U.S. Merit Systems Protection Board 
Case Report for June 28, 2013

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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.


Appellant:  Thomas F. Day
Agency:  Department of Homeland Security
Decision Number:  2013 MSPB 49
Docket Number:  DC-1221-12-0528-W-1
Issuance Date:  June 26, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure
 - Statutory Interpretation
 - Retroactive Application of New Legislation

    This appeal was before the Board on interlocutory appeal from an administrative judge who certified for Board review the question whether certain provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA) should apply to cases that were already pending before the effective date of the new law.  Specifically, the U.S. Court of Appeals for the Federal Circuit, which has been the sole reviewing court for Board decisions relating to the Whistleblower Protection Act, ruled in Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), that disclosures made in the course of an employee's normal duties, and disclosures made to the alleged wrongdoer, are not protected whistleblowing disclosures.  Under section 101 of the WPEA, neither of those circumstances prevents a disclosure from being protected.  The question was whether the decision in Huffman or section 101 of the WPEA should control the case before the administrative judge, which was pending when the WPEA went into effect.  Applying the standards set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the judge found that Congress had not clearly expressed an intention that the terms of the WPEA should apply retroactively.  He further found that the WPEA standard for determining whether a disclosure is protected would have actual retoractive effect if applied to pending cases, i.e., it would "attach[] new legal consequences to events completed before its enactment."  He therefore concluded that the presumption against retroactivity applied to the WPEA definition of "protected disclosure" and that the Huffman decision should apply to the case before him.  

Holdings:  The Board, Member Robbins dissenting, reversed the administrative judge's ruling and found that the provisions of section 101 of the WPEA should be applied to determine whether protected disclosures had been made:

1.  The Board agreed with the administrative judge that Landgraf provided the proper analytical framework for determining whether a new statute should be given retroactive effect and that Congress did not expressly provide that the terms of the WPEA would apply retroactively to conduct occurring before its enactment.

2. The provisions of the WPEA at issue in this appeal clarify, rather than effect substantive changes to, existing law.

a. Under a line of cases adopted by several circuit courts of appeal, when legislation clarifies existing law, its application to preenactment conduct does not raise retroactivity concerns.  There can be no doubt that Congress clearly intended to enact the WPEA as a "clarification" of the term "disclosure" in the WPA.  The language of section 101 is sufficiently clear as to rebut the agency's argument that, because the WPEA includes a delayed effective date, Congress could not have intended that the Act be applied to pending cases.

b. Although the Board noted that the Federal Circuit had not adopted the retroactivity doctrine, the Board is not required to follow that court's decision as binding precedent because the WPEA has changed the rights to judicial review of whistleblowers to include other courts of appeal for a 2-year period.  

3. The WPA's definition of what constitutes a "disclosure" is ambiguous.

4. The WPEA's clarification of what constitutes a "disclosure" resolves the ambiguity in the WPA.  

5. The WPEA's resolution of the ambiguity of what constitutes a "disclosure" is consistent with the text of the WPA.

6. The WPEA's resolution of the ambiguity is consistent with the Board's interpretation of the WPA.

    In a dissenting opinion, Member Robbins expressed the view that, even if he were prepared to accept the "clarification" doctrine relied upon by the majority, he believed the Federal Circuit's decision in Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005), which rejected that doctrine, was binding precedent for the Board.  He also observed that the Supreme Court appeared to have rejected the doctrine in a decision issued on the same day as Landgraf.  

Appellant:  Kenneth M. Hulett
Agency:  Department of the Navy
Decision Number:  2013 MSPB 48
Docket Number:  SF-0752-11-0690-I-1
Issuance Date:  June 21, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Due Process/Harmful Procedural Error
Board Practices
 - Affirmative Defenses
 - Judge's Duty to Advise of Elements and Burdens of Proof
 - Judge's Authority Exclude Evidence
 - Preservation of Error
Penalty - Disparate Penalty

    The appellant petitioned for review of an initial decision that affirmed his removal.  The agency removed the appellant from his Lead Firefighter position, which is a testing-designated position, for illegal drug use.  It alleged that it scheduled a reasonable suspicion drug test based on the appellant's behavior and appearance on a particular day, that the appellant took a drug test 3 days later, and that he tested positive for marijuana.  In his Board appeal, the appellant alleged, among other things, that that the deciding official committed harmful procedural error by considering aggravating factors that he had not been charged with in the penalty determination "and/or consider[ing] ex parte communications that violated [the] appellant's due process guarantee of notice."   After holding a hearing, the administrative judge sustained the agency's charge, found that the appellant failed to prove affirmative defenses of harmful error, disability discrimination, and retaliation for prior EEO activity, and found that the removal penalty fell within the tolerable limits of reasonableness.  

Holdings:  The Board affirmed the initial decision insofar as it found that the agency proved its charge, but vacated the judge's findings regarding nexus and penalty:

1.  Remand is necessary to address the appellant's due process and harmful error claims.

a. Under the Federal Circuit's decisions in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), and Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), a deciding official's consideration of ex parte information that is so substantial and so likely to cause prejudice that no employee could fairly be subjected to a deprivation of property under such circumstances, is a violation of the appellant's constitutional right to due process of law.  Such information includes factors affecting the reasonableness of the penalty as well as whether the appellant engaged in the conduct charged.

b. The Board has consistently required administrative judges to apprise appellants of the applicable burdens of proving a particular affirmative defense, as well as the kind of evidence required to meet those burdens.  Here, even though the appellant had raised a due process claim on the face of his appeal, the judge did not inform him of the means for proving this affirmative defense.

2. A majority of the Board noted that the appellant appeared to argue on review that the judge  improperly curtailed his cross-examination of the deciding official regarding actions that the agency took against other employees for the same offense, but found that this argument did not provide a basis to disturb the initial decision because the appellant had not explain what information he hoped to elicit from further examination or how it might have changed the outcome of the appeal.  

    In a separate opinion, Vice Chairman Wagner dissented from the majority's determination that the appellant failed to show that his substantive rights were prejudiced by the judge's curtailment of testimony and evidence with regard to the appellant's disparate penalty claim.  


Petitioner:  University of Texas Southwestern Medical Center
Respondent:  Naiel Nassar
Tribunal:  United States Supreme Court
Docket Number:  12-484
Issuance Date:  June 24, 2013

 - Retaliation for Protected Activity

    At issue in this case was the standard for establishing that an employee has suffered discrimination under 42 U.S.C. 2000e-3(a), i.e., "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."  The options considered by the Court were the "motivating factor" test of 42 U.S.C. 2000e-2(m) and 2000e-5(g)(2)(B), and the "but-for" test that the Court had deemed appropriate for age discrimination claims.  

Holding: The Court held that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged personnel action.  This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

Petitioner:  Maetta Vance
Respondent:  Ball State University
Tribunal:  United States Supreme Court
Docket Number:  11-556
Issuance Date:  June 24, 2013

 - Sexual Harassment

    The issue in this case was who qualifies as a "supervisor" in a case in which an employee asserts a Title VII claim for workplace sexual harassment.  Under Title VII, an employer's liability for such harassment may depend on the status of the harasser.  If the harassing employee is the victim's co-worker, the employer is iabile only if it was negligent in controlling working conditions.  If a supervisor's harassment culminates in a tangible employment action, the employer is strictly liable.  

Holdings: The Court held that an employee is a "supervisor" for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.  

The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:

Yeh v. Merit Systems Protection Board, No. 2012-3216 (June 27, 2013) (MSPB Docket No. CH-1221-11-0433-W-2) (affirming the Board's decision, which dismissed this IRA appeal for lack of jurisdiction)

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