Jones v. U.S. Merit Sys. Prot. Bd.

103 F.4th 984

Mark JONES; Michael Taylor; Fred A. Wynn, Petitioners, v. UNITED STATES MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 23-1328

United States Court of Appeals, Fourth Circuit

Argued: January 24, 2024

Decided: June 6, 2024

Appeal from the United States Merits Systems Protection Board. (DE-1221-22-0231-W-1)

ARGUED: Tillman Finley, MARINO FINLEY LLP, Washington, D.C., for Petitioners. Stephen William Fung, UNITED STATES MERIT SYSTEMS PROTECTION BOARD, Washington, D.C., for Respondent. ON BRIEF: Daniel Marino, MARINO FINLEY LLP, Washington, D.C., for Petitioners. Allison J. Boyle, General Counsel, Katherine M. Smith, Deputy General Counsel, Jeffrey A. Gaugher, Office of the General Counsel, UNITED STATES MERIT SYSTEM PROTECTION BOARD, Washington, D.C., for Respondent.

Before HARRIS, RICHARDSON, and HEYTENS, Circuit Judges.

Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Harris and Judge Heytens joined.

RICHARDSON, Circuit Judge:

Mark Jones, Michael Taylor, and Fred Wynn ("Petitioners") appealed to the Merit Systems Protection Board ("MSPB"), alleging that their supervisors at Customs and Border Protection ("CBP") retaliated against them for blowing the whistle on CBP's noncompliance with the DNA Fingerprints Act of 2005. But the MSPB dismissed Petitioners' appeal, determining it lacked jurisdiction to hear it. According to the MSPB, Petitioners had not "nonfrivolously" alleged that their supervisors' failure to promote them and dismantling of their CBP division were "personnel actions" as defined in 5 U.S.C. § 2302(a)(2)(A). We reverse. While there may be a high bar for succeeding on the merits before the MSPB, its jurisdictional bar is low. And Petitioners' claims clear that lower bar.

I. Background

A. Facts¹

Acting Director Mark Jones, Acting Deputy Director Michael Taylor, and Program Analyst Fred Wynn led CBP's Weapons of Mass Destruction Division ("WMDD"), a component of CBP's Office of Intelligence. Apart from providing CBP with guidance on weapons of mass destruction, WMDD was tasked with assisting "efforts to disrupt, dismantle[,] and deport" members of the criminal gang MS-13. J.A. 169-70. And it did that latter task well—so well that, in the fall of 2017, CBP praised Petitioners individually, and WMDD as a whole, for their success.

During this period of WMDD's acknowledged success, there were indications that Petitioners would be rewarded with a bump in pay and status. When they helped launch WMDD, Petitioners' jobs were all graded as GS-14.² In 2016, Jones was given the title of Acting Director of WMDD—a GS-15 position—and Taylor the title of Acting Deputy Director. While these positions were "acting" rather than permanent, CBP leadership stated that its "goal [was] to assign permanent supervisory slots, when personnel and budgetary limitations allowed." J.A. 284. So Jones and Taylor expected that they'd be permanently placed in those higher-tier positions. And hopes for permanent advancement weren't limited to Jones and Taylor; leadership communicated that it was "attempt[ing] to secure higher-graded, permanent positions for the division" more broadly. See J.A. 300.

While WMDD succeeded in its efforts against MS-13, this case stems from another task the division was assigned. In October 2016, a Federal Bureau of Investigation agent emailed the then-CBP Commissioner seeking the Agency's cooperation in collecting DNA samples from certain aliens under the DNA Fingerprints Act of 2005. See 34 U.S.C. § 40702(a)(1)(A); 28 C.F.R. § 28.12(b). So CBP tasked WMDD with developing a pilot program (which we'll call the "DNA Project") for doing so. Relevant here, Petitioners were assigned this work.

The work went smoothly until November 2017. That's when Jones reported to Juan Fernandez, the Office of Intelligence's Acting Executive Director, that he believed CBP was "out of compliance" with the DNA Act. J.A. 171. Then, in January 2018, WMDD leadership raised the issue again during a briefing that included members of CBP's Office of Chief Counsel ("OCC"). Afterward, OCC attorney Julie Koller contacted Jones and questioned the presentation's accuracy.

Jones was not the only WMDD employee concerned. In early February, WMDD employee Chad Wood began expressing his concerns about CBP's noncompliance with the DNA Act to colleagues at the U.S. Department of Homeland Security ("DHS"). Soon after, Wood "challenged" Koller to explain why Jones's presentation was wrong and what prevented CBP from complying with the DNA Act. J.A. 172. The response Wood received was unsatisfying. So on February 15, 2018, Wood emailed the Chief Advisor to the DHS Secretary and told him that OCC had issued an order telling WMDD to halt work on the DNA Project. Because Petitioners supported Wood's position, supervisors "perceived [them] as responsible for Wood's February 15 email." Id.

Needless to say, leadership wasn't pleased with Wood's email. In fact, on February 21, they summoned Jones to a meeting to discuss the email. There, leadership told Jones that, because of Wood's email, the DNA Project and the MS-13 project were being removed from WMDD. Not only that, but WMDD was "transferred . . . to work under the Operational Field Testing Division (OFTD) as a branch." J.A. 173 (emphasis omitted). As a result, Jones suffered a "two-step demotion" and Taylor was ousted from management. Id.

The fallout didn't stop there: Wood's badge was taken and he was escorted out of the building; leadership announced that WMDD would be removed from the office space built for the division; Petitioners were removed from daily Office of Intelligence meetings, in which they had been "three of only nine" attendees, J.A. 174; Petitioners' supervisors began disapproving their overtime and revoked Jones's authority to approve overtime; and Wynn was removed from his responsibilities in roughly forty WMDD programs.

In May 2018, Petitioners decided to act. They first reported this conduct to the U.S. Office of Special Counsel ("OSC"), which referred them to the DHS Secretary. Second, "[a]t the suggestion of the OSC Disclosure counsel," Petitioners filed complaints with OSC asserting that CBP leadership had retaliated against them for whistleblowing in violation of 5 U.S.C. § 2302(b)(8). J.A. 36.

In August 2019, OSC sent a withering report to the President which concluded that CBP failed to collect DNA as required by the Act for a decade. Indeed, the report was "the strongest possible step OSC [could] take to rebuke the agency's failure to comply with the law." J.A. 238. And OSC "strongly commend[ed] the whistleblowers for their public service[,] . . . commitment to accountability[,] . . . [and] continued persistence." Id.

B. Procedural History

Four years later, OSC—despite determining that Petitioners' claims of retaliation for whistleblowing were meritorious—terminated its investigation into Petitioners' complaints. So Petitioners each filed an individual right of action with the MSPB, which an Administrative Judge ("AJ") consolidated into a single appeal.

After the appeals were consolidated, the AJ ordered the parties to submit briefs on the MSPB's jurisdiction. Petitioners complied, submitting a brief that alleged twenty-two specific acts of reprisal against them. And they later augmented the brief with a reply to CBP's jurisdictional brief. Appended to the reply was OSC's preliminary findings about Petitioners' complaints.

Upon review, the AJ determined that the MSPB only had jurisdiction over seven of Petitioners' twenty-two asserted personnel actions. Though all of Petitioners' claims satisfied the first two jurisdictional requirements, the AJ found that fifteen of them did not meet the third: that the retaliatory act constitute a "personnel action."

Petitioners focused on three specific retaliatory actions over which the AJ disclaimed jurisdiction: (1) that CBP "[c]eased contemplating permanent promotions for [Petitioner]s, which were anticipated prior to February 15, 2018"; (2) that CBP "[r]elegated WMDD to a branch under . . . OFTD"; and (3) that CBP "[r]educed the WMDD's size and proceeded to dismantle the Division." J.A. 323. Petitioners requested reconsideration of the AJ's dismissal of those three claims, but the AJ declined to revise his judgment. Petitioners then filed a motion for the MSPB's interlocutory review of the AJ's dismissal of their three main claims, but the AJ denied that, too. So Petitioners devised a strategy to secure immediate judicial review of the AJ's dismissal of their claims.

In December 2022, Petitioners moved to voluntarily dismiss—with prejudice—the seven claims over which the AJ found the MSPB had jurisdiction. They also requested that the AJ enter an "initial decision" which would have the effect of finally disposing of the three claims of retaliation they continued to contest. See 5 C.F.R. § 1201.111(b)(3) ("Each initial decision will contain . . . [a]n order making final disposition of the case . . . .").

The AJ issued his initial decision in February 2023. He again explained that invoking the MSPB's jurisdiction requires a petitioner to make a "nonfrivolous allegation of a personnel action under 5 U.S.C. § 2302(a)(2)(A)." J.A. 5. As an initial matter, the AJ grouped all three allegations together and reviewed them as a single assertion that CBP failed to promote Petitioners. Then, while acknowledging that § 2302(a)(2)(A)(ii) states that "a promotion" is a "personnel action," the AJ determined that Petitioners did not make "nonfrivolous" allegations that CBP failed to promote them. "[A] 'failure to make an appointment must manifest itself as a concrete matter than can be taken or done by an agency and reviewed (and undone) by the Board.' " J.A. 8 (quoting Ruggieri v. Merit Sys. Prot. Bd., 454 F.3d 1323, 1326 (Fed. Cir. 2006). And, according to the AJ, that generally requires the agency to either hire another person to the vacant position or to cancel the vacancy. Here, by contrast, "the...