Robert Harry v. Department of the Interior ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. HARRY, DOCKET NUMBER
Appellant, DE-1221-20-0383-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: August 30, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sterling Deramus, Esquire, Birmingham, Alabama, for the appellant.
Ryan W. Burton, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal based on the doctrine of
collateral estoppel, in part, and for lack of jurisdiction as to the remaining claims.
For the reasons discussed below, we GRANT the appellant’s petition for review,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
VACATE the portion of the initial decision dismissing the appeal for lack of
jurisdiction and REMAND the case to the Denver Field Office for further
adjudication in accordance with this Remand Order. We AFFIRM the
administrative judge’s findings on the collateral estoppel issue.
BACKGROUND
¶2 Effective February 21, 2016, the appellant was hired as a GS-12 Mining
Engineer with the Bureau of Land Management (BLM) in Billings, Montana.
Harry v. Department of the Interior, MSPB Docket No. DE-1221-20-0383-W-1,
Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 4. His appointment was in the
competitive service and was subject to completion of a 1 -year probationary
period. See Harry v. Department of the Interior, MSPB Docket No. DE-315H-17-
0233-I-1, Initial Appeal File, (0233 IAF), Tab 6 at 25. On or around February 17,
2017, the appellant was told that he would be terminated from his position during
his probationary period. IAF, Tab 8 at 11. That same day, the appellant signed a
statement agreeing to resign from his position, effective February 24, 2017, in
exchange for the agency agreeing to do the following: refrain from issuing a
notice of decision to terminate; recognizing that the appellant was an “employee”
as defined under 5 U.S.C. chapter 75; providing the appellant with a letter of
recommendation; and leaving the “Remarks” section blank on the Standard Form
(SF) 52 Request for Personnel Action memorializing the appellant’s resignation.
Id. at 11; see 0233 IAF, Tab 6 at 20-24.
¶3 On March 21, 2017, the appellant filed an appeal with the Board alleging
that his resignation was involuntary. 0233 IAF, Tab 1 at 2. After considering the
parties’ jurisdictional pleadings, the administrative judge issued an initial
decision dismissing that appeal for lack of jurisdiction. 0233 IAF, Tab 15, Initial
Decision (0233 ID) at 1, 8. In dismissing this prior appeal for lack jurisdiction,
the administrative judge concluded that the agency was entitled to rely on the
appellant’s statement agreeing to resign from his position and therefore had a
3
valid reason for denying his request to withdraw his resignation, and that the
appellant otherwise failed to make a nonfrivolous allegation that his resignation
was the product of misinformation, deception, or coercion by the agency. Id.
at 4-8. To the extent the appellant was alleging that his involuntary resignation
was the result of whistleblowing activity, the administrative judge noted that
where allegations of reprisal for whistleblowing are made in connection with a
claim of an involuntary action, such claims are addressed insofar as they relate to
the issue of voluntariness. Id. at 7 n.5; see 0233 IAF, Tab 11 at 1, 40; Tab 14
at 4, 15. The administrative judge further noted that if the appellant wished to
pursue an IRA appeal, he must first exhaust his administrative remedies with the
Office of Special Counsel (OSC) for such a claim. 0233 ID at 8 n.6. The
appellant did not file a petition for review in the prior appeal and the decision
became final on June 20, 2017. See id. at 8.
¶4 On August 27, 2020, the appellant filed the instant IRA appeal alleging that
the agency retaliated against him due to his protected disclosures or activities
under 5 U.S.C. § 2302(b), when it removed him and refused to allow him to
withdraw his resignation. IAF, Tab 1 at 7. With his appeal, the appellant
provided a June 25, 2020 close-out letter from OSC, wherein OSC indicated that
it was closing its investigation into his allegations that he was harassed,
threatened with termination, and forced to resign in retaliation for making
protected disclosures. Id. at 26. The appellant requested a hearing on the matter.
Id. at 2.
¶5 In a scheduling order, the administrative judge noted that there appeared to
be some overlap between the appellant’s prior appeal challenging his resignation
as involuntary and the instant IRA appeal, noted that the appellant may have
elected to pursue his whistleblower retaliation claims in the prior involun tary
resignation appeal, and ordered him to file evidence and argument explaining why
his appeal should not be dismissed on the grounds that his prior Board appeal
constituted a binding election of remedies regarding his whistleblower retaliation
4
claims. IAF, Tab 4 at 1-2. The administrative judge subsequently issued a
second order instructing the parties to also address the question of whether the
appeal should be dismissed for lack of jurisdiction on the basis that the appellant
was collaterally estopped from re-raising his whistleblower retaliation claim in
the instant appeal. IAF, Tab 7.
¶6 After an initial round of briefing on the relevant issues, see IAF, Tabs 8,
13-14, and a subsequent round of briefing on the jurisdictional question, see IAF,
Tabs 15-17, without holding the appellant’s requested hearing, the administrative
judge issued an initial decision dismissing the appeal on basis of collateral
estoppel with respect to some of the appellant’s claims, and for lack of
jurisdiction as to the appellant’s remaining claims. IAF, Tab 20, Initial Decision
(ID) at 1, 13. Regarding the issue of collateral estoppel, the administrative judge
determined that the appellant had previously challenged three of the four
personnel actions in his prior Board appeal, and thus was estopped from
re-raising them in the instant IRA appeal. ID at 5-9.
¶7 With respect to the remaining claims, the administrative judge determined
that the appellant nonfrivolously alleged that the final challenged personnel
action, concerning his claim that the agency altered his performance plan by
setting impossible and unobtainable deadlines, could constitute a significant
change in duties, responsibilities, or working conditions under 5 U.S.C.
§ 2302(a)(2)(A)(xii). 2 ID at 9. Nevertheless, the administrative judge determined
that the appellant had failed to identify any protected disclosures that prompted
this purportedly retaliatory personnel action. ID at 10-13. Specifically, he
concluded that four of the identified disclosures were not protected because they
2
In so doing, the administrative judge incorrectly identified section 2302(a)(2)(A)(xi)
as the operative provision, relying on a previous version of the relevant statutory
language. See ID at 9 n.8. The statute was subsequently amended with the addition of
a new subsection 2302(a)(2)(A)(xi), and the subsections were renumbered . See
5 U.S.C. § 2302(a)(2)(A)(xii).
5
only addressed wrongdoing by a private company, as opposed to wrongdoing by
the Government. ID at 10-11; see ID at 6. Regarding the fifth and final
disclosure, the administrative judge determined that the appellant ’s disclosure to
the agency’s Human Resources (HR) Director of a “hostile work environment”
and a “deteriorating relationship” with his Branch Chief constituted only vague
and nonspecific allegations of wrongdoing or general complaints about his
relationship with his supervisor, and thus did not rise to the level of a
nonfrivolous allegation of a disclosure of the types of wrongdoing described in
section 23020(b)(8). ID at 11-13. Consequently, the administrative judge
determined that the appellant failed to meet his burden of making a nonfrivolous
allegation that he had made a protected disclosure under 5 U.S.C. § 2302(b)(8),
and therefore failed to establish Board jurisdiction over his IRA appeal . ID at 13.
¶8 The appellant has filed a petition for review challenging the administrative
judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1. The
agency filed a response to the appellant’s petition for review, and the appellant
has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 On review, the appellant argues that the administrative judge erred by
dismissing Personnel Actions 2, 3, and 4 on the basis that he was collaterally
estopped from relitigating those issues because they were litigated in his prior
appeal. PFR File, Tab 1 at 4-6; see ID at 5. The appellant argues that the
administrative judge incorrectly applied preclusive effect to these claims despite
acknowledging that the appellant had not exhausted his administrative remedies
with OSC prior to raising his whistleblower retaliation claims in the initial
decision in the prior appeal. PFR File, Tab 1 at 4-5; see 0233 ID at 7-8.
Consequently, he argues that the initial decision in the prior appeal was not one
rendered “by a forum with competent jurisdiction” with respect to his claims, and
that he was entitled to cure the deficiency with respect to these claims by
6
exhausting his administrative remedies with OSC and filing a Board IRA appeal ,
as he did in the instant appeal. PFR File, Tab 1 at 5-6.
¶10 Alternatively, the appellant argues that only Personnel Actions 3 and 4,
which concerned his involuntary resignation and the agency’s refusal to allow
him to withdraw his resignation, respectively, were addressed in his prior appeal.
PFR File, Tab 1 at 6; see ID at 5. He argues that Personnel Action 2, which
concerned his threatened termination, was mentioned in the prior appeal, but the
issue was not analyzed by the administrative judge in the initial decision in the
prior appeal so he should not be collaterally estopped from litigating that issue in
his current IRA appeal. PFR File, Tab 1 at 6; see ID at 5.
¶11 Finally, the appellant argues that the administrative judge erred in
concluding that he failed to nonfrivolously allege that he made any protected
disclosures because four of the disclosures concerned wrongdoing by a private
company as opposed to wrongdoing by the Government, and thus were not
protected under section 2302(b)(8). PFR File, Tab 1 at 6-9. He argues that
nothing in the language of the Civil Service Reform Act of 1978 limits protected
disclosures of wrongdoing to only those acts committed by Government actors,
and instead that the Act contemplates within its coverage wrongdoing by
nongovernmental actors such as contractors and other private entities. Id. at 7-8.
He also asserts that the Board case the administrative judge relied on to support
his finding that section 2302(b)(8) protects only disclosures of wrongdoing by the
Government is inapposite and does not support the stated proposition. Id. at 8-9.
The appellant is collaterally estopped from relitigating some of his claims in the
instant appeal.
¶12 Under the doctrine of collateral estoppel, or issue preclusion, once an
adjudicatory body has decided a factual or legal issue necessary to its judgment,
that decision may preclude relitigation of the issue in a case concerning a
different cause of action involving a party to the initial case. Hau v. Department
of Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v.
7
Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). Collateral
estoppel is applicable when the following conditions are met: (1) the issue is
identical to that involved in the prior action; (2) the issue was actually litigated in
the prior action; (3) the determination of the issue in the prior action was
necessary to the resulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or as one whose interests were
otherwise fully represented in that action. Id. Before a party can invoke
collateral estoppel, the legal matter raised in the subsequent proceeding must
involve the same set of events or documents and the same “bundle of legal
principles” that contributed to the rendering of the first judgment. Tanner v. U.S.
Postal Service, 94 M.S.P.R. 417, ¶ 11 (2003). In determining whether an issue is
identical for collateral estoppel purposes, differences precluding the application
of collateral estoppel may be in facts, subject matter, periods of time, case law,
statutes, procedural protections, notions of public interest, or qualifications of
tribunals. Id. The Board has also held that collateral estoppel may bar a party
from relitigating an issue in a second action even when the prior appeal was
dismissed for lack of jurisdiction. See, e.g., Coats v. U.S. Postal Service,
111 M.S.P.R. 268, ¶ 8 (2009); Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 8
(2003).
¶13 In concluding that the appellant was collaterally estopped from re -raising
three of the challenged personnel actions that made up a part of his whistleblower
retaliation claim in his prior appeal, the administrative judge determined the
following: (1) the appellant had raised the issue of his February 2017 proposed
termination, his February 24, 2017 involuntary resignation, and the agency’s
February 23, 2017 refusal to allow him to withdraw his resignation in his prior
Board appeal; (2) these issues were actually litigated in the prior appeal ; (3) the
determination concerning these issues was necessary to the res ulting judgment in
that prior appeal, and (4) the appellant had a full and fair opportunity to litigate
8
these issues in the prior appeal. ID at 8-9. Consequently, he determined that the
criteria for application of collateral estoppel were met with respec t to these
claims. ID at 9 (citing McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15
(2005); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 336–37 (1995)).
¶14 We agree. Regarding the first element of the test described in Hau, it is
undisputed that the dispositive issue in the appellant’s prior appeal concerned the
voluntariness of his February 17, 2017 decision to resign from his position,
effective February 24, 2017. 0233 ID at 5-8. As a part of analyzing the
voluntariness of the appellant’s decision to resign, the administrative judge
considered the effect “the anticipated adverse action” (that is, the appellant’s
proposed termination) may have had on his decision to resign, but nevertheless
concluded that choosing between the unpleasant alternatives of resigning or
facing the potential pending action, did not render his decision to resign
involuntary. 0233 ID at 6-8. The administrative judge also considered what
effect, if any, the agency’s refusal to allow him to withdraw his agreement to
resign may have had on the voluntariness of his resignation, but concluded that
because the appellant had agreed to resign as a part of a valid settlement
agreement, the agency was within its rights to refuse to accept his withdrawal
request, and thus the refusal also could not have had an effect on the
voluntariness of the appellant’s decision to resign. 0233 ID at 4-5.
¶15 Additionally, the administrative judge specifically considered each of these
allegations in the context of assessing the voluntariness of the appellant’s
decision to resign, so each of these issues was also actually litigated in the prior
appeal, and a determination as to these issues was necessary to the resulting
judgment, fulfilling the second and third elements of the test. Hau, 123 M.S.P.R.
620, ¶ 13; see ID at 6-8. Finally, although the appellant appeared pro se in his
prior Board appeal, he submitted a number of pleadings on his own behalf and
otherwise had a full and fair opportunity to litigate the jurisdictional issue in the
earlier appeal, fulfilling the final element of the test. See 0233 IAF, Tabs 1, 4,
9
11-12, 14; McNeil, 100 M.S.P.R. 146, ¶¶ 13-15 (noting that the fourth element of
collateral estoppel does not require that the appellant have been represented in the
earlier action, but instead requires that the appellant had a full and fair
opportunity to litigate the issue); Fisher v. Department of Defense, 64 M.S.P.R.
509, 515 (1994) (same).
¶16 We also give no credence to the appellant’s argument on review that he
should not be collaterally estopped from re-raising his whistleblower retaliation
claims in the instant appeal because pro se litigants, like the appellant was in his
prior appeal, regularly prematurely file IRA appeals before exhausting their
administrative remedies with OSC, and in such instances the Board often
dismisses the appeal and allows the party to refile the appeal after exhausting
their administrative remedies with OSC. PFR File, Tab 1 at 5-6. Dismissal of an
appeal in the circumstances described by the appellant is a dismissal for failure to
prove exhaustion, which is a threshold determination. See Carney v. Department
of Veterans Affairs, 121 M.S.P.R. 446, ¶¶ 4-5 (2014) (stating that the first
element to Board jurisdiction over an IRA appeal is exhaustion by the appellant
of his administrative remedies before OSC and that the next requirement is that
the appellant nonfrivolously allege that he made a made a protected disclosure or
engaged in protected activity). In the prior appeal in this case, by contrast, the
appellant specifically raised the challenged actions as necessary components to
his claim that his resignation was involuntary, and the administrative judge made
findings concerning each of the challenged actions as a part of his determination
that the appellant failed to nonfrivolously allege that his resignation was
involuntary. 0233 ID at 4-8; see 0233 IAF, Tabs 4, 11. Having received a
determination as to each of those issues in the prior initial decision, the appellant
is now seeking to relitigate those same issues in his IRA appeal, which the
administrative judge correctly determined that he is e stopped from doing.
¶17 Accordingly, we find that the administrative judge properly determined t hat
the appellant was collaterally estopped from challenging Personnel Actions 2, 3,
10
and 4, concerning his proposed termination, his involuntary resignation, and the
agency’s refusal to allow him to withdraw his resignation agreement , in the
instant appeal.
The appellant established Board jurisdiction over some of the remaining claims in
his IRA appeal.
¶18 We now turn to consideration of the portion of the appellant’s appeal that
the administrative judge determined he was not collaterally estopped from
re-litigating in the instant appeal, which includes his claim that in reprisal for his
five protected disclosures, agency officials subjected him to a significant change
in his duties, responsibilities, and working conditions by setting impossible and
unobtainable deadlines and by altering his performance plan in an onerous
manner. IAF, Tab 8 at 14; see ID at 9.
¶19 To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence 3 that he exhausted his remedies before OSC. He must also
make nonfrivolous allegations of the following: (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor in the agency ’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016). The
Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 4 As the
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
The regulation further provides that an allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation
that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the
legal issues in the appeal. Id. Pro forma allegations are insufficient to meet the
nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6 (2016),
11
U.S. Court of Appeals for the Federal Circuit explained in Hessami v. Merit
Systems Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020): 5 “[T]he
question of whether the appellant has non-frivolously alleged protected
disclosures [or activities] that contributed to a personnel action must be
determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of affording the appellant a hearing.
Grimes v. Department of the Navy, 96 M.S.P.R. 595, ¶ 12 (2004). Whether the
appellant’s allegations can be proven on the merits is not part of the jurisdictional
inquiry. Lane v. Department of Homeland Security, 115 M.S.P.R. 342,
¶ 12 (2010).
¶20 A disclosure protected under section 2302(b)(8) is one which an employee
reasonably believes evidences any violation of any law, rule, or regulation, or
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013); see 5 U.S.C. § 2302(b)(8).
The proper test for determining whether an employee had a reasonable belief that
his disclosures were protected is whether a disinterested observer with knowledg e
of the essential facts known to and readily ascertainable by the employee could
reasonably conclude that the actions evidenced any of the conditions set forth in
aff’d, 679 F. App’x 1006 (Fed. Cir. 2017) and overruled on other grounds by Cronin v.
U.S. Postal Service, 2022 MSPB 13, ¶ 20 n. 11.
5
Historically, the Board has been bound by the precedent of the Federal Circuit on
these types of whistleblower issues. However, pursuant to the All Circuit Review Act ,
Pub. L. No. 115-195, appellants may file petitions for judicial review of Board
decisions in whistleblower reprisal cases with any circuit court of appeals of competent
jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider these issues
with the view that the appellant may seek review of this decision before any appropriate
court of appeal.
12
5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 5. The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Salerno v.
Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016). In determining
whether an appellant has made a nonfrivolous allegation of a disclosure, t he
Board will consider matters incorporated by reference, matters integral to the
appellant’s claim, and matters of public record. See Hessami, 979 F.3d
at 1369 n.5.
The appellant exhausted his administrative remedies with OSC regarding
four of his purported disclosures and the single remaining
personnel action.
¶21 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). The Board, in
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11, clarified
the substantive requirements of exhaustion. The requirements are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
The Board’s jurisdiction is limited to those issues that previous ly have been
raised with OSC. However, appellants may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC. Appellants may
demonstrate exhaustion through their initial OSC complaint, evidence that they
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations, and their
written responses to OSC referencing the amended allegations. Appellants also
may establish exhaustion through other sufficiently reliable evidence, such as an
affidavit or a declaration attesting that they raised with OSC the substance of the
facts in the Board appeal. Id. With his jurisdictional pleadings, the appellant
provided a copy of his submitted OSC complaint, which includes his sworn
declaration and correspondences with OSC. IAF, Tab 8 at 33-68. He also
provides a copy of OSC’s close-out letter. Id. at 87.
13
¶22 In his jurisdictional filings, the appellant identified his protected disclosures
as follows:
1. In the summer of 2016, he complained to various agency officials
concerning Private Company 1’s (PC 1) failure to maintain a proper
Resource Recovery and Protection Plan (R2P2) in violation of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA)
(30 U.S.C. § 1201, et seq.) and the Mineral Leasing Act of 1920 (MLA)
(30 U.S.C. § 181, et seq.);
2. During the period from October 2016 through January 2017, he
complained to various agency officials that PC 1 was responsible for a
spoil pile slide, causing a potential danger to public health and safety, a
significant loss of revenue to the Federal Government, and potential
violations of 43 C.F.R. § 3481.1(c) and 30 C.F.R. § 77.1000;
3. He disclosed to his first-line supervisor in November 2016 that
the Mine Safety and Health Administration (MSHA) needed to conduct
an investigation into the source of the spoil pile slide discussed in
Disclosure 2, and he disclosed the need to conduct an investigation into
the slide to an MSHA inspector in mid to late-November 2016 6;
4. In a December 15, 2016 memorandum to his first and second-line
supervisors, he disclosed his belief that, during a call with a
representative of PC 1’s parent company, the representative made “an
illegal and unethical attempt to influence the outcome or stop the spoil
slide investigation”; and
5. At some time after December 21, 2016, he disclosed to the
agency’s HR Director that his relationship with his supervisors had
deteriorated and that he was being subjected to a hostile work
environment by agency officials following his disclosure in the
December 15, 2016 memorandum.
Tab 16 at 4-7; see IAF, Tab 8 at 13-14.
¶23 In the initial decision, the administrative judge did not make any specific
findings concerning which, if any, of the purported disclosures the appellant
exhausted with OSC. Nevertheless, on petition for review the appellant does not
challenge the administrative judge’s finding that Disclosure 5 was not protected
6
The appellant identifies the date of this purported disclosure as “mid to late November
2014,” but it is clear based on the context that the intended date is mid -to
late-November 2016. See IAF, Tab 16 at 5-6.
14
because it was “vague and lacking in specifics” and did not identify any of the
types of wrongdoing described in section 2302(b)(8). See PFR File, Tab 1 at 6-9.
Instead, the appellant alleges only that the administrative judge erred in
concluding that Disclosures 1-4 were not protected because they only disclosed
wrongdoing by a nongovernmental entity, as opposed to wrongdoing by the
Government. PFR File, Tab 1 at 6-9. Accordingly, we limit our review here to
Disclosures 1-4.
¶24 In the sworn declaration the appellant provided to OSC with his complaint,
he specifically identifies his complaint about PC 1’s failure to maintain an
updated and approved R2P2 starting in May or June of 2016 (Disclosure 1), his
complaints about the agency’s handling of its investigation into PC 1’s role in the
spoil pile slide starting in early October 2016 (Disclosure 2), his efforts to get
MSHA to investigate PC 1’s role in the spoil pile slide in late November 2016
(Disclosure 3), and his December 15, 2016 memorandum describing PC 1’s
unlawful attempts to influence the investigation into the spoil pile slide
(Disclosure 4). IAF, Tab 8 at 48-62. The appellant also provided OSC with a
copy of the memorandum described in Disclosure 4. See id. at 62; IAF, Tab 16
at 8-9. Although OSC’s close-out letter does not specifically identify the nature
of the disclosures it investigated, see IAF, Tab 8 at 87, we nevertheless find that
the appellant proved by preponderant evidence that he exhausted his
administrative remedies with OSC regarding Disclosures 1-4.
¶25 With respect to the single remaining personnel action —the appellant’s
allegation that agency officials changed his work duties by altering his
performance plan by setting impossible and unobtainable hard dates and fixed
deadlines for tasks that previously did not have fixed dates, and by otherwise
harassing him—the administrative judge determined that the appellant
nonfrivolously alleged that this constituted a significant change in the appellant’s
duties and/or responsibilities, and thus constituted a personnel action under
15
5 U.S.C. § 2302(a)(2)(A)(xii). ID at 9 n.8; see IAF, Tab 8 at 10-11, 14-15;
Tab 16 at 6-7.
¶26 The Board has found that the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) to the extent
that is represents a significant change in duties, responsibilities, or working
conditions. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23
(2015). To meet this standard, an agency’s actions must, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities. Skarada
v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. In determining whether
a hostile work environment is present, the Board will consider the totality of t he
circumstances, including agency actions that may not individually rise to the level
of a personnel action. Id., ¶ 18.
¶27 Employees are not guaranteed a stress-free work environment, and the
appellant’s general assertion that he was “harassed” by agency officials would
not, alone, suffice to rise to the level of a significant change in working
conditions. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000)
(explaining that an employee is not guaranteed a working environment free of
stress). However, the appellant’s specific allegation that the nature of his work
and his ability to meet workload demands changed after his first-level supervisor
set fixed deadlines where none previously existed, does relate directly to a change
in duties, responsibilities, and working conditions as contemplated by 5 U.S.C.
§ 2302(a)(2)(A)(xii). Specifically, the appellant alleged that although the fiscal
year 2017 performance period officially began on October 1, 2016, his first-level
supervisor did not provide him with a performance plan until well into the
performance period, on December 21, 2016 (which the appellant states was a few
days after one of his purported disclosures, and around the same time that he
alleges his supervisor began harassing him about the spoil pile slide
investigation), leaving him without any goals or guidance on what he was
16
supposed to achieve during a large portion of the performance rating period. IAF,
Tab 8 at 10, 14; Tab 16 at 7. He further alleges that the performance plan he was
provided on December 21, 2016 identified impossible to meet hard deadlines,
even though no such hard deadlines had been assigned in the past, and even
though no other employee in the office was subjected to similar hard deadlines.
IAF, Tab 8 at 10.
¶28 Construing the appellant’s jurisdictional pleadings in the most favorable
possible light, we find that he provided adequate substance to support his claim
that the change in his performance plan and the harassment by his first-level
supervisor significantly changed his job duties in a manner that would have a
practical and significant effect on the overall nature and quality of his duties,
responsibilities, and working conditions. See Skarada, 2022 MSPB 17, ¶ 16.
Accordingly, we find that he made a nonfrivolous allegation that he was subjected
to a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). Moreover, insofar as
the appellant provided documentation demonstrating that he raised this allegation
with OSC, we also find that he showed that he exhausted his administrative
remedies with respect to this claim. See IAF, Tab 8 at 43, 62-63.
The administrative judge erred in determining that Disclosures 1-4 were
categorically unprotected because they involved the disclosure of
wrongdoing by a private company as opposed to wrongdoing by
the Government.
¶29 The administrative judge’s determination that a disclosure is only protected
under 5 U.S.C. § 2302(b)(8) if it concerns alleged wrongdoing by the Government
is not supported by the relevant case law. See ID at 10-11. In reaching this
determination, the administrative judge relied on language from the Federal
Circuit’s decision in Giove v. Department of Transportation, 230 F.3d 1333, 1338
(Fed. Cir. 2000), as cited in Young v. Merit Systems Protection Board, 961 F.3d
1323, 1328 (Fed. Cir. 2020). ID at 10-11. As the appellant correctly notes on
review, the language the administrative judge cites from Giove merely sets out
the test for determining whether a disinterested observer ’s belief that he is
17
disclosing activity protected under section 2302(b)(8) is reasonable, and says
nothing about whether wrongdoing by a nongovernmental entity is categorically
unprotected. PFR File, Tab 1 at 7-9; see Giove, 230 F.3d at 1338.
¶30 Instead, the Board has held that disclosures of wrongdoing by
nongovernmental entities may constitute protected disclosures when the
Government’s reputation, interests, and good name are implicated in the alleged
wrongdoing, and the employee shows that he reasonably believed that the
information he disclosed evidenced that wrongdoing. See Voorhis v. Department
of Homeland Security, 116 M.S.P.R. 538, ¶ 30 (2011) (stating that disclosures
may be protected if they “implicate the reputation and good name of the [F]ederal
[G]overnment”), aff’d, 474 F. App’x 778 (Fed. Cir. 2012); Miller v. Department
of Homeland Security, 99 M.S.P.R. 175, ¶¶ 12-13 (2005) (finding that the
appellant’s disclosure regarding alleged wrongdoing by state Government
officials was protected because the state and Federal agencies were engaged in a
joint operation, and the alleged misconduct by the state employees as part of that
joint operation implicated the Federal Government’s interests and good name);
Johnson v. Department of Health and Human Services, 93 M.S.P.R. 38, ¶¶ 10-11
(2002) (finding that the Government’s interests and reputation were implicated by
the appellant’s disclosure that agency officials ignored contract violations and
irregularities that cost the Government thousands of dollars and ignored a
contractor’s hiring of undocumented aliens); Arauz v. Department of Justice,
89 M.S.P.R. 529, ¶ 7 (2001) (finding that the appellant’s disclosure regarding
alleged wrongdoing by a private organization was protected when it performed
functions related to the agency’s outreach program and the agency was in a
position to influence or exercise oversight over the organization ’s performance of
those functions, such that the Government’s interests and good name were
implicated in the wrongdoing).
¶31 Accordingly, we conclude that the administrative judge erred when he
determined that Disclosures 1-4 were categorically unprotected because they
18
involved the disclosure of wrongdoing by a private company as opposed to
wrongdoing by the Government. See ID at 9-11. We turn now to review each of
the appellant’s purported disclosures to consider whether they alleged
wrongdoing by a nongovernmental entity that nevertheless implicated the
Government’s reputation, interest, and good name, and whether the appellant
could have reasonably believed that the information he was disclosing evidenced
that wrongdoing.
i. Disclosure 1
¶32 As previously discussed, Disclosure 1 concerned the appellant’s complaints
to agency officials concerning PC 1’s failure to maintain a proper R2P2 7 in
violation of the SMCRA (codified at 30 U.S.C. § 1201, et seq.) and the MLA
(codified at 30 U.S.C. § 181, et seq.). IAF, Tab 8 at 13-14; Tab 16 at 4-7. In
concluding that this disclosure was unprotected because it evidenced wrongdoing
only by PC 1 and not by the Government, the administrative judge appears to
have concluded that, because it was PC 1’s obligation to maintain a copy of its
most recent R2P2 on-site at its mining location, its failure to do so only
constituted wrongdoing on its own part. ID at 11 (citing Young, 961 F.3d
at 1328). However, this represents an unduly narrow reading of the appellant ’s
allegations contained in Disclosure 1.
¶33 In describing the nature of Disclosure 1, the appellant alleged that agency
officials, including his first-line supervisor, gave preferential treatment to PC 1
by allowing them to replace a lost R2P2 in a manner inconsistent with agency
policy and with Federal laws and regulations. Id. at 51-57. Specifically, he
alleges that after he was assigned to investigate PC 1’s request to bypass a coal
7
The appellant describes an R2P2 as “a plan that shows proposed operations that meet
statutory requirements for mine extraction,” and notes that R2P2s must be submitted to
and approved by BLM before any coal extraction operations can be commenced,
pursuant to 43 C.F.R. §§ 3480.0-5(34) and 3482.1(b). IAF, Tab 8 at 49.
19
seam 8 for economic reasons in March 2016, he found irregularities in the
financial and cost data PC 1 initially provided to him, so he attempted to obtain
the agency’s copy of the original R2P2 from the storage vault. Id. at 52-53.
After failing to find the agency’s copy of the R2P2, he requested a copy directly
from PC 1 on the recommendation of his first-level supervisor, which PC 1 was
unable to produce. Id. at 53. After additional unsuccessful attempts to obtain
PC 1’s original copy of the R2P2, the appellant proposed that the agency issue
PC 1 a letter of noncompliance regarding its failure to maintain the original
R2P2, but his first-line supervisor directed him not to do so and to work with
PC 1 instead. Id. at 54. Shortly thereafter, PC 1 hired a consultant who
generated and submitted a new R2P2 in June 2016, which was subsequently
approved in July 2016. Id.¶34 The appellant alleged that by allowing PC 1 to generate a new R2P2 when
they could not find the original and most current R2P2 in May 2016, and later
approving the bypass request based on this new R2P2, his first-line supervisor
violated agency policies and Federal laws and regulations, including
section 523(a) and 523(c) of the SMCRA, which governs the nondelegation of
mining plan approvals on Federal lands, and 43 C.F.R. § 3482.1(c)(7), which sets
out the requirements for how a bypass request should be reviewed and approved
by authorizing officers. Id. at 43, 54-56. The appellant also noted that his
first-line supervisor informed him that PC 1 had previously threatened to call its
Congressional representative in response to agency actions in the past, alleged
that the agency’s preferential treatment toward PC 1 was the result of “a
management philosophy and decision-making that favored [PC 1],” and asserted
that the actions described may represent a case of “regulatory capture,” which he
8
The appellant describes a “bypass” as an exemption that “allows an operator not to
mine a seam of coal that is covered in the most currently approved R2P2 due to changed
geological or economic conditions.” IAF, Tab 8 at 52 (citing 43 C.F.R. § 3482.2(b)(2)).
20
defined as a circumstance where “regulatory agencies may come to be dominated
by the industries or interests they are charged with regulating. ” Id. at 51-52.
¶35 In Arauz, 89 M.S.P.R. 529, ¶¶ 6-7, the Board found that the appellant’s
disclosure that a private organization operating under a Federal outreach program
had violated state voter registration laws, fell within the Whistleblower Protection
Act of 1989 because “the essence of those disclosures was that the [G]overnment
program under which the private organization was operating was being used to
facilitate wrongdoing . . . [and] if this alleged wrongdoing were allowed to
continue, the agency could be viewed as an accessory to the wrongdoing . . . and
[] the [G]overnment’s interests and reputation therefore were implicated in the
alleged wrongdoing.” See Covington v. Department of the Interior, 2023 MSPB
5, ¶¶ 8-9 (finding that the Whistleblower Protection Enhancement Act of 2012
(WPEA) did not change the longstanding principle that a disclosure of
wrongdoing committed by a non-Federal Government entity may be protected
only when the Federal Government’s interests and good name are implicated in
the alleged wrongdoing). Similarly, in the instant case, although the crux of the
appellant’s allegations in Disclosure 1 concern PC 1’s wrongdoing based on its
failure to maintain an original copy of its R2P2, the appellant also alleges that
agency officials intentionally turned a blind eye to PC 1’s wrongdoing by denying
his request to issue a notice of noncompliance concerning the R2P2 and by
eventually approving the bypass request based on a new R2P2 due, in part, to the
agency’s close relationship with PC 1. Given the investigatory and oversight
functions the agency exercised over PC 1, the perception that the agency was
neglecting to fulfill its statutory functions because of its favorable relationship
with PC 1 could call into question the Government’s interest and reputation, and
therefore implicate the Government in the alleged wrongdoing. As such, in
Disclosure 1, the appellant alleged wrongdoing by a nongovernmental entity that
nevertheless implicated the Government’s reputation, interest, and good name,
and therefore it is not precluded from consideration as a protected disclosure on
21
that basis. Because of the administrative judge’s contrary finding, he did not
consider whether Disclosure 1 otherwise met the requirements of a nonfrivolous
allegation of retaliation for whistleblowing.
¶36 Considering the appellant’s professional expertise in this area and the fact
that at the jurisdictional stage, an appellant need only provide sufficient
specificity and substantiality to support a reasonable belief that he disclosed
evidence of one of the categories of wrongdoing described in section 2302(b)(8),
we conclude that he could have reasonably believed that he was disclosing
wrongdoing that implicated the Government’s interests and good name when he
disclosed that PC 1 failed to maintain an original R2P2 in May 2016, but was
nevertheless permitted to resubmit a new R2P2 and was later granted a bypass
request based on that R2P2, in violation of Federal laws and regulations. See
Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996) (considering
the appellant’s asserted subject matter expertise in finding that she made a
nonfrivolous allegation of gross mismanagement); Van Ee v. Environmental
Protection Agency, 64 M.S.P.R. 693, 698 (1994) (considering the appellant’s
expertise in finding that she made a nonfrivolous allegation of a gross waste of
funds). Consequently, we conclude that the appellant made a nonfrivolous
allegation that he disclosed a violation of law or regulation in connection with
Disclosure 1.
ii. Disclosure 2
¶37 For Disclosure 2 the appellant alleges that during the period from
October 2016 through January 2017, he complained to agency officials
concerning PC 1’s role in causing a spoil pile slide that resulted in 180,000 tons
of Federally-owned coal being rendered unrecoverable, caused a loss of
approximately $900,000 in revenue to the Federal Government, endangered
public health and safety, and potentially constituted a violation of 43 C.F.R.
§ 3481.1(c) and 30 C.F.R. § 77.1000. IAF, Tab 8 at 8, 13-14; Tab 16 at 5. The
administrative judge determined that this disclosure was unprotected because it
22
represented an allegation of wrongdoing by PC 1 and not by the Government,
again citing the Board’s decision in Young. ID at 11.
¶38 As described by the appellant, a “spoil pile” as “a pile of debris that is
generated from removing the ground over the coal seam. ” IAF, Tab 8 at 8. After
removal, the waste debris is piled up next to the area being mined, and if
improperly maintained by the mining company, the material in the debris pile can
spill or “slide,” causing damage and/or injury. Id. at 8, 57 n.1. However, spoil
pile slides do not exclusively occur due to negligence, and can also be triggered
by seismic activity from blasting or by significant rainfall events. Id. at 58-59.
After being informed that a spoil pile slide occurred at PC 1’s mining operation
site in early October 2016, the appellant sought to investigate the source of the
slide in order to determine whether it was the result of PC 1’s negligence, because
if PC 1 was at fault for the slide it could be liable for lost royalties owed to the
Federal Government, pursuant to 43 C.F.R. § 3480.0-1, et seq. and 43 C.F.R.
§ 3481.1(c). Id. at 58.
¶39 After receiving initial reports indicating that PC 1’s actions may have
contributed to the spoil pile slide, the appellant requested authorization to
investigate the matter, but he was informed that BLM did not have the expertise
to investigate the slide and his request to hire an outside consultant was denied.
Id. at 59. Instead, it was decided that the appellant would reach out to a different
Federal or state agency to assist with the investigation. Id. The appellant
eventually contacted the Mine Safety and Health Administration (MSHA) within
the Department of Labor, which is the agency that approved PC 1’s ground
control plan and was responsible for enforcing compliance with mandatory safety
and health standards, and thus was the agency properly tasked with completing
the spoil slide investigation. Id. at 59-62. During a subsequent conference call
between the appellant, his first line supervisor, and representatives of MSHA, it
was agreed that MSHA would conduct the spoil pile slide investigatio n and that
the appellant should not be involved in the investigation. Id. at 62.
23
¶40 On January 10, 2017, an MSHA representative emailed the appellant the
results of its investigation, which concluded that PC 1 was in compliance with its
ground control plan and was not directly responsible for the spoil pile slide. Id.
at 64. The appellant disputed the findings, concluding that the analysis was
incomplete and based on erroneous assumptions, and raised his concerns with his
first-line supervisor, who informed him that BLM was out of options with respect
to investigating the spoil pile slide. Id. The supervisor subsequently directed the
appellant to issue a letter to PC 1 stating that BLM would not be holding them
financially accountable for the lost coal royalties that resulted from the spoil pile
slide. Id. Because the appellant disagreed with this determination, he was
permitted to revise the letter to make it clear that “it was MHSA that made the
call to absolve [PC 1] of responsibility instead of the BLM.” Id.¶41 Based on our review of the appellant’s jurisdictional pleadings, we conclude
that he has failed to make a nonfrivolous allegation that Disclosure 2 was
protected because he has not explained how his belief that PC 1 was at fault for
the spoil pile slide implicated the Government’s reputation, interest, and good
name. As described in detail above, the appellant’s own submissions reflect that
MSHA was the agency tasked with completing the spoil slide investigation, not
BLM, and BLM’s only interest concerned the recovery of lost royalties due to the
Federal government in the event that PC 1 was determined to be responsible for
the spoil pile slide. IAF, Tab 8 at 57-62. Because, by the appellant’s own
admission, BLM had no role in assessing fault for the spoil pile slide, the
agency’s subsequent failure to pursue damages for lost royalties from PC 1 could
not have reflected poorly on the Government’s reputation, interest, and good
name. Although the appellant may have had sincere disagreements with the
determination reached by MSHA, because BLM had no role in conducting the
investigation, the finding absolving PC 1 of fault and the manner in which it was
reached could not have negatively reflected on the Government’s reputation,
interest, and good name.
24
¶42 For the foregoing reason, we conclude that the appellant has failed to show
that Disclosure 2 contains any allegation of wrongdoing by the Government, and
instead merely reflected his personal or philosophical disagreement with the
determination by MSHA that PC 1 was not at fault for the pile slide. 9 See Webb
v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015) (noting that even
under the expanded protections afforded to whistleblowers under the WPEA,
general philosophical or policy disagreements with agency decisions or actions
are not protected unless they separately constitute a protected disclosure of one of
the categories of wrongdoing listed in section 2302(b)(8)(A)); see 5 U.S.C.
§ 2302(a)(2)(D). Accordingly, we agree with the administrative judge’s
conclusion that the appellant failed to nonfrivolously allege that he made a
protected disclosure with respect to Disclosure 2, as modified here to supplement
the analysis regarding this disclosure.
iii. Disclosure 3
¶43 Disclosure 3 also concerned the spoil slide investigation, but related to the
appellant’s efforts to get MSHA involved in investigating the source of the slide.
Specifically, the appellant alleges that he disclosed the need to involve MSHA in
the investigation to his first-line supervisor in November 2016, and disclosed to
MSHA representatives directly that they needed to investigate the slide in
late-November 2016. IAF, Tab 8 at 60-61. For the reasons addressed in greater
detail above, we also conclude that the appellant failed to nonfrivolously allege
that he made a protected disclosure with respect to Disclosure 3 because he failed
to show that he reasonably believed that he was disclosing wrongdoing that
implicated the Government’s reputation, interests, and good name in connection
9
We note that the provision the appellant identifies that he believed PC 1 violated in
connection with the spoil pile slide, 30 C.F.R. § 77.1000, is promulgated within
MSHA’s regulations, not BLM’s, further supporting the conclusion that the appellant’s
objections represented a policy disagreement over which BLM had no authority. See
IAF, Tab 8 at 13, 60-61.
25
with this purported disclosure. The appellant does not allege and there is no
indication that anyone at BLM was authorized to instruct or direct MSHA to
conduct the investigation into PC 1’s role in the spoil pile slide. As with
Disclosure 2, because the appellant acknowledges that BLM appropriately did not
play a role in the determination of PC 1’s fault for the spoil pile slide, any
inaction by BLM against PC 1 could not have reflected poorly on the Government
or implicated the Government’s reputation, interests, and good name. Cf.
Covington, 2023 MSPB 5, ¶¶ 7-9 (finding that the appellant’s disclosures
regarding alleged wrongdoing by the Navajo Nation, a non -Federal Government
entity, were not protected because the Government’s good name and interests
were not implicated). Consequently, we agree with the administrative judge’s
determination that the appellant failed to nonfrivolously allege that he made a
protected disclosure in connection with Disclosure 3. 10
10
Although unaddressed in the initial decision, the appellant separately alleged that his
communication to MSHA requesting their involvement in the spoil slide investigation
constituted protected activity under 5 U.S.C. § 2302(b)(9)(C), because he was
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency.” IAF, Tab 16
at 5 (quoting 5 U.S.C. § 2302(b)(9)(C)). The statutory language cited by the appellant
was added to section 2302(b)(9)(C) as a part of the National Defense Authorization Act
for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, which was signed
into law on December 12, 2017. The NDAA amended 5 U.S.C. § 2302(b)(9)(C) to
provide protections for individuals who cooperate with or disclose information to the
Inspector General “or any other component responsible for internal investigation or
review,” while the prior statutory language covered only individuals “cooperating with
or disclosing information to the Inspector General of an agency . . . .” See 131 Stat.
1283, 1618. However, the expanded language does not apply here because all of the
relevant events at issue in this appeal occurred prior to December 12, 2017, and the
Board has held that the changes to this provision do not apply retroactively. Edwards v.
Department of Labor, 2022 MSPB 9, ¶¶ 29-33 (finding that the changes to
section 2302(b)(9)(C) do not apply retroactively), aff’d, No. 2022-1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023). Accordingly, the appellant’s communications with
MSHA did not constitute protected activity under section 2302(b)(9)(C).
26
iv. Disclosure 4
¶44 Disclosure 4 was a December 15, 2016 memorandum the appellant provided
to his first and second-line supervisors describing what he believed to be “illegal
and unethical attempts” by a representative of PC 1’s parent company to influence
the outcome of the spoil slide investigation. IAF, Tab 16 at 6. The appellant
alleges that after he contacted the MSHA representative who agreed to conduct
the spoil slide investigation into PC 1, on December 14, 2016, his first-line
supervisor informed him that he had received several voicemail messages from
the Chief Operations Officer of PC 1’s parent company. IAF, Tab 8 at 62; see id.
at 51. The appellant and his supervisor returned the call to the PC 1
representative, and during the call the representative proceeded to complain about
the fact that BLM had requested MSHA to investigate the spoil slide, made
disparaging remarks about the appellant and his reputation, and yelled at the
appellant’s supervisor and instructed him that he better “fix the relationship”
between the agency and PC 1. Id. at 62. The following day, the appellant drafted
a memorandum in which he memorialized what had occurred during the call the
previous day and requested that he be removed from duties associated with PC 1
and its parent company, and delivered it to his first and second-line supervisors.
IAF, Tab 8 at 62; see IAF, Tab 16 at 8-9.
¶45 We conclude that he has failed to nonfrivolously allege that Disclosure 4 is
protected because he has not explained how the described actions taken by the
PC 1 representative implicate the Government’s reputation, interest, and good
name. The wrongdoing the appellant identifies exclusively concerns the behavior
by PC 1’s representative attacking his character and attempting to discourage him
from investigative efforts, and nothing in the provided memorandum identifies
any action by agency officials encouraging or permitting PC 1’s efforts to impede
the investigation. See IAF, Tab 16 at 8-9. The closest the appellant comes to
suggesting any sort of complicity in PC 1’s wrongdoing by any agency official is
his assertion that his supervisor did nothing to “speak up and defend” the
27
appellant’s reputation from the personal attacks by PC 1’s representative during
the call, but even if true, such conduct does not rise to the level of implicating the
Government in PC 1’s wrongdoing. IAF, Tab 8 at 62. Accordingly, we also
agree that the appellant failed to nonfrivolously allege that he made a protected
disclosure in connection with Disclosure 4.
The appellant nonfrivolously alleged that Disclosure 1 contributed to the
significant change in his duties, responsibilities, and working conditions,
and is therefore entitled to a hearing on the merits regarding Disclosure 1.
¶46 Having determined that the appellant nonfrivolously alleged that he made
one protected disclosure and was subjected to one personnel action, we must now
consider whether he has established that his disclosure was a contributing factor
in the agency’s decision to take the personnel action. A protected disclosure is a
contributing factor if it affects an agency’s decision to take a personnel action.
Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). The most
common way of proving contributing factor is through the knowledge/ timing test
of 5 U.S.C. § 1221(e). Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 25
(2015). Under that test, an appellant can prove the contributing factor element
through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of tim e
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id.¶47 Regarding the “knowledge” prong of the test, the appellant states that he
informed his first-, second-, and third-line supervisors about Disclosure 1 in “late
May/early June 2016,” and specifically identifies that he disclosed his concerns
about PC 1’s failure to maintain a current R2P2 to his first-line supervisor during
a verbal discussion during the “May to June 2016” timeframe, and complained to
his first-line supervisor that PC 1’s bypass request should not be approved
sometime in late June to mid-July 2016. IAF, Tab 8 at 13, 56; Tab 14 at 5;
Tab 16 at 4-5. Regarding the “timing” component of the test, the appellant
28
alleges that the significant change in his duties occurred on or around
December 21, 2016, when his first-line supervisor set hard deadlines for his
performance plan for the first time and began otherwise harassing him, which was
approximately 5 to 6 months after he alleges he began disclosing PC 1’s
wrongdoing in connection with Disclosure 1, and within the 1 to 2 year period the
Board has found such disclosures protected. IAF, Tab 8 at 10, 14, Tab 16 at 7;
see Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 16 (2011)
(holding that personnel actions taken within 1 to 2 years of the protected
disclosure satisfy the timing prong of the knowledge/timing test).
¶48 We have concluded that the appellant has made a nonfrivolous allegation
that Disclosure 1 was protected, and that it resulted in a significant change in his
duties, responsibilities, and working conditions. Accordingly, we find that the
appellant has established jurisdiction over his appeal, and that he is entitled to an
adjudication of the merits regarding this claim, including his requested hearing.
¶49 We note that it appears that the appellant may have made Disclosure 1 in
connection with his duties to investigate and disclose compliance with Federal
resource extraction laws and regulations. See 0233 IAF, Tab 6 at 29-3. Pursuant
to 5 U.S.C. § 2302(f)(2), an appellant who makes a disclosure in the normal
course of his duties must additionally show that the agency took the action “in
reprisal for” his disclosure, and it thereby imposes a slightly higher burden for
proving that the disclosure was protected. Salazar v. Department of Veterans
Affairs, 2022 MSPB 42, ¶ 11. The National Defense Authorization Act for Fiscal
Year 2018 (2018 NDAA) amended 5 U.S.C. § 2302(f)(2) to provide that it only
applies to employees whose principal job functions are to regularly investigate
and disclose wrongdoing, Salazar, 2022 MSPB 42, ¶¶ 13-14, and that that
amendment is entitled to retroactive effect. Id., ¶¶ 15-21. The Board has recently
clarified that the potential applicability of 5 U.S.C.§ 2302(f)(2) is not part of the
jurisdictional analysis in an IRA appeal, and should instead be considered at the
merits stage. Williams v. Department of Defense, 2023 MSPB 23, ¶ 12.
29
¶50 Here, the administrative judge did not consider the applicability of 5 U.S.C.
§ 2302(f)(2) or the 2018 NDAA amendment. On remand, the appellant must
demonstrate by a preponderance of the evidence that his disclosure was protected
under 5 U.S.C. § 2302(b)(8) and that it was a contributing factor in the contested
personnel action. 5 U.S.C. § 1221(e)(1). If the appellant’s principal job function
was to regularly investigate and disclose wrongdoing and he made his disclosures
in the normal course of his duties, to establish that his disclosures were protected,
the appellant must also prove that the agency had an improper, retaliatory motive
for terminating him.
¶51 In conducting that analysis, the administrative judge should first determine
whether: (1) the appellant’s primary job function at the time of the disclosure
was to investigate and disclose wrongdoing; and (2) the disclosure was made in
the normal course of the appellant’s duties. The administrative judge may
consider these questions in whichever order is more efficient, and the parties
should be provided an opportunity to submit relevant evidence and argument. If
either condition is unsatisfied, then section 2302(f)(2) does not apply, and the
appellant’s disclosures would fall under the generally applicable 5 U.S.C.
§ 2302(b)(8). Salazar, 2022 MSPB 42, ¶ 22. If conditions (1) and (2) are both
satisfied, the administrative judge should next determine whether the appellant
can meet his additional burden under section 2302(f)(2) by demonstrating that the
agency took the contested personnel action “in reprisal” for h is disclosure. In
doing so, the administrative judge should consider the totality of the evidence.
5 C.F.R. § 1201.4(q) (stating that the record as a whole should be considered
when determining whether a party has met the preponderance of the evidence
standard); see Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir.
2012) (“It is error for the MSPB to not evaluate all the pertinent evidence in
determining whether an element of a claim or defense has been proven
adequately.”).
30
¶52 The determination of whether the agency took personnel actions “in reprisal
for” the appellant’s whistleblowing disclosures may include direct and
circumstantial evidence encompassing the following factors: (1) whether the
agency officials responsible for taking the personnel action knew of the
disclosures and the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosures were in reprisal for the
personnel action; (2) the strength or weakness of the agency’s reasons for taking
the personnel action; (3) whether the disclosures were personally directed at the
agency officials responsible for taking the action; (4) whether the act ing officials
had a desire or motive to retaliate against the appellant; and (5) whether the
agency took similar personnel actions against similarly situated employees who
had not made disclosures. Williams, 2023 MSPB 23, ¶ 16.
¶53 If the administrative judge determines that section 2302(f)(2)’s extra proof
requirement applies to Disclosure 1 and that the appellant established that he
made this whistleblowing disclosure under this extra proof requirement, the
burden then shifts to the agency to demonstrate by clear and convincing evidence
that it would have taken the personnel actions in the absence of the appellant’s
whistleblowing, consistent with the following factors (“Carr” factors): (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated). Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11;
see also Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999).
31
ORDER
¶54 For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order. 11
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
11
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.