Gary Steven Kalus v. Department of Homeland Security
Background
- Appellant Gary Kalus, a National Import Specialist at DHS/CBP, filed an IRA appeal alleging his branch chief failed to nominate him for a FY2011 performance award in retaliation for a September 16, 2011 letter alleging supervisor retaliation in violation of 5 U.S.C. § 2302(b)(8).
- Agency moved to dismiss for lack of jurisdiction, arguing Kalus did not nonfrivolously allege a protected disclosure or that the chief’s failure to nominate was a personnel action and that the chief knew of the disclosure.
- The administrative judge initially dismissed the appeal as untimely; the Board reversed and remanded, finding timeliness satisfied.
- On remand the AJ dismissed for lack of jurisdiction, finding Kalus failed to nonfrivolously allege a protected disclosure and that, even if covered by WPEA section 2302(b)(9)(A)(i), events predated the WPEA’s effective date; the AJ also found no showing the branch chief knew of the disclosure.
- On petition for review, the Board vacated the remand initial decision and dismissed the appeal on other grounds: the chief’s failure to nominate was not a "personnel action" under 5 U.S.C. § 2302(a)(2)(A) because it had no practical consequence given agency award policy allowing self- or peer-nomination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8) | Kalus alleged his 9/16/2011 letter reported supervisor retaliation and thus was a protected disclosure | Agency argued Kalus failed to nonfrivolously allege a protected disclosure | Board found appellant did not nonfrivolously allege a protected disclosure on remand (AJ’s analysis questioned on standard), but dismissal rested on other grounds below |
| Whether failure to nominate for an award is a "personnel action" | Kalus treated the denial/non‑nomination as an actionable personnel action causing him harm | Agency argued non‑nomination had no practical consequence because policy permitted self- or peer-nomination and a JAC review process | Held: Chief’s failure to nominate is not a personnel action—no practical consequence under § 2302(a)(2)(A) given nomination/award procedures |
| Whether the alleged disclosure was a contributing factor (knowledge element) | Kalus contended his disclosure led to reprisal by the branch chief | Agency contended there is no evidence the branch chief knew of the disclosure so it could not be a contributing factor | AJ found no evidence the branch chief was aware; Board dismissed on personnel-action ground without resolving contributing-factor requirement conclusively |
| Applicability of WPEA (retroactivity) | Kalus argued protected activity could be considered under WPEA provisions | Agency argued WPEA protections effective Dec. 27, 2012, do not reach 2011 events | AJ noted that even if WPEA section applied, appellant could not bring IRA under that section for 2011 events (pre‑WPEA) |
Key Cases Cited
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir.) (jurisdictional standard for IRA appeals requires nonfrivolous allegations of protected disclosure and contributing factor)
- King v. Department of Health & Human Services, 133 F.3d 1450 (Fed. Cir.) (an action must have practical consequences to be a personnel action under the WPA)
- Mattil v. Department of State, 118 M.S.P.R. 662 (MSPB 2012) (definition/scope of personnel action under § 2302(a)(2)(A))
- Mastrullo v. Department of Labor, 123 M.S.P.R. 110 (MSPB 2015) (denial of time‑off award can be a personnel action)
- Hagen v. Department of Transportation, 103 M.S.P.R. 595 (MSPB 2006) (denial of cash award is a personnel action)