Dolinsky v. Department of Homeland Security

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2010-3008

DAVID A. DOLINSKY,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

David A. Dolinsky, of Alexandria, Virginia, pro se.

Scott T. Palmer, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2010-3008

DAVID A. DOLINSKY,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

Petition for review of the Merit Systems Protection Board in
CH1221090173-W-1.

__________________________

DECIDED: March 12, 2010
__________________________

Before GAJARSA, ARCHER, and PROST, Circuit Judges.

PER CURIAM.

David A. Dolinsky petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that denied his request for corrective action sought in his

Individual Right of Action (“IRA”) appeal under the Whistleblower Protection Act

(“WPA”), 5 U.S.C. § 2302(b)(8) (2000). The Government has moved for partial remand

on one issue. See Dolinsky v. Dep’t of the Homeland Sec., No. CH-1221-09-0173-W-1,

2009 MSPB LEXIS 5218 (M.S.P.B. Aug. 07, 2009), review denied, 112 M.S.P.R. 301
(2009) (final decision). For the reasons stated herein, we affirm in part, vacate in part,

and remand to the Board.

BACKGROUND

Mr. Dolinsky is the Great Lakes Region, Regional Emergency Coordinator for the

General Services Administration (“GSA”) in Chicago, Illinois. Mr. Dolinsky applied for

three positions with Department of Homeland Security (“DHS” or “Agency”) during the

period from August 2007 through January 2008. The Agency selected someone other

than Mr. Dolinsky for two of those positions and canceled the vacancy announcement

for the third. After filing a complaint at the Office of Special Counsel (“OSC”),

Mr. Dolinsky filed an IRA appeal to the Board, alleging that the Agency retaliated

against him for making certain disclosures that were protected under the WPA.

At issue in this appeal are two of those disclosures. First, Mr. Dolinsky contends

that he disclosed that Mr. Robert Thibeault, a political appointee with whom he worked,

illegally disclosed classified information. Specifically, he contends that Mr. Thibeault

revealed to Mr. Michael Gelber, GSA Deputy Regional Administrator, as well as

Mr. James Handley, GSA Regional Administrator, and Mr. Dolinsky himself, that in an

upcoming 2005 GSA emergency exercise the President was scheduled to die. The

administrative judge (“AJ”) found that the information about the simulation of the killing

of the President was not established as classified, and thus Mr. Dolinsky had not proven

by preponderant evidence that he made a “protected” disclosure under the WPA.

Dolinsky v. Dep’t of the Homeland Sec., No. CH-1221-09-0173-W-1, 2009 MSPB LEXIS

1631 (M.S.P.B. Mar. 24, 2009) (initial decision).

2010-3008 2
 Second, Mr. Dolinsky contends that he disclosed a violation of the Hatch Act

because he attended a meeting in 2004 with Mr. Thibeault in which Mr. Thibeault asked

Mr. Dolinsky to take Mr. Thibeault’s photograph and e-mail it to the Republican National

Committee so that Mr. Thibeault could attend a Republican National Convention. The

AJ dismissed this claim for lack of jurisdiction because Mr. Dolinsky failed to “present[] a

non-frivolous allegation he had a reasonable belief his actions and those of

Mr. Thibeault clearly implicated an identifiable law, rule, or regulation.” Dolinsky v. Dep’t

of the Homeland Sec., No. CH-1221-09-0173-W-1 (M.S.P.B. Mar. 16, 2009) (order).1

Additionally, Mr. Dolinsky contends that the Board should have applied the

doctrine of collateral estoppel to his disclosure regarding the alleged improper release

of classified information. The record reflects that in a prior MSPB action involving

Mr. Dolinsky, he filed a request on January 12, 2007 for corrective action with the OSC,

alleging that GSA officials retaliated against him for disclosures he believed were

protected by the WPA. Judge Packard in her initial decision indicated that “[i]n his

January 2007 OSC complaint, the appellant stated that on November 6, 2006 he told

Mr. Gelber ‘I am not going to stay quiet any longer regarding Robert Thibeault’s . . .

incident where he disclosed Top Secret information to those who didn’t have a need to

know’” and “[t]he Appellant’s statement that he would now report these to the agency’s

Inspector General is protected.” Dolinsky v. Gen. Servs. Admin., No. CH-1221-07-

1
Before the Board, Mr. Dolinsky made another allegation of whistleblowing,
involving his disclosure to GSA’s Office of the Inspector General, that Rex Wamsley,
Director of the Plans Division with Federal Emergency Management Agency (“FEMA”),
initiated an investigation, through sending out an e-mail to other employees, based on
an allegation of ethical impropriety of Mr. Dolinsky’s use of his government position to
maintain a personal website. The AJ found that Mr. Dolinsky had not shown by
preponderant evidence his disclosure of Mr. Wamsley’s e-mail message constituted a
whistleblowing disclosure. This issue is not on appeal before this court.
2010-3008 3
0461-W-1 (M.S.P.B. Mar. 11, 2008) (initial decision). Based on this prior MSPB

decision, Mr. Dolinsky argued that the Agency should be estopped from re-litigating

whether Mr. Dolinsky had a reasonable belief that Mr. Thibeault improperly disclosed

secret information.

Mr. Dolinsky appealed the AJ’s initial decision to the full Board. The Board

denied his petition for review, thus rendering the initial decision final. 5 C.F.R.

§ 1201.113(b). Mr. Dolinsky timely appealed to this court. Mr. Dolinsky has raised

three issues on appeal: (1) whether the AJ erred in not applying collateral estoppel to

Mr. Dolinsky’s disclosure regarding allegedly classified information; (2) whether the AJ

erred in concluding that Mr. Dolinsky’s disclosure regarding the allegedly improper

release of top secret information was not protected by the WPA; and (3) whether the AJ

erred in dismissing Mr. Dolinsky’s claim regarding the alleged Hatch Act violation. In

addition, the Government, as respondent, has moved for partial remand limited to the

second issue. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2006).

DISCUSSION

The scope of our review of a decision by the Board is limited. We may only set

aside the Board’s decision if it was “(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.”

5 U.S.C. § 7703(c) (2006); see Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 1339

(Fed. Cir. 2005). Whether the Board has jurisdiction to adjudicate an appeal is a

question of law, which we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375,

2010-3008 4
1378 (Fed. Cir. 1999); Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir.

1999).

This court has held that the Board has jurisdiction over an IRA appeal if 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 as

defined by 5 U.S.C. § 2302(a). See Briley v. Nat’l Archives & Records Admin.,

236 F.3d 1373, 1378 (Fed. Cir. 2001); Meuwissen v. Dep’t of Interior, 234 F.3d 9, 12

(Fed. Cir. 2000); Schmittling v. Dep’t of the Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000);

Willis v. Dep’t of Agric., 141 F.3d 1139, 1142 (Fed. Cir. 1998); see generally Spruill v.

Merit Sys. Prot. Bd., 978 F.2d 679, 686-89 (Fed. Cir. 1992). The burden is on the

petitioner to establish the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i); Campion v.

Merit Sys. Prot. Bd., 326 F.3d 1210, 1213-14 (Fed. Cir. 2003).

I.

We first address Mr. Dolinsky’s claim that the Board erred in not applying

collateral estoppel to his disclosure regarding allegedly classified information. We find

no error in the Board’s decision on this issue.

Collateral estoppel bars a litigant from re-litigating the same issue decided in a

previous case where (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 on the issue was

necessary to the resulting judgment in the earlier action, and (4) the interests of the

2010-3008 5
precluded party were fully represented in the prior action. Mother’s Restaurant, Inc. v.

Mama’s Pizza, Inc., 723 F.2d 1566, 1569 (Fed. Cir. 1983).

Here, the Board in the previous case held only that Mr. Dolinsky’s statement that

he would report disclosure to the Agency’s Inspector General was protected, not that

the disclosures themselves were protected. Whether Mr. Dolinsky’s statement that he

would report disclosure to an inspector general is protected is not an issue in this

appeal. Because issue preclusion is only applicable when “the issue previously

adjudicated is identical with that now presented,” Thomas v. Gen. Servs. Admin.,

794 F.2d 661, 664 (Fed. Cir. 1986), Mr. Dolinsky’s argument that the doctrine of issue

preclusion applies here fails. We therefore affirm the Board’s decision on this issue.

II.

We next turn to Mr. Dolinsky’s claim that the Board, by incorrectly deciding

certain facts, erred in concluding his disclosure regarding the allegedly improper release

of top secret information was not protected. The Government agrees with Mr. Dolinsky

and has requested a partial remand limited to this issue.

Mr. Dolinsky testified that there were two different portions of the GSA’s

emergency response exercise: a continuity of government (“COG”) portion and a

continuity of operation program (“COOP”) portion. He noted that COG was always

classified. Mr. Dolinsky also testified, without rebuttal, that the scenario regarding the

hypothetical death of the President was part of the COG plan and was classified at the

time of its unauthorized disclosure. The AJ in his initial decision appeared to fail to

distinguish between the COG portion and the COOP portion of GSA’s emergency

2010-3008 6
response exercise. The AJ ruled that because COOP was not classified, Mr. Dolinsky

failed to establish that the scenario of the President’s hypothetical death was classified.

There is no testimony or affidavits or other evidence submitted by the Agency to

rebut Mr. Dolinsky’s testimony. Therefore, in light of Mr. Dolinsky’s testimony regarding

the different nature of the two portions of GSA’s emergency response exercise, we

remand to the Board for reconsideration whether the hypothetical death of the President

was part of the COG portion of the exercise and whether information under the COG

was classified.

In addition, Mr. Dolinsky argues that the AJ erred in concluding that “a

disinterested person, based on available information and information that was readily

ascertainable, would not necessarily conclude that disclosure of [classified

information] . . . violated the law” because “the officials in charge of the COOP had

reason to know the parameters of the upcoming COOP in order to adequately prepare

for it.” Dolinsky v. Dep’t of Homeland Sec., CH-1221-09-0173-W-1, at *5-6 (M.S.P.B.

Mar. 24, 2009) (initial decision). Mr. Dolinsky contends that this conclusion was

improperly based on the AJ’s finding that “[t]he appellant had a top secret clearance and

the officials in charge of the COOP had reason to know the parameters of the upcoming

COOP in order to adequately prepare for it.” Id. at *6. Mr. Dolinsky’s testimony from

another MSPB appeal indicated that Mr. Gelbert was not involved in the 2005 GSA

training exercise, and neither Mr. Gelbert, Mr. Handley nor Mr. Dolinsky himself should

have had access to the classified information at issue. Mr. Dolinsky’s testimony from

that MSPB appeal other than the one below was contradicted by the Agency’s exhibits

or briefing in that appeal. For example, the AJ during that case’s hearing, referring in

2010-3008 7
part to Mr. Gelber, stated that “[t]he Agency made a statement that both individuals

played key roles in the exercise and had to be, I can show you that, had to be aware of

what was doing on.” Therefore, in light of Mr. Dolinsky’s assertions regarding

Mr. Gelber’s involvement in the 2005 GSA training exercise, we remand for the Board

for reconsideration whether a disinterested person, based on available information and

information that was readily ascertainable, would not necessarily conclude that

disclosure of such information to Mr. Handley, Mr. Gelber, and Mr. Dolinsky violated the

law.

Further, because the Board held that Mr. Dolinsky’s disclosure was not protected

by the WPA, the Board did not address whether Mr. Dolinsky’s disclosure regarding the

release of classified information was “a contributing factor in an adverse action against

him” and whether the Agency established, “by clear and convincing evidence, that it

would have taken the same personnel action in the absence of the protected

disclosure.” See Fellhoelter v. Dep’t of Agric., 568 F.3d 965, 970-71 (Fed. Cir. 2009)

(citing 5 U.S. C. § 121(e)). Accordingly, we grant the Government’s motion for partial

remand for the Board to consider whether Mr. Dolinsky’s statements constituted a

protected disclosure, and if so, whether such statements were a contributing factor in

the Agency’s decision.

III.

Finally, Mr. Dolinsky argued that the Board erred in dismissing his claim

regarding his disclosure of an alleged Hatch Act violation. We see no reason to disturb

the Board’s ruling on this issue.

2010-3008 8
 Section 2302(b)(8) protects several types of disclosures, one being a disclosure

regarding what an employee “reasonably believes” to be a “violation of any law, rule, or

regulation.” 5 U.S.C. § 2302(b)(8). Mr. Dolinsky alleges he made such a disclosure; we

deem his allegations frivolous.

In order for Mr. Dolinsky to prevail in his IRA appeal, he was first required to

demonstrate by a preponderance of the evidence that he made a disclosure that he

reasonably believed evidenced a violation of a law, rule, or regulation. Willis, 141 F.3d

at 1143. The proper test for determining whether an employee had a reasonable belief

that his disclosures revealed misconduct prohibited under the WPA is whether a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the employee would reasonably conclude that the actions of the

government evidence wrongdoing as defined by the WPA. Lachance v. White,

174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153 (2000).

At issue in this appeal is Mr. Dolinsky’s disclosure that Mr. Thibeault requested

Mr. Dolinsky to take Mr. Thibeault’s photograph and e-mail it to the Republican National

Committee so that Mr. Thibeault could attend a Republican National Convention. The

AJ correctly explained that the Hatch Act prohibits “federal employees from using their

official authority or influence to interfere with an election, solicit or receive political

contributions, be candidates for public office in partisan elections, solicit or discourage

political activity while on duty, in a government office, wearing an official uniform, or

using a government vehicle.” Dolinsky v. Dep’t of Homeland Sec., CH-1221-09-0173-

W-1, at *2 (M.S.P.B. Mar. 16, 2009) (order) (citing 5 U.S.C. §§ 7323-7324; 5 C.F.R.

§ 734.302-.306). The AJ then properly noted that Mr. Dolinsky’s “disclosure does not

2010-3008 9
indicate either he or Mr. Thibeault used their official positions to interfere with an

election, that they solicited or received political contributions, that they ran for office in a

partisan election, that they solicited or discouraged the political activity of anyone with

business before the [GSA], or that, as defined by regulation, they engaged in a political

activity.” Id. at *2-3. We agree that it is frivolous to suggest the act at issue constituted

political activity that violated the Hatch Act, and thus Mr. Dolinsky has failed to show a

reasonable belief that he made a disclosure evidencing a violation of law, rule, or

regulation.

For the foregoing reasons, we affirm in part, vacate in part, and remand to the

Board for reconsideration 1) whether the hypothetical death of the President was

classified information under the COG portion of the 2005 GSA emergency exercise;

2) whether a disinterested person would not necessarily conclude that disclosure of

such information to Mr. Handley, Mr. Gelber, and Mr. Dolinsky violated the law; and

3) whether Mr. Dolinsky’s disclosure regarding the release of such information was a

contributing factor in an adverse action against him. We reject the remainder of his

challenges to the Board’s decision.

No costs.

2010-3008 10