Piccolo v. Merit Systems Protection Board , 869 F.3d 1369 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
JASON JOHN PICCOLO,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2374
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-16-0305-W-1.
______________________
Decided: September 7, 2017
______________________
ROBERT J. GAJARSA, Latham & Watkins LLP, Wash-
ington, DC, for petitioner. Also represented by GABRIEL
BELL.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE M. SMITH,
JEFFREY A. GAUGER.
______________________
Before PROST, Chief Judge, MAYER and WALLACH, Cir-
cuit Judges.
2 PICCOLO v. MERIT SYS. PROT. BD.
WALLACH, Circuit Judge.
Petitioner Jason John Piccolo appeals the final deci-
sion of the Merit Systems Protection Board (“MSPB”)
dismissing, for lack of jurisdiction, his individual right of
action (“IRA”) appeal claiming that he was subject to
adverse personnel action in retaliation for protected
whistleblowing activity. See Piccolo v. Dep’t of Homeland
Sec., No. DC-1221-16-0305-W-1, 2016 WL 2893596
(M.S.P.B. May 10, 2016) (J.A. 1−13). 1 The MSPB found
that Mr. Piccolo met all of the grounds required to estab-
lish jurisdiction except for the requirement to allege non-
frivolous allegations “to demonstrate that his protected
activity was a contributing factor in the agency’s decision
to take [adverse] personnel action.” J.A. 5.
Before we appointed pro bono counsel for Mr. Piccolo
and the case was re-briefed, see Order, ECF No. 26, the
MSPB argued that the decision of its Administrative
Judge (“AJ”) “should [be] affirm[ed].” Resp’t’s Original
Br. 16, ECF No. 18. The MSPB now agrees that Mr.
Piccolo “has established the [MSPB]’s IRA jurisdiction,”
Resp’t’s Br. 6, ECF No. 31, and “the case should be re-
manded to the AJ for a hearing” on the merits, id.; see
Letter from Resp’t, ECF No. 42 (“The [R]espondent’s brief
filed in this case has confessed error in the [MSPB]’s
decision . . . .”). Both parties now agree that “the AJ made
legal errors in his jurisdictional findings” and “misread
1 Mr. Piccolo served as a Detention and Deportation
Officer at the Bureau of Immigration and Customs En-
forcement, a division of the Department of Homeland
Security (“DHS”). J.A. 2, 166. At the time of the alleged
retaliation, he also worked on detail to the White House
Security Council’s DHS Human Smuggling Cell. J.A. 166.
His disclosure related to DHS’s practice of releasing
unaccompanied alien children to non-family sponsors with
criminal records. See J.A. 2, 23−24, 136.
PICCOLO v. MERIT SYS. PROT. BD. 3
the record.” Resp’t’s Br. 6, ECF No. 31; see Pet’r’s Br.
20−29, ECF No. 28 (similar). In such a case, we reverse
and remand for additional proceedings below. See Joshua
v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)
(“[S]ummary disposition is appropriate . . . when the
position of one party is so clearly correct as a matter of
law that no substantial question regarding the outcome of
the appeal exists.”).
The MSPB has jurisdiction over an IRA appeal if a pe-
titioner has exhausted all administrative remedies and
makes non-frivolous allegations that “the [petitioner]
made a protected disclosure that was a contributing factor
to the personnel action taken or proposed.” Stoyanov v.
Dep’t of the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007)
(alterations omitted); see 5 U.S.C. § 2302(a) (2012) (defin-
ing prohibited personnel actions), (b)(8)(A)(i) (defining
protected disclosures as, inter alia, that which an employ-
ee “reasonably believes evidences . . . any violation of any
law, rule, or regulation”). An employee may demonstrate
that the disclosure or protected activity was a “contrib-
uting factor” through circumstantial evidence that “the
official taking the personnel action knew of the disclosure”
and the “action occurred within a period of time such that
a reasonable person could conclude” the disclosure con-
tributed to the action. 5 U.S.C. § 1221(e)(1); see Kerrigan
v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1354 (Fed. Cir.
2016).
This court has made clear that the MSPB must “sepa-
rate the issue of jurisdiction from that of the merits of a
petitioner’s case.” Spencer v. Dep’t of the Navy, 327 F.3d
1354, 1356 (Fed. Cir. 2003) (citation omitted). And on
several occasions, we have identified instances where the
MSPB did not meet this requirement in the past. See id.
We reiterate that at the jurisdictional stage, a petitioner
need only assert non-frivolous allegations―allegations
that are not “vague, conclusory, or facially insufficient,”
and that the petitioner “reasonably believe[s]” to be
4 PICCOLO v. MERIT SYS. PROT. BD.
true―of a protected disclosure that was a contributing
factor to a reprisal. Johnston v. Merit Sys. Prot. Bd., 518
F.3d 905, 910 (Fed. Cir. 2008) (internal quotation marks
and citation omitted). A petitioner’s credibility including,
as in this case, consideration of affidavits submitted by an
allegedly retaliatory supervisor claiming no knowledge of
the petitioner’s protected disclosure or motivation to
retaliate, “relate[s] to the merits of [the] claim.” Id. at
911, 912 n.3; see J.A. 6 (improperly considering affidavit
of Mr. Piccolo’s supervisor at the jurisdictional stage).
Non-frivolous allegations suffice at the jurisdictional
stage precisely because, as here, the petitioner may not
have access to all relevant documents or have been pro-
vided an opportunity to conduct discovery. See Johnston,
518 F.3d at 912; see Pet’r’s Original Br. 11–15, ECF No. 9
(detailing outstanding requests under the Freedom of
Information Act). We have also required that petitioners
in IRA appeals be provided “notice of deficiencies before a
claim is finally dismissed” and “an opportunity to cure”
their pleadings where specific details are “readily availa-
ble.” Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1375,
1376 (Fed. Cir. 2016).
Mr. Piccolo’s disclosures allege serious breaches in
DHS’s practices that threaten the safety and security of
minor children. His non-frivolous allegations that such
disclosures contributed to negative personnel action
deserve a merits hearing. Accordingly, the Final Decision
of the Merit Systems Protection Board is
REVERSED AND REMANDED
COSTS
Costs to petitioner.