 at 12, 20-21, 116, 183-91; see IAF, 

Tab 6 at 15. 

¶19 The ADA, 31 U.S.C. § 1341(a)(1), provides that an “officer or employee of 

the United States Government . . . may not – (A) make or authorize an 

expenditure or obligation exceeding an amount available in an appropriation or 

fund for the expenditure or obligation.” A disinterested observer with knowledge 

of the essential facts known to and readily ascertainable by the appellant could 

have reasonably believed that the purchase card charge that exceeded the 
10

remaining budget allocation for administrative supplies was a violation of law, 

rule, or regulation. See Schmittling v. Department of the Army, 92 M.S.P.R. 572, 

¶ 12 (2002) (finding the disclosure of an alleged ADA violation protected). 

Contrary to the initial decision, the appellant’s use of qualifying terms like 

“potential” and “possible” to describe the alleged wrongdoing do not preclude a 

finding that he nonfrivolously alleged that he made a protected disclosure. See,

e.g., Greenup v. Department of Agriculture, 106 M.S.P.R. 202, ¶ 9 (2007) 

(“possible illegal acts”); Conrad v. Department of Justice, 99 M.S.P.R. 636, ¶¶ 6, 

14 (2005) (“aiding or abetting in a potentially criminal act”). 

¶20 The administrative judge found that the appellant made the purchase card 

disclosure to Armes as part of his normal job duties and that the disclosures to 

OIG and OSC post-dated all the alleged personnel actions taken in reprisal for 

this disclosure. See ID at 5-8. The United States Court of Appeals for the 

Federal Circuit (“Federal Circuit”) has held that disclosures made by employees 

in the normal performance of their duties cannot constitute protected disclosures. 

Huffman v. Office of Personnel Management, 263 F.3d 1341, 1352-54 (Fed. Cir. 

2001). However, in the following two situations, the Federal Circuit has held that 

a disclosure of wrongdoing is protected: (1) when an employee is obligated to 

report wrongdoing, but such a report is not part of the employee's normal duties 

or the employee has not been assigned those duties; and (2) when an employee 

with investigatory responsibilities reports wrongdoing uncovered during an 

investigation outside of the “normal channels.” Id. at 1354. 

¶21 The appellant’s duties included monitoring, analyzing, and providing 

expert advice and recommendations regarding the airport’s budget and 

expenditures. IAF, Tab 6 at 72. On April 9, 2008, Armes instructed the 

appellant, among others, that “[a]ny anomalies outside the realm of routine 

business will be provided to me for consideration and decision.” IAF, Tab 6 at 

52. The appellant’s April 24, 2008 purchase card disclosure to Armes appears to 

have been in direct response to Armes’s April 9, 2008 instruction. IAF, Tab 7 at 
11

35. Thus, the disclosure was within the normal performance of the appellant’s 

duties and in accordance with management’s instructions. As such, it was not 

protected under the WPA. 

¶22 The appellant also made the purchase card disclosure to OIG on October 10 

and 14, 2008, and to OSC on December 29, 2008, IAF, Tab 10 at 12, 20-21, 116, 

183-91; see IAF, Tab 6 at 15, all of which were outside of his normal job duties. 6

 

These disclosures are therefore protected. 

Taxi Fare Disclosure 

¶23 On March 9, 2007, the appellant e-mailed AFSD Meyer, his second-line 

supervisor, “to call attention to” a handwritten taxi fare receipt in the amount of 

$160.00; the single receipt covered two taxi rides taken by an employee on 

February 26, and March 1, 2007. IAF, Tab 10 at 65-66; see IAF, Tab 6 at 15. On 

July 9, 2008, the appellant claims to have reported the potentially fraudulent 

receipt to OIG, and on December 10, 2008, he reported it to OSC. See IAF, Tab 

6 at 15, Tab 10 at 4, 7, 40-50, 54. The Board has held that the disclosure of a 

fraudulent claim on a travel voucher or excessive travel expenditures is a 

protected disclosure of a violation of law, rule, or regulation. See Scott v. 

Department of Justice, 69 M.S.P.R. 211, 237-38 (1995), aff’d, 99 F.3d 1160 (Fed. 

Cir. 1996) (Table); Ward v. Department of the Army, 67 M.S.P.R. 482, 486-87 

(1995). The appellant had experience reviewing travel documents. See IAF, Tab 

7 at 20-21. Based upon the foregoing, we find that the appellant nonfrivolously 

alleged that he reasonably believed that he was disclosing a violation of law, rule, 

or regulation. 

 

6

 We note that the appellant also filed internal grievances, which involved the purchase 

card matter and other disclosures alleged in this appeal. However, internal grievances 

and matters disclosed therein do not constitute protected disclosures under the WPA, 

but are instead covered by 5 U.S.C. § 2302(b)(9). Serrao v. Merit Systems Protection 

Board, 95 F.3d 1569, 1575-76 (Fed. Cir. 1996); Boechler v. Department of the Interior, 

109 M.S.P.R. 542, ¶ 9 (2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); Powers v. 

Department of the Navy, 69 M.S.P.R. 150, 154 (1995). 
12

¶24 However, the record reflects that the appellant’s duties include monitoring 

financial expenditures, serving as the Organization Administrator for the 

agency’s travel card program, approving travel documents, and raising questions 

about travel vouchers “when red flags arise.” See IAF, Tab 6 at 72, Tab 7 at 20-

22, 52-53, 78. Consequently, we find that the appellant’s disclosure of the 

potentially fraudulent taxi fare receipt to AFSD Meyer fell within his normal job 

duties, and therefore that disclosure is not protected. See Huffman, 263 F.3d at 

1353. 

¶25 The appellant’s December 10, 2008 disclosure of the taxi fare issue to OSC 

is protected, as it was outside of his normal job duties. It is unclear from the 

current record, however, whether the appellant made the same disclosure in his 

July 9, 2008 report of alleged wrongdoing to OIG, as he has claimed. See IAF, 

Tab 10 at 7, 45, 54. If so, that would also have been outside of his normal job 

duties, and therefore would be protected. See Huffman, 263 F.3d at 1354. On 

remand, the administrative judge shall afford the parties an opportunity to submit 

any evidence and argument that she deems necessary to resolve this issue. To the 

extent the appellant alleges that he is waiting to receive documents relevant to 

this issue from OIG through his FOIA request, the administrative judge shall 

afford him a reasonable opportunity to obtain such information. See PFR File, 

Tab 1 at 8. In the new initial decision, the administrative judge shall set forth her 

findings on whether the appellant nonfrivolously alleged that his July 9, 2008 

OIG report of alleged wrongdoing is a protected disclosure of the taxi fare matter. 

Contributing Factor

¶26 To satisfy the contributing factor criterion, an appellant need only raise a 

nonfrivolous allegation that the fact of, or content of, the protected disclosure 

was one factor that tended to affect the personnel action in any way. Baldwin, 

113 M.S.P.R. 469, ¶ 22. One way to establish this criterion is the knowledgetiming test, under which an employee may nonfrivolously allege that the 

disclosure was a contributing factor in a personnel action through circumstantial 
13

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. Once an appellant has made a nonfrivolous 

allegation that the knowledge-timing test has been met, he has established the 

contributing factor jurisdictional element.7

 Santos v. Department of Energy, 102 

M.S.P.R. 370, ¶ 11 (2006); Wood v. Department of Defense, 100 M.S.P.R. 133, 

¶ 13 (2005). 

Purchase Card Disclosure 

¶27 As set forth above, the appellant made the purchase card disclosure to OIG 

on October 10 and 14, 2008, and to OSC on December 29, 2008, IAF, Tab 10 at 

12, 20-21, 116, 183-91; see IAF, Tab 6 at 15. However, the agency had issued 

the Letter of Guidance and Direction on June 12, 2008, and the Letter of 

Reprimand on September 17, 2008 – well before those disclosures occurred. IAF, 

Tab 10 at 132-33, 188-90. Similarly, the first step grievance official denied the 

appellant’s grievance related to this matter on July 11, 2008. IAF, Tab 7 at 42. 

Accordingly, the protected purchase card disclosures could not have been a 

contributing factor in these personnel actions. See Kukoyi, 111 M.S.P.R. 404, 

¶ 11 (disclosures made after the agency has taken the personnel actions at issue 

 

7 Some Board cases have incorrectly stated that once an appellant nonfrivolously 

alleges that the knowledge/timing test has been met, the administrative judge must find 

that the appellant’s whistleblowing was a contributing factor in the personnel action. 

E.g., Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 9 (2011); Kukoyi, 111 

M.S.P.R. 404, ¶ 15. At the jurisdictional stage, a nonfrivolous allegation that the 

knowledge/timing test has been met only establishes that the contributing factor 

jurisdictional element has been met. To the extent that Herman and Kukoyi apply this 

standard to the merits, they are overruled. Instead, at the merits stage, once an 

appellant’s evidence establishes by preponderant evidence that the knowledge/timing 

test has been met, the administrative judge must find that the appellant has shown that 

his whistleblowing was a contributing factor in the personnel action at issue. Schnell, 

114 M.S.P.R. 83, ¶ 21; Wadhwa v. Department of the Army, 100 M.S.P.R. 615, ¶ 13 

(2009). 
14

cannot have been contributing factors in those personnel actions and do not meet 

the nonfrivolous allegation requirement). 

¶28 It is unclear when the remaining alleged personnel actions associated with 

this disclosure and exhausted before OSC occurred, i.e., denial of trainings or 

education, denial of awards, significant alteration of his duties, and the issuance 

of an inaccurate PER.8

 See IAF, Tab 10 at 119, 122. Further, while denial of 

awards, significant alteration of duties, and a performance evaluation under 

5 U.S.C. chapter 43 constitute personnel actions within the meaning of the WPA, 

a decision concerning education or training only qualifies as a “personnel action” 

if the education or training may reasonably be expected to lead to an 

appointment, promotion, performance evaluation, or other action described in 5 

U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 2302(a)(2)(A)(viii), (ix), (xi). The record is 

insufficient to determine whether the education and training at issue meets this 

standard. On remand, the administrative judge shall determine whether the 

timing of these personnel actions was such that the purchase card disclosure 

could have been a contributing factor for any of them and whether the denied 

education and training meets the requirements of 5 U.S.C. § 2302(a)(2)(A)(ix). 

The new initial decision shall contain findings on all of the contributing factor 

issues. 

Taxi Fare Disclosure

¶29 The appellant made the taxi fare disclosure to OSC on December 10, 2008. 

As explained previously, it is unclear whether he made that disclosure in his July 

9, 2008 report of alleged wrongdoing to OIG. All of the personnel actions the 

appellant exhausted before OSC and claims were in retaliation for this disclosure 

occurred before his OSC disclosure. Additionally, even if he made the taxi fare 

 

8

 The current record contains some indication that the allegedly inaccurate PER was 

issued on April 30, 2008. IAF, Tab 7 at 121-133. If that is correct, the appellant’s 

subsequent disclosures to OIG and OSC could not have contributed to this personnel 

action. See Kukoyi, 111 M.S.P.R. 404, ¶ 11. 
15

disclosure to OIG on July 9, 2008, the following exhausted personnel actions predated that disclosure as well: comments about his “customer service” during an 

April 2008 meeting; significant changes to his duties on December 13, 2007; 

denial of his December 5, 2007 and May 20, 2008 requests for training and 

education; overloading him with new duties and denial of his requests for 

compensatory time on May 23, 27, and 30, 2008; and issuance of inaccurate PERs 

on December 12, 2007, and June 24, 2008. Id. at 58, 60. Accordingly, the 

appellant has failed to nonfrivolously allege that the taxi fare disclosure 

contributed to these alleged personnel actions. See Kukoyi, 111 M.S.P.R. 404, 

¶ 11. If the appellant made the taxi fare disclosure to OIG on July 9, 2008, that 

disclosure could potentially have contributed to the September 17, 2008 Letter of 

Reprimand, the July 14, 2008 request for training or education, and the July 16, 

2008 denial of his request for compensatory time and overloading him with 

duties. Each of these matters could be considered personnel actions within the 

meaning of the WPA. 5 U.S.C. § 2302(a)(2)(A)(iii) (a disciplinary or corrective 

action), (ix) (decisions concerning pay, benefits, or awards, or training and 

education if the education and training may reasonably be expected to lead to an 

appointment, promotion, performance evaluation, or other action described in 5 

U.S.C. § 2302(a)(2)(A)), (xi) (any other significant change in duties, 

responsibilities, or working conditions); Horton v. Department of Veterans 

Affairs, 106 M.S.P.R. 234, ¶ 18 (2007) (a letter of reprimand is a personnel action 

within the meaning of the WPA). After determining whether the appellant made 

the taxi fare disclosure to OIG on July 9, 2008, the administrative judge shall 

make findings concerning the remaining issues relevant to the contributing factor 

jurisdictional criterion in the new initial decision. 

Stay Request

¶30 On review, the appellant alleges that the administrative judge erred in 

denying his stay request. PFR File, Tab 1 at 9. However, an appellant may not 

challenge an administrative judge’s order on a stay request under the WPA 
16

through the petition for review process; a request for an interlocutory appeal is 

the only option. Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652, 

¶ 24 (2004). Here, the appellant did not seek an interlocutory appeal. Thus, on 

review, the Board will not consider the appellant’s challenge to the administrative 

judge’s denial of his stay request. 

ORDER

¶31 On remand, the administrative judge shall afford the parties an opportunity 

to submit additional evidence and argument sufficient to resolve the remaining 

jurisdictional questions in this appeal in accordance with the instructions above. 

In doing so, she shall rule on the appellant’s motion to compel discovery. If 

jurisdiction exists, the administrative judge will adjudicate this appeal on the 

merits. She shall then issue a new initial decision incorporating the Board’s 

findings in this Opinion and Order, explaining her remaining jurisdictional 

findings, and, if appropriate, her findings regarding the merits. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.