NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
Is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3216
DONALD L. BAKER,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
___________________________
DECIDED: April 8, 2005
___________________________
Before MICHEL, Chief Judge, RADER, and LINN, Circuit Judges.
RADER, Circuit Judge.
I. INTRODUCTION
The Merit Systems Protection Board (Board) found that evidence did not
support Mr. Baker’s allegation that he was terminated in reprisal for
whistleblowing activity. Baker v. Dep’t of Agriculture, No. DA-1221-02-0419-W-1
(M.S.P.B. Dec. 12, 2002) (Initial Decision); Baker v. Dep’t of Agriculture, No. DA-
1221-02-0419-W-1 (M.S.P.B. Mar. 10, 2004). Because the Board correctly
applied whistleblower protection law, this court affirms.
II. BACKGROUND
On May 20, 2001, Mr. Baker received a temporary, part-time appointment
as a Soil Scientist for the Hydraulic Engineering Research Unit at the Plant
Sciences and Water Conservation Research Laboratory in Stillwater, Oklahoma.
Mr. Darrel Temple, his supervisor, assigned Mr. Baker to a scientific project. Mr.
Baker was terminated after an incident involving an inappropriate reaction to the
misdelivery of a personal order by the United Parcel Service (“the UPS incident”).
On February 3, 2002, Mr. Baker filed a complaint with the Office of Special
Counsel (OSC), asserting that he had been terminated for disclosing protected
information under 5 U.S.C. § 2302(b) (2000). See also Whistleblower Protection
Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified throughout 5 U.S.C.)
(WPA). Specifically, Mr. Baker claimed he was terminated because he disclosed
to Mr. Temple that certain methods used in the project were flawed. Mr. Baker
also claimed that his termination was in reprisal for disclosing, in connection with
the UPS incident, that the Research Laboratory facility lacked adequate street
address markings, which could delay the arrival of emergency vehicles. OSC
determined Mr. Baker had not engaged in protected whistleblowing activity.
Mr. Baker filed an appeal to the Board under 5 U.S.C. § 1221(a) and 5
C.F.R. §§ 1209.1-1209.4 (2005). With respect to Mr. Baker’s disclosures to Mr.
Temple regarding the project’s allegedly flawed methods, the Board concluded
that the WPA does not apply where an employee makes complaints to his own
supervisor about that supervisor’s conduct. Huffman v. Office of Pers. Mgmt,
263 F.3d 1341, 1348-50 (Fed. Cir. 2001). Thus, these disclosures did not
constitute protected whistleblowing activity under 5 U.S.C. 2302(b)(8). The
Board decided that Mr. Baker’s disclosures concerning the laboratory’s improper
street markings were, on the other hand, covered by this statute because the
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information dealt with “a substantial and specific danger to public health or
safety.” Initial Decision, slip op. at 7. After reviewing the record of Mr. Baker’s
employment, the Board found that the only protected disclosure, that of the
inadequate street markings, was not a contributing factor in the termination
decision.
III. Analysis
This court affirms a decision of the Board unless it is arbitrary, capricious,
an abuse of discretion, not in accordance with the law, or unsupported by
substantial evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers.
Mgmt, 243 F.3d 1375 (Fed. Cir. 2001).
The WPA permits an employee to seek corrective action from the Board in
connection with certain personnel actions allegedly taken, not taken, or
threatened, in reprisal for engaging in protected whistleblowing, as defined by 5
U.S.C. § 2302(b)(8). 5 U.S.C. § 1221(a) (2000). However, the scope of
protected disclosures is limited. Huffman, 263 F.3d at 1349-50.
Two grounds for the limitation of scope in Huffman are pertinent here: (1)
complaints made to a supervisor regarding the supervisor’s actions are not
“disclosures,” as the supervisor necessarily is aware of his own conduct; and (2)
the purpose of the WPA, to encourage disclosures to persons who will be in a
position to act to remedy the wrong, is not supported when the wrongdoer is told
of the wrong as the wrongdoer is not in the proper position to effect a remedy.
263 F.3d at 1348-50.
04-3245 3
Mr. Baker’s complaints to Mr. Temple are similar to the complaints
considered in Willis v. Dep’t of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 1998).
There, Willis did “no more than voice his dissatisfaction with his superiors’
decision,” and the WPA was found to not be applicable. Huffman, 263 F.3d at
1349. While Mr. Baker’s dissatisfaction arose from possible error in a scientific
project that could pose a danger to public safety, it falls into the unprotected
disagreements category described in Huffman and its predecessors. The Board
did not err in finding that these disclosures are not protected by the WPA.
Turning to the street markings complaint, this court agrees with the Board
that the WPA does protect such a disclosure. Mr. Baker’s job did not entail
making such observations about the facility, and he told the proper agency
officials about the problem. However, the Board found no evidence suggesting
Mr. Baker was terminated as a reprisal for disclosing this information. Because
the Board’s evaluation of Mr. Baker’s complaints was in accordance with the law,
the Board’s decision is affirmed.
04-3245 4