Piccolo v. Merit Systems Protection Board

Piccolo, an officer at the Bureau of Immigration and Customs Enforcement, within the Department of Homeland Security (DHS) made a disclosure related to DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records. The Merit Systems Protection Board (MSPB) dismissed, for lack of jurisdiction, his individual right of action appeal claiming that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. The MSPB found that he failed to make nonfrivolous allegations “to demonstrate that his protected activity was a contributing factor in the agency’s decision to take [adverse] personnel action,” 5 U.S.C. 1221(e)(1). The MSPB subsequently agreed that Piccolo had established jurisdiction and that “the AJ made legal errors in his jurisdictional findings” The Federal Circuit reversed and remanded, “reiterating” that a petitioner’s credibility including, as in this case, consideration of affidavits submitted by an allegedly retaliatory supervisor claiming no knowledge of the petitioner’s protected disclosure or motivation to retaliate, “relate[s] to the merits of [the] claim.” Non-frivolous allegations suffice at the jurisdictional stage Piccolo’s disclosures allege serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to negative personnel action deserve a merits hearing. View "Piccolo v. Merit Systems Protection Board" on Justia Law