case law update

Federal Circuit Differentiates Between 2 Types of Reprisal

A Federal Deposit Insurance Corporation employee filed a Step 1 grievance with the Agency after being issued a Letter of Warning regarding comments he allegedly made that potentially violated the agency’s anti-harassment policy.

After the Step 1 grievance was denied on July 14, 2011, the employee filed a step 2 grievance on July 22, 2011, reiterating his request to be part of a “working group to improve the FDIC’s harassment policy and procedures” and his arguments that procedures for investigations into harassment complaints were lacking, as were the agency’s anti-harassment policies. The agency denied his step 2 grievance on August 26, 2011, claiming that the Letter of Warning was only an “informal inquiry, not a disciplinary or adverse action, and did not lead to charges of misconduct.” A Step 3 grievance was filed on September 8, 2011, and subsequently denied. However, the employee also made two separate disclosures outside of the formal grievance process regarding his concern with FDIC procedures and policies, contacting the FDIC Internal Ombudsman on May 26, 2011, to express his belief that the “FDIC violated the law, several United States Equal Employment Opportunity Commission Compliance Guidelines, and many of its own policies and procedures,” and adding that the decision in his matter was “based on a faulty understanding of the law and policies.”

The employee also contacted the Acting Chairman of the agency on February 7, 2012, to contend that the agency investigation process was inadequate and that policies regarding harassment were unclear, as well as stating that FDIC management had lied during the investigation. The employee filed a whistleblower retaliation complaint with the Office of Special Counsel (“OSC”) on February 17, 2012, and after OSC closed its file on the complaint on May 31, 2012, the employee appealed OSC’s decision under an Individual Right of Action (“IRA”) to the Merit Systems Protection Board based on the allegations he made to OSC.

His appeal was dismissed without prejudice due to the enactment of the Whistleblower Protection Enhancement Act and the pending Board resolution of another case, Hooker v. Department of Veterans Affairs, 2014 M.S.P.B. 15 (2014). The Board in Hooker held that the WPEA did not expand the Board’s jurisdiction retroactively over IRA appeals made under 5 U.S.C. § 2302(b)(9)(B) (the prohibition on taking personnel actions because of testifying in connection with the exercise of a grievance right). After the MSPB administrative judge dismissed the appeal for lack of jurisdiction, stating that while retaliation for disclosures made under 5 U.S.C. § 2302(b)(9)(A) as amended by the WPEA would justify Board jurisdiction, but that the retroactivity analysis in Hooker prevented the pre-WPEA statute from granting the Board jurisdiction over the appeal. Because the disclosures occurred before the effective date of the WPEA, the administrative judge stated, the WPEA could not apply. The employee appealed, but the Board denied the petition in November 6, 2014, affirming the administrative judge’s findings regarding whether the employee had exhausted his administrative remedies with OSC regarding the two disclosures described above and regarding the treatment of allegations under § 2302(b)(9) rather than (b)(8) and the inapplicability of retroactive WPEA-enabled jurisdiction. The employee appealed the decision to the United States Court of Appeals of the Federal Circuit. On August 6, 2015, the appeals court affirmed the Merit System Protection Board’s dismissal of the employee’s individual right of action appeal.

The appeals court, at the outset of its analysis, stated that “prior to amendment of the WPA by the WPEA, Board jurisdiction over an IRA appeal required that the personnel practice be barred by 5 U.S.C. § 2302(b)(8),” but that “a disclosure under § 2302(b)(9)(A)(i) could not provide a basis for Board jurisdiction over an IRA.”

Turning to whether the employee exhausted his administrative remedies with OSC prior to filing the IRA Board appeal, the appeals court found that the employee had not “raise[d] his communication with the Internal Ombudsman or Acting Chairman Gruenberg in his complaint to OSC,” and that the statute did not require OSC to affirmatively inform the employee that he must include any and all disclosures made, even those outside the grievance process, in order to exhaust his remedies. Although the employee argued that raising these disclosures to OSC in some capacity would have been irrelevant to OSC’s decision to close his file, the appeals court dismissed this argument as “mere speculation” and affirmed the Board’s findings that the employee failed to exhaust his remedies with OSC for his disclosures to the Internal Ombudsman and Acting Chairman Gruenberg. The other disclosures, those that occurred during the grievance process, which were similar in nature to those made outside of the grievance process, were found by the appeals court to be made under § 2302(b)(9), and therefore not under the pre-WPEA jurisdiction of the Merit Systems Protection Board.

The employee argued that his disclosures, although made during the grievance process, wualified as evidence of either “a violation of any law, rule, or regulation,” “gross mismanagement,” or an “abuse of authority,” all of which are discussed under § 2302(b)(8) rather than §2302(b)(9). The government argued that these disclosures, although similar in type to those typically found covered by § 2302(b)(8), were made during a grievance and therefore were covered by § 2302(b)(9).

The appeals court recognized that “Congress differentiate[d] between reprisal based on disclosure of information and reprisal based upon exercising a right to complain” and that a broad, inclusionary reading of § 2302(b)(8) could alter or reverse that Congressional intent to differentiate between the two actions. If, the appeals court stated, pre-WPEA “disclosures allegedly protected under § 2302(b)(8) are made solely in the course of exercising agency grievance rights and are never presented outside that context,” they could not serve as the basis for Board jurisdiction over an IRA appeal. The appeals court concluded that allowing such an appeal to go forward would undercut precedent and blur the distinction between the types of disclosures covered in the two applicable subsections.

For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the Merit Systems Protection Board’s dismissal of the employee’s individual right of action appeal for lack of jurisdiction.

Read the full case: Miller v. Merit Systems Protection Board



This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, case law update



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