U.S. Merit Systems Protection Board 
Case Report for June 24, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Justin Christopher Graves
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 24
Docket Number:  CH-1221-15-0123-W-1
Issuance Date:  June 17, 2016
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosures

    The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The agency terminated the appellant's appointment to the position of Biological Lab Technician.  Although the agency stated that it took this action based on a lack of available work, the appellant asserted that the agency's action was retaliation for protected activity, i.e., his truthful testimony before an Administrative Investigation Board (AIB) in support of a lead researcher, C.K., who was being investigated by the agency for scientific research misconduct.  The appellant also asserted that the termination was taken in reprisal for disclosures of gross mismanagement, a gross waste of funds, and a hostile environment, which he made via a grievance after he testified before the AIB.  Without conducting a hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that:  (1) the Board did not have jurisdiction of the appeal as an adverse action under chapter 75 because his appointment under 38 U.S.C. 7405(a) excluded him from coverage and because he was serving a temporary appointment limited to 2 years or less and was therefore not an "employee"; (2) the appellant's testimony in support of C.K. during an AIB investigation concerning alleged research misconduct did not involve protected activity under 5 U.S.C. 2302(b)(9)(B) because it was not provided pursuant to an appeal, complaint, or grievance right exercised by C.K.; (3) the filing of a grievance is not a protected activity unless the grievance was itself intended to remedy a violation of 5 U.S.C. 2302(b)(8), i.e., retaliation for whistleblowing, and that was not the nature of the appellant's grievance; and (4) although the appellant claimed to have reported gross mismanagement, his OSC complaint and correspondence provided no supporting details regarding this conclusory assertion.  

Holdings:  The Board  denied the appellant's petition for review and affirmed the initial decision as modified:

1. The administrative judge correctly determined that, although the appellant is not an "employee" entitled to appeal an adverse action under chapter 75, he is an employee for purposes of filing a whistleblower reprisal claim.

2. The administrative judge correctly found that the appellant failed make nonfrivolous allegations that he raised before OSC a claim that the agency terminated his employment in reprisal for reporting gross mismanagement and a gross waste of funds.  In any event, the appellant's assertions regarding gross mismanagement and a gross waste of funds relate to his contention that, after the agency initiated its investigation and precluded the appellant and others from continuing their research, the agency nevertheless instructed the affected individuals to come to work and get paid "for not working."  He identified these assertions as having been made only in the course of his grievances.  The Board does not have jurisdiction over an IRA appeal arising out of disclosures made solely during grievance proceedings and not separately disclosed to the agency.  

3.  The Board rejected the appellant's contention that under the Whistleblower Protection Act, and its 2012 enhancements, his testimony during the AIB investigation is protected activity under 5 U.S.C.
2302(b)(9)(B).

a. Under paragraph (b)(9)(B), it is a protected activity to "testify[] for or otherwise lawfully assist[] any individual in the exercise of any right referred to in subparagraph (A)(i) or (A)(ii)."  Paragraph (b)(9)(A), in turn, covers the protected activities of "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation -- (i) with regard to remedying a violation of paragraph (8); or (ii) other than with regard to remedying a violation of paragraph (8)."

b. The administrative judge correctly found that the investigation at issue did not constitute the exercise by C.K. of an "appeal, complaint, or grievance right."  Instead, C.K. was the subject of an agency-initiated investigation.  In interpreting the pre-Enhancement Act version of 5 U.S.C. 2302(b)(9), the Board held that a claim of reprisal for exercising a right to complain in certain administrative proceedings, such as Board appellate proceedings, the equal employment opportunity complaint process, grievance proceedings, and unfair labor practice proceedings, was not a basis for a finding of Board jurisdiction.  To establish jurisdiction, the employee must take an initial step toward taking legal action against an employer for the perceived violation of the employee's rights.  Here, the investigation by the AIB did not constitute the exercise of an appeal, complaint, or grievance right by C.K. because it did not constitute an initial step toward taking legal action against the agency for a perceived violation of employment rights.

c. Despite the appellant's contentions that the purpose of the WPA is to strengthen, improve, and protect the rights of Federal employees, prevent reprisal, and help eliminate wrongdoing within the Government, and that remedial statutes should be interpreted broadly, the statutory language at issue in this case is clear as to the types of protected activities that fall under subparagraph (b)(9)(B).  The appellant has not identified any clearly expressed legislative intent indicating that testifying for or otherwise lawfully assisting an individual during an agency investigation constitutes protected activity under paragraph (b)(9)(B).




COURT DECISIONS

Petitioner:  Frank C. De Santis
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3134
Issuance Date:  June 22, 2016

Jurisdiction
 - FAA Employees
 - Statutory Interpretation
   
    The Federal Aviation Administration (FAA) hired De Santis in 2013. The FAA fired him less than one month later, while he was still in his probationary period.  He appealed to the Merit Systems Protection Board under regulations, 5 C.F.R. 210.101, 315.805, and 315.806, that have at all times relevant to this case applied only to employees in the competitive service. The Board dismissed the appeal for lack of jurisdiction because De Santis was in the excepted service, not in the competitive service.

     Whether the Board had jurisdiction to hear De Santis’s appeal turned on meaning of 49 U.S.C. 40122(g)(3), which authorizes FAA employees to appeal certain actions to the Board. Congress had stripped FAA employees of all Board appeal rights, effective April 1, 1996, but in 2000 Congress enacted section 40122(g)(3) to restore Board appeal rights. Specifically, section 40122(g)(3) allows an FAA employee to appeal "any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996."  The appellant contended for an interpretation under which the Board would disregard the employee's actual current status (in his case excepted service) and ask what status a person in that position, or a similar position, would have had on March 31, 1996, then would use that counterfactual status in applying the grants of appeals that existed on March 31, 1996.  As applied to his case, De Santis argued that, although he was appointed to a position in the excepted service, he could invoke 5 C.F.R. 210.101, 315.805, and 315.806 on the ground that 49 U.S.C. 40122(g)(3) requires that he be treated as a competitive-service employee because his position (not him personally) and the positions of most FAA employees were in the competitive service on March 31, 1996.


Holdings: The court affirmed the Board's decision.  The court concluded that Board jurisdiction over an appeal brought by an FAA employee depends on whether, taking as a given the employee’s status in the excepted service at the time of the challenged action, that employee comes within the grants of appeal rights that existed on March 31, 1996. Thus, pre–April 1996 law is applied to actual current facts.  Under this approach, the appellant failed to establish jurisdiction, because he was in the excepted service.  



The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Randall v. Department of Defense, No. 2016-1163 (June 13, 2016) (MSPB Docket No. CH-0752-13-1797-I-1) (affirming the Board's decision, which sustained Randall's removal for misconduct)

Mata v. Office of Personnel Management, No. 2016-1163 (June 13, 2016) (MSPB Docket No. SF-0831-15-0397-I-1) (affirming the Board's decision, which affirmed OPM's denial of entitlement to a CSRS retirement annuity)

Tolbert v. Department of Justice, No. 2015-3162 (June 13, 2016) (affirming an arbitrator's decision per Rule 36)

Hewins v. Merit Systems Protection Board, No. 2015-3171 (June 14, 2016) (MSPB Docket No. PH-0752-14-0892-I-1) (affirming per Rule 36 the Board's decision, which dismissed an appeal as barred by a last-chance agreement)

Bland v. Department of Health & Human Services, No. 2016-1569 (June 14, 2016) (MSPB Docket No. CH-0752-13-0078-I-1) (affirming the Board's decision, which affirmed Bland's removal)

Mithen v. Department of Veterans Affairs, No. 2015-3191 (June 15, 2016) (MSPB Docket No. CH-1221-11-0498-B-1) (affirming per Rule 36 the Board's decision, 122 M.S.P.R. 489 (2015), which denied Mithens request for corrective action in this IRA appeal) 

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