Flynn v. United States Securities & Exchange Commission , 877 F.3d 200 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2122
RORY C. FLYNN,
Petitioner,
v.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION,
Respondent.
On Petition for Review of an Order of the Merit Systems Protection Board. (DC-1221-
14-1124-W-1)
Argued: September 13, 2017 Decided: December 7, 2017
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Petition denied in part, granted in part, and remanded for further proceedings by
published opinion. Judge Wynn wrote the opinion, in which Judge Motz and Judge
Duncan joined.
ARGUED: Rory Christopher Flynn, Silver Spring, Maryland, for Petitioner. Allison
Kidd-Miller, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Bruce M. Bettigole, EVERSHEDS SUTHERLAND (US)
LLP, Washington, D.C., for Petitioner. Laura Walker, David L. Peña, Laura
Cunningham, Office of the General Counsel, UNITED STATES SECURITIES AND
EXCHANGE COMMISSION, Washington, D.C.; Chad A. Readler, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
2
WYNN, Circuit Judge:
In May 2013, Rory Flynn was fired from his position at the Securities and
Exchange Commission (“SEC,” or the “Commission”). Flynn claims that his supervisor
terminated him in reprisal for raising concerns about his section’s alleged chronic
inefficiency. Seeking redress under a provision of the Whistleblower Protection
Enhancement Act, 5 U.S.C. § 2302(b)(8), Flynn filed suit. An Administrative Judge
determined that Flynn had not made any protected disclosures and was thus not entitled
to relief. The Merit Systems Protection Board affirmed, and now Flynn petitions this
Court for review.
We deny the petition in part, grant in part, and remand for further consideration.
I.
In August 2012, Rory Flynn began work as an Associate General Counsel at the
SEC. Flynn had previously spent twelve years in the SEC’s Division of Enforcement and
then another thirteen years with the Financial Industry Regulatory Authority (and its
predecessor). In his most recent position with the Commission, Flynn helmed the Office
of General Counsel’s Adjudication section. Known simply as “Adjudication,” the section
primarily assists the Commission in deciding appeals from administrative law judges,
self-regulatory organizations, and the Public Company Accounting Oversight Board.
After starting with Adjudication, Flynn became alarmed by what he viewed as an
unacceptable backlog in unresolved cases based on his reading of two provisions in the
SEC Rules of Practice: Rule 900(a) and Rule 900(b). See Informal Procedures and
3
Supplementary Information Concerning Adjudicatory Proceedings, 17 C.F.R. § 201.900(2006). 1
Rule 900(a) provides that, “to the extent possible . . . [o]rdinarily, a decision by the
Commission with respect to an appeal . . . should be issued within seven months from the
date the petition for review . . . is filed.” 17 C.F.R. § 201.900(a). That said, if “the
Commission determines that the matter presents unusual complicating circumstances, . . .
a decision . . . may be issued within 11 months.” Id. “[W]hen the Commission
determines that extraordinary facts and circumstances . . . so require,” it has “discretion”
to take even further time to resolve the appeal. Id. Flynn believed that Adjudication was
consistently violating Rule 900(a) by not resolving appeals within the prescribed
timelines or obtaining Commission approval for extensions. According to Flynn, when
he began working in Adjudication, approximately one-half of the section’s docket did not
comply with the guidance set out in Rule 900(a).
Flynn also believed that Adjudication regularly violated Rule 900(b). Under that
rule, if an appeal is not completed within 30 days of the timelines in Rule 900(a), “the
General Counsel shall specifically apprise the Commission of that fact” with a report that
“shall describe the procedural posture of the case, project an estimated date for
conclusion of the proceeding, and provide such other information as is necessary to
1
The current version of Rule 900 became effective on September 27, 2016. See
17 C.F.R. § 201.900 (2016). An earlier version of Rule 900 was in place at the time of
the events giving rise to this case. Accordingly, all citations to “Rule 900” refer to the
earlier version unless otherwise noted. See 17 C.F.R. § 201.900 (2006).
4
enable the Commission to determine whether additional steps are necessary to reach a
fair and timely resolution of the matter.” 17 C.F.R. § 201.900(b). Although Adjudication
filed Rule 900(b) reports, Flynn believed the reports failed to provide all information
required by the rule.
Regarding both rules, Flynn believed the Commission was violating mandatory
directives. Thus, beginning in October 2012, Flynn informed numerous individuals of
his concerns regarding Rule 900 compliance. These efforts included a January 2013
meeting with then-SEC Chairwoman Elisse Walter. Flynn also attempted to fix the
purported violations by having Adjudication institute a number of remedies, such as
hiring additional staff and establishing a triage system, through which Adjudication
resolved simple cases first. According to Flynn, these measures improved efficiency.
Continuing these efforts, in May 2013, Flynn scheduled a meeting with the new
SEC Chairwoman, Mary Jo White—a meeting at which Flynn intended to discuss his
ongoing concerns about Rule 900 violations. Four days beforehand, however, White’s
office canceled the meeting, and days later, Flynn’s supervisor, Michael Conley, fired
Flynn. Conley’s stated reasons for firing Flynn included “poor work performance,”
“fail[ure] to produce high quality work product on a timely basis,” “failure to prioritize
assignments,” and “inability to work cooperatively with senior level managers.” J.A. 303
Flynn then initiated a lengthy administrative process to adjudicate his termination
under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., which sets forth the
“framework for evaluating personnel actions taken against federal employees.”
Kloeckner v. Solis, 568 U.S. 41, 44 (2012). Previously, the United States Civil Service
5
Commission managed the personnel of the Executive branch and adjudicated grievances
filed by those employees. See Robert G. Vaughn, The Opinions of the Merit Systems
Protection Board: A Study in Administrative Adjudication, 34 ADMIN. L. REV. 25, 26
(1982). Amidst criticism of those conflicting roles, Congress sought to divide the
managerial and adjudicatory functions of the Civil Service Commission. See id. at 26–
29. Under the Civil Service Reform Act, the Office of Personnel Management inherited
the Civil Service Commission’s managerial duties, and the Merit Systems Protection
Board became a separate adjudicatory body. See id.; see also 5 U.S.C. §§ 1101–05
(establishing the Office of Personnel Management); 5 U.S.C §§ 1201–06 (establishing
the Merit Systems Protection Board). The newly established Office of Special Counsel
also took on some oversight responsibilities, especially investigating governmental
violations of law. See 5 U.S.C §§ 1211–19.
Pursuant to the procedure set forth in current law, Flynn first sought “corrective
action from the [Office of] Special Counsel.” 5 C.F.R. § 1209.2(b)(1) (2013). In his
complaint to the Office of Special Counsel, Flynn claimed the SEC engaged in a
prohibited personnel action, namely firing him for bringing attention to Adjudication’s
longstanding violations of Rule 900. The Office of Special Counsel did not pursue
Flynn’s claims, thereby enabling him to file an independent right of action with the three-
member Merit Systems Protection Board (“the Board”). See 5 U.S.C. § 1214(a)(3).
Flynn’s action was first reviewed by an Administrative Judge, who determined
Flynn had not made any disclosures covered by Section 2302(b)(8) and thus denied him
relief. Flynn appealed to the Board which at the time had only two of its three members.
6
Because the two members could not agree on an outcome, the Administrative Judge’s
decision became final pursuant to governing regulations. See 5 C.F.R. § 1200.3(b)
(1994). Thus, Flynn’s appeal from the Board’s decision is, in effect, an appeal from the
Administrative Judge’s decision.
Before December 2012, putative whistleblowers could appeal Board decisions
only to the U.S. Court of Appeals for the Federal Circuit. See 5 U.S.C. § 7703(b)(1)(A).
One exception enabled litigants to file in other courts: a “mixed case”—that is, a case
alleging both a prohibited personnel action and discrimination. Kloeckner, 568 U.S. at44–46; see also 29 C.F.R. § 1614.302 (2012). But in December 2012, as part of the
Whistleblower Protection Enhancement Act, Congress allowed appellants from Board
decisions to file—for a five-year trial period—in any U.S. Court of Appeals with
jurisdiction over the case, even if the case did not allege discrimination. See 5 U.S.C.
§ 7703(b)(1)(B). Congress made this change, in part, due to displeasure with how the
Federal Circuit handled whistleblower cases. See S. REP. NO. 112-155 (2012), at 1–2
(2012) (“Unfortunately, federal whistleblowers have seen their protections diminish in
recent years, largely as a result of a series of decisions by the United States Court of
Appeals for the Federal Circuit, which has exclusive jurisdiction over many cases
brought under the Whistleblower Protection Act (WPA). Specifically, the Federal Circuit
has wrongly accorded a narrow definition to the type of disclosure that qualifies for
whistleblower protection.” (internal citation omitted)). Thus, whereas whistleblowing
jurisprudence is well established in the Federal Circuit’s case law, this case presents a
matter of first impression in this Circuit.
7
II.
At its core, whistleblowing involves “the making of a protected disclosure.” 5
C.F.R. § 1209.4(b). Federal law prohibits certain agency actions in response to receiving
such disclosures from whistleblowers. See 5 U.S.C. § 2302. Relevant here, a federal
agency cannot take—or fail to take—“a personnel action” due to
any disclosure of information by an employee . . . which the employee . . .
reasonably 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 . . . .
5 U.S.C. § 2302(b)(8). 2 As part of these safeguards, an agency cannot fire an employee
for making a protected disclosure. See 5 U.S.C. § 2302(a).
When a whistleblower claims an agency took an impermissible personnel action,
the Merit Systems Protection Board evaluates the case using a burden-shifting
framework. First, the employee must establish a prima facie case by demonstrating four
facts: “(1) the acting official has the authority to take, recommend, or approve any
personnel action; (2) the aggrieved employee made a protected disclosure; (3) the acting
official used his authority to take, or refuse to take, a personnel action against the
aggrieved employee; and (4) the protected disclosure was a contributing factor in the
agency’s personnel action.” Chambers v. Dep’t of Interior, 602 F.3d 1370, 1376 (Fed.
2
Additionally, the statute protects a whistleblower only if her disclosure “is not
specifically prohibited by law and if such information is not specifically required by
Executive order to be kept secret in the interest of national defense or the conduct of
foreign affairs.” 5 U.S.C. § 2302(b)(8).
8
Cir. 2010); see also 5 U.S.C. § 2302(b)(8); S. REP. NO. 112-155, at 6 (stating that the
Whistleblower Protection Enhancement Act “does not affect” certain Federal Circuit
doctrine, including the elements of a prima facie case and the burden-shifting
framework). The petitioner bears the burden of proof by a preponderance of the
evidence. See 5 C.F.R. § 1209.7(a). If the petitioner establishes a prima facie case, the
burden shifts to the agency to show “by clear and convincing evidence that it would have
. . . taken . . . the same personnel action in the absence of the disclosure.” 5 C.F.R.
§ 1209.7(b); accord Chambers, 602 F.3d at 1376.
Here, the Administrative Judge concluded that Flynn failed to satisfy the second
prong of his prima facie case—that is, Flynn did not make any protected disclosures.
Based on that finding, the Administrative Judge denied Flynn’s request for corrective
action.
On appeal, Flynn raises three issues. First, he argues the Administrative Judge
erred in concluding that Flynn’s Rule 900(a) disclosures were not protected. Second,
Flynn makes a parallel argument for Rule 900(b)—that his disclosures regarding those
violations were also protected. Finally, Flynn contends that the Administrative Judge
imposed several inappropriate procedural limitations, including curtailing the number of
evidentiary exhibits Flynn could admit and denying extensive discovery.
We review each of these arguments in turn. Our review of the decision below is
limited, however. We may only set aside agency actions, findings, or conclusions if they
are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
9
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).
A.
Flynn’s first argument centers on his attempts to bring to light Adjudication’s
alleged noncompliance with Rule 900(a). The Administrative Judge concluded Flynn’s
“disclosures, even if taken as true, fail to meet the standard for being protected
disclosures under the law.” J.A. 350. The standard referenced by the Administrative
Judge is the one introduced earlier: disclosures are protected if they are information
“which [an] employee . . . reasonably believes evidences . . . any violation of any law,
rule, or regulation.” 5 U.S.C. § 2302(b)(8). In evaluating Flynn’s case, the
Administrative Judge treated the phrase “law, rule, or regulation” as referring to
provisions that bind an agency. Thus, concluding that Rule 900(a) could not possibly be
interpreted as binding, the Administrative Judge said the provision “constitute[d] internal
guidelines and policy,” rather than a rule or regulation. J.A. 347. Accordingly, the
Administrative Judge found Flynn could not have reasonably believed his disclosures
were about violations of a rule or regulation. At the outset, it is worth noting that
reviewing the Administrative Judge’s conclusion on this issue presents two separate, but
related, inquires. First, we must decide whether Rule 900(a) is a “law, rule, or
regulation” as Congress used that term in Section 2302(b)(8). If so, then we must decide
whether Flynn had a reasonable belief the information he disclosed “evidences . . . any
violation” of that law, rule, or regulation. 5 U.S.C. § 2302(b)(8).
10
As to the first question—whether Rule 900(a) is a “law, rule, or regulation”—the
statute does not define any of those three terms. The Supreme Court recently held that
the word “law” in Section 2302(b)(8) refers specifically to statutes, see Dep’t of
Homeland Sec. v. MacLean, 135 S. Ct. 913, 918–21 (2015), meaning that Rule 900(a)
does not constitute a “law.” Whether Rule 900(a) is a “rule” or “regulation” is a more
difficult question.
Although the Whistleblower Protection Enhancement Act does not define “rule,”
the Administrative Procedure Act defines the term as “the whole or a part of an agency
statement of general or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization, procedure, or practice
requirements of an agency.” 5 U.S.C. § 551(4). Under that expansive definition—which
would accord with Congress’ intent to “broad[ly]” protect individuals who disclose
wrongdoing—Rule 900(a) would seem to qualify as a “rule.” See S. REP. NO. 112-155,
at 5 (“[The Whistleblower Protection Enhancement Act] makes clear, once and for all,
that Congress intends to protect ‘any disclosure’ of certain types of wrongdoing in order
to encourage such disclosures. It is critical that employees know that the protection for
disclosing wrongdoing is extremely broad . . . .”). We need not resolve this unsettled
question, however, because the parties agree that Rule 900(a) falls within the ambit of
Section 2302(b)(8), albeit on different theories. See Petitioner’s Br. at 44 (arguing that
Rule 900 is a “rule”); Respondent’s Br. at 23 n.9 (“Rule 900 is a regulation, 17 C.F.R. §
201.900, not a separate ‘rule’ as that term is used in the phrase ‘law, rule, or regulation’
in 5 U.S.C. § 2302(b)(8).”).
11
Because the parties agree Rule 900(a) falls within the scope of Section 2302(b)(8),
we next must determine “whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the employee . . . could reasonably
conclude that the actions of the Government evidence” a violation of Rule 900(a). 5
U.S.C. § 2302(b). We find that a disinterested observer could not reasonably conclude
the Commission violated Rule 900(a). In particular, the plain language of Rule 900(a)
shows that the relevant aspects of the provision are aspirational and discretionary, such
that a failure to strictly adhere to them could not reasonably be seen as a “violation.”
To elaborate, we turn to the Administrative Judge’s opinion, which is well
reasoned on this point. The Administrative Judge quoted the text of Rule 900(a) in its
entirety and underlined specific words indicating the provision did not actually create any
mandatory deadlines. The rule is replete with such language. For example, as the
Administrative Judge noted, Rule 900(a) sets forth “[g]uidelines for the timely
completion of proceedings.” J.A. 345. Rule 900(a) also states that appeals “should be
completed” or “should be issued,” “to the extent possible,” within the timeframes set
forth in the rule. Id. (emphasis added). Additionally, the provision allows the
Commission to exercise “discretion to take additional time” beyond the established
timelines. J.A. 346. The text specifically “do[es] not create a requirement that each
portion of a proceeding or the entire proceeding be completed within the periods
described.” Id. Rather, Rule 900(a) encourages “fairness” by ensuring the SEC’s
“deliberative process is not constrained by an inflexible schedule.” Id. The
Administrative Judge highlighted all these points.
12
The Administrative Judge also discussed the Commission’s 2003 amendments to
Rule 900(a). In making those amendments, the Commission moved certain guidelines
from Rule 900 to a different location—Rule 360—which sets forth mandatory timelines
within which administrative judges “shall” render their initial decisions. J.A. 347; see
also 68 Fed. Reg. 35787–89 (June 17, 2003) (explaining the 2003 amendments to the
SEC Rules of Practice). Notably, as the Administrative Judge indicated, the 2003
amendments did not change Rule 900(a)’s advisory language.
Thus, although Rule 900(a) sets timelines by which the Commission would ideally
adjudicate cases, the permissive language of the text could not lead an employee to
reasonably conclude that failing to meet such aspirational guidelines would amount to a
“violation.” We reach this decision despite Flynn’s reference to various interactions he
had with individuals at the Commission, which he maintains bolstered his belief Rule
900(a) created mandatory deadlines. The facts Flynn cites are at best disputed, but even
if taken as true, they do not outweigh the textual analysis that would inform the viewpoint
of an objective observer. More importantly still, our standard of review is very
deferential. The Administrative Judge more than adequately explained why, under the
facts presented by the parties, an employee in Flynn’s position could not have reasonably
concluded Rule 900(a) was violated. Thus, the Administrative Judge did not err in
rejecting Flynn’s Rule 900(a) claim. 3
3
Flynn also argues on appeal that violation of Rule 900(a) evidenced “gross
mismanagement,” a second way to classify his statements as protected disclosures. See 5
U.S.C. § 2302(b)(8). Flynn has affirmatively waived this argument, however. The
(Continued)
13
B.
Flynn also claims he made protected disclosures when he raised concerns that
Adjudication violated Rule 900(b). Specifically, Flynn believed the status reports
submitted by Adjudication provided insufficient detail to satisfy the rule’s requirements.
We do not believe the Administrative Judge actually analyzed this claim, which leaves
the opinion below lacking, even under our deferential standard of review.
The Commission appears to have acknowledged this error before the Board when
it argued that “[a]ny error the AJ made in not specifically addressing Rule 900(b) can be
resolved by the Board on review.” J.A. 371. Nonetheless, on appeal to this Court, the
government contends that the Administrative Judge adequately considered Flynn’s Rule
900(b) claim by citing several parts of the Administrative Judge’s opinion. For example,
the Administrative Judge quotes the Office of Special Counsel’s summary of Flynn’s
claims, including that Adjudication “failed to give the Commission specific information
in the semi-annual status reports to enable it to determine whether additional steps were
Administrative Judge found that, as an alternative holding, the alleged Rule 900(a)
violations did not evidence gross mismanagement. In his petition for review before the
Board, Flynn specifically criticized the Administrative Judge for doing so and argued that
the judge erred in evaluating Flynn’s claims under the wrong prong of the statute. Flynn
went so far as to say that, “[t]here has never been any question that Mr. Flynn’s
disclosures concern rule violations—specifically, violations of SEC Rule of Practice
900(a)(1)(iii) and (b). Yet the AJ analyzed the case as one involving ‘gross
mismanagement . . . .’” J.A. 365; Pet. for Rev. by MSPB at 20–21. Because Flynn
affirmatively chose to abandon this argument below, it is waived before this Court. See
Pleasant Valley Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994) (“[I]t is
inappropriate for courts reviewing appeals of agency decisions to consider arguments not
raised before the administrative agency involved.”).
14
necessary to reach a fair and timely resolution of matters, as required by Rule 900(b).”
J.A. 340. The Administrative Judge also found that, by raising this claim before the
Office of Special Counsel, Flynn exhausted his remedies in the way required to seek
redress from the Board. The Administrative Judge then gave his own summary of
Flynn’s Rule 900(b) allegations, which he described as follows: Flynn “pointed to Rule
900(b) as a mandatory directive that [Adjudication] ‘shall advise the commission’ on the
procedural posture of each case” but Flynn believed that the reports filed “lacked a lot of
required information.” J.A. 341–42. Later in the opinion, when the Administrative Judge
quoted Rule 900(a) in its entirety, he also quoted Rule 900(b) in full. At that point,
however, the specific references to Rule 900(b) cease.
Based upon these scant details in the opinion regarding Rule 900(b), Flynn argues
that the Administrative Judge never actually addressed his claim. We agree.
Nothing in the decision below indicates the Administrative Judge analyzed
Flynn’s Rule 900(b) claim. Outside the brief factual recitation of the nature of the 900(b)
claim, the Administrative Judge’s decision focuses solely on matters related to Rule
900(a). And although the Administrative Judge quoted Rule 900(b) in full, he did not
engage with the text of the provision. For example, whereas the Administrative Judge
underlined sections in the quoted version of Rule 900(a) to emphasize “the words
significant to making a determination of its mandatory nature,” J.A. 345, he did not
underline any portion of Rule 900(b), and any quoted material in the subsequent
discussion came solely from Rule 900(a).
15
This error is even clearer when the Administrative Judge’s reasoning is examined
in detail. When explaining why Flynn’s disclosure did not address a “violation” of Rule
900(a), the Administrative Judge emphasized the Commission’s actions when it amended
the provision in 2003. Specifically, the Commission took other “guidelines” previously
found in Rule 900 that applied to Administrative Law Judges and “ma[de] them
mandatory” by adding the word “shall.” J.A. 347. The Commission then moved the
newly mandatory provisions into a separate section—Rule 360—but kept the remaining
permissive “guidelines,” like those set forth in Rule 900(a), in the current regulation. Id.Unlike the new provisions in Rule 360, Rule 900(a) maintained its more aspirational
language, as evidenced by “repeated use of the word ‘should.’” Id. The Administrative
Judge concluded—and we agree—that use of the term “should” rather than “shall”
provides evidence the Commission intended Rule 900(a) to be aspirational rather than
binding. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016)
(citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)
(stating that the “mandatory” word “shall” is one that “normally creates an obligation
impervious to judicial discretion”)).
Significantly, however, the Administrative Judge did not engage in any similar
analysis with regard to Rule 900(b), which uses “shall” three times without ever using
more permissive language, such as “may” or “should.” 17 CFR § 201.900(b). This
omission only solidifies our conclusion that the Administrative Judge did not consider
Flynn’s Rule 900(b) claim. Accordingly, we find the Administrative Judge’s conclusion
regarding Rule 900(b) cannot stand, even under our deferential standard of review. See 5
16
C.F.R. § 1201.111(b) (requiring that the Administrative Judge’s initial decision “contain .
. . [f]indings of fact and conclusions of law upon all the material issues of fact and law
presented”); see also 5 U.S.C. § 7703(c) (requiring decisions be supported by “substantial
evidence”).
That conclusion leaves us with the question of what to do with this case. We
believe we should follow the guidance set out in Patterson v. Commissioner of Social
Security Administration, 846 F.3d 656 (4th Cir. 2017). In that case, we acknowledged we
could use a harmless error approach in reviewing some agency determinations but
nonetheless declined to do so. See id. at 662. Instead, we found it more appropriate to
remand, so the agency could more fully develop the record on contested issues. See id. at
662–63. We believe that is a prudent result for this case, as well. Making a fully
informed decision on this issue will require evaluating much evidence and perhaps
developing a more robust record. The Administrative Judge is in the best position to
interpret this evidence in the first instance and to allow for further record development as
needed.
C.
Finally, Flynn requests that this Court address a number of purported evidentiary
and discovery issues. In particular, Flynn asserts that the Administrative Judge erred by
failing to make credibility findings, excluding exhibits Flynn sought to admit, and
refusing to compel discovery regarding “similarly situated, non-whistleblowing
employees who were not disciplined.” Petitioner’s Br. at 64.
17
Notably, all of the evidentiary and discovery issues that Flynn raises relate to the
second part of the burden-shifting framework: whether the agency can prove by clear
and convincing evidence that it would have taken the same personnel action absent the
employee’s protected disclosure. See 5 C.F.R. § 1209.7(b). There is no evidence that
any of the alleged discovery or evidentiary errors affected the one conclusion the
Administrative Judge reached: that Flynn’s disclosures were not protected within the
meaning of Section 2302(b)(8). Because the alleged procedural errors had no bearing on
the outcome of the issue presently appealed, we decline to address them at this time. On
remand, the Administrative Judge will need to reevaluate whether Flynn established a
prima facie case in regards to his Rule 900(b) disclosures. If Flynn succeeds in doing so
and the burden shifts to the agency, the Administrative Judge may revisit Flynn’s
requests on these issues.
III.
For the foregoing reasons, the petition for review is
DENIED IN PART, GRANTED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS.
18