Mark Abernathy v. Department of the Army, 2022 MSPB 37

Appellant (a contractor) disclosed to the Army OIG in Aug 2012 that funds earmarked for Overseas Contingency Operations were used to buy video equipment for other purposes.
In Sept 2012 the appellant learned he was not selected for a position; he later learned he was not referred to the selecting official.
He filed a complaint with OSC alleging the nonselection was retaliation for his OIG disclosure and then brought an IRA appeal to the MSPB.
The administrative judge dismissed for lack of jurisdiction, concluding the disclosure was not protected because the appellant was neither an employee nor an applicant when he disclosed.
On review the Board (following Greenup and Weed and noting the 2018 NDAA clarification) held that disclosures made before appointment or application may be protected, found the appellant alleged a reasonable-belief protected disclosure and causation, and remanded for further adjudication.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a disclosure made before one is an employee or applicant is protected under 5 U.S.C. § 2302(b)(8)	Protections should extend to disclosures made before appointment/application	Protection requires the individual to be an employee or applicant at time of disclosure	Board follows Greenup/Weed: disclosure may be protected even if made before appointment/application; 2018 NDAA codified this view
Whether failure to refer/select is a "personnel action" under § 2302(a)	Nonreferral equals failure to appoint and is a personnel action	Nonreferral is not a covered personnel action	Board: failure to refer/appoint is a personnel action for IRA jurisdiction
Whether appellant plausibly alleged a protected disclosure (reasonable belief)	He reasonably believed the purchase violated acquisition regulations and misused OCO funds	Agency contended disclosure was not protected/not reasonably believed to show violation	Board: appellant made a nonfrivolous allegation of reasonable belief in a regulatory violation
Whether the disclosure was a contributing factor in the personnel action	Selecting official (a subject of the disclosure) told appellant one month after disclosure he would not select him; nonreferral followed days later	Agency disputed causation/knowledge	Board: knowledge-timing test met at jurisdictional stage; allegations suffice to show contributing factor

Greenup v. Department of Agriculture, 106 M.S.P.R. 202 (2007) (Board held disclosures need not be made while person is employee/applicant to be protected)
Weed v. Social Security Administration, 113 M.S.P.R. 221 (2010) (followed Greenup; disclosures before appointment/application can be protected)
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002) (jurisdictional requirements for IRA appeals)
Schoenig v. Department of Justice, 120 M.S.P.R. 318 (2013) (reasonable-belief test for protected disclosures)
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365 (2013) (contributing-factor standard at jurisdictional stage)
Dorney v. Department of the Army, 117 M.S.P.R. 480 (2012) (failure to appoint is a personnel action)