United States Merit Systems Protection Board

Case Report for August 5, 2011


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: Robert J. MacLean

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 70

Docket Number: SF-0752-06-0611-I-2

Issuance Date: July 25, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Whistleblower Protection Act
- Protected Disclosure – Disclosure “specifically prohibited by law”
Constitutional Issues – First Amendment
Prohibited Personnel Practices
Penalty

The appellant petitioned for review of an initial decision that sustained his removal from his position as a Federal Air Marshal (FAM) with the Transportation Security Administration (TSA) based on a charge of unauthorized disclosure of Sensitive Security Information (SSI). In July 2003, the appellant received a briefing from TSA concerning a “potential plot” to hijack U.S. airliners. Soon after the briefing, TSA officials sent a directive to FAMs via an unencrypted text message that all Remain Overnight missions in early August would be cancelled. The appellant believed that the suspension of overnight missions during a hijacking alert created a danger to the flying public and was inconsistent with what “the law demanded.” He raised his concerns with his supervisor and with an employee in the agency’s Inspector General’s office, but was not satisfied with the responses he received. The appellant then revealed the contents of the directive to a reporter from MSNBC, with the hope that the reporter could create a controversy resulting in rescission of the directive. After MSNBC published an article about the matter on its website, members of Congress criticized TSA’s suspension of overnight missions, and the directive was withdrawn before it went into effect. About a year later, the appellant appeared on NBC Nightly News in disguise and asserted that the agency’s dress code allowed would-be terrorists to identify FAMs. Someone from TSA recognized the appellant’s voice, and the appellant admitted during the ensuing investigation that he was the one who told the press about the 2003 suspension of overnight missions.

Under the definition in effect at the time of the agency’s directive concerning overnight missions, SSI consisted of, among other things, “[s]pecific details of aviation security measures,” including but not limited to “information concerning specific numbers of Federal Air Marshals, deployments, or missions.” During a suspension of the appellant’s appeal before the Board’s regional office, he appealed the agency’s determination that its 2003 directive regarding overnight missions was SSI to the U.S. Court of Appeals for the Ninth Circuit, which found that the information the appellant disclosed was SSI. 543 F.3d 1145 (9th Cir. 2008). In a subsequent interlocutory appeal, the Board ruled that it lacks the authority to determine for itself whether the particular information the appellant disclosed was SSI, that the Board and the parties were bound by the result of the litigation before the Ninth Circuit, and that the appellant’s disclosure of SSI to the media cannot constitute protected whistleblowing because the appellant violated agency regulations when he made the disclosure. 112 M.S.P.R. 4 (2009). In his initial decision, the Board’s administrative judge sustained the charge of unauthorized disclosure of SSI, found that the appellant failed to establish any of his affirmative defenses, and that the removal penalty was within the bounds of reasonableness. On review, the appellant contested each of the judge’s findings.

Holdings: The Board affirmed the initial decision as modified and sustained the appellant’s removal:

1. The administrative judge correctly sustained the charge of unauthorized disclosure of Sensitive Security Information.

a. The Board rejected the appellant’s argument that the judge erred in sustaining the charge without making a finding whether he had a “good faith belief” that he was permitted to disclose the contents of the text message to the reporter. Intent was not a required element of the charge.

b. Under the regulations in effect in July 2003, information relating to the deployment of FAMs was included within the definition of SSI. The appellant was not authorized to release SSI to a reporter, and imposing discipline for doing so promotes the efficiency of the service because maintaining confidentiality of plans for FAM deployments goes to the heart of one of TSA’s missions, that of promoting civil aviation safety and security.

2. The appellant’s disclosure to the MSNBC reporter is not protected whistleblowing because it was “specifically prohibited by law.”

a. Under 5 U.S.C.  2302(b)(8)(A), an agency may not impose discipline because of an employee’s disclosure of information which the employee reasonably believes evidences a “substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law . . . .”

b. In its previous determination, the Board found that the appellant’s disclosure was specifically prohibited by law. Under the “law of the case” doctrine, a court or administrative tribunal will generally refuse to reopen and reconsider what has already been determined in a prior decision in the same case. There are exceptions to the application of this doctrine, including a showing that the prior decision was clearly erroneous and would work a manifest injustice, but the appellant has made no showing that the previous decision was “clearly erroneous.”

c. Nevertheless, the Board modified its previous decision to the extent that it could be read broadly to allow any regulation that meets certain conditions to be accorded the full force and effect of law, such that a disclosure in violation of such a regulation could be construed as “prohibited by law” within the meaning of 5 U.S.C.  2302(b)(8)(A). The appellant’s disclosure of SSI was “specifically prohibited by law” because the regulation that he violated was promulgated pursuant to an explicit Congressional mandate that required TSA to prohibit such disclosures.

d. The Board stated that its holding “does not mean that TSA may rely on its SSI regulations as authority for prohibiting all disclosures relating to aviation security and safety.” Congress has specified that regulations may not prohibit disclosures to “a committee of Congress authorized to have the information,” and the “specifically prohibited by law” exclusion does not apply to disclosures made to the Office of Special Counsel. The appellant did not pursue either of these channels.

e. This case is distinguishable from Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir. 2010). Ms. Chambers’ disclosure of a substantial and specific danger to public health or safety was protected because it was not “specifically prohibited by law.”

3. The appellant’s removal based on his SSI disclosure did not violate his First Amendment right of free speech.

a. Under the Supreme Court’s balancing test, the appellant’s interest in commenting on a matter of public concern must be weighed against the interest of the agency, as employer, in promoting aviation security, and courts have recognized that law enforcement duties entail special obligations with regard to public trust that may be considered in applying the balancing test.

b. Here, the appellant revealed information about FAM deployments that the agency legitimately expected to remain confidential, and which created a vulnerability in the aviation system.

4. The appellant did not prove his prohibited personnel practice claim under 5 U.S.C.  2302(b)(10).

a. Subsection (b)(10) makes it a prohibited personnel practice to “discriminate for or against any employee . . . on the basis of conduct which does not adversely affect the performance of the employee . . . or the performance of others.”

b. The appellant alleged in this regard that the agency retaliated against him because of his activities on behalf of the Federal Law Enforcement Officers Association (FLEOA). Even if the Board were to accept the appellant’s contention that agency managers disapproved of his FLEOA activities, there was no direct evidence of retaliation or discrimination on that basis, and the appellant failed to establish that he was disparately treated compared to similarly situated employees.

5. The Board will not consider the appellant’s claims and evidence raised for the first time on petition for review because he made no showing that the evidence and argument were unavailable during the regional office proceeding despite his due diligence.

6. The penalty of removal is within the bounds of reasonableness.

a. When the Board sustains all the charges, it reviews the agency’s choice of penalty only to determine whether the agency considered all of the relevant factors and exercised management discretion within the parameters of reasonableness.

b. The most important factor is the nature and seriousness of the misconduct and its relation to the appellant’s duties, including whether the offense was intentional. The appellant’s revelation of confidential information was serious and, by his own admission, intentional. Also significant to rehabilitative potential and the agency’s penalty determination is that the appellant lacked remorse for disclosing the SSI.

c. The Board was not persuaded that the appellant believed in “good faith” that he was permitted to share plans for the deployment of FAMs with the MSNBC reporter. At the time of his appointment as a FAM, he signed a form acknowledging that a FAM “may be removed” for “[u]nauthorized release of security-sensitive or classified information.” The appellant testified that in his training it was made “very, very clear” that FAMs should not tell anyone, not even their spouses, which flights they would be on because the information could be repeated to “the wrong people,” and that telling someone a flight would not have a FAM on it would endanger the flight.

d. It makes no difference to the penalty analysis whether the appellant knew that the message suspending overnight missions fell within the regulatory definition of SSI. The appellant knew he was not permitted to tell anyone about FAM scheduling, yet he did so anyway, and it could have created a significant security risk.

e. The Board accepted, without finding, that the appellant believed he did the right thing in disclosing the information. However, even if the appellant could have established the classic elements of whistleblowing, i.e., that he disclosed a substantial and specific danger to public safety and that his disclosure was a contributing factor in his removal, he cannot invoke WPA protection because his disclosure was specifically prohibited by law.

Appellant: Harroll Ingram

Agency: Department of the Army

Decision Number: 2011 MSPB 71

Docket Number: AT-1221-09-0874-B-1

Issuance Date: July 25, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Protected Disclosure
- Contributing Factor
- Clear and Convincing Evidence

The appellant petitioned for review of the remand initial decision that denied his request for corrective action in this IRA appeal. The appellant alleged that he suffered retaliation for having reported to his supervisors that a program manager was about to engage in conduct contrary to the agency’s regulations in connection with a proposed medical simulation training event. In denying the appellant’s request for corrective action, the administrative judge found that the appellant failed to establish that he made a protected disclosure.

Holdings: The Board granted the appellant’s petition for review, reversed the remand initial decision, and ordered corrective action:

1. The appellant proved by preponderant evidence that he made a protected disclosure. Before making the disclosure, the appellant had obtained an opinion from the agency’s legal department stating that allowing the event to proceed with videotaping and photography would violate agency ethical regulations and possibly compromise the trade secrets of agency contractors. Moreover, the appellant’s second-level supervisor also concluded that the event should not take place given the potential legal issues. This evidence more than suffices to provide a layman such as the appellant with a reasonable belief that the project manager’s proposed course of conduct would violate agency regulations.

2. Although the administrative judge made no findings on whether the appellant proved that his disclosure was a contributing factor in one or more covered personnel actions, or whether the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the protected disclosure, the Board concluded that the record was sufficiently developed that it could make these findings. It ruled in the appellant’s favor on both issues and ordered corrective action.

a. The appellant established that he was subjected to 3 covered personnel actions: a significant change in duties or working conditions; an involuntary transfer from one position to another; and a low performance appraisal.

b. The appellant established, per the knowledge/timing test of 5 U.S.C.  1221(e)(1), that his protected disclosure was a contributing factor in these 3 personnel actions.

c. The agency failed to establish by clear and convincing evidence that it would have taken the same actions in the absence of the protected disclosure.

Appellant: Eric Smart

Agency: Department of Justice

Decision Number: 2011 MSPB 72

Docket Number: SF-315H-08-0709-B-2

Issuance Date: August 3, 2011

Action Type: Probationary Termination

Jurisdiction – “Employee”
Statutory Interpretation – Retroactive Application

The agency petitioned for review of a remand initial decision that granted the appellant’s appeal of his 1991 termination during his probationary period. The appellant received a career conditional appointment in the competitive service in June 1991, subject to completion of a 1-year probationary period. The agency terminated his employment less than 4 months later for unacceptable performance and conduct. He filed an EEO complaint in 1992. In 1994, the EEOC affirmed the agency’s final decision finding no discrimination. Nearly 14 years later, the appellant filed a Board appeal challenging his termination. The administrative judge dismissed that appeal for lack of jurisdiction, but the Board vacated and remanded, finding that the appellant was not given explicit information as to how he could show that his prior federal service could be “tacked” to his probationary period or that he meets the definition of employee contained in 5 U.S.C.  7511(a)(1)(A)(ii). 111 M.S.P.R. 147 (2009) (Smart I). On remand, the administrative judge dismissed the appeal as untimely filed without good cause shown without resolving the jurisdictional issue. The Board again vacated and remanded, finding that dismissal on timeliness grounds was improper because the issues of timeliness and jurisdiction were inextricably intertwined. 113 M.S.P.R. 393 (2010) (Smart II). On remand for the second time, the administrative judge found that the appellant established jurisdiction, concluding that the appellant met the definition of “employee” in  7511(a)(1)(A)(ii).

On review, the agency asserted that the Board erred in applying McCormick . Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), retroactively in Smart I and Smart II.

Holdings: The Board overruled its decisions in Smart I and Smart II and dismissed the appeal for lack of jurisdiction:

1. Under applicable Supreme Court precedent, when the Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule. However, new legal principles, even when applied retroactively, do not apply to cases that are already closed.

2. Here, the appellant’s appeal before the Board was not pending on direct review in 2002 when the court issued the McCormick decision. The appellant had already received a final decision on his EEO case at that time. Accordingly, at the time the appellant filed his appeal in 2008 with the Board, his termination from federal service was a closed case, and the new rule of law announced in McCormick did not apply to this appeal.

3. At the time of his termination in 1991, the appellant would have been required to meet the requirements under subsection (A)(i) of  7511(a)(1) to establish that he was an “employee” with Board appeal rights. The appellant did not establish that he was such an employee because he was serving a probationary period at the time of his termination.

Appellant: James Mital

Agency: Department of Agriculture

Decision Number: 2011 MSPB 73

Docket Number: SF-0752-10-0133-C-1

Issuance Date: August 4, 2011

Case Type: Compliance

Compliance

The appellant petitioned for review of a compliance initial decision that denied his petition for enforcement. In the underlying appeal, a 30-day suspension was reduced to a 14-day suspension pursuant to a settlement agreement, which was entered into the record for enforcement. Section 2(7) of the agreement required the appellant to “limit personal business at work to established breaks, unless granted written permission otherwise from his supervisor.” Under Section 2(9), the appellant agreed to voluntarily resign and waive his Board appeal rights in the event that he failed to meet any of the provisions of this section. In Section 3(3) of the agreement, the parties agreed “to cooperate and communicate in good faith to implement and to abide by the terms of this Agreement,” and that “[i]f a party believes the other has not fully complied with one or more terms of the Agreement, that party and or his/her representative shall make a good faith effort to contact the other party to discuss and seek correction of any compliance or implementation issues before taking any formal non-compliance actions.”

Less than 3 months after the settlement agreement was executed, the appellant suffered a “crisis” with a woman he “hoped to marry” when he learned that she was abruptly ending their relationship, and he used a colleague’s office to make numerous phone calls to her. He did not seek permission to attend to this mater during his work hours. When the appellant’s supervisor became aware of the appellant’s actions, he informed the appellant that he had violated a provision of the settlement agreement and that he would be required to voluntarily resign within 30 days, per the terms of the agreement. The appellant filed a petition for enforcement arguing that the agency breached the agreement by failing to make a good faith effort “to discuss and seek correction of any compliance or implementation issues before taking any formal non-compliance actions.” The administrative judge found that the appellant had violated Section 2 of the agreement when he conducted personal business on government time without seeking permission from his supervisor, and that the agency had not breached the agreement, and had acted in good faith in communicating with the appellant prior to effecting his resignation.

Holdings: The Board vacated the compliance initial decision and remanded the case to the regional office for further adjudication:

1. A settlement agreement is a contract and the interpretation of its terms is a question of law. In construing a contract, one looks first to the terms of the agreement to determine the parties’ intent. Extrinsic evidence, i.e., writings and testimony other than the contract itself, should be considered only if the terms of the agreement are ambiguous, i.e., when the contract is susceptible to differing reasonable interpretations.

2. The terms of the contract are ambiguous.

a. The record undisputedly reflects that the appellant engaged in personal business outside of his established breaks without written permission in violation of Section 2(7), and the agency effected the appellant’s resignation in accordance with Section 2(9).

b. The appellant construed the terms “non-compliance action” in Section 3(3) to include the agency’s actions to effect his resignation, thus obligating the agency to “seek correction” prior to effecting his resignation.

c. The agency interpreted the terms “non-compliance action” in Section 3(3) to mean a petition for enforcement with the Board, thus obligating the appellant to “seek correction” prior to filing a formal petition for enforcement but not requiring the agency to “seek correction” of the appellant’s behavior prior to effecting his resignation.

3. Because the settlement agreement is reasonably susceptible of either interpretation, and there is no evidence in the record regarding the parties’ intent at the time they entered into the settlement agreement, the Board found that the terms of the settlement agreement are ambiguous. The case must therefore be remanded to the regional office for submission of extrinsic evidence of the parties’ intent, including hearing testimony if necessary, and for additional fact finding.

COURT DECISIONS

 

Non-precedential Decisions

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

Adler v. Office of Personnel Management, No. 2011-3024 (July 25, 2011) (MSPB Docket No. SF-0831-11-0512-I-1) (affirming the Board’s decision, which affirmed OPM’s calculation of the portion of Mr. Adler’s pension to which his former spouse was entitled)

Arojuraye v. Merit Systems Protection Board, No. 2011-3034 (Aug. 4, 2011) (MSPB Docket No. DC-0752-10-0236-I-1) (affirming per Rule 36 the Board’s decision, which dismissed for lack of jurisdiction Mr. Arojuraye’s appeal of the termination of his employment during the second year of his employment in the excepted service)

FEDERAL REGISTER NOTICE

On July 25, 2011, the Board issued a Federal Register Notice, 76 Fed. Reg. 44373, which announced the opportunity to file amicus briefs in several cases. The issues on which the Board sought briefs were twofold:

(1) May a denial of restoration be “arbitrary and capricious” within the meaning 5 CFR 353.304(c) solely for being in violation of the Postal Service’s Employee and Labor Relations Manual (ELM), i.e., may the Board have jurisdiction over a restoration appeal under that section merely on the basis that the denial of restoration violated the agency's own internal rules; and (2) what is the extent of the agency's restoration obligation under the ELM, i.e., under what circumstances does the ELM require the agency to offer a given task to a given partially recovered employee as limited duty work?

The deadline for submitting amicus briefs or other comments is August 24, 2011.