Mark S. Rusin v. Department of the Treasury, MSPB Docket No. CH-1221-00-0028-W-1, September 4, 2002.

The Board has jurisdiction over an Individual Right of Action (IRA) appeal if (1) the appellant has exhausted his Office of Special Counsel (OSC) remedies and makes non-frivolous allegations that he made a disclosure protected under section 2302(b)(8) and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).

The appellant worked as a GS-15 Assistant Special Agent-in-Charge (ASAC) in the agency's Chicago office of the Bureau of Alcohol, Tobacco, and Firearms (ATF). On November 5, 1998, he claims to have received an anonymous note which stated that his supervisor had used her Government-issued credit card to make inappropriate and personal purchases. The appellant asked the individual who kept the office credit card records for the folder containing the supervisor's records. The appellant discovered that, using her Government-issued credit card, the supervisor had purchased fourteen lighters and eight key chains, all with the ATF logo on them. These purchases were listed on the credit card certification as office supplies. The appellant asked the individual who kept the credit card records why this was so, and she responded that she did as she was told. The appellant took this to mean that the supervisor had informed the individual who kept the credit card records to call these items office supplies.

On November 9, 1998, the appellant reported these purchases to his second-level supervisor and to the ATF Office of Inspection. On March 10, 1999, the appellant sought corrective action from the Office of Special Counsel (OSC), claiming that the agency had retaliated against him for reporting the supervisor's violation of a law, rule, or regulation and abuse of authority. The appellant claimed that this retaliation took the form of delaying the completion of his Senior Executive Service training, issuing him a letter of reprimand, altering his performance evaluation for the worse, failing to select him for an ASAC position in Phoenix, reporting to the ATF Ombudsman that he has an alcohol problem, and transferring him to Washington, D.C.

On August 30, 1999, OSC sent the appellant a letter notifying him of his right to seek corrective action from the Board through an IRA appeal because it was terminating its investigation of his complaint. The appellant timely filed his IRA appeal with the Board. Applying Geyer v. Department of Justice, 63 M.S.P.R. 13 (1994), the MSPB administrative judge dismissed the appellant's appeal without holding a hearing, finding that the appellant had failed to make a non-frivolous allegation that the Board had jurisdiction over his appeal. The administrative judge found that the agency's Procurement Instruction Memorandum 88-35 and its ATF Government Commercial Credit Card Program are not laws, rules, or regulations; therefore, the appellant's assertion that the supervisor violated them is not a protected disclosure. She further found that the appellant's claim that the supervisor abused her authority by telling the individual who kept the credit card records to misrepresent the purchase of lighters and key chains as office supplies is not a protected disclosure because the appellant could not have reasonably believed that the supervisor's alleged actions resulted in her own personal gain, the gain of preferred others or adversely affected the rights of others.

In his petition for review before the Board, the appellant argued that the MSPB administrative judge erred by denying him a hearing. He argued that he was entitled to a jurisdictional hearing because he raised non-frivolous allegations of facts which, if proven, were sufficient to show jurisdiction. He further argued that the administrative judge erred because the Board has held that the decision as to whether an individual is reasonable in his belief that he has disclosed a violation of law, rule, or regulation or one of the other conditions listed in 5 U.S.C. § 2302(b)(8) requires a hearing.

The Board began by noting the tension between Geyer and Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001), a recent decision by the Federal Circuit. Under Geyer, to establish Board jurisdiction over an IRA appeal, an appellant must show by preponderant evidence that: he engaged in whistleblower activity; the agency took or failed to take, or threatened to take or fail to take, a "personnel action;" he raised the issue before the OSC; and proceedings before the OSC were exhausted. Yunus, however, states that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes non-frivolous allegations that: (1) he made a protected disclosure, and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action. Thus, under Geyer, a determination of IRA jurisdiction turns on the weight of the evidence. Unlike Geyer, Yunus makes the "causative" (contributing factor) element jurisdictional, at least insofar as the appellant must make a non-frivolous allegation of causation under Yunus The Board found that it was clear from Yunus and other decisions that the Federal Circuit disapproves of the Geyer test. The Board thus overruled Geyer and adopted the Yunus approach.

In this case the Board found that the appellant had exhausted his OSC remedy, that he made non-frivolous allegations, that he was affected by "personnel actions," and that under the knowledge-timing test he made a non-frivolous allegation of contributing factor. The Board then explained that the appellant alleged that he disclosed a violation of a "rule" within the meaning of 5 U.S.C. §2302 (b)(8). Whether a directive is a "rule" does not depend on the title of the document in which it appears. Rather, a substantive examination is required. Although the term "rule" is not defined in the Whistleblower Protection Act (WPA), considering the remedial purpose of the WPA, dictionary definitions of "rule," and the purpose of the instructions on the use of government credit cards, the Board concluded on the facts presented that the appellant made a non-frivolous allegation that he reasonably believed what he disclosed was a violation of a "rule." The Board did not adopt a specific definition of "rule."

Accordingly, finding the Yunus test met, the Board reversed the initial decision and remanded the appeal to the Regional Office for further adjudication.