Patricia Fanelli v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA ANNE FANELLI, DOCKET NUMBER
Appellant, PH-1221-13-0019-B-1
v.
DEPARTMENT OF DEFENSE, DATE: January 13, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Patricia Anne Fanelli, Broomall, Pennsylvania, pro se.
Lida V. Kianoury, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. For the reasons discussed below, we GRANT the app ellant’s
petition for review, VACATE the remand initial decision, FIND that the appellant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
established jurisdiction over her IRA appeal and proved her prima facie case of
reprisal for a protected disclosure, FIND that the agency failed to prove by clear
and convincing evidence that it would have taken the same action in the absence
of the protected disclosure, and ORDER corrective action.
BACKGROUND
¶2 It is undisputed that the appellant, a Cost Price Analyst with the agency’s
Defense Contract Management Agency (DCMA), was reassigned from her duty
station in Ridley Park, Pennsylvania, to Philadelphia, Pennsylvania, effective
October 20, 2013. Fanelli v. Department of Defense, MSPB Docket
No. PH-1221-13-0019-W-1, Petition for Review (PFR) File, Tab 7 at 4; Fanelli v.
Department of Defense, MSPB Docket No. PH-1221-13-0019-B-1, Remand File
(RF), Tab 1 at 2. The appellant has asserted, and the agency has not disputed,
that, prior to May 2012, the appellant disclosed to DCMA in memoranda that a
Government contractor engaged in financial misconduct. RF, Tab 5 at 5. After
the agency failed to respond to the appellant’s memoranda, she filed a qui tam
lawsuit under the False Claims Act on or around May 29, 2012, alleging that the
Government contractor had charged the Government for equipment that was not
ordered and inflated the prices of other equipment by hundreds of millions of
dollars. Id. at 5, 11-12. Shortly after she filed the qui tam lawsuit, the agency
threatened to reassign the appellant to a different geographic location. Fanelli v.
Department of Defense, MSPB Docket No. PH-1221-13-0019-W-1, Initial Appeal
File (IAF), Tab 1 at 25, Tab 3 at 5.
¶3 Following the threatened reassignment, the appellant filed a complaint with
the Office of Special Counsel (OSC), wherein she alleged that the agency
threatened to reassign her in reprisal for having filed a qui tam lawsuit. IAF,
Tab 1 at 16-19. After OSC terminated its investigation into her allegations, the
appellant filed an IRA appeal with the Board seeking corrective action . Id. She
did not request a hearing. Id. at 6. While the appeal was pending, the agency
3
notified the appellant that it was moving forward with its plan to reassign her,
effective October 20, 2013. PFR File, Tab 7 at 4.
¶4 The administrative judge issued an initial decision, which denied the
appellant’s request for corrective action, IAF, Tab 6, Initial Decision (ID), and
the appellant filed a petition for review with the Board. PFR File, Tab 1. The
Board remanded the appeal because the administrative judge adjudicated the
merits without making a finding on Board jurisdiction and without providing the
appellant with explicit information on what is required to establish her bur den of
proof on jurisdiction. RF, Tab 1 at 2-4.
¶5 On remand, the administrative judge issued a show cause order, which
provided the parties with explicit notice of the burdens of proof in an IRA appeal,
both at the jurisdictional stage and on the merits. RF, Tab 4. The order
instructed the parties to submit evidence and argument on jurisdiction and the
merits at the same time. Id. at 7. Both parties filed responses. RF, Tabs 5-6.
¶6 In the appellant’s response, she asserted that she made a protected
disclosure in her qui tam lawsuit because she alleged multiple violations of the
False Claims Act against a Government contractor causing financial injury to the
Government. RF, Tab 5 at 4-5. She alleged that a copy of her qui tam lawsuit
was served on the agency, and she submitted limited portions of her qui tam
complaint comprising the case caption, a summary of the action, t he table of
contents, her demand for a jury trial, and a certificate of service. Id. at 5, 8-13.
She further alleged that she filed her qui tam complaint after the agency paid little
or no attention to her detailed memoranda describing numerous incidents of
alleged financial misconduct by the Government contractor. Id. at 5. In the
agency’s response, it did not appear to challenge that the Board has jurisdiction
over the appeal and it conceded that the “[a]ppellant will probably be able to
prove a prima facie case.” RF, Tab 6 at 4. It argued that it proved by clear and
convincing evidence that the reassignment was warranted based on concerns that
the appellant’s lawsuit created a “potential conflict of interest,” which required
4
that the agency reassign her to limit her interaction with the Government
contractor against whom she filed the lawsuit. Id. The agency asked that the
appeal be dismissed or, alternatively, that corrective action be denied on the
merits. Id. at 6.
¶7 The administrative judge issued a remand initial decision that dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously
allege that she made a protected whistleblowing disclosure concerning the
Government contractor’s alleged fraud. RF, Tab 7, Remand Initial Decision
(RID) at 2, 7-9. The administrative judge also found that the appellant failed to
exhaust her administrative remedy before OSC concerning her allegation on
remand that the agency ignored the problems with the contractor that sh e reported
in memoranda prior to filing her lawsuit. RID at 8. According to the
administrative judge, if the appellant had proven exhaustion over this disclosure,
the administrative judge would have concluded that the combination of the
alleged disclosure and the qui tam lawsuit constituted a protected disclosure. Id.She stated that even if she were to find jurisdiction over the appeal, the agency
proved by clear and convincing evidence that it would have reassigned the
appellant due to the conflict of interest she created by filing her lawsuit. RID
at 9.
¶8 The appellant has filed a petition for review disagreeing with the
administrative judge’s findings that she failed to establish jurisdiction over the
disclosure in her qui tam lawsuit and that the agency proved it would have
reassigned her absent her lawsuit. Fanelli v. Department of Defense, MSPB
Docket No. PH-1221-13-0019-B-1, Remand Petition For Review (RPFR) File,
Tab 1 at 4-5, 6-8. The appellant also argues that she is not required to exhaust
her administrative remedy before OSC concerning her allegation that she
disclosed misconduct by the Government contractor to the agency prior to filing
her qui tam lawsuit. Id. The agency responded in opposition to her petition.
RPFR File, Tab 4.
5
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations of the following: (1) she made a disclosure described 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 protected disclosure or activity
was a contributing factor in the agency’s decision to take a personnel action as
defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(a),(e)(1). After
establishing the Board’s jurisdiction in an IRA appeal, the appellant then must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that she made a protected disclosure that was a
contributing factor in a personnel action taken against her. Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 6. If the appellant proves that
a protected disclosure or activity was a contributing factor in a personnel action
taken against her, the Board must order corrective action unless the agency can
establish by clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure. Id., ¶ 22.
¶10 Here, the appellant did not request a hearing. IAF, Tab 1 at 6. The
administrative judge informed the appellant of her burden of proof on jurisdiction
and informed both parties of their burdens on the merits, and she instructed the
parties to submit evidence pertaining to both jurisdiction and the merits at the
same time. RF, Tab 4 at 1-7. Because the parties were provided a full and fair
opportunity below to develop the merits of this appeal, we may decide the matter
here without remanding the case for further proceedings. Skarada, 2022 MSPB
17, ¶ 21. For the reasons set forth herein, we find that the appellant established
jurisdiction over her appeal and proved by preponderant evidence that her
protected disclosure in her qui tam lawsuit was a contributing factor in her
reassignment. We find that the agency failed to meet its burden to prove by clear
and convincing evidence that it would have taken the same action in the absence
6
of the protected disclosure, and we therefore order the agency to take
corrective action.
The appellant proved that she exhausted a protected disclosure with OSC.
¶11 The first element required to establish Board jurisdiction over an IRA
appeal is that the appellant exhausted her administrative remedies before OSC.
Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 6 (2014),
aff’d per curiam, 626 F. App’x 261 (Fed. Cir. 2015); see 5 U.S.C. §§ 1214(a)(3),
1221(a). Specifically, 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” through an IRA appeal. The substantive requirements of exhaustion are
met when an appellant has provided OSC with a sufficient basis to pursue an
investigation. Chambers v. Department of Homeland Security, 2022 MSPB 8,
¶ 10. An appellant may demonstrate exhaustion through her initial OSC
complaint, correspondence with OSC, or other evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in the Board appeal. Id., ¶ 11. The appellant must prove exhaustion with OSC by
preponderant evidence. 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.57(c)(1).
¶12 In the remand initial decision, the administrative judge found that the
appellant filed a complaint with OSC alleging that the agency reassigned her in
reprisal for filing a qui tam lawsuit. RID at 2. The parties do not dispute this on
review and it is supported by the record. IAF, Tab 1 at 16, 28. Although not
expressly stated by the administrative judge, we find that the appellant satisfied
the exhaustion requirement concerning her disclosure in her qui tam lawsuit that a
Government contractor committed illegal financial misconduct.
¶13 The appellant also alleged that she made a protected disclosure when she
provided the agency with memoranda describing incidents of alleged misconduct
by the Government contractor prior to filing her qui tam lawsuit. RF, Tab 5 at 5.
The administrative judge found that the appellant failed to exhaust this claim
before OSC. RID at 7. The appellant does not challenge this finding on review,
7
and we discern no basis to disturb it. RPFR File, Tab 1 at 5-6. In an IRA appeal,
the Board cannot consider allegations of reprisal for whistleblowing activity that
have not been raised before OSC. Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 9 (2016). Although we acknowledge that an appellant may
give a more detailed account of her whistleblowing activities before the Board
than she did to OSC, Chambers, 2022 MSPB 8, ¶ 10 (citing Briley v. National
Archives & Records Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001)), the
appellant’s correspondence with OSC did not reference, explicitly or implicitly,
additional disclosures beyond her qui tam lawsuit. IAF, Tab 1 at 25-30. Further,
there is no assertion or evidence in the record that OSC initiated inquiries that
might have uncovered other disclosures. Rather, the appellant stated to OSC that
her qui tam lawsuit was the “sole basis” for her reassignment. Id. Accordingly,
we do not believe that OSC had a sufficient basis to investigate additional
disclosures beyond the qui tam lawsuit, and the Board is therefore precluded from
considering the appellant’s allegation that she made a protected disclosure to the
agency in memoranda that predate the filing of her qui tam lawsuit.
¶14 The appellant argues that her reassignment is directly appealable to the
Board and therefore exhaustion of this additional disclosure was not required.
RPFR File, Tab 1 at 5-6. She is mistaken. The appellant’s reassignment, which
she has not claimed resulted in any loss of grade or base pay, cannot be appealed
directly to the Board. Sazinski v. Department of Housing & Urban Development,
73 M.S.P.R. 682, 685 (1997); see Talley v. Department of the Army, 50 M.S.P.R.
261, 263 (1991) (stating that reassignments and transfers generally are not
appealable to the Board); Burkwist v. Department of Transportation, 27 M.S.P.R.
419, 420 (1985) (explaining that the Board looks at base pay to determine if an
appellant suffered an appealable reduction in pay) . Accordingly, the appellant
must satisfy the jurisdictional requirements for bringing an IRA appeal, including
proof that she exhausted her disclosures with OSC.
8
The disclosure in the appellant’s qui tam lawsuit is protected pursuant to 5 U.S.C.
§ 2302(b)(8).
¶15 Having found that the appellant exhausted with OSC her claim that the
agency reassigned her to a different geographic location in retaliation for her qui
tam lawsuit, we next consider whether the appellant has nonfrivolously alleged
that her disclosure in the qui tam lawsuit was protected. For a disclosure to be
protected under 5 U.S.C. § 2302(b)(8), the employee must have had a reasonable
belief that the disclosure evidenced “(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.
§ 2302(b)(8)(A). The Board has adopted as the test for such a reasonable belief :
whether a “disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee [could] reasonably conclude that the
actions of the government evidence” one of the situations set out in 5 U.S.C.
§ 2302(b)(8). Sinko v. Department of Agriculture, 102 M.S.P.R. 116, ¶ 15 (2006)
(quoting Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). 2
¶16 The Board has held that disclosures of wrongdoing by a nongovernment
entity may constitute protected disclosures when the Government’s interests and
good name are implicated in the alleged wrongdoing and the employee shows that
she reasonably believed that the information she disclosed evidenced that
wrongdoing. Miller v. Department of Homeland Security, 99 M.S.P.R. 175, ¶ 12
(2005). The administrative judge considered the portions of the appellant’s qui
tam lawsuit that she submitted on remand and found that her allegation that a
Government contractor was committing fraud, without more, did not include an
allegation that the Government itself was involved in the alleged wrongdoing or
2
Pursuant to the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018)
(codified at 5 U.S.C. § 7703(b)(1)(B)), appellants may file petitions for judicial review
of Board decisions in certain whistleblower reprisal appeals with the U.S. Court of
Appeals for the Federal Circuit or any other circuit court of competent jurisdiction.
9
otherwise implicated the Government’s interests and good name. RID at 7-8.
We disagree.
¶17 The appellant alleged that a Government contractor, acting under the
oversight of the DCMA, illegally inflated prices for the acquisition of equipment
by hundreds of millions of dollars and that it charged the Government for parts
that it did not purchase or order in violation of the False Claims Act. RF, Tab 5
at 9, 11. She alleged that she had a reasonable belief that these allegations were
true based on her “extensive analysis” over a significant period of time in her
roles as a cost analyst and auditor. Id. at 5. On its face, the appellant’s allegation
that the Government contractor charged the Government for parts that were not
ordered and inflated prices violates the law. Because it is the agency’s role to
administer contracts for the Department of Defense and other Federal agencies,
any improprieties in the administration of those contracts, particularl y allegations
of illegal price inflation, a cost which would necessarily flow to the taxpayers,
could harm the reputation of the agency and, by extension, the Government as a
whole. 3 See Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶ 7 (2001) (finding
that the Government’s interests and good name were implicated in allegations of
wrongdoing by a private organization, which performed functions within the
scope of the agency’s overall responsibilities and, accordingly, the agency was in
a position to influence or exercise oversight over the orga nization’s performance
of those functions).
¶18 Further, the appellant declared, under penalty of perjury, and the agency
did not dispute, that she disclosed these improprieties to DCMA in detailed
3
According to the agency’s website, “[t]he Defense Contract Management Agency
provides contract administration services for the Department of Defense, other federal
organizations and international partners, and is an essential part of the acquisition
process from pre-award to sustainment. Every business day, DCMA receives nearly
1,000 new contracts and authorizes more than $650 million in payments to contractors.”
Defense Contract Management Agency, http://www.dcma.mil (last visited Jan. 13,
2023).
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memoranda, to which DCMA “paid little to no attention.” RF, Tab 5 at 3, 5. The
agency has not disputed that the appellant had a reasonable belief that her
disclosure was true, conceding that the appellant “will probably be able to prove a
prima facie case,” and stating the following: “In the course of performing her
duties as a Cost Price Analyst, Appellant found apparent accounting
irregularities, mischarges, and/or other form of illegal activity on the part of [the
Government contractor].” RPFR File, Tab 4 at 5, 9. An uncontested declaration
subscribed under penalty of perjury, as is the case here, proves the facts it asserts.
RF, Tab 5 at 3; Tram v. U.S. Postal Service, 120 M.S.P.R. 208, ¶ 8 (2013). We
therefore find that the appellant both nonfrivolously alleged and proved by
preponderant evidence that she reasonably believed she was disclosing a violation
of law, rule, or regulation by a Government contractor, which implicated the
agency’s interests and good name, and therefore her disclosure was protected
pursuant to 5 U.S.C. § 2302(b)(8).
The appellant’s disclosure was a contributing factor in her reassignment.
¶19 The last element of jurisdiction requires the appellant to nonfrivolously
allege that her protected disclosure was a contributing factor in a personnel action
taken by the agency. 5 U.S.C. § 1221(a), (e)(1). The term “contributing factor”
means any disclosure that affects an agency’s decision to threaten, propose, take,
or not take a personnel action regarding the individual who made the disclosure.
5 C.F.R. § 1209.4(d).
¶20 The appellant asserted that she was subjected to a personnel action when the
agency “transferred” her to a new geographic location approximately 25 miles
from her duty station. RF, Tab 5 at 5. Federal employees may seek corrective
action for retaliatory “detail[s], transfer[s], or reassignment[s]” in an IRA appeal.
See 5 U.S.C. § 2302(a)(2)(A)(iv) (defining “personnel action” to include such
actions). Transfers and reassignments involve a change of position either within
the agency or to another agency. 5 C.F.R. § 210.102(b)(10), (12), (18); see
Onasch v. Department of Transportation, 63 M.S.P.R. 158, 162-63 (1994)
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(applying the definitions at 5 C.F.R. § 210.102(b) to determine whether an
appellant suffered a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv)).
Although it is unclear whether the appellant’s job duties or job title changed when
she was reassigned to Philadelphia, she has asserted under penalty of perjury that
she was subjected to a significant change in working conditions because her
commuting time increased at least three-fold and her wage taxes increased by
3.495%. PFR File, Tab 7 at 3-4. Therefore, regardless of whether the appellant’s
relocation constituted a reassignment or transfer, we find it was a significant
change in her working conditions, which is actionable in an IRA appeal. See
5 U.S.C. § 2302(a)(2)(A)(xii) (defining a personnel action, in part, as “any . . .
significant changes in duties, responsibilities, or working conditions”) ; see
Shivaee v. Department of the Navy, 74 M.S.P.R. 383, 388 (1997) (finding that
relocation from within to outside a base, without more, is not a “significant
change” in working conditions). The agency does not appear to dispute that it
subjected the appellant to a personnel action. RPFR File, Tab 4. Accordingly,
we agree with the administrative judge that the appellant proved, under both the
nonfrivolous allegation and preponderant evidence standards, that she was
subjected to a personnel action. RID at 3.
¶21 As to contributing factor, the parties agree that the appellant’s filing of the
qui tam lawsuit, which the agency asserts created a conflict of interest, was the
sole factor in the agency’s decision to initiate the reassignment. RF, Tab 5 at 5;
RPFR File, Tab 4 at 5-7. In the initial decision, the administrative judge found
the agency reassigned her not because she revealed improprieties on the part of
the contractor, but because she became a plaintiff in a lawsuit against the
contractor. ID at 4-6. Although this finding was not contained in the remand
initial decision, we nonetheless address it here and find that it is incorrect.
¶22 In Marano v. Department of Justice, 2 F.3d 1137, 1138 (Fed. Cir. 1993), an
analogous case decided by the U.S. Court of Appeals for the Federal Circuit, the
Federal employee petitioner signed a memorandum to an agency official alleging
12
mismanagement, which prompted an investigation of his office. As a result of
the management problems discovered during the investigation, the employee and
others were reassigned. Id. at 1138-39. In the employee’s case, his reassignment
was to a new geographic location. Id. He filed an IRA appeal with the Board,
wherein he alleged that the protected disclosures in his memorandum were a
contributing factor in his reassignment. Id. at 1139. The administrative judge
found that the employee failed to establish contributing factor because the agency
reassigned him as a result of the investigation, which revealed management
problems inside his office, and not because of the content of his memorandum.
Id. The Federal Circuit reversed this finding, holding that an employee need only
“demonstrate . . . that the fact of, or the content of, the protected disclosure was
one of the factors that tended to affect in any way the personnel action .” Id.
at 1143. It found the employee met his burden because the content of his
disclosure was the reason the agency conducted the investigation which verified
his disclosure and, in turn, led to his reassignment. Id. Applying this reasoning,
which we find persuasive, we find here that the appellant’s qui tam lawsuit gave
the agency the reason for its decision to reassign her, and she has therefore
established contributing factor under both the nonfrivolous alleg ation and
preponderant evidence standards.
The agency failed to show by clear and convincing evidence that it would have
reassigned the appellant in the absence of her whistleblowing disclosure.
¶23 Because the appellant met her burden to prove that she made a protected
disclosure that was a contributing factor in the agency’s de cision to take a
personnel action against her, we must order corrective action unless the agency
shows by clear and convincing evidence that it would have taken the personnel
action in the absence of the whistleblowing. 5 U.S.C. § 1221(e). In determining
whether an agency has shown by clear and convincing evidence that it would
have taken the personnel action in the absence of the whistleblowing, the Board
generally will consider the following factors: (1) the strength of the agency’s
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evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. See Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). These
factors are commonly referred to as the Carr factors.
¶24 In the remand initial decision, the administrative judge found , without
elaboration, that even if the appellant established jurisdiction over her IRA
appeal, the agency proved by clear and convincing evidence that it would have
taken the same action in the absence of the appellant’s protected disclosure. 4 RID
at 9. For the following reasons, we disagree.
¶25 The Board has held that when the personnel action at issue is not
disciplinary in nature, the first Carr factor does not apply straightforwardly and it
is appropriate to consider the broader question of whether the agency had
legitimate reasons for its action. Smith v. Department of the Army, 2022 MSPB 4,
¶ 23. In this case, evidence regarding whether the agency had legitimate reasons
for reassigning the appellant to a different geographic location is lacking. The
agency’s counsel stated in various pleadings that the appellant’s qui tam lawsuit
created a “potential conflict of interest,” which required her reassignment to a
different duty station in order to limit her interaction with the Government
contractor who was named in her lawsuit. E.g., IAF, Tab 3 at 7; PFR File, Tab 4
at 7; RPFR File, Tab 4 at 9-10. Statements by a party’s representative are not
evidence, and there is no indication in the record that the agency’s counsel had
4
In the initial decision, it appears that the administrative judge implicitly analyzed the
first two Carr factors, finding that the agency had strong reasons for reassigning the
appellant because she created a conflict of interest by filing her lawsuit, and that it was
the fact of filing the lawsuit, and not the content of the disclosure, that caused the
conflict of interest. ID at 4-6. Because this analysis was not repeated in the remand
initial decision, we need not explicitly reverse it, but for the reasons set forth above, w e
disagree with these findings.
14
firsthand knowledge of the reassignment decision. See Hendricks v. Department
of the Navy, 69 M.S.P.R. 163, 168 (1995). The agency did not submit a
declaration or sworn statement from any individual with firstha nd knowledge of
the appellant’s reassignment.
¶26 Even crediting the agency’s assertion that the appellant’s qui tam lawsuit
created a “potential conflict of interest,” it has not explained the appellant’s job
duties at her original duty station; how a conflict of interest arose, or could have
arisen, due to the appellant’s lawsuit; the nature of the conflict of interest;
whether there were other job duties that the appellant could have performed
without a reassignment; why the agency selected a duty station in Philadelphia,
25 miles away from Ridley Park, for the reassignment; and whether the appellant
ceased working on matters involving the contractor af ter her reassignment. The
agency has wholly failed to justify its reassignment decision, and therefore, this
factor weighs in favor of the appellant. See Smith, 2022 MSPB 4, ¶¶ 4-5, 23-26
(finding that the evidentiary record did not support the agency’s explanation for
its decision not to select the appellant for a vacant position, and thus Carr
factor 1 weighed against the agency). The agency has not put forth any evidence
as to the second or third Carr factors. 5 Although the agency does not have an
affirmative burden to produce evidence concerning each and every Carr factor,
the Board has held than an agency’s failure to present evidence of similarly
situated employees cannot weigh in its favor. Soto v. Department of Veterans
Affairs, 2022 MSPB 6, ¶ 18. In viewing the Carr factors as a whole, the agency
has failed to put forth evidence to meet its burden of showing by clear and
convincing evidence that it would have taken the action in the absence of the
appellant’s protected disclosures.
5
Relevant to Carr factor 2, the appellant stated in a filing to OSC that the agency has a
“policy of transferring all employee-whistleblower complainants.” IAF, Tab 1 at 38.
Although the agency has not disputed this allegation, we afford it little weight because
the appellant did not provide any specific details in support of her assertion.
15
¶27 Based on the foregoing, we find that the appellant is entitled to corrective
action under 5 U.S.C. § 1221(g)(1) in connection with her assignment to a
different geographic location.
ORDER
¶28 We ORDER the agency to cancel the appellant’s reassignment to
Philadelphia, Pennsylvania, and reinstate her to her duty station in Ridley Park,
Pennsylvania, effective October 20, 2013. 5 U.S.C. § 1221(g)(1)(A)(i); see
Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The
agency must complete this action no later than 20 days after the date of
this decision.
¶29 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Per sonnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶30 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶31 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
16
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶32 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office t hat issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
17
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including inte rest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 6
This is the final decision of the Merit Systems Protection Board in this
matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision.
5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time
limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703(b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by you r
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
19
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
20
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “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 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
21
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
22
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.