Piccolo v. Merit Systems Protection Board
869 F.3d 1369
| Fed. Cir. | 2017Background
- Petitioner Jason Piccolo was a DHS/ICE Detention and Deportation Officer detailed to the White House Security Council’s DHS Human Smuggling Cell. His disclosure concerned DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records.
- Piccolo brought an Individual Right of Action (IRA) appeal to the Merit Systems Protection Board (MSPB) alleging retaliation for protected whistleblowing (adverse personnel action in response to his disclosure).
- The MSPB AJ dismissed for lack of jurisdiction, finding Piccolo failed to make non-frivolous allegations that his protected disclosure was a contributing factor to the personnel action.
- The MSPB initially defended that dismissal on appeal but later conceded error, agreeing that Piccolo had established IRA jurisdiction and that the case should be remanded for a merits hearing.
- The Federal Circuit reviewed whether the AJ improperly decided jurisdictional facts (including considering supervisor affidavits bearing on credibility) and reiterated standards governing the jurisdictional stage of IRA appeals.
Issues
| Issue | Piccolo's Argument | DHS/MSPB Argument | Held |
|---|---|---|---|
| Whether Piccolo made non-frivolous allegations that a protected disclosure was a contributing factor to adverse personnel action | He alleged specific disclosures about risky DHS practices and contended those disclosures led to retaliation | MSPB/AJ said pleadings were insufficient to show contributing factor | Court held Piccolo made non-frivolous allegations and jurisdiction exists; remanded for merits hearing |
| Whether credibility determinations and supervisor affidavits may be considered at the jurisdictional stage | Piccolo argued credibility belongs to merits and should not be resolved at jurisdiction | MSPB relied on supervisor affidavits to deny jurisdiction | Court held credibility and affidavits relate to merits, not jurisdiction; AJ erred by considering them |
| Whether petitioner must be given notice/opportunity to cure pleading deficiencies before dismissal | Piccolo asserted he lacked documents and could cure deficiencies, citing FOIA requests | MSPB did not provide opportunity before dismissal | Court reiterated requirement to notify and permit cure when details are readily available; remanded |
| Standard for establishing contributing factor at jurisdictional stage | Piccolo relied on circumstantial evidence and timing to satisfy contributing-factor pleading | MSPB required stronger proof at the jurisdictional stage | Court reaffirmed that non-frivolous, reasonably believed allegations suffice at jurisdictional stage |
Key Cases Cited
- Joshua v. United States, 17 F.3d 378 (Fed. Cir.) (summary disposition appropriate when one party’s position is clearly correct)
- Stoyanov v. Dep’t of the Navy, 474 F.3d 1377 (Fed. Cir.) (MSPB IRA jurisdiction requires alleging protected disclosure that was a contributing factor)
- Kerrigan v. Merit Sys. Prot. Bd., 833 F.3d 1349 (Fed. Cir.) (contributing-factor showing may be established by circumstantial evidence, including knowledge and timing)
- Spencer v. Dep’t of the Navy, 327 F.3d 1354 (Fed. Cir.) (jurisdiction must be separated from merits)
- Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905 (Fed. Cir.) (non-frivolous allegations suffice at jurisdictional stage; credibility goes to merits)
- Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370 (Fed. Cir.) (petitioners must be given notice of pleading deficiencies and an opportunity to cure)