Michael J. Costello v. Office of Special Counsel, and Merit Systems Protection Board, Intervenor

FRIEDMAN, Senior Circuit Judge.

This appeal challenges the decision of the Merit Systems Protection Board (Board) that the appellant Michael Costello violated the Whistleblower Protection Act by transferring a subordinate employee (and refusing to transfer him to a location he preferred) in retaliation for the employee’s disclosure of his supervisor’s misconduct. We reverse.

I

The underlying facts are largely undisputed. The following statement is based upon the facts found by the Board’s administrative law judge and by the Board, and facts in the record.

A. At the time of the events in this…