Mason v. Merit Systems Protection Board , 496 F. App'x 75 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID R. MASON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF HOMELAND SECURITY,
Intervenor.
__________________________
2012-3178
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT-1221-09-0728-B-1.
_________________________
Decided: January 10, 2013
_________________________
DAVID R. MASON, of Gallatin, Tennessee, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
MASON v. MSPB 2
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
ANTONIA R. SOARES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for intervenor. With her on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and SCOTT D.
AUSTIN, Assistant Director. Of counsel on the brief was
STEVEN M. TAPPER, Office of Chief Counsel, Transporta-
tion Security Administration, United States Department
of Homeland Security, of Atlanta, Georgia.
__________________________
Before LOURIE, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
Petitioner David R. Mason appeals from the Merit
Systems Protection Board’s (“Board”) final decision dis-
missing Mr. Mason’s individual right of action (“IRA”)
appeal for lack of jurisdiction. Because Mr. Mason failed
to make the requisite nonfrivolous allegations to establish
Board jurisdiction, we affirm.
BACKGROUND
At all times relevant to this appeal, Mr. Mason was a
financial specialist with the Department of Homeland
Security’s Transportation Security Administration
(“TSA”) in Nashville, Tennessee. In December 2008, Mr.
Mason filed two complaints with the United States Office
of Special Counsel (“OSC”) seeking corrective action under
the Whistleblower Protection Act, 5 U.S.C. § 2302 et seq.
(“WPA”). In the first complaint, Mr. Mason alleged that
he disclosed a potentially fraudulent $160 taxi fare re-
ceipt to Assistant Federal Security Director (“AFSD”) Ken
Meyer, to the Office of the Inspector General (“OIG”), and
3 MASON v. MSPB
to OSC (“taxi fare disclosure”) and suffered retaliatory
personnel action including a denial of training and a
change in his duties. In the second complaint, Mr. Mason
alleged reprisals including a Letter of Guidance and
Direction, a denial of training, and a change in duties, all
purportedly in response to his disclosure to Federal
Security Director (“FSD”) W. Paul Armes, OIG, and OSC
of unapproved spending on a government purchase card
(the “purchase card disclosure”). After examining the
complaints, the OSC closed its investigation and notified
Mr. Mason of his right to seek corrective action with the
Board.
On June 24, 2009, Mr. Mason filed an IRA appeal
with the Board. In the appeal, Mr. Mason alleged that, in
addition to the taxi fare disclosure and the purchase card
disclosure, he had made protected disclosures regarding:
(1) FSD Armes’s claims for redundant expenses during
travel; (2) an employee’s unratified and unauthorized
order; and (3) an order exceeding available funds that was
placed without prior approval. The appeal further alleged
multiple retaliatory personnel actions, including: (1) the
Letter of Reprimand; (2) the Letter of Guidance and
Direction, (3) a prejudicial performance evaluation; (4) the
denial of training opportunities; (5) the significant
changes in job duties; (6) the denial of compensatory time,
awards, and overtime; and (7) defamatory statements,
threats, and humiliation.
In an Initial Decision, the administrative judge dis-
missed the IRA appeal for lack of jurisdiction on the
ground that Mr. Mason “failed to establish that he made
protected disclosures within the meaning of the WPA.”
A.18. Mr. Mason petitioned for review by the full Board.
The Board first considered whether Mr. Mason has satis-
factorily shown exhaustion before the OSC, a jurisdic-
tional prerequisite, and found that he had done so only
MASON v. MSPB 4
with respect to the taxi fare and purchase card disclosures
alleged in his December 2008 complaints to the OSC.
Exhaustion had not been shown, however, for the remain-
ing three disclosures. On this point, the Board found the
administrative judge failed to adequately advise Mr.
Mason of his obligation to prove exhaustion and thus
vacated the Initial Decision and remanded to give Mr.
Mason the opportunity to make such a showing.
The Board then continued with its analysis of the
purchase card and taxi fare disclosures to determine
whether either established jurisdiction under the WPA.
The Board found that these disclosures, when made to
FSD Armes and AFSD Meyer, were unprotected disclo-
sures made pursuant to Mr. Mason’s normal job responsi-
bilities to report finance-related violations. The same
disclosures made to OIG and OSC, however, were found to
be outside the normal performance of duties and thus
protected. The Board instructed the administrative judge
to make further findings of fact regarding whether any
personnel action relating to these protected disclosures
was sufficient to establish jurisdiction.
On remand before the administrative judge, Mr. Ma-
son failed to submit any additional information regarding
exhaustion before the OSC. For a second time, the ad-
ministrative judge dismissed the appeal for lack of juris-
diction. In particular, she found Mr. Mason had failed to
make the required nonfrivolous allegation that any of his
protected disclosures contributed to the personnel actions
taken against him.
Mr. Mason again petitioned for review by the full
Board. This time, the Board declined to reconsider the
Initial Decision. It did, however, modify the decision in
several respects. In particular, the Board clarified that
all personnel actions except two predated the relevant
5 MASON v. MSPB
protected disclosure, and thus could not possibly have
been taken in retaliation for the disclosure. Moreover, the
Board found Mr. Mason failed to nonfrivolously allege
that the two remaining personnel actions postdating a
protected disclosure1 were made with knowledge of such
disclosure. Consequently, the Board reached the “same
ultimate conclusion as the administrative judge” that it
lacked jurisdiction over Mr. Mason’s IRA appeal. A.68.
Mr. Mason timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
I.
This court must uphold a decision of the Board unless
it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit Sys.
Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). The
Board’s determination that it lacks jurisdiction is a ques-
tion of law subject to de novo review. Id. Underlying
factual determinations are reviewed for substantial
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). The burden to establish jurisdic-
tion lies with Mr. Mason. 5 C.F.R. § 1201.56(a)(2)(i).
II.
A federal employee may seek corrective action from
the Board when personnel action has been taken in
retaliation for a WPA-protected disclosure. Fields v. Dep’t
of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006) (citing 5
1 Specifically, the denials of a training request and
a request for compensatory time post-dated the taxi fare
disclosure.
MASON v. MSPB 6
U.S.C. § 1221(a)). The Board has jurisdiction over such a
claim when an employee “has exhausted administrative
remedies before the OSC [ ] and makes ‘non-frivolous
allegations’ that (1) he engaged in whistleblowing activi-
ties by making a protected disclosure under 5 U.S.C.
§ 2302(b)(8) and (2) the disclosure was a contributing
factor in the agency’s decision to take a personnel action
as defined by 5 U.S.C. § 2302(a).” 2 Id. (internal quotation
marks and citation omitted). The standard to determine
whether a nonfrivolous allegation has been made is
analogous to that for summary judgment; that is, the
petitioner must demonstrate the existence of a genuine
issue of material fact. Kahn v. Dep't of Justice, 528 F.3d
1336, 1341 (Fed. Cir. 2008). “‘Non-frivolous allegations
cannot be supported by unsubstantiated speculation in a
pleading submitted by petitioner.’” Id. (quoting Dorrall v.
Dep’t of the Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002),
overruled on other grounds by Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322 (Fed. Cir. 2006)).
Mr. Mason’s first argument on appeal challenges the
Board’s findings that the disclosures to FSD Armes and
AFSD Meyer were within Mr. Mason’s normal job duties
and thus unprotected. Mr. Mason does not dispute this
court’s rule enunciated in Huffman v. Office of Personnel
Management, 263 F.3d 1341, 1344 (Fed. Cir. 2001), that
disclosures made pursuant to “an employee’s assigned
normal job responsibilities . . . when made through nor-
mal channels” are not protected under the WPA. Rather,
Mr. Mason contends that “question[ing] travel expenses
2 A disclosure is protected if the employee reasona-
bly believes it shows “(i) a violation of any law, rule, or
regulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety . . . .” 5 U.S.C.
§ 2302(b)(8)(A).
7 MASON v. MSPB
and disclos[ing] policy/procedural violations” were re-
moved from his responsibilities and consequently such
disclosures were not within his normal duties. Petitioner’s
Informal Brief (“Pet. Br.”), Attachment A. Mr. Mason
relies on emails he wrote to two of his supervisors in
which he asked for confirmation that “ask[ing] questions
about travel expenses” was outside the scope of his posi-
tion. Pet. Br., Attachments A-1, A-2. However, this query
alone does not show that Mr. Mason had been relieved of
such responsibilities. To the contrary, the record shows
that Mr. Mason was specifically instructed to report
“‘[a]ny anomalies outside the realm of routine business,’”
A.31; Pet. Br., Attachment A-3, and to “rais[e] questions
about travel vouchers when red flags arise,” A.33 (inter-
nal quotation marks and citation omitted). We therefore
conclude that substantial evidence supports the Board’s
finding that reporting finance-related violations to his
supervisors was part of Mr. Mason’s job as a financial
specialist. Accordingly, such disclosures were properly
found to be unprotected by the WPA. Huffman, 263 F.3d
at 1344.
Second, Mr. Mason challenges the Board’s conclusion
that he failed to nonfrivolously allege that TSA manage-
ment had knowledge of his protected disclosure to OIG at
the time of the relevant personnel actions, and thus failed
to meet the contributing factor element of his WPA claim.
See 5 U.S.C. § 1221(e)(1); Kewley v. Dep’t of Health and
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). In
an effort to show that TSA management did have knowl-
edge of the disclosure to OIG, Mr. Mason presented evi-
dence showing that Office of Inspection (“OI”) informed
TSA management of a complaint Mr. Mason filed with OI
in 2011, three years after the disclosure at issue. How-
ever, this unrelated communication does not create a
genuine issue whether Mr. Mason’s protected disclosure
MASON v. MSPB 8
to OIG in 2008 was known by TSA management at the
time of the personnel actions at issue. Therefore, the
Board correctly found Mr. Mason failed to nonfrivolously
allege the contributing factor element of his WPA claim.
Finally, Mr. Mason argues the Board denied him due
process of law by declining to grant his petition for review
in spite of his allegations that TSA failed to comply with
the administrative judge’s discovery order. However, Mr.
Mason did not challenge TSA’s response to the discovery
order until months after the relevant discovery deadline,
and after the administrative judge had already decided
the case. See Pet. Br., Attachment C-3 (raising the discov-
ery issue, apparently for the first time, in the petition for
review before the full Board). The Board thus did not
deprive Mr. Mason of due process when it found he was
“preclude[d] from raising” this argument for the first time
on petition for review. A.64.
CONCLUSION
We have considered the remainder of Mr. Mason’s ar-
guments and find them unpersuasive. For the foregoing
reasons, we affirm the Board’s dismissal of this case for
lack of jurisdiction.
AFFIRM
No costs.