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Tao v. Merit Systems Protection Board

 
APPEAL NO.
20-1834
OP. BELOW
MSPB
OPINION
May 7, 2021
SUBJECT
Jurisdiction
AUTHOR
Per Curiam

Issue(s) Presented

  1. “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred in failing to consider whether Dr. Tao had engaged in protected activity under 5 U.S.C. § 2302(b)(9) (activity described therein is commonly referred to as ‘(b)(9)’ activity along with ‘(b)(8)’ activity).”
  2. “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred in determining that Dr. Tao lacked a reasonable belief that her disclosures evidenced a violation of law, rule, or regulation.”
  3. “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred in determining that Dr. Tao lacked a reasonable belief that her disclosures evidenced gross mismanagement, abuse of authority, a substantial and specific danger to public health or safety, or a gross waste of funds.”
  4. “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred by failing to address certain disclosures as included in Dr. Tao’s submissions to the Board.”
  5. “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board was correct in finding Dr. Tao had exhausted the administrative remedies of the Office of Special Counsel prior to her IRA appeal to the Board.”
  6. “Whether, for the purpose of a jurisdictional ruling prior to hearing, the relevant disclosures and protected activities were contributing factors to the relevant personnel actions. For the purpose of this jurisdictional ruling, this would simply require a showing that the Responsible Management Officials new of the disclosure or protected activity, and that the action was taken within a reasonable time thereafter.”

Holding

“We first describe Dr. Tao’s sixteen allegations, and as to each, the AJ’s ruling, and the position on review of the Board and OSC. . . .

We reverse the AJ as to items (2), (3), (5)–(8), and (10), agree with the Board that they at least in part allege protected activities and disclosures over which the Board has jurisdiction, and remand for further proceedings. Our reversal is limited to the parts of these items as to which the Board has conceded the AJ erred or likely erred. As to the parts of these items that the Board has not conceded, we vacate and remand for the Board to reconsider or consider in the first instance.

The Board takes no position on items (1), and (4) which the AJ did address in his ruling, and (12), which the AJ appears to have addressed at least in part, or items (9), (11), and (13)–(16), which the AJ did not address. We remand these aspects of Dr. Tao’s claim for the Board to reconsider or consider in the first instance.”

Posts About this Case

Date
Selected Proceedings and Orders
August 4, 2020
Brief of Petitioner
August 13, 2020
Corrected Brief of Amicus Curiae U.S. Office of Special Counsel in Support of Petitioner and in Favor of Reversing the Merit Systems Protection Board's Decision
October 29, 2020
Brief for Respondent Merit Systems Protection Board
May 7, 2021
Opinion