El v. MSPB , 663 F. App'x 921 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AUBREY J. EL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1557
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-15-0730-W-1.
______________________
Decided: October 6, 2016
______________________
AUBREY J. EL, Richmond, VA, pro se.
JEFFREY GAUGER, Office of the General Counsel, Mer-
its Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK.
______________________
Before PROST, Chief Judge, REYNA, and CHEN, Circuit
Judges.
PER CURIAM.
2 EL v. MSPB
Aubrey J. El appeals a December 21, 2015 decision of
the Merit Systems Protection Board (Board), Docket No.
DC-1221-15-0730-W-1, dismissing his May 14, 2015
individual right of action (IRA) appeal for lack of subject
matter jurisdiction. In his appeal, Mr. El alleged that the
National Oceanic and Atmospheric Administration
(NOAA) terminated his employment and refused to rein-
state him in reprisal for his whistleblowing activity
regarding NOAA’s delays in reimbursing his travel
claims. Because the Board properly determined that it
lacked jurisdiction over Mr. El’s appeal, we affirm.
BACKGROUND
Mr. El filed this IRA appeal with the Board on May
14, 2015, arguing that the Department of Commerce
(Commerce) retaliated against him by terminating him
from his position with NOAA, an agency of Commerce, for
his alleged protected whistleblowing activity. Mr. El had
been hired as a General Vessel Assistant on September 9,
2013 with continued employment subject to the comple-
tion of a one-year trial period. Prior to completing his
trial period, however, Mr. El was terminated with an
effective date of December 13, 2013 for misusing his
government travel card.
After his termination, Mr. El wrote a complaint letter
to Commerce’s Office of Civil Rights on January 27, 2014.
In this letter, Mr. El focused primarily on denying
NOAA’s allegation of his travel card misuse. He also
accused NOAA of “unlawful and discriminatory adverse
actions,” complaining that NOAA had taken more than
one month to reimburse him for each travel expense that
he had submitted. S.A. 38-39. He complained of
“[e]xtreme delays in electronic processing of travel claims
despite [his] timely submission,” and a “[r]epeated failure
to incorporate all of [his] timely submitted expenses into
various travel claims.” S.A. 39. He blamed these delays
on a “[f]ailure to adequately supervise, train or provide
EL v. MSPB 3
resources related to travel claim submission in order to
avoid delays in processing.” S.A. 39. He also wrote that
he would have sent in his own receipts earlier had gov-
ernment employees not been furloughed. He requested
immediate reinstatement, full back pay, and benefits.
Following several interim communications, Mr. El
wrote another letter to the Office of Special Counsel
(OSC) on January 7, 2015, alleging that NOAA’s termina-
tion of his employment and refusal to reinstate him were
in reprisal for his complaints about delays in his travel
reimbursement. In this letter, Mr. El wrote that his
previous complaints were “protected disclosures” under
the Whistleblower Protection Act (WPA) and the Whistle-
blower Protection Enhancement Act (WPEA). 1 He ex-
plained that his “complaints of intentional delays in
reimbursement of [his] travel claims were protected
because NOAA travel regulations require that timely filed
travel claims be reimbursed within thirty days,” and
“[m]ost if not all of [his] travel claims took over thirty
days to be reimbursed without any justification.” S.A. 43.
After making a preliminary determination to close its
inquiry on March 16, 2015, the OSC closed its final inves-
tigation on March 31, 2015, and notified Mr. El of his
right to file an IRA appeal to the Board.
Mr. El filed his IRA appeal with the Board on May 14,
2015, and the Administrative Judge (AJ) issued an initial
decision on August 5, 2015. The AJ found that because
Mr. El was terminated during his one-year trial period,
his termination was not an otherwise appealable action,
1 Whistleblower Protection Enhancement Act of
2012, Pub. L. No. 112–199, 126 Stat. 1465–76 (codified as
amended in scattered sections of 5 U.S.C., 6 U.S.C. § 133,
31 U.S.C. § 1116, 50 U.S.C. § 401a); Whistleblower Pro-
tection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16
(codified at various sections of 5 U.S.C.)).
4 EL v. MSPB
and it could only be reviewed by the Board as an IRA
appeal. The AJ also found that the WPA allows an em-
ployee to seek corrective action through an IRA appeal
with the Board, and NOAA’s action of terminating Mr. El
during a one-year trial period satisfied the WPA’s defini-
tion of a “personnel action.”
Nevertheless, the AJ dismissed Mr. El’s IRA appeal
for lack of jurisdiction because Mr. El failed to establish
that he made any nonfrivolous allegations of protected
disclosures before his termination. The AJ found that his
disclosures prior to his termination lacked the sufficient
detail and specificity necessary to raise a nonfrivolous
allegation of a protected disclosure. The AJ explained
that Mr. El’s allegations were at most a “complaint” that
did not cover more than Mr. El’s own personal difficulties.
Mr. El’s communications did not identify any violation of
law, rule, or regulation; gross mismanagement or waste of
funds; abuse of authority; or substantial and specific
danger to public health or safety. The AJ acknowledged
that Mr. El had identified certain communications that
could be considered to be protected disclosures, but the AJ
concluded that those communications could not have
contributed to Mr. El’s termination from NOAA because
those communications postdated his termination.
Mr. El petitioned for Board review of the AJ’s initial
decision, and the Board affirmed, as modified, on Decem-
ber 21, 2015. The Board agreed with the AJ that Mr. El’s
January 27, 2014 letter referred only to extreme delays in
the processing of his travel claims, which were only a
vague allegation of wrongdoing and “d[id] not constitute a
nonfrivolous allegation of a violation of law, rule, or
regulation.” S.A. 6. Although the Board did find that Mr.
El made a nonfrivolous allegation that his January 7,
2015 letter could have been a “protected disclosure,” it
also found that this letter could not have been a contrib-
uting factor in NOAA’s personnel actions against him.
The Board explained that both NOAA’s termination and
EL v. MSPB 5
NOAA’s failure to reinstate Mr. El predated his January
7, 2015 letter. Thus, because the complained-of personnel
actions predated the January 7, 2015 letter, Mr. El could
not establish that the Board had jurisdiction over his IRA
appeal.
Mr. El filed a timely appeal to this court, and he pre-
sents two main arguments in his appeal. First, he asserts
that his communications prior to his January 7, 2015
letter were sufficient to establish a nonfrivolous allegation
of protected disclosures and that these disclosures were a
contributing factor in NOAA’s decision to terminate and
fail to reinstate him. Second, he contends that his Janu-
ary 7, 2015 letter to OSC was not itself a “protected
disclosure,” but that the letter was a “complaint” that
nonfrivolously alleged his reasonable belief that his
previous complaints of delays in his travel reimburse-
ments were “protected disclosures” relating to a violation
of NOAA’s travel regulations.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
“Our review of a decision of the board is circumscribed
by statute.” Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318,
1319 (Fed. Cir. 2016). “We must affirm the Board’s
decision unless it is (1) arbitrary, capricious, an abuse of
discretion, 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 evidence.” Wrocklage v. Dep’t of Homeland
Sec., 769 F.3d 1363, 1366 (Fed. Cir. 2014). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.
“Whether the board ha[s] jurisdiction to adjudicate a
case is a question of law, which we review de novo.”
Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.
1995). “[T]he Board has jurisdiction over an IRA appeal if
6 EL v. MSPB
the appellant has exhausted his administrative remedies
before the OSC and makes ‘non-frivolous allegations’ that
(1) he engaged in whistleblowing activity 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 or fail to take a personnel action.” Yunus
v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001). Under the WPA, a “protected disclosure” includes
“any disclosure of information by an employee or appli-
cant which the employee or applicant reasonably believes
evidences—(i) any violation of any law, rule, or regula-
tion, 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);
Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380 (Fed.
Cir. 2008). “A petitioner bears the burden of establishing
that the Board has jurisdiction by a preponderance of
evidence.” McCarthy v. Merit Sys. Prot. Bd., 809 F.3d
1365, 1373 (Fed. Cir. 2016).
“The determination of whether an employee has a
reasonable belief that a law, rule, or regulation was
violated turns on the facts of the particular case.” Her-
man v. Dep’t of Justice, 193 F.3d 1375, 1382 (Fed. Cir.
1999). However, “the WPA was enacted to protect em-
ployees who report genuine violations of law, not to en-
courage employees to report minor or inadvertent miscues
occurring in the conscientious carrying out of a federal
official or employee’s assigned duties.” Id. at 1381. Thus,
“disclosures of trivial violations do not constitute protect-
ed disclosures.” Langer v. Dep’t of Treasury, 265 F.3d
1259, 1266 (Fed. Cir. 2001). In Drake v. Agency for Inter-
national Development, we further explained that “the
relevant disclosures [in Herman v. Department of Justice
and in Langer v. Department of Treasury] were not pro-
tected because they disclosed, at most, minor and inad-
vertent miscues occurring in the conscientious carrying
EL v. MSPB 7
out of one’s assigned duties, not violations of laws, rules,
or regulations.” 543 F.3d 1377, 1381 (Fed. Cir. 2008).
Here, Mr. El alleges that, during his three months of
employment, he had made several inquiries regarding his
pending travel reimbursement requests, and despite his
complaints of these delays, they continued to occur. He
emphasizes his post-termination January 27, 2014 letter,
in which he complained that it had taken more than one
month for NOAA to reimburse him for every travel claim
that he had submitted. He complained of “[e]xtreme
delays in electronic processing of travel claims despite
[his] timely submission” and the “[r]epeated failure to
incorporate all of [his] timely submitted expenses into
various travel claims.” S.A. 39. He blamed the delays on
a “[f]ailure to adequately supervise, train or provide
resources related to travel claim submission in order to
avoid delays in processing.”
The January 27, 2014 letter, however, does not show
that Mr. El reasonably believed that the delays in his
travel claim reimbursements evidenced “(i) any violation
of any law, rule, or regulation, or (ii) gross mismanage-
ment, 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). Substantial evidence supports the
Board’s factual finding that this letter did not identify any
specific wrongdoing or violation of law, rule, or regulation
because it only described a vague allegation of wrongdo-
ing and “d[id] not constitute a nonfrivolous allegation of a
violation of law, rule, or regulation.” S.A. 6. The letter
simply complained that every travel claim Mr. El had
ever submitted had taken more than one month to be
processed and reimbursed. It did not identify any viola-
tion of law, rule, or regulation. It also did not allege any
“gross mismanagement or a gross waste of funds because
El never had any such evidence.” Pet’r Br. 48–49.
8 EL v. MSPB
Mr. El further relies on his January 7, 2015 letter,
which the Board did find to rise to the level of a protected
disclosure because it alleged a violation of NOAA travel
regulations. This letter explained that Mr. El’s “com-
plaints of intentional delays in reimbursement of [his]
travel claims were protected because NOAA travel regula-
tions require that timely filed travel claims be reimbursed
within thirty days,” and “[m]ost if not all of [his] travel
claims took over thirty days to be reimbursed without any
justification.” S.A. 43. The Board also found, however,
that the January 7, 2015 letter could not have contributed
to NOAA’s termination of Mr. El or failure to reinstate
him because those personnel actions predated the letter.
In Horton v. Dep’t of Navy, 66 F.3d 279, 283 (Fed. Cir.
1995), superseded by statute on other grounds, Whistle-
blower Protection Enhancement Act of 2012, Pub. L. No.
112–199, § 101(b)(2)(C), 126 Stat. 1465, 1465–66, we
affirmed the Board’s dismissal of an IRA appeal by an
employee, in which the employee had sent a letter con-
taining a protected disclosure one day after the employee
had already received disciplinary action and had been
notified that disciplinary action had been initiated
against him. The disciplinary action was initiated within
a one-year probationary period following the employee’s
appointment as an Assistant Librarian. Id. at 281. The
Board dismissed the employee’s IRA appeal challenging
the termination, and we affirmed. Id. at 283–84. We held
that although the employee’s letter “must be viewed as a
protected disclosure,” it could not be “a contributing factor
to the action already initiated” because “the action to
remove [the employee] was initiated on May 16, the day
before the May 17 letter was written.” Id. Accordingly,
we affirmed the Board’s denial of the IRA appeal. Id.
Here, even assuming that Mr. El’s January 7, 2015
letter was a protected disclosure, this letter could not
have contributed to NOAA’s termination of Mr. El or
NOAA’s failure to reinstate him because these personnel
EL v. MSPB 9
actions long predated the letter. See id. Thus, any pro-
tected disclosure in the January 7, 2015 letter was not a
contributing factor to the personnel actions already initi-
ated against Mr. El at the time of the letter. See id.
As for Mr. El’s theory that his January 7, 2015 letter
to OSC was a “complaint,” rather than a “protected disclo-
sure,” this position also lacks merit because Mr. El’s
summary of his previous communications in his January
7, 2015 letter does not transform those communications
into protected disclosures. As we explained above, sub-
stantial evidence supports the Board’s factual finding that
Mr. El’s disclosures of his delayed travel reimbursements
prior to his January 7, 2015 letter were not protected
disclosures because they only described a vague allegation
of wrongdoing and “d[id] not constitute a nonfrivolous
allegation of a violation of law, rule, or regulation.” S.A.
6.
CONCLUSION
The Board properly dismissed Mr. El’s IRA appeal for
lack of jurisdiction because Mr. El’s disclosures described
only a vague allegation of wrongdoing and were not
protected. Although Mr. El may have made a protected
disclosure in his January 7, 2015 letter, that disclosure
could not have contributed to the personnel actions
against him because it postdated the personnel actions.
AFFIRMED
COSTS
No Costs.