UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY C. REESE, DOCKET NUMBER
Appellant, SF-1221-16-0110-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: September 2, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David Pardo, Esquire, Albuquerque, New Mexico, for the appellant.
Anna Roe, Portland, Oregon, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under 5 U.S.C. § 1221. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED by this Final Order, to VACATE the finding that the
agency proved by clear and convincing evidence it would have suspended the
appellant in the absence of his disclosure, we AFFIRM the initial decision. The
appellant’s request for corrective action is DENIED.
BACKGROUND
¶2 At all times relevant to this appeal, the appellant was employed as a
Maintenance Worker, WG-4749-08, at the agency’s Badon Marsh Wildlife
Refuge. Initial Appeal File (IAF), Tab 2 at 7. On September 21, 2014, Dr. W.B.,
a wildlife biologist at Badon Marsh, had a collision while driving a
Government-owned vehicle in the refuge, resulting in a dent to the tailgate. IAF,
Tab 11 at 5-8, Tab 28 at 23-24. The appellant contacted the General Services
Administration (GSA) to inquire about repairing the vehicle, and, in late
December 2014, he provided Dr. W.B. a Standard Form 91 (SF-91), Motor
Vehicle Accident Report, which needed to be completed and returned to the GSA
to obtain approval for the necessary repairs. IAF, Tab 11 at 9. On January 9,
2015, Dr. W.B. completed the SF-91 and gave it to the appellant’s supervisor,
Mr. E.M. IAF, Tab 11 at 5-8. Mr. E.M. signed the form and sent it to GSA for
approval. Id. On January 22, 2015, the GSA approved the repair. IAF, Tab 2
3
at 49. Mr. E.M. sent the approval letter to the appellant and asked him to
coordinate the necessary repairs. Id. at 48.
¶3 After receiving the approval letter on January 22, 2015, the appellant
noticed that Dr. W.B. had entered an incorrect date at two locations on the form,
indicating that the accident took place on December 21, 2014, instead of
September 21, 2014. Hearing Compact Disc (HCD) (testimony of appellant); see
IAF, Tab 11 at 5-6. That same day, the appellant called Mr. R.L., the GSA
employee who had approved the repair to notify him of the discrepancy. HCD
(testimony of the appellant). Shortly thereafter, the GSA employee telephoned
Mr. E.M. to inform him of his conversation with the appellant. IAF, Tab 11
at 14. According to Mr. E.M.’s contemporaneous memorandum, the GSA
employee “sounded very distraught.” Id. Mr. E.M. responded that he did not
know why the appellant would be calling him and that he would contact the
appellant to find out what was going on. Id. Minutes later, the GSA employee
again called Mr. E.M. and told him the appellant had called a second time to
request a phone number to report fraud, waste, and abuse. Id.; see HCD
(testimony of the appellant). Mr. E.M. apologized and again reassured the GSA
employee that he would call the appellant and get to the bottom of the matter.
IAF, Tab 11 at 14. Mr. E.M. then called the appellant, who explained that an
incorrect date was listed on the SF-91. Id. Shortly thereafter, Mr. E.M. met with
Dr. W.B. and concluded that Dr. W.B. had made a clerical error and entered the
wrong date. Id. Dr. W.B. changed the listed date at both locations on the form
and initialed his changes, and Mr. E.M. sent the updated form to GSA. IAF,
Tab 2 at 51, Tab 11 at 5-8.
¶4 Later that afternoon, the appellant submitted an online complaint form to
the GSA Office of Inspector General Fraud Hotline Office, alleging “falsification
of a government accident report.” IAF, Tab 2 at 50. The following day,
January 23, 2015, the GSA fleet office emailed the appellant to inform him that it
4
had received an amended SF-91 with a corrected accident date. Id. The email
stated that “GSA considers this issue to be resolved from our perspective.” Id.
¶5 On February 12, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC), in which he alleged that the agency retaliated against him
for his disclosures concerning the SF-91 when it implemented performance
standards without his agreement, threatened to reprimand him, and engaged in
“office exclusions and isolation.” Id. at 2-32. Subsequently, on April 17, 2015,
Mr. E.M. suspended the appellant for 5 days for failure to follow supervisory
instructions. IAF, Tab 21 at 3-6, 10. On May 17, 2015, the appellant
supplemented his OSC complaint to include the 5-day suspension as an alleged
retaliatory action. IAF, Tab 2 at 36-39. On August 28, 2015, OSC notified the
appellant that it had terminated its investigation and notified him of his right to
seek corrective action with the Board. Id. at 18. This appeal followed. Id.
at 1-6.
¶6 Based on the parties’ written submissions, the administrative judge
determined that the appellant had established jurisdiction over his individual right
of action (IRA) appeal and was entitled to a hearing. IAF, Tab 22. Following the
hearing, the administrative judge issued an initial decision denying the
appellant’s request for corrective action. IAF, Tab 42, Initial Decision (ID). She
first found that the appellant failed to prove by preponderant evidence that his
disclosure to the GSA concerning the SF-91 was protected under 5 U.S.C.
§ 2302(b)(8). ID at 9-13. She further found that the disclosure, had it been
protected, would have been a contributing factor in the agency’s decision to
suspend the appellant, but that the other alleged retaliatory actions were not
covered “personnel actions” under 5 U.S.C. § 2302(a)(2)(A). ID at 13-17.
Finally, the administrative judge found that the agency demonstrated by clear and
convincing evidence that it would have suspended the appellant even if he had not
communicated with GSA concerning the incorrect date on the SF-91. Id.
at 17-23.
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¶7 On review, the appellant contends that the administrative judge erred in
finding that his disclosure to the GSA was not protected, and in finding that the
agency proved by clear and convincing evidence that it would have suspended
him in the absence of that disclosure. Petition for Review (PFR) File, Tab 1. He
does not contest the administrative judge’s findings as to the other alleged
personnel actions. Id. The agency has filed a response, to which the appellant
has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any law, rule, or regulation, 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(b)(8)(A). A reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the actions of the
Government evidence one of the categories of wrongdoing listed in
section 2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
The appellant need not prove that the matter disclosed actually established one of
the types of wrongdoing listed under section 2302(b)(8)(3A); rather, he must
show that the matter disclosed was one that a reasonable person in his position
would have believed evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8)(A). Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285,
¶ 18 (2013).
¶9 The appellant argued below that his communication with GSA concerning
the SF-91 was a protected disclosure under 5 U.S.C. § 2302(b)(8) because he
reasonably believed it evidenced a violation of law, rule, or regulation,
specifically, 18 U.S.C. § 1001. IAF, Tab 15 at 6. The statute in question
provides that, regarding any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United States, it is a
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crime to knowingly and willfully: (1) falsify, conceal, or cover up by any trick,
scheme, or device a material fact; (2) make any materially false, fictitious, or
fraudulent statement or misrepresentation; or (3) make or use any false writing or
document knowing the same to contain any materially false, fictitious, or
fraudulent statement or entry. 18 U.S.C. § 1001. The appellant correctly notes
that the reasonableness of his belief that 18 U.S.C. § 1001 had been violated
depends on the information that was available to him at the time of the disclosure.
PFR File, Tab 1 at 6. We also have considered that the GSA employee whom the
appellant called was distressed by the allegation of fraud, though his concern may
have had more to do with the appellant’s intent to report the matter than with the
alleged fraud itself. Id. at 5-6. Nonetheless, we agree with the administrative
judge that a disinterested observer would not have reasonably concluded that
Dr. W.B. knowingly and willfully falsified the date, as opposed to making a
clerical error, or that in doing so he falsified a material fact. 2 Accordingly, we
discern no error in the administrative judge’s finding that the appellant did not
make a protected disclosure under 5 U.S.C. § 2302(b)(8).
¶10 The appellant also contests the administrative judge’s finding that the
agency proved by clear and convincing evidence that it would have suspended
him in the absence of his disclosure. However, under 5 U.S.C. § 1221(e)(2), the
Board will not proceed to the clear and convincing test unless it has first
2
On review, the appellant argues for the first time that, even if the incorrect date on
the SF-91 was not material for purposes of 18 U.S.C. § 1001, he nonetheless may have
disclosed a violation of some other law, rule, or regulation that does not include a
materiality requirement. PFR File, Tab 1 at 6-7. He correctly observes that an
employee alleging whistleblowing reprisal is not required to identify the particular
statutory or regulatory provision that the agency purportedly violated if his statements
and the circumstances of those statements clearly implicate an identifiable violation of
law, rule, or regulation. See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R.
469, ¶ 12 (2010). However, the appellant explicitly identified 18 U.S.C. § 1001 as the
law that was violated, IAF, Tab 15 at 6, and his disclosure of the incorrect entry on the
SF-91 does not clearly implicate any other identifiable violation of law, rule,
or regulation.
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determined that the appellant made a protected disclosure that was a contributing
factor in the contested personnel action. Clarke v. Department of Veterans
Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir.
2015). We find, having determined that the appellant did not make a protected
disclosure, it was error for the administrative judge to consider whether the
agency met its burden under the clear and convincing test. 3 Accordingly, we
vacate that portion of the initial decision. The appellant’s arguments concerning
the clear and convincing test issue are moot, and we therefore do not address
them. See id., ¶ 19.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
3
However, we find that the administrative judge’s procedural error is of no legal
consequence because it has not been shown to have adversely affected a party’s
substantive rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).
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order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.