U.S. Merit Systems Protection Board 
Case Report for August 12, 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.


Petitioner:  John C. Parkinson
Respondent:  Department of Justice
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3066
Issuance Date:  August 8, 2016

Rehearing En Banc
Whistleblower Protection Act
 - Retaliation for Whistleblowing as Affirmative Defense - FBI Employees

    In a previous precedential decision issued on February 29, 2016, the court held that, while FBI employees may not bring an IRA appeal under 5 U.S.C.  1221, a preference eligible FBI employee could raise retaliation for whistleblowing as an affirmative defense under 5 U.S.C.   7701(c)(2)(C) [agency decision shall not be sustained when "not in accordance with law"]  in an adverse action.  

Holdings: The court granted the agency's motion for rehearing en banc and vacated it February 29, 2016 decision.  The court directed the parties to file briefs addressing the following issue:

Whether a preference eligible employee of the Federal Bureau of Investigation challenging an
adverse employment action before the Merit Systems Protection Board under 5 U.S.C. 7513(d)
may raise whistleblower reprisal in violation of 5 U.S.C. 2303 as an affirmative defense under 5 U.S.C. 7701(c)(2)(C).  

Petitioner:  Thomas C. Daniels
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Ninth Circuit
Docket Number:  13-73913
Issuance Date:  August 9, 2016

Whistleblower Protection Act
 - Protected Disclosures
 - Contributing Factor

    The court reviewed a final decision by the Board that dismissed Daniels's IRA appeal for lack of jurisdiction.  Daniels was employed by the Social Security Administration as a Hearing Office Director in its Office of Disability Adjudication and Review in Orange, California.  In December 2010, an SSA administrative law judge (ALJ) issued a decision favorable to a claimant in a Social Security disability case.  While investigating an inquiry from the claimant's congressional representative seeking to expedite disability payments to the claimant, Daniels concluded that the ALJ's decision was erroneous and that benefits should not have been awarded to the claimant.  Daniels discussed his concerned with the Hearing Office's Chief ALJ (alleged protected disclosure #1).  Daniels subsequently communicated with the manager at the Payment Center responsible for initiating benefits payments to the claimant and opined that the Payment Center should withhold payment (alleged protected disclosure #2).  The Regional Chief ALJ issued a decision suspending Daniels for 14 days based on three charges:  (1) that Daniels's  "actions constituted conduct unbecoming a federal employee because they demonstrated a willingness to subvert established procedures to advance [Daniels's] personal views; (2) Daniels failed to follow the SSA's "specific procedures for responding to congressional inquiries" and thus "impeded the efficiency of the [response] and created a risk of adverse publicity from the congressional office"; and (3) Daniels's statements to investigators [he claimed not to remember having discussed the case with the Chief ALJ nor to recall the substance of his communications with the Payment Office] "lacked candor" and thus "reflec[ed] a lack of integrity in the performance of Daniels's duties and interfered with [the Regional Chief ALJ's] investigation."  

     Daniels also claimed to have made protected disclosures regarding procedures for purchasing interpreter services.  Daniels informed the Director of Acquisition Support that he had been advised not to use an office form known as "optional form (OF) 347" for purchase orders for interpreter services and that this seemed contrary to Federal Acquisition Regulations and agency policy (alleged protected disclosure #3).  Shortly thereafter, the Regional Chief ALJ sent a directive to the Chief ALJ explaining that the Orange Hearing Office should cease using OF-347 to order the services of interpreters, but should instead use micro-purchase cards.  In denying a grievance filed by Daniels about this, the Regional Chief ALJ reminded Daniels that "until this issue is resolved, you are obliged to carry out proper orders by officials authorized to give them."  Daniels alleged to an SSA manager that this statement implied a threat to take retaliatory personnel actions for refusing to obey an order that would require him to violate Federal Acquisition Regulations (alleged protected disclosure #4).  Daniels subsequently notified an SSA Deputy Commissioner of what he viewed as the Regional Chief ALJ's "inferred threat (alleged protected disclosure #5).  

     The Board dismissed Daniels's IRA appeal on the basis that he failed to make non-frivolous allegations of having made protected disclosures.  

Holdings:  The court affirmed the Board's decision:

1. The court likened the non-frivolous allegation standard
for establishing jurisdiction over an IRA appeal under the Board's regulations (5 C.F.R.  1201.4(s)) to the standard for reviewing a motion to dismiss in the federal court system.  

2. Daniels failed to make a non-frivolous allegation that his disclosures (## 1 and 2) regarding the ALJ's adjudicatory decision awarding benefits were protected under the Whistleblower Protection Act.  

a. An agency ruling or adjudication, even if erroneous, cannot reasonably be construed as any of the wrongs specified in 5 U.S.C.  2302(b)(8)(A).  An ALJ who makes an erroneous decision does not violate the law (or engage in gross mismanagement) any more than does a districut judge who is subsequently reversed on appeal.  An agency ruling or adjudication, even if erroneous, is not the type of "wrongdoing" contemplated by the WPA.  

b. The court expressed its agreement with decisions issued by the Federal Circuit and the Board in this regard:  Meuwissen v. Department of the Interior, 234 F.3d 9 (Fed. Cir. 2000); and O'Donnell v. Department of Agriculture, 120 M.S.P.R. 94 (2013).  The passage of the Whistleblower Protection Enhancement Act of 2012 did not supersede Meuwissen in this regard; the WPEA affected only the holding in
Meuwissen that "disclosures of information already known are not protected."  

3. Daniels failed to make a non-frivolous allegation that his disclosures (##3-5) regarding
Regional Chief ALJ's directive were protected under the WPA.  

a. The Regional Chief ALJ's directive to use micro-purchase cards instead of OF-347 to order the services of interpreters was not a violation of the law for WPA purposes.  The directive instead represented a policy decision.  The WPA explicitly excludes "communication[s] concerning policy decisions" from its definition of "disclosure."  5 U.S.C.  2302(a)(2)(D).  

b. Even assuming that disclosures ##3-5 were protected, Daniels offered no evidence that any personnel action was taken (or threatened) as a result of them.

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

Strickland-Donald v. Department of the Army, No. 2016-1635 (August 9, 2016) (MSPB Docket No. DE-1221-15-0132-W-1) (affirming the Board's decision, which denied Strickland-Donald's request for corrective action in an IRA appeal)

R.G. v. Merit Systems Protection Board, No. 2016-1079 (August 9, 2016) (MSPB Docket No. SF-1221-15-0486-W-1) (affirming the Board's decision, which dismissed R.G.'s IRA appeal for lack of jurisdiction on the basis that the events recited did not constitute whistleblowing)

Hawkes v. Department of Agriculture, No. 2016-1387 (August 10, 2016) (MSPB Docket Nos. SF-0752-13-0038-I-2, SF-0752-15-0049-I-1) (affirming the Board's decision, which sustained Hawkes's suspension and removal)  

Miller v. Federal Deposit Insurance Corp., No. 2016-1137 (August 11, 2016) (MSPB Docket No. SF-4324-14-0598-I-3) (affirming the Board's decision, which denied corrective action in this USERRA appeal)

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