NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH A. O'DONNELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3020
______________________
Petition for review of the Merit Systems Protection
Board in No. CH1221120436-W-1.
______________________
Decided: April 9, 2014
______________________
JOSEPH A. O’DONNELL, of Camden, Indiana, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
DAVID PARDO, The Law Office of David Pardo, of Alex-
andria, Virginia, for amicus curiae.
______________________
2 O'DONNELL v. MSPB
Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.
PER CURIAM.
Joseph A. O’Donnell appeals a final decision of the
Merit Systems Protection Board (“the Board”) dismissing
his individual right of action appeal for lack of jurisdiction
under the Whistleblower Protection Act (“WPA”), 5 U.S.C.
§ 2302 (2012). O’Donnell v. Dep’t of Agric., No. CH-1221-
12-0436-W-1 (Sep. 10, 2013). Because we agree that Mr.
O’Donnell has not established jurisdiction, we affirm.
I. BACKGROUND
Mr. O’Donnell’s allegations of retaliation by the Na-
tional Resource Conservation Service stem from his role
as a soil conservationist overseeing agency programs and
helping private landowners apply conservation practices
to their land. This role includes determining whether
customers and their land meet the Department of Agricul-
ture’s (“the agency’s”) eligibility criteria for government
assistance. In spring of 2005, Mr. O’Donnell inspected a
landowner’s property and determined that it was eligible
under the agency’s Conservation Reserve Program. The
landowner’s application to the Farm Service Agency
(“FSA”) was approved on November 21, 2005, and the
landowner began work on the project shortly thereafter.
Mr. O’Donnell’s supervisor disagreed with the eligibil-
ity determination and had the FSA terminate the contract
with the landowner. The landowner appealed the revoca-
tion of the contract within the FSA. At the hearing on the
landowner’s appeal, Mr. O’Donnell ignored his supervi-
sor’s assessment and testified that the landowner should
prevail in his appeal.
The agency thereafter proposed a 5-day suspension
for Mr. O’Donnell based on his failure to respect his
supervisor’s decision. After considering Mr. O’Donnell’s
response to the proposed suspension, the agency reduced
the suspension to 3 days. Mr. O’Donnell filed a complaint
O'DONNELL v. MSPB 3
with the Office of Special Counsel (“OSC”), arguing that
he should not have been suspended because the WPA does
not allow supervisors to punish employees for whistle-
blowing. After exhausting his remedies within the OSC,
Mr. O’Donnell appealed the OSC’s decision not to take
corrective action to the Board. The Board found that it
did not have jurisdiction because Mr. O’Donnell had not
presented non-frivolous allegations that his statements
contradicting his supervisor’s assessment were protected
by the WPA.
Mr. O’Donnell timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).
II. DISCUSSION
The scope of our review in an appeal from a final deci-
sion of the Board is limited. We must affirm the Board’s
decision unless 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); Fields v. Dep’t
of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006). We
review decisions of the Board regarding its own jurisdic-
tion without deference. Fields, 452 F.3d at 1301–02
(citing McCormick v. Dep’t of the Air Force, 307 F.3d 1339,
1340 (Fed. Cir. 2002)). Before the Board, an appellant
bears the burden of establishing Board jurisdiction. Id.
Although the Board’s jurisdiction generally does not
extend to suspensions of 14 days or less, 5 U.S.C. §
7512(2), Congress has provided federal employees the
right to seek corrective action from the Board whenever
personnel action is taken in retaliation for whistleblowing
activities. 5 U.S.C. § 1221(a) (“Subject to the provisions of
subsection (b) of this section and subsection 1214(a)(3), an
employee . . . may, with respect to any personnel action
taken . . . as a result of a prohibited personnel practice
described in section 2302(b)(8)[,] . . . seek corrective action
4 O'DONNELL v. MSPB
from the [Board].”). This court has held that the Board
has jurisdiction over whistleblower cases “if the appellant
has exhausted administrative remedies before the OSC
and makes ‘non-frivolous allegations’ that (1) he engaged
in whistleblowing activity by making a protected disclo-
sure 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).” Yunus v. Dep’t of Veterans Affairs, 242 F.3d
1367, 1371 (Fed. Cir. 2001).
The Board does not contest that Mr. O’Donnell has
exhausted his OSC remedies or that Mr. O’Donnell’s
statements contradicting his supervisor contributed to his
suspension. The sole issue on appeal is whether Mr.
O’Donnell has made non-frivolous allegations that those
statements are protected disclosures under 5 U.S.C. §
2302(b)(8). Section 2302(b)(8) provides in the relevant
part that:
(b) Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not, with respect to such au-
thority—
...
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because
of—
(A) any disclosure of information by an employee
or applicant which the employee or applicant rea-
sonably believes evidences—
(i) any violation of any law, rule, or regulation, or
(ii) gross mismanagement , a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety . . . .
O'DONNELL v. MSPB 5
5 U.S.C. § 2302(b) (emphasis added).
Mr. O’Donnell argues that the Board erred in conclud-
ing that his statements contradicting his supervisor were
not protected disclosures under the WPA. He contends
that his disclosure concerned a “violation of law” because
it “concerned the violation of the acreage eligibility provi-
sions of Public Law 107-171 Subtitle B, Section 1231(h)
‘Pilot Program for Enrollment of Wetland and Buffer
Acreage in Conservation Reserve.’” Appellant’s Br. 2. Mr.
O’Donnell further argues that the Board failed to conduct
a “reasonable belief” analysis under the WPA. Id. at 5–6;
see 5 U.S.C. § 2302(b). Mr. O’Donnell also insists that the
Board’s reliance on Meuwissen v. Department of Interior,
234 F.3d 9, 13–14 (Fed. Cir. 2000) was improper because
Congress overruled that case as contrary to the original
intent of the WPA.
The Board argues that Mr. O’Donnell failed to make
non-frivolous allegations that his disclosures were pro-
tected under the WPA. The Board contends that Mr.
O’Donnell could not have reasonably believed that his
supervisor’s decision regarding the eligibility of the land-
owner was a violation of the law or constituted gross
mismanagement. To the extent the Board’s decision
relied on Meuwissen, it argues that Congress only over-
ruled Meuwissen regarding disclosure of matters which
were already publicly known. The Board’s decision, on
the other hand, cites to Meuwissen for the proposition
that “an employee’s disagreement with an agency ruling
or adjudication does not constitute a protected disclosure
even if that ruling was legally incorrect.” O’Donnell, No.
CH-1221-12-0436-W-1, slip op. 7.
We agree with the Board that Mr. O’Donnell failed to
demonstrate that he made disclosures that he could have
“reasonably believed” evidenced a violation of a law, rule,
or regulation. The WPA defines protected disclosures as:
6 O'DONNELL v. MSPB
a formal or informal communication or transmis-
sion, but does not include a communication con-
cerning policy decisions that lawfully exercise
discretionary authority unless the employee or
applicant providing the disclosure reasonably be-
lieves that the disclosure evidences—
(i) any violation of any law, rule, or regulation; or
(ii) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety.
5 U.S.C. § 2302(a)(2)(D) (emphasis added). This court
recognizes that “[t]he WPA is not a weapon in arguments
over policy or a shield for insubordinate conduct. Policy-
makers and administrators have every right to expect
loyal, professional service from subordinates who do not
bear the burden of responsibility.” Lachance v. White, 174
F.3d 1378, 1381 (Fed. Cir. 1999).
In this case, Mr. O’Donnell’s supervisor was allowed
to lawfully exercise discretionary authority to determine
whether property is eligible for the Conservation Reserve
Program. See 16 U.S.C. § 3831b(a)(2) (“The Secretary [of
Agriculture] shall ensure, to the maximum extent practi-
cable, that owners and operators in each State have an
equitable opportunity to participate in the program
established under this section.”). Even assuming Mr.
O’Donnell’s supervisor’s eligibility determination was
subject to disagreement, an exercise of discretionary
authority is not a “violation of the law.” Accord S. REP.
NO. 112-155, at 7 (2012), reprinted in 2012 U.S.C.C.A.N.
589, 595 (“[A]n employee who discloses general philosoph-
ical or policy disagreements with agency decisions or
actions should not be protected as a whistleblower.”).
Mr. O’Donnell’s argument that he reasonably believed
that his supervisor’s eligibility determination was a
violation of the law is unpersuasive. The Conservation
O'DONNELL v. MSPB 7
Reserve Program law grants discretionary authority to
the agency, and Mr. O’Donnell’s supervisor was in charge
of exercising that discretion. See 16 U.S.C. § 3831b(a)(2).
No reasonable person could think exercising that discre-
tion is a violation of the law. Mr. O’Donnell’s supervisor
even took the time to explain his rationale in writing. See
Appellee’s App’x at 21. As the Board explained in its
decision, “[t]he orderly administration of [the Board]
requires that, for better or for worse, supervisors and
managers have the final say in such rulings. A subordi-
nate’s refusal to abide by his supervisor’s instructions in
this regard supplants the orderly appeals process with
chaotic agency in-fighting.” O’Donnell, No. CH-1221-12-
0436-W-1, slip op. 7–8. Although the Board did not
explicitly say it was performing a “reasonable belief”
analysis, we see no basis on which to overturn the Board’s
decision. See 5 U.S.C. § 7703(c).
Mr. O’Donnell’s argument that the Board improperly
relied on Meuwissen is also unpersuasive. The legisla-
ture’s only objection to the holding in Meuwissen was the
idea that “disclosures of information already known are
not protected.” S. REP. NO. 112-155, at 5. The legislature
included language to overrule this holding in the revised
statute. See 5 U.S.C. § 2302(f)(1) (“A disclosure shall not
be excluded from subsection (b)(8) because . . . (B) the
disclosure revealed information that had been previously
disclosed . . . .”). The same Senate Report cited by Mr.
O’Donnell goes on to state that “an employee who disclos-
es general philosophical or policy disagreements with
agency decisions or actions should not be protected as a
whistleblower.” S. REP. NO. 112-155, at 7. Indeed, the
legislature also included language to make sure a super-
visor’s discretionary decisions are not challenged by
subordinates. 5 U.S.C. § 2302(a)(2)(D) (“‘[D]isclosure’
means a formal or informal communication or transmis-
sion, but does not include a communication concerning
8 O'DONNELL v. MSPB
policy decisions that lawfully exercise discretionary au-
thority . . . .”) (emphasis added).
In summary, although Mr. O’Donnell may have sub-
jectively believed that his supervisor’s eligibility determi-
nation was erroneous, he could not have reasonably
believed that it constituted a violation of law. Mr.
O’Donnell has therefore failed to make a non-frivolous
argument that his statements are protected by the WPA,
and the Board properly dismissed his appeal for lack of
jurisdiction.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of
the Board.
AFFIRMED