Feuer v. NLRB ( 2019 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELIAS FEUER,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
______________________
2019-1390
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-1221-17-0200-W-1.
______________________
Decided: September 13, 2019
______________________
ELIAS FEUER, New York, NY, pro se.
SONIA W. MURPHY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.
HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before PROST, Chief Judge, PLAGER and DYK, Circuit
Judges.
2 FEUER v. NLRB
PER CURIAM.
Elias Feuer appeals from the Merit Systems Protection
Board (“Board”) holding that the National Labor Relations
Board (“NLRB”) did not violate Feuer’s rights under the
Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8), be-
cause (1) it did not take any personnel action against him
and (2) the NLRB had shown by clear and convincing evi-
dence that it would have taken the same action regardless
of Feuer’s protected disclosures. We reject the Board’s first
ground but affirm as to the second ground.
BACKGROUND
Feuer was employed as a lawyer at the NLRB for
thirty-two years. In 2012, he was appointed to an Admin-
istrative Law Judge (“ALJ”) position at the Social Security
Administration (“SSA”). In July 2016, the NLRB posted an
announcement for “more than one” ALJ vacancy located in
the Washington, D.C. and New York, New York duty sta-
tions. The posting stated that “[c]andidates must currently
hold an Administrative Law Judge position, at the AL-3
level or above for at least one year or be eligible for rein-
statement to an ALJ position based on prior experience as
an ALJ.” J.A. 449. Feuer, who was qualified for the vacant
positions, applied seeking an appointment to the New York
position. He was not selected. Two other candidates were
selected for the New York duty station and three candi-
dates were selected for the Washington, D.C. duty station.
After learning of his non-selection, Feuer contacted the
NLRB on five separate occasions with allegations of agency
misconduct. Feuer claimed, inter alia, that one of the ALJs
who had been selected for the New York position, Benjamin
Green, did not meet the one-year requirement under the
NLRB’s posting. At the close of the posting, Green had less
than one year of service as an ALJ at the SSA. After an
internal investigation, the NLRB determined, in consulta-
tion with the Office of Personnel Management (“OPM”),
that the one-year requirement was solely intended to
FEUER v. NLRB 3
implement an OPM regulation that prohibited transfer of
an ALJ to a new position within one year of the ALJ’s last
appointment without consent of the transferee and trans-
feror agencies. The NLRB determined that on the date of
his scheduled transfer from the SSA to the NLRB, Green
would have served at his ALJ position for over one year and
was therefore eligible under the regulation and the vacancy
announcement. On November 13, 2016, the NLRB ap-
pointed Green to the New York position as it had originally
planned to do before Feuer made his disclosures. On No-
vember 14, 2016, the agency mistakenly reposted the va-
cancy announcement before taking it down within one day.
Feuer appealed the agency’s actions to the Board, al-
leging that the NLRB’s decision not to select him for the
allegedly vacant New York position after his protected dis-
closures and its subsequent decision not to select him in
connection with the November 14 posting were made in re-
taliation for his whistleblowing activities. After a four-day
hearing, the ALJ denied Feuer’s appeal. The ALJ con-
cluded that Feuer had made two protected disclosures: (1)
an October 17, 2016 telephone call to Mark Pearce, Chair-
man of the NLRB, alleging that the NLRB engaged in age
discrimination, nepotism, and violations of its standard
hiring procedures and (2) an October 24 letter sent to
Chairman Pearce wherein Feuer made the same allega-
tions as his telephone call, as well as the allegation that
Green’s appointment was improper. The ALJ found that
Feuer’s disclosures satisfied the knowledge/timing test and
were “contributing factors” under 5 U.S.C. § 1221(e)(1).
However, the ALJ found that the retaliation that Feuer al-
leges—the agency’s non-selection of Feuer for the New
York position as well as its November 14 posting—were not
“personnel actions” as defined by 5 U.S.C. § 2302(a)(2)(A).
The ALJ also found that even if these events constituted
personnel actions, the agency had proven by clear and con-
vincing evidence that Feuer would not have been selected
for the position.
4 FEUER v. NLRB
Feuer did not seek review from the full Board, but in-
stead timely filed a petition for review in our court. The
ALJ’s decision became the decision of the Board. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited to whether the
decision was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial ev-
idence.” 5 U.S.C. § 7703(c). Our review is “without regard
to errors” that do not affect the parties’ “substantial
rights.” 28 U.S.C. § 2111; see also Boss v. Dep’t of Home-
land Sec., 908 F.3d 1278, 1282 (Fed. Cir. 2018).
Agencies may not take or fail to take personnel action
against an employee in retaliation for a protected whistle-
blower disclosure. See 5 U.S.C. § 2302(b)(8). A protected
disclosure is “any disclosure of information by an employee
or applicant which the employee or applicant reasonably
believes evidences . . . a violation of any law, rule, or regu-
lation.” Kahn v. Dep’t of Justice, 618 F.3d 1306, 1311 (Fed.
Cir. 2010) (alteration in original) (quoting 5 U.S.C.
§ 2302(b)(8)(A)). Personnel action includes non-selection
for an appointment. See Ellison v. Merit Sys. Prot. Bd., 7
F.3d 1031, 1034 (Fed. Cir. 1993); Monasteri v. Merit Sys.
Prot. Bd., 232 F.3d 1376, 1380 (Fed. Cir. 2000); Ruggieri v.
Merit Sys. Prot. Bd., 454 F.3d 1323, 1325 (Fed. Cir. 2006).
I
Feuer first argues that the Board erroneously found
that he had made only two protected disclosures when he
had in fact made five protected disclosures. The Board de-
termined that Feuer made two protected disclosures: a tel-
ephone call to Chairman Pearce on October 17, 2016 and a
letter sent to Chairman Pearce on October 24, 2016. Feuer
alleges that the Board failed to consider his three
FEUER v. NLRB 5
subsequent disclosures: a formal complaint filed with the
NLRB Inspector General on October 28, 2016, a letter sent
to the NLRB attorney Jennifer Kovachich on November 7,
2016, and an email sent to the Inspector General on No-
vember 8, 2016. The Board’s analysis of Feuer’s protected
disclosures failed to mention these subsequent disclosures.
Feuer’s additional disclosures were substantively the same
as his initial disclosures to Chairman Pearce with one ex-
ception. Feuer’s November 7th letter and November 8th
email included a new allegation that the agency intended
to create a sham posting to hire the ineligible candidate.
The Board erred when it failed to consider these three ad-
ditional protected disclosures. However, consideration of
these additional disclosures—which were largely the same
as his earlier disclosures—would not have affected the re-
sult. Therefore, the Board’s error was harmless. 28 U.S.C.
§ 2111.
II
The Board held that Feuer had made protected disclo-
sures and that because Feuer made his disclosures directly
to the Chairman within one month of his alleged personnel
actions, there was a presumption that Feuer’s disclosures
were “contributing factors” as defined under 5 U.S.C.
§ 1221(e)(1). But it held that there had been no personnel
action (i.e. non-selection) because following his disclosure
there had been no vacancy. The question of whether a va-
cancy existed because Green was not qualified depends on
the interpretation of the vacancy announcement’s require-
ment that “[c]andidates must currently hold an Adminis-
trative Law Judge position . . . for at least one year.”
J.A. 449.
The Board held that the posting “as a whole” was
“somewhat ambiguous” and that the phrase “must cur-
rently” was subject to reasonable debate, and therefore de-
ferred to the NLRB’s interpretation that the one-year
requirement was satisfied as long as Green had one year
6 FEUER v. NLRB
service at the time of his transfer. J.A. 347–48. Feuer ar-
gues that the Board erred when, citing Auer v. Robbins, 519
U.S. 452, 461 (1997) and Fed. Express Corp. v. Holowecki,
552 U.S. 389, 403 (2008), it deferred to the NLRB’s inter-
pretation of the phrase “must currently.” Feuer urges that,
absent this erroneous interpretation, the NLRB would
have rescinded its offer to Green and Feuer would have
been appointed as the “next highest ranked applicant.” 1
Appellant’s Br. 9. Feuer contends that the meaning of the
phrase “must currently” in the one-year requirement is
clear—the applicant must to hold an ALJ position for one
year “by the time they submit their application, but no
later than the application deadline.” Appellant’s Br. 7.
The NLRB contends that the language in the posting
was intended to implement an OPM regulatory require-
ment, which recites: “[a]n agency may not transfer an indi-
vidual from one administrative law judge position to
another administrative law judge position within 1 year af-
ter the individual’s last appointment, unless the gaining
and losing agencies agree to the transfer.” 5 C.F.R.
§ 930.204(h). Thus, the Board found that Green was eligi-
ble for the position and that the agency did not take per-
sonnel action against Feuer.
We conclude that the posting is not an interpretation
of the regulation. Although the regulation is cited in the
vacancy announcement, there is no citation to the regula-
tion in the section on qualifications, and the regulation has
nothing to do with the qualifications or experience level re-
quired for the position—the subject of the vacancy an-
nouncement’s requirement. Therefore, the question is
1 Feuer also argues that the posting and cancellation
of the November 14th vacancy announcement was a per-
sonnel action. In these circumstances an administrative
error cannot constitute retaliatory personnel action under
5 U.S.C. § 2302(b)(8).
FEUER v. NLRB 7
whether deference is due to an agency’s interpretation of
an agency document that is not a regulation, an issue as to
which there is little authority. Even assuming Auer-like
deference is owed in some circumstances to such interpre-
tations, we think it is not owed here. First, no deference is
due when the agency’s interpretation does not reflect a
“fair and considered judgment.” Kisor v. Wilkie, 139 S. Ct.
2400, 2417 (2019) (quoting Christopher v. SmithKline Bee-
cham Corp., 567 U.S. 142, 155 (2012)). Courts do not defer
to an agency’s “‘convenient litigating position’ or ‘post hoc
rationalization advanced’ to ‘defend past agency action
against attack.’” Id. (quoting Christopher, 567 U.S. at
155); see also S. Cal. Edison Co. v. United States, 226 F.3d
1349, 1357 (Fed. Cir. 2000) (noting that affording deference
to agency interpretations of contract provisions “could lead
the courts to endorse self-serving post-hoc reinterpreta-
tions of contracts that an agency might offer in the context
of a litigation,” especially when the agency is a party to the
contract (citing National Fuel Gas Supply v. Federal En-
ergy Reg. Comm’n, 258 U.S. App. D.C. 374, 811 F.2d 1563,
1571 (D.C. Cir. 1987))). No deference is due to the agency’s
interpretation adopted here in response to Feuer’s allega-
tions in the present controversy.
Second, as the Supreme Court has recently instructed,
“a court should not afford Auer deference unless the regu-
lation is genuinely ambiguous.” Kisor, 139 S. Ct. at 2415
(citing Christensen v. Harris County, 529 U.S. 576, 588
(2000) and Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945)). “[A] court must exhaust all the ‘tradi-
tional tools’ of construction” before making a finding of am-
biguity. Id. (emphasis added) (quoting Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843, n.9 (1984)). The purpose of the vacancy an-
nouncement is to determine the qualifications and experi-
ence necessary for the position. The plain meaning of the
phrase “currently” means “at present.” Webster’s Third
New International Dictionary 557 (1986). In this context,
8 FEUER v. NLRB
the vacancy announcement’s use of the word “currently”
must mean “at the time the posting closes.” A requirement
that an applicant “must currently” satisfy to be eligible for
a position cannot be satisfied after the posting is closed.
Such an interpretation would unreasonably read the word
“currently” to mean “in the future” instead of the its proper
meaning: “at present.” This plain meaning is reinforced by
the 2017 NLRB Administrative Policies and Procedures
Manual, which requires that application requirements
must be evaluated at the close of the posting or at a time
otherwise expressly specified in the application. While not
in effect at the time of Feuer’s alleged personnel action, this
Manual confirms that even the agency reads the plain
meaning of “currently” to mean at the close of posting.
We hold that the Board erred in adopting the NLRB’s
interpretation of the phrase “must currently” in the va-
cancy announcement. As a result, we hold that the Board’s
finding that Green was eligible for the New York position
was not supported by substantial evidence, and the agency
took a personnel action against Feuer by not selecting him.
III
However, our inquiry does not end there. The Board
concluded that the NLRB had shown by clear and convinc-
ing evidence that it would not have selected Feuer for the
position even in the absence of his protected disclosures un-
der the nonexclusive three-factor test described in Carr v.
Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). “To
be clear, Carr does not impose an affirmative burden on
the agency to produce evidence with respect to each and
every one of the three Carr factors to weigh them each in-
dividually in the agency’s favor.” Miller v. Dep’t of Justice,
842 F.3d 1252, 1257 (Fed. Cir. 2016) (internal quotations
omitted). This court reviews the Board’s finding of inde-
pendent causation for substantial evidence. Id. at 1258.
The first Carr factor is “the strength of the agency’s ev-
idence in support of its personnel action.” Carr, 185 F.3d
FEUER v. NLRB 9
at 1323. In this case, the personnel action is the NLRB’s
rejection of Feuer’s application in connection with the va-
cancy created by Green’s ineligibility. Feuer argues that
but for the NLRB’s selection of an ineligible applicant, the
agency would have selected him, the next most qualified
applicant. Feuer contends that the NLRB has a “historical
agency-wide practice” of hiring the next most-qualified can-
didate. Appellant’s Br. 22. However, the NLRB provided
evidence to show that it would not have automatically se-
lected the next ranked candidate if Green had not been se-
lected. This evidence included NLRB Policy and Procedure
documents from the relevant time period that did not pro-
vide for such a practice as well as testimony from both the
Chief Judge and Chairman of the NLRB. The Board did
not err in concluding that “[t]he record shows the NLRB
did not have a process or procedure to select the next most
eligible candidate in line.” J.A. 362.
In the absence of any policy requiring his selection, the
NLRB produced evidence that Feuer would not have been
selected for the New York position. This evidence included
testimony from the Chairman, Chief Judge, Deputy Chief
Judge, and records from the NLRB’s selection process. The
Board noted that while Feuer clearly had the knowledge
and experience required for the position, the Chairman
considered Feuer to be “lacking in judicial temperament,”
the Chief Judge expressed an “adverse opinion concerning
[Feuer’s] writing samples,” and the Deputy Chief Judge
had expressed adverse opinions concerning Feuer’s people
skills. J.A. 357–58. The Board also noted that Feuer had
previously applied to a vacancy at the NLRB and was not
selected. The Board did not err in finding “the strength of
the NLRB’s evidence that it would not have selected
[Feuer] despite his whistleblowing activities to be persua-
sive evidence.” J.A. 358. The Board also did not err in con-
cluding that the NLRB had met its burden of persuasion
and that the first Carr factor weighed in favor of the
agency.
10 FEUER v. NLRB
The second Carr factor is “the existence and strength
of any motive to retaliate on the part of the agency officials
who were involved in the decision.” Carr, 185 F.3d at 1323.
While the Board noted that the parties did not directly ad-
dress the issue of “motive on the part of the NLRB to retal-
iate against” Feuer, it found that, based on the testimony
given by the Chairman, “[t]he evidence [did] not support a
finding of retaliation.” J.A. 359–60. The Board observed
that the Chairman took Feuer’s allegations seriously, di-
rected an investigation of Feuer’s complaints, and made an
objectively reasonable (though ultimately erroneous) deci-
sion not to make a second vacancy announcement based on
a good-faith belief that Green was eligible for the position.
The third and final Carr factor is “any evidence that
the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly sit-
uated.” Carr, 185 F.3d at 1323. Here, the Board noted the
“unusual” situation before it meant that “there is little or
no available evidence on how the NLRB has handled other
similarly situated applicants because withdrawal or dis-
qualification for an ALJ transfer would be rare.” J.A. 361.
When the whistleblower is in a unique or unusual situa-
tion, “the absence of any evidence relating to Carr factor
three can effectively remove that factor from the analysis.”
Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1374 (Fed. Cir.
2012). This is the case here.
We conclude that substantial evidence supports the
Board’s decision that the NLRB had “provided clear and
convincing evidence that it would have taken the same
course of action (non-selection of [Feuer]) regardless of
[Feuer’s] protected disclosures.” J.A. 363.
AFFIRMED
COSTS
No costs.