Establishing Temporal Nexus and Defining Protected Activity Under the Whistleblower Protection Act: Smith v. MSPB

Introduction

Janel N. Smith, an analyst with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), brought a whistleblower retaliation appeal before the Merit Systems Protection Board (MSPB) after being passed over for an internal promotion. Smith alleged that her prior protected disclosures—beginning with a 2010 Inspector General report and culminating in subsequent appeals and litigation—prompted adverse personnel actions against her, including her nonselection in 2021 for an Industry Operations Investigator position. The Board dismissed her appeal for failure to nonfrivolously plead (1) that she engaged in protected activity as defined by the Whistleblower Protection Act (WPA) and (2) that those activities contributed to any personnel action. On review, the Seventh Circuit denied Smith’s petition, reinforcing exacting pleading requirements, clarifying the scope of protected activity, and emphasizing the need for a close temporal nexus between disclosure and adverse action.

Summary of the Judgment

The Seventh Circuit reviewed the MSPB’s decision under the deferential “substantial evidence and not arbitrary or capricious” standard (5 U.S.C. § 7703(c)). Key holdings include:

Smith’s 2010 disclosure to the ATF Inspector General and her 2013 MSPB appeal qualified as nonfrivolous allegations of protected activity under 5 U.S.C. § 2302(b)(8).
Her various other filings—an EEOC harassment complaint, a Federal Tort Claims Act suit, a Freedom of Information Act (FOIA) request—did not constitute protected activity under the WPA.
Smith failed to nonfrivolously plead that denial of training was a “personnel action” under § 2302(a)(2)(A)(ix), lacking detail on the type of training and its nexus to promotion opportunities.
Her sole nonfrivolous personnel action—nonselection in 2021—followed her protected disclosures by at least five years, too remote under the “knowledge/timing” test to show contributing factor.
Her invocation of a “cat’s paw” theory was unsupported by any plausible link showing that an IG official unduly influenced the selecting authority.

Accordingly, the court affirmed the MSPB’s dismissal and denied review.

Analysis

1. Precedents Cited

Delgado v. MSPB (7th Cir. 2018): Established the standard of review for MSPB decisions (5 U.S.C. § 7703(c)) and outlined the “knowledge/timing” circumstantial test for contributing factor.
Yunus v. Department of Veterans Affairs (Fed. Cir. 2001) and Hicks v. MSPB (Fed. Cir. 2016): Defined employee burden to show exhaustion and nonfrivolous pleadings of protected disclosure and contributing factor under the Whistleblower Protection Act.
Young v. MSPB (Fed. Cir. 2020): Clarified the meaning of “nonfrivolous allegation”—the facts must be more than conclusory, plausible on their face, and material under 5 C.F.R. § 1201.4(s).
Spruill v. MSPB (Fed. Cir. 1992): Held that EEOC complaints do not constitute protected disclosures under the WPA.
Salinas v. Department of Army (M.S.P.B. 2003): Two-and-a-half year gap between disclosure and adverse action was too remote to support causation under the “knowledge/timing” test.
Staub v. Proctor Hospital (U.S. Supreme Court 2011) and Aquino v. DHS (M.S.P.B. 2014): Articulated the “cat’s paw” doctrine, where a biased subordinate influences an unbiased decision-maker.

2. Legal Reasoning

The decision turned on three interlocking elements of the WPA framework:

Protected Activity (5 U.S.C. § 2302(b)(8)–(9)):
- Smith’s 2010 IG report and 2013 MSPB appeal cleared the nonfrivolous pleading threshold.
- Her EEOC and FTCA filings, and FOIA requests, fell outside the WPA’s statutory definition, which is limited to reporting “violation of any law, rule, or regulation,” gross mismanagement, abuse of authority or danger to public safety.
Personnel Action (5 U.S.C. § 2302(a)(2)(A)):
- Nonselection for the Investigator role was a qualifying action.
- Denial of training must be shown to “reasonably be expected to lead to promotion or other personnel action”; Smith’s allegations were too vague to meet that standard.
Contributing Factor (5 U.S.C. § 1221(a), (e)(1)):
- The court applied the two-prong “knowledge/timing” test: the decision-maker’s knowledge of protected activity and a close temporal sequence.
- Five-year lapse between Smith’s last protected action (2013 appeal) and the 2021 nonselection defeated any inference of causation as a matter of law.
- Her “cat’s paw” theory failed absent credible allegations that the IG official influenced the 2021 selecting official out of retaliatory animus.

3. Impact

Smith v. MSPB underscores the exacting nature of whistleblower pleadings and the limited scope of protected activity under the WPA. Practitioners must:

Ensure that disclosures fit squarely within § 2302’s definition and document them with specificity (who, what, when, where, how).
Plead factual detail to show how training or other alleged denials qualify as “personnel actions.”
Demonstrate a close temporal nexus—preferably within months, not years—between disclosure and adverse action or supply other affirmative proof of causation.
Recognize that EEOC filings, FOIA requests, and tort suits typically will not trigger WPA protection absent statutory amendment or further regulatory expansion.

Lower courts and the MSPB will cite Smith to reject causation arguments where the alleged retaliation is remote in time, and to refuse protections for peripheral administrative filings.

Complex Concepts Simplified

Nonfrivolous Pleading: Allegations must be more than mere labels or conclusions; they must plausibly show protected activity and link to adverse action.
Protected Disclosure: Under 5 U.S.C. § 2302(b)(8), only reports of legal/regulatory violations, gross mismanagement, abuse of authority, or danger to public safety qualify.
Personnel Action: Broadly includes hiring, firing, promotions, training decisions—only if those employment decisions have material impact on terms/conditions of employment.
Knowledge/Timing Test: Circumstantial evidence of retaliatory motive requires both decision-maker knowledge and a close-in-time connection between whistleblowing and adverse action.
Cat’s Paw Theory: Holds an employer liable when a biased subordinate’s motive is imputed to an unbiased decision-maker who thus unknowingly carries out the retaliation.

Conclusion

Smith v. Merit Systems Protection Board crystallizes critical standards for whistleblower appeals: limiting the scope of protected activity, demanding precise and fleshed-out allegations, and requiring a demonstrable temporal or evidentiary link between disclosure and retaliation. Its rigorous application of the WPA’s statutory text and Federal Circuit precedents sends a clear message to federal employees and counsel: to prevail in an MSPB appeal, one must plead with clarity, heed the statutory definitions, and present timely, concrete causal connections. Future litigants will find in Smith a cautionary blueprint on what not to omit in framing and substantiating whistleblower claims.