Smart v. Department of the Army , 157 F. App'x 260 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3211
MICHAEL C. SMART,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
___________________________
DECIDED: November 14, 2005
___________________________
Before NEWMAN, RADER, and DYK, Circuit Judges.
PER CURIAM.
Petitioner Michael C. Smart (“Smart”) petitions for review of the final decision of
the Merit Systems Protection Board (“Board”), affirming the Administrative Judge’s
(“AJ”) dismissal of Smart’s individual right of action (“IRA”) appeal from his termination
by the Department of the Army (“Agency”). Smart argues that he was terminated in
retaliation for conduct protected under the Whistleblower Protection Act of 1989,
codified at 5 U.S.C. § 2302. We affirm.
BACKGROUND
Smart was employed by the Agency as a security guard in July 2001, and was
transferred to the Agency’s Umatilla Chemical Depot in Hermiston, Oregon (“Depot”), in
September 2001. By letter dated January 30, 2002, the Acting Director of Security at
the Depot informed Smart that he had been absent without official leave since January
11, 2002, and directed Smart to report to duty immediately or provide an acceptable
explanation for his absence. Smart did not comply, and was terminated on the basis of
abandonment of position effective February 14, 2002.
Smart, as a probationary employee, could appeal to the Board only on limited
grounds. See 5 C.F.R. § 315.806 (2002). One available ground is a violation of the
Whistleblower Protection Act (“WPA”). 5 U.S.C. § 1221(a) (2000); 5 C.F.R. §
1209.2(b)(1) (2002). Smart filed an IRA appeal with the Board, alleging that the Depot’s
Special Reaction Team (“SRT”) was trained at the Department of Energy (“DOE”) rather
than at the Department of Defense (“DOD”) facility at Ft. Leonard Wood, Missouri; that
this DOE training violated DOD regulations; that he disclosed this information both in an
October 24, 2001, conversation and in a January 12, 2002, newspaper article; and that
the Agency terminated him in reprisal for these disclosures.
In a December 24, 2003, initial decision, the AJ found that the Board had
jurisdiction, applying the standard that the Board has jurisdiction over a WPA claim
where there are non-frivolous allegations. The AJ dismissed Smart’s appeal on the
merits, concluding that he had failed to prove by preponderant evidence that his
disclosures were protected by the WPA. The Board denied Smart’s petition for review,
but reopened the appeal sua sponte. The Board concluded that it had jurisdiction
because Smart had made non-frivolous allegations that (1) he engaged in protected
whistleblowing activity, and (2) that his protected conduct was a contributing factor in
the agency’s decision to take personnel action. Though the Board found that the AJ
had failed to consider Smart’s disclosure in the January 12, 2002, newspaper article,
the Board affirmed the AJ’s decision on the merits, concluding that Smart failed to prove
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by preponderant evidence that he reasonably believed he was disclosing a violation of
law or that his disclosures evidenced a substantial danger to public safety as required
for protection under the WPA. The Board’s decision became final on May 24, 2005.
Smart timely filed his petition to this court on August 15, 2005. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board did not err in applying the non-frivolous allegation standard to
determine that it had jurisdiction under the WPA. On the merits, the Board’s decision
must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; obtained without procedures required by law, rule
or regulation; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Yates
v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998). Smart contends that the
Board failed to consider all relevant evidence in concluding that Smart’s disclosures
were not protected under the WPA.
To establish a claim under the WPA, the claimant must show by preponderant
evidence (1) that he made a disclosure described in 5 U.S.C. § 2302(b)(8); and (2) that
the protected disclosure was a contributing factor in a personnel action taken against
the claimant. Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1378 (Fed. Cir.
2001). Among other things, the Act protects “any disclosure of information by an
employee or applicant . . . which the employee or applicant reasonably believes
evidences . . . a violation of any law, rule, or regulation . . . or a substantial and specific
danger to public health or safety . . . .” 5 U.S.C. §§ 2302(b)(8)(A)(i)-(ii) (2000). The
Board concluded after a thorough analysis that the plain language of the relevant
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regulations did not prohibit the provision of DOE, rather than DOD, training for the
Depot’s SRT, and thus that Smart failed to show that he reasonably believed that he
had disclosed an actual regulatory violation. The Board also concluded that Smart’s
disclosures were too vague and speculative to constitute a “substantial and specific
danger to public health or safety.” Thus, the Board determined that Smart failed to
establish a claim under the Act and that no corrective action was warranted. We
conclude that the Board’s decision is supported by substantial evidence and free from
legal error.
CONCLUSION
For the foregoing reasons, the Board’s decision is affirmed.
COSTS
No costs.
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