Case Report for February 28, 2014
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: Douglas C. Jones
Agency: Department of the Navy
Decision Number: 2014 MSPB 10
Docket Number: DC-0752-12-0562-I-1
Issuance Date: February 24, 2014
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
- Eligibility to Occupy a Sensitive Position
The appellant petitioned for review of an initial decision that affirmed his indefinite suspension. The appellant is employed as a Rigger at the Norfolk Naval Shipyard (NNSY), a position that requires eligibility to occupy a sensitive position as a condition of employment, and also requires that the incumbent possess a security clearance. In March 2012, the agency's Central Adjudication Facility (DON CAF) issued a Letter of Intent (LOI) to deny the appellant eligibility for access to classified information and assignment to a sensitive position. The LOI included a Statement of Reasons for the preliminary determination. The agency subsequently suspended the appellant's access to classified information, and proposed and effected an indefinite suspension on a charge of ineligibility to occupy a sensitive position. The suspension was to remain in effect until a final decision was issued by DON CAF. On appeal to the Board, the administrative judge affirmed the indefinite suspension based on the written record.
Holdings: The Board granted the appellant's petition for review, reversed the initial decision, and ordered the agency to cancel the indefinite suspension and restore the appellant to employment:
1. Within the agency, DON CAF is the sole entity responsible for establishing eligibility for access to classified information and/or assignment to a sensitive position.
2. NNYS itself lacked the authority to find the appellant ineligible to occupy a sensitive position because only DON CAF may make such a determination. Because the appellant had not been found ineligible to occupy a sensitive position at the time the agency indefinitely suspended him, the agency's charge fails, and the action cannot be sustained.
Appellant: Colin Clarke
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 11
Docket Numbers: NY-1221-10-0226-W-2 and NY-1221-11-0169-W-2
Issuance Date: February 27, 2014
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Exhaustion of OSC Remedy
The appellant petitioned for review of an initial decision that dismissed his IRA appeals. In February 2008, the appellant was appointed to the part-time excepted service position of Physician at a VA Medical Center pursuant to 38 U.S.C. § 7405(a)(1). His employment was terminated in late 2009 based on the appellant's failure to meet the agency's requirement that all physicians maintain an unrestricted license to practice medicine. After twice seeking corrective action from the Office of Special Counsel (OSC), the appellant filed two IRA appeals with the Board. The first alleged that his employment was terminated because of 8 whistleblowing disclosures. The second IRA appeal alleged that the agency denied his request for reinstatement to service in reprisal for making a disclosure to the agency's Office of Inspector General and to OSC. The administrative judge found that the appellant established jurisdiction over his first IRA appeal. The judge determined that the appellant failed to exhaust his administrative remedy with OSC with respect to 6 of his 8 disclosures. Notwithstanding this determination, the judge proceeded to find, in the alternative, that the appellant failed to establish that these constituted protected disclosures. The judge similarly found that the appellant failed to establish that his other 2 disclosures were protected. While the judge thus concluded that the appellant failed to establish that he made any protected disclosures, he proceeded to determine in the alternative that, assuming the appellant had engaged in activity protected by the WPA, he met his burden of establishing that such activity was a contributing factor in his termination, but that the agency proved by clear and convincing evidence that it would have terminated the appellant absent any protected whistleblowing activity. The judge dismissed the second IRA appeal for lack of jurisdiction, a determination that was not challenged on review.
Holdings: The Board, Vice Chairman Wagner dissenting in part, affirmed the initial decision as modified, and denied the appellant's request for corrective action:
1. As a Physician appointed under 38 U.S.C. § 7405(a)(1)(A), the appellant cannot appeal his termination directly to the Board. He can, however, bring an IRA appeal in which the only issue before the Board is whether the termination was in reprisal for whistleblowing activity.
2. The judge correctly determined that the appellant failed to establish that he exhausted his administrative remedy with respect to six of his alleged disclosures.
a. To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must inform OSC of the precise ground of his charge of whistleblowing, giving OSC a sufficient basis to pursue an investigation that might lead to corrective action.
b. After acknowledging receipt of the appellant's complaint, OSC advised the appellant that the information he provided concerning his alleged disclosures was "quite brief," and that additional information was required in order for it to determine whether he made protected disclosures. In response, the appellant stated that, considering the statutory time constraints, he would not try to detail all of the disclosures, but would more fully describe one of them. OSC subsequently made a preliminary determination that it could not determine that a violation of 5 U.S.C. § 2302(b)(8) occurred, in part, because the appellant had provided insufficient information to demonstrate that he made a protected disclosure, and because, when asked to describe in detail the information he disclosed, he declined to do so. OSC's preliminary determination letter provided the appellant with another opportunity "to describe these disclosures, in detail." The appellant's response to this letter did not provide any further detail.
3. Because the appellant failed to establish that proceedings before OSC were exhausted with respect to these 6 alleged disclosures, the Board lacks jurisdiction to reach the question whether these alleged disclosures were protected.
a. Exhaustion with OSC is a jurisdictional prerequisite to Board consideration of the substance of allegedly protected disclosures, and the scope of an IRA appeal is limited to those disclosures raised before OSC.
b. The Board noted that 5 U.S.C. § 1221(e)(2), as amended, provides that corrective action cannot be ordered if, "after a finding that a protected disclosure was a contributing factor," the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure. Under this amendment, the Board may not proceed to the clear and convincing evidence test unless it has first made a finding that the appellant established his prima facie case.
4. The Board denied the appellant's request for corrective action on the merits, vacating the alternative findings and conclusions from the initial decision concerning the alleged disclosures that the appellant failed to raise with sufficient specificity in his request for corrective action with OSC.
In a separate opinion, Vice Chairman Wagner agreed with the majority that, when an IRA appellant fails to exhaust his administrative remedy with OSC, the Board may not proceed to determining whether the agency demonstrated by clear and convincing evidence that it would have taken the same personnel action absent the disclosures. She dissented from the majority's finding that the appellant had failed to exhaust his OSC remedy with respect to six alleged disclosures. She explained why she would have found that the appellant satisfied his duty to give OSC a sufficient basis to pursue an investigation that might lead to corrective action with respect to five of the six disclosures in question.
Appellant: Matthew J. Nasuti
Agency: Department of State
Decision Number: 2014 MSPB 12
Docket Number: DC-1221-12-0321-M-1
Issuance Date: February 27, 2014
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Retroactive Application of the WPEA
- Protected Disclosures - to Whom Made
- Contributing Factor - Constructive Knowledge
This case was before the Board from the U.S. Court of Appeals for the Federal Circuit to address the appellant's contention that his employment was terminated because he made a protected whistleblowing disclosure alleging that substandard and inadequate body armor was being supplied to State Department Employees en route to Iraq. Specifically, the court asked the Board to decide whether section 101 of the Whistleblower Protection Enhancement Act of 2012 (WPEA) applies retroactively and, if so, whether the appellant had alleged a protected disclosure under the new statute.
The appellant was employed for a very short period by the State Department's Iraq Transition Assistance Office (ITAO). He alleged that, during that brief employment, he "raised objections to multiple officials in the ITAO, including assistants to [the] ITAO Personnel Director [the ITAO Personnel Director made the decision to terminate the appellant's employment] that the body armor being supplied to State Department employees en route to Iraq was substandard and inadequate. The court reversed the Board's rulings that the appellant had failed to exhaust his OSC remedy as to this claim, that the claim was precluded under the doctrine of collateral estoppel, and that the appellant failed to adequately allege a "substantial and specific danger to public health or safety." Regarding the Board's apparent conclusion that the appellant's disclosures were inadequate because they were made to persons without authority to address the problem, the court noted that section 101 of the WPEA broadened the scope of protected disclosures under the WPA, and stated that "the Board should decide in the first instance whether the new statute applies retroactively and whether, if so, Nasuti has alleged a protected disclosure under the new statute."
Holdings: The Board (Member Robbins did not participate) held that section 101 of the WPEA does apply to this case retroactively, that the disclosure would have been protected prior to the enactment of the WPEA, that the appellant satisfied the final jurisdictional element of making a nonfrivolous allegation that the protected disclosure was a contributing factor in the decision to terminate his employment, and remanded the case to the regional office for adjudication on the merits:
1. Although section 101 of the WPEA does not specifically address whether a disclosure lacks protection unless it is made to a person with authority to address the problem, the legislative history makes clear that section 101 was intended to reverse any decisions so holding.
2. The Board has held in previous cases that it will apply section 101 of the WPEA to cases pending before the Board when the WPEA was enacted.
3. Even before the enactment of the WPEA, neither the Federal Circuit nor the Board had recently interpreted the WPA to preclude protection for a disclosure unless it was made to a person with actual authority to remedy the wrongdoing.
4. The Board found that the appellant had satisfied the final jurisdictional element -- that he made a nonfrivolous allegation that his disclosure was a contributing factor in the agency's decision to terminate his employment.
a. An employee may demonstrate that a disclosure was a contributing factor in a covered personnel action through circumstantial evidence, such as the acting official's knowledge of the disclosure and the timing of the personnel action.
b. An appellant may also show that a protected disclosure was a contributing factor by proving that the official taking the action had constructive knowledge of the protected disclosure, even if the official lacked actual knowledge. One way of establishing constructive knowledge is by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action.
c. The appellant alleged that he made his disclosures regarding substandard and inadequate body armor to his Iraq Orientation Class to the Foreign Service Institute, which included one Senior Diplomat and a number of foreign service officers and middle managers who had orders for Iraq, and that he also made these disclosures to another individual in the ITAO, and "to others within the ITAO, Office of Legal Counsel and [Department of State] Inspector General."
d. Although the Board did not see definitive evidence in the record showing that the ITAO Personnel Director had actual knowledge of the appellant's disclosures, it saw no affirmative statement by her that she was not aware of these disclosures. Given the apparent widespread dissemination of the disclosures, the Board concluded that the appellant nonfrivolously alleged that the agency was aware of his disclosure when it made the decision to terminate his employment, and that his disclosure was a contributing factor in that decision.
5. In light of the above findings, the Board remanded the case to the regional office for adjudication on the merits.
Petitioners: Jesus H. DeLeon and Cheryl Williams
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2013-3129
Issuance Date: February 24, 2014
- NAFI Employees
The case was on appeal to the court from an arbitrator's decision affirming the removal of DeLeon and Williams on misconduct charges. They were cooks at the Army's Fort Riley installation, which is a non-appropriated fund instrumentality (NAFI), and they were paid through non-appropriated funds. The issue in the agency's motion to dismiss the case for lack of jurisdiction was whether the relevant statute, 5 U.S.C. § 7121(f), provides for the court to exercise jurisdiction over NAFI employees.
Holdings: The court that it did not possess jurisdiction to entertain a petition for review of an arbitrator's decision brought by NAFI employees:
1. Section 7121(f) is the court's sole jurisdictional grant for review of an arbitrator's award.
2. Jurisdiction under the first sentence of this statute, which provides for review of arbitration decisions "in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board," runs headlong into 5 U.S.C. § 2105(c), which excludes NAFI employees from appealing adverse actions to the MSPB.
3. Jurisdiction does not obtain under the second sentence of § 7121(f), which extends review to matters arising under "other personnel system," because section 7121 is not an affirmative grant of the remedies specified elsewhere; it merely allows an employee to choose the statutory route in lieu of the negotiated grievance route when the former is otherwise available. As NAFI employees, DeLeon and Williams had no route available to them other than the grievance process.
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:
Searcy v. Department of Agriculture, No. 2013-3175 (Feb. 21, 2014) (MSPB Docket No. AT-4324-12-0759-I-1) (affirming the Board's decision, which dismissed Searcy's appeal as barred by res judicata)
Conti v. Merit Systems Protection Board, No. 2013-3071 (Feb. 24, 2014) (MSPB Docket No. NY-0752-09-0041-I-1) (affirming per Rule 36 the Board's decision, which dismissed Conti's appeal for lack of jurisdiction)
Brent v. U.S. Postal Service, No. 2013-3072 (Feb. 24, 2014) (MSPB Docket No. CH-0752-10-0944-I-1) (affirming per Rule 36 the Board's decision, which affirmed Brent's removal on AWOL charges)
McGee v. Department of Agriculture, No. 2013-3174 (Feb. 26, 2014) (MSPB Docket No. AT-1221-10-0202-C-2) (affirming in part, vacating in part, and remanding for further proceedings the Board's decision, which denied McGee's petition for enforcement of a settlement agreement)