for review of the Merit Systems Protection Board in No.
J. Gajarsa, Latham & Watkins LLP, Washington, DC, for
petitioner. Also represented by Gabriel Bell.
M. Morrow, Office of the General Counsel, Merit Systems
Protection Board, Washington, DC, for respondent. Also
represented by Katherine M. Smith, Jeffrey A. Gauger.
Prost, Chief Judge, Mayer and Wallach, Circuit Judges.
WALLACH, CIRCUIT JUDGE.
Jason John Piccolo appeals the final decision of the Merit
Systems Protection Board ("MSPB") dismissing, for
lack of jurisdiction, his individual right of action
("IRA") appeal claiming that he was subject to
adverse personnel action in retaliation for protected
whistleblowing activity. See Piccolo v. Dep't of
Homeland Sec., No. DC-1221-16-0305-W-1, 2016 WL 2893596
(M.S.P.B. May 10, 2016) (J.A. 1-13). The MSPB found that Mr.
Piccolo met all of the grounds required to establish
jurisdiction except for the requirement to allege
non-frivolous allegations "to demonstrate that his
protected activity was a contributing factor in the
agency's decision to take [adverse] personnel
action." J.A. 5.
we appointed pro bono counsel for Mr. Piccolo and the case
was re-briefed, see Order, ECF No. 26, the MSPB
argued that the decision of its Administrative Judge
("AJ") "should [be] affirm[ed]."
Resp't's Original Br. 16, ECF No. 18. The MSPB now
agrees that Mr. Piccolo "has established the
[MSPB]'s IRA jurisdiction, " Resp't's Br. 6,
ECF No. 31, and "the case should be remanded to the AJ
for a hearing" on the merits, id.; see
Letter from Resp't, ECF No. 42 ("The
[R]espondent's brief filed in this case has confessed
error in the [MSPB]'s decision . . . ."). Both
parties now agree that "the AJ made legal errors in his
jurisdictional findings" and "misread the
record." Resp't's Br. 6, ECF No. 31;
see Pet'r's Br. 20-29, ECF No. 28 (similar).
In such a case, we reverse and remand for additional
proceedings below. See Joshua v. United States, 17
F.3d 378, 380 (Fed. Cir. 1994) ("[S]ummary disposition
is appropriate . . . when the position of one party is so
clearly correct as a matter of law that no substantial
question regarding the outcome of the appeal exists.").
MSPB has jurisdiction over an IRA appeal if a petitioner has
exhausted all administrative remedies and makes non-frivolous
allegations that "the [petitioner] made a protected
disclosure that was a contributing factor to the personnel
action taken or proposed." Stoyanov v. Dep't of
the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007)
(alterations omitted); see 5 U.S.C. § 2302(a)
(2012) (defining prohibited personnel actions), (b)(8)(A)(i)
(defining protected disclosures as, inter alia, that which an
employee "reasonably believes evidences . . . any
violation of any law, rule, or regulation"). An employee
may demonstrate that the disclosure or protected activity was
a "contributing factor" through circumstantial
evidence that "the official taking the personnel action
knew of the disclosure" and the "action occurred
within a period of time such that a reasonable person could
conclude" the disclosure contributed to the action. 5
U.S.C. § 1221(e)(1); see Kerrigan v. Merit Sys.
Prot. Bd., 833 F.3d 1349, 1354 (Fed. Cir. 2016).
court has made clear that the MSPB must "separate the
issue of jurisdiction from that of the merits of a
petitioner's case." Spencer v. Dep't of the
Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003) (citation
omitted). And on several occasions, we have identified
instances where the MSPB did not meet this requirement in the
past. See id. We reiterate that at the
jurisdictional stage, a petitioner need only assert
non-frivolous allegations―allegations that are not
"vague, conclusory, or facially insufficient, " and
that the petitioner "reasonably believe[s]" to be
true―of a protected disclosure that was a contributing
factor to a reprisal. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 910 (Fed. Cir. 2008) (internal
quotation marks and citation omitted). 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." Id. at 911, 912 n.3;
see J.A. 6 (improperly considering affidavit of Mr.
Piccolo's supervisor at the jurisdictional stage).
Non-frivolous allegations suffice at the jurisdictional stage
precisely because, as here, the petitioner may not have
access to all relevant documents or have been provided an
opportunity to conduct discovery. See Johnston, 518
F.3d at 912; see Pet'r's Original Br. 11-15,
ECF No. 9 (detailing outstanding requests under the Freedom
of Information Act). We have also required that petitioners
in IRA appeals be provided "notice of deficiencies
before a claim is finally dismissed" and "an
opportunity to cure" their pleadings where specific
details are "readily available." Cahill v.
Merit Sys. Prot. Bd., 821 F.3d 1370, 1375, 1376 (Fed.
Piccolo's disclosures allege serious breaches in
DHS's practices that threaten the safety and security of
minor children. His non-frivolous allegations that such
disclosures contributed to negative personnel action deserve
a merits hearing. Accordingly, the Final Decision of the
Merit Systems Protection Board is REVERSED AND