Keith Reilly v. United States Department of Labor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-1347
KEITH REILLY,
Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
On Petition for Review of an Order of the Merit Systems Protection Board. (DC-1221-22-
0531-W-3; DC-1221-22-0093-B-1; DC-1221-22-0531-W-2)
Argued: January 29, 2026 Decided: April 2, 2026
Before DIAZ, Chief Judge, and RICHARDSON and RUSHING, Circuit Judges.
Petition denied by unpublished opinion. Chief Judge Diaz wrote the opinion, in which
Judge Richardson and Judge Rushing joined.
ARGUED: Jacob M. Small, J. MADISON PLC, McLean, Virginia, for Petitioner. Mollie
Lenore Gropp, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Brett A. Shumate, Assistant Attorney General, Patricia M.
McCarthy, Director, Elizabeth M. Hosford, Joshua W. Moore, Commercial Litigation
Branch, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Matthew N. Babington, Office of the Solicitor, Jonathan Heinz, Office of Inspector
General, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for

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Respondent.
Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Chief Judge:
When Keith Reilly worked for the United States Department of Labor’s Office of
the Inspector General, he reported being harassed by a supervisor. But around the same
time, Reilly disclosed several medical disorders, and two doctors found him unfit for duty.
So the Department relieved him of his position. In the years after, Reilly sought other
positions within the Department but was either blocked from applying or not selected.
Reilly argues that the Department took these actions in retaliation for his whistleblowing.
The Merit Systems Protection Board dismissed Reilly’s claims, and we find no
reversible error in its reasoning. So we deny the petition for review.
I.
By law, federal agencies may not take, or fail to take, a “personnel action” because
an employee disclosed something that he “reasonably believes evidences [] (i) any
violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health or
safety . . . .” 5 U.S.C. § 2302(b)(8).
Agencies also can’t retaliate against an employee because the employee “exercise[d]
[] any appeal, complaint, or grievance right granted by any law, rule, or regulation,” or
“cooperat[ed] with or disclos[ed] information to the Inspector General . . . of an agency, or
the Special Counsel.” Id. § 2302(b)(9).

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An aggrieved employee can seek corrective action from the Merit Systems
Protection Board. Id. § 1221(a). But the Board only has jurisdiction over cases that meet
two requirements.
First, the employee must have exhausted his administrative remedies before the
Office of Special Counsel. See id. § 1214 (a)(3); 5 C.F.R. § 1201.57(c)(1). Second, the
employee must make “nonfrivolous allegations” that “(1) a personnel action was
threatened, proposed, taken, or not taken (2) because of (3) the [employee’s]
whistleblowing activity.” Jones v. U.S. Merit Sys. Prot. Bd., 103 F.4th 984, 998–99 (4th
Cir. 2024) (citation modified).
If the Board has jurisdiction, the employee bears the burden of establishing a prima
facie case of whistleblower retaliation. He must demonstrate, by a preponderance of
evidence, both that he engaged in a protected activity and that the activity was a
“contributing factor” in the agency’s decision to take the disputed personnel action. See 5
U.S.C. § 1221(e); Mikhaylov v. Dep’t of Homeland Sec., 62 F.4th 862, 864 (4th Cir. 2023).
If the employee makes a prima facie case, the burden shifts to the agency. The
agency can avoid corrective action if it establishes, by clear and convincing evidence, “that
it would have taken the same personnel action in the absence of such [protected]
disclosure.” 5 U.S.C. § 1221(e)(2).

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II.
A.
This appeal has an extended history that begins in 2016, when Reilly worked as a
criminal investigator for the Department of Labor. The Department assigned Reilly a new
supervisor that year, who allegedly began harassing Reilly and other colleagues.
Reilly reported this behavior to Department officials. During one of these
conversations, he also disclosed that he was suffering from several medical conditions and
that he “felt that [he] could not perform the duties of a criminal investigator.” Joint
Appendix (“J.A.”) 204.
The Department notified Reilly the next day that, because of what he’d said about
his medical conditions, it was restricting him from carrying a firearm, placing him on
telework, and requiring him to undergo a fitness-for-duty examination. In response, Reilly
confirmed again that he was “no longer able to perform [his] duties as a [c]riminal
[i]nvestigator due to [his] medical condition.” J.A. 205.
But the Department didn’t just take Reilly’s word for it. Reilly’s physician also
recommended that the Department relieve Reilly of his duties because of his anxiety and
panic disorder. And the Department’s psychologist diagnosed Reilly with generalized
anxiety disorder, panic disorder, and delusional disorder, and found him unfit for duty.
The Department then began removing Reilly from his position, explaining that he
wasn’t medically fit for duty. After some negotiations, the parties agreed that rather than
be removed, Reilly would apply for disability retirement and remain on unpaid leave in the
meantime.

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While his disability retirement application was pending, Reilly’s counsel notified
the Department that Reilly’s doctor recently cleared him to work, so “the representations
[Reilly] made in his disability retirement application as to the disabling nature of his
condition [were] no longer accurate.” J.A. 1009. Reilly’s counsel asked the Department
to reinstate Reilly as a criminal investigator and transfer him to a new office. But the Office
of Personnel Management approved Reilly’s disability retirement a few days later, and the
Department refused to consider his request for reinstatement.
Reilly’s retirement took effect in February 2018.
B.
Nearly a year later, the Department announced that it was looking for a temporary
criminal investigator to fill in for an individual on military leave. The Department needed
someone who could “step right into the position,” so it limited the applicant pool to current
employees in the Department’s Office of the Inspector General. J.A. 836–37. Since Reilly
was on disability retirement, he couldn’t apply.
Reilly filed a complaint with the Office of Special Counsel, alleging that the
Department designed the vacancy announcement to prevent him from applying because
he’d previously reported workplace harassment. The Office terminated its inquiry without
acting, so Reilly appealed to the Merit Systems Protection Board.
An administrative judge dismissed Reilly’s appeal for lack of jurisdiction. Relevant
here, the judge found that he hadn’t sufficiently alleged that his protected activity was a
contributing factor in the Department’s decision to limit the applicant pool to current
employees. Reilly petitioned the full Board for review of that finding.

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The Board granted Reilly’s petition for review and reversed the administrative
judge’s jurisdictional ruling. It found that Reilly had adequately alleged that his protected
disclosures were a “contributing factor in the [Department’s] decision to effectively
exclude him from the application pool” for the temporary investigator position. J.A. 374.
With jurisdiction established, the Board remanded the case for consideration on the
merits.
C.
While Reilly’s inability-to-apply claim was making its way to the Board, he filed
another complaint with the Office of Special Counsel. This complaint stemmed from a
separate vacancy announcement, in which the Department sought a criminal investigator
to provide protective services to agency officials. Reilly was able to apply for this job, but
he wasn’t selected.
Reilly alleged that the Department granted the selected candidate an “unauthorized
[hiring] preference or advantage.” J.A. 878. He claimed that the hiring officials
advantaged the other candidate by “ma[king] [Reilly’s] score lower and provid[ing] false
statements that [he] did not work protection assignments.” J.A. 878. But he didn’t mention
any protected disclosures or argue that the Department was retaliating against him for
whistleblowing.
Shortly after submitting this complaint, Reilly emailed the Office of Special
Counsel. He attached a screenshot showing that he’d not been selected for the protective
services job, along with several attachments explaining his path to disability retirement.
Reilly also identified his other pending appeal, noting that he was involved in a separate

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case “with regard to ongoing Whistleblower Retaliation against the U.S. Department of
Labor.” J.A. 1279.
When the Office of Special Counsel terminated its inquiry into Reilly’s non-
selection claim, Reilly filed another appeal to the Board. In his brief, Reilly argued—for
the first time—that the Department rejected him in retaliation for his whistleblowing. He
later amended the appeal to include additional job rejections, which he argued supported a
broader theory that the Department was “blacklisting” him from employment.
The administrative judge made jurisdictional findings that led it to dismiss these
other “rejection” claims and limit the scope of Reilly’s appeal to the protective services job
application. The judge also dismissed Reilly’s blacklisting theory as merely “speculative
conjecture.” J.A. 2067–68.
The judge later dismissed the entire appeal without prejudice, pending the outcome
of Reilly’s petition for review in his inability-to-apply case. After the Board remanded that
case, Reilly refiled his non-selection claim. The same administrative judge heard both
cases.
D.
The administrative judge issued separate decisions on Reilly’s two claims. On the
merits of the inability-to-apply claim, the judge concluded that Reilly established a prima
facie case of whistleblower retaliation. The judge found that Reilly proved by a
preponderance of evidence that he’d made protected disclosures and that those disclosures
were a contributing factor in the Department’s decision to limit the applicant pool to
internal candidates.

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So the burden shifted to the Department to show that it would have taken the same
personnel action in the absence of Reilly’s protected disclosures. See 5 U.S.C.
§ 1221(e)(2). The administrative judge found that the Department met this burden.
Using the framework set out in Carr v. Soc. Sec. Admin., 185 F.3d 1318 (Fed. Cir.
1999), the judge concluded that (1) the Department had legitimate reasons for limiting the
position to internal candidates, (2) there was only weak evidence of retaliatory motive, and
(3) there was no evidence one way or another regarding how the Department treats
similarly situated employees. Since two factors weighed in favor of the Department and
one was neutral, the judge denied Reilly corrective action.
The judge separately dismissed Reilly’s non-selection claim for lack of jurisdiction,
finding that he’d failed to exhaust his remedies. The judge explained that Reilly’s
complaint to the Office of Special Counsel never alleged that the Department’s hiring
decision was retaliation for whistleblowing—he only claimed that the Department gave
another applicant a hiring advantage. And Reilly hadn’t included any “underlying factual
allegations” that showed “that his whistleblowing was a contributing factor in his non-
selection.” J.A. 2697. Since Reilly hadn’t “provided [the Office of Special Counsel] with
a sufficient basis to pursue an investigation” for whistleblowing retaliation, the judge
concluded that he failed to exhaust his remedies. J.A. 2696.
Alternatively, the judge reasoned that even if it had jurisdiction, Reilly’s claim
failed on the merits because he hadn’t proved that his protected disclosures were a
contributing factor in the Department’s hiring decision. The judge found that the

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Department’s decision was more likely based on the chosen candidate’s superior
qualifications and experience.
This appeal followed.*
III.
Our review of Merit Systems Protection Board decisions “is very limited.”
Mikhaylov, 62 F.4th at 868. “We may only set aside agency actions, findings, or
conclusions if they are ‘(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial evidence.’” Flynn v. U.S. Sec. &
Exch. Comm’n, 877 F.3d 200, 204 (4th Cir. 2017) (quoting 5 U.S.C. § 7703(c)).
Having thoroughly considered the administrative record, as well as the parties’
briefs and oral arguments, we’re satisfied that the Board’s decisions are supported by
substantial evidence and contain no reversible error. Accordingly, we adopt the Board’s
reasoning and deny Reilly’s petition for review.
PETITION DENIED
* Reilly chose not to petition the full Board for review of either decision, so the
decisions below became final thirty-five days after issuance. We now have jurisdiction
under 5 U.S.C. § 7703(b)(1)(B).

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