Daniels v. Merit Systems Protection Board ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS C. DANIELS, No. 13-73913
Petitioner,
MSPB No.
v. SF-1221-12-0426-W-1
MERIT SYSTEMS PROTECTION
BOARD, OPINION
Respondent.
On Petition for Review of an Order of the
Merit Systems Protection Board
Submitted May 4, 2016*
Pasadena, California
Filed August 9, 2016
Before: Harry Pregerson, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 DANIELS V. MSPB
SUMMARY**
Whistleblower Protection Act
The panel denied a petition for review of a decision of the
Merit Systems Protection Board (“MSPB”) dismissing a
federal employee’s individual right of action appeal for lack
of jurisdiction because the employee did not make a non-
frivolous allegation under the Whistleblower Protection Act
(“WPA”).
Under the WPA, a federal employer is prohibited from
taking personnel action against an employee who has
disclosed information that evidences a violation of law, or
gross mismanagement, gross waste of funds, abuse of
authority, or substantial danger to public health or safety. An
aggrieved employee, such as petitioner, may file with the
MSPB an individual right of action that includes “non-
frivolous allegations.”
Petitioner was employed by the Social Security
Administration, and he was suspended for fourteen days by
an administrative law judge based on three charges. He filed
an individual right of action with the MSPB, arguing that he
made five disclosures that were protected whistleblowing
activity under the WPA.
The panel held that the standard for determining whether
a petitioner has made a non-frivolous disclosure is analogous
to the standard for reviewing a motion to dismiss.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DANIELS V. MSPB 3
The panel held that petitioner did not allege a non-
frivolous protected disclosure under the WPA. Specifically,
the panel held that Disclosures #1-2 were not protected
disclosures because an agency ruling or adjudication, even if
erroneous, was not a violation of the law or gross
mismanagement under the WPA. The panel further held that
Disclosures #3-5 were not protected disclosures because
communications concerning policy decisions were explicitly
excluded from protection under the WPA. The panel also
held that there was no evidence that the federal agency took
any personnel action against petitioner as a result of
Disclosures #3-5.
COUNSEL
Thomas C. Daniels, Temple City, California, pro se
Petitioner.
Calvin M. Morrow, Attorney; Bryan G. Polisuk, General
Counsel; Office of the General Counsel, Merit Systems
Protection Board, Washington, D.C.; for Respondent.
Marleigh D. Dover and Anne Murphy, Attorneys; André
Birotte Jr., United States Attorney; Stuart F. Delery, Assistant
Attorney General; Civil Division, United States Department
of Justice, Washington, D.C.; for Amicus Curiae Social
Security Administration.
4 DANIELS V. MSPB
OPINION
N.R. SMITH, Circuit Judge:
The Merit Systems Protection Board (“Board”) has
jurisdiction over individual right of action (“IRA”) appeals
only when a petitioner makes “non-frivolous allegations.”
See Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001). Thomas Daniels, an employee of the Social
Security Administration (“SSA”),1 petitions for review of a
Board order dismissing his IRA appeal for lack of
jurisdiction. Daniels has not made a non-frivolous allegation
under the Whistleblower Protection Act (“WPA”).
Accordingly, we deny Daniels’s petition for review.
I.
Under the WPA, a federal employer (such as the SSA) is
prohibited from taking a “personnel action[2] with respect to
1
We deny the SSA’s motion to intervene as untimely, but have
considered the SSA’s filings as briefs amici curiae.
2
The WPA defines “personnel action” as:
(i) an appointment; (ii) a promotion; (iii) an action
under chapter 75 of this title or other disciplinary or
corrective action; (iv) a detail, transfer, or
reassignment; (v) a reinstatement; (vi) a restoration;
(vii) a reemployment; (viii) a performance evaluation
under chapter 43 of this title or under title 38; (ix) a
decision concerning pay, benefits, or awards, or
concerning education or training if the education or
training may reasonably be expected to lead to an
appointment, promotion, performance evaluation, or
other action described in this subparagraph; (x) a
DANIELS V. MSPB 5
any employee . . . because of any disclosure of information by
an employee” if the employee “reasonably believes [the
disclosed information] 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)(A).
An aggrieved employee (such as Daniels) may “seek
corrective action from the [Board]” by filing an IRA.
5 U.S.C. § 1221(a). For the Board to have jurisdiction over
an IRA appeal:
the appellant [must] exhaust[] his
administrative remedies before the [Office of
Special Counsel] and make[] “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).
decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and (xii) any
other significant change in duties, responsibilities, or
working conditions; with respect to an employee in . . .
a covered position in an agency.
5 U.S.C. § 2302(a)(2)(A).
6 DANIELS V. MSPB
Yunus, 242 F.3d at 1371.3 Under federal regulations, an
allegation is non-frivolous in this context if it “(1) Is more
than conclusory; (2) Is plausible on its face; and (3) Is
material to the legal issues in the appeal.” 5 C.F.R.
§ 1201.4(s). Thus, the standard for determining whether a
petitioner has made a non-frivolous disclosure is analogous
to the standard for reviewing a motion to dismiss.4 Cf.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (concluding that
a complaint must state a claim that is more than conclusory
and plausible on its face in order to survive a motion to
dismiss). If a petitioner fails to make a non-frivolous
allegation, the Board will dismiss the action for lack of
jurisdiction without a hearing on the merits. See John J.
Dvorske, Annotation, Merit Systems Protection Board
Jurisdiction over Individual Right of Action (IRA) Appeal,
24 A.L.R. Fed. 2d 459, § 21 (2007) (collecting cases where
petitioners failed to establish jurisdiction before the Board).
3
The “non-frivolous allegation” jurisdictional standard is well
established in the Federal Circuit, see Yunus, 242 F.3d at 1371–72
(collecting cases), and Congress has cited such standard with approval, see
S. Rep. No. 112-155, at 6 (2012), as reprinted in 2012 U.S.C.C.A.N. 589,
594.
4
The Federal Circuit has a different approach, instead equating the non-
frivolous standard with the standard for summary judgment. See Kahn v.
Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008); Dorrall v. Dep’t
of the Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled on other
grounds by Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir.
2006). However, we agree with the Fifth Circuit that the motion-to-
dismiss standard is more analogous. See Aviles v. Merit Sys. Prot. Bd.,
799 F.3d 457, 462 & n.4 (5th Cir. 2015) (“[B]ecause the applicable federal
regulations closely track our motion-to-dismiss standard—not our
summary judgment standard—we decline to follow the Federal Circuit’s
approach.”).
DANIELS V. MSPB 7
In 2012, Congress amended the WPA. See Whistleblower
Protection Enhancement Act of 2012 (“WPEA”), Pub. L. No.
112-199, § 108, 126 Stat. 1465, 1469 (2012). Congress
identified and abrogated specific judicial decisions by the
Federal Circuit that had concluded that disclosures made in
certain contexts (for example, during the course of an
employee’s regular duties, or where the information disclosed
was already known) would not be eligible for WPA
protection. See generally S. Rep. No. 112-155, at 4–5, 2012
U.S.C.C.A.N. at 592–93. Congress concluded that such
decisions impermissibly narrowed the scope of the WPA and
clarified that it “intend[ed] to protect ‘any disclosure’ of
certain types of wrongdoing in order to encourage such
disclosures” and “that the protection for disclosing
wrongdoing is extremely broad and will not be narrowed
retroactively by future [Board] or court opinions.” Id. at 5,
2012 U.S.C.C.A.N. at 593.
II.
Daniels was employed by the SSA as a Hearing Office
Director5 in its Office of Disability Adjudication and Review
(“ODAR”) in Orange, California. Daniels was suspended for
fourteen days by an administrative law judge (“ALJ”) based
on three charges: (1) conduct unbecoming a federal
employee; (2) failure to follow agency instructions; and
(3) lack of candor. Faced with disciplinary proceedings,
Daniels filed an IRA with the Board, alleging that he engaged
in protected whistleblowing activity under the WPA for
which he could not be disciplined. As outlined below,
5
The record also describes this position as a Supervisory Attorney
Adviser.
8 DANIELS V. MSPB
Daniels argues that he made five disclosures that were
protected under the WPA.
A. Disclosures #1–2: The Congressional Inquiry
In December 2010, ALJ John Kays issued a decision
favorable to a claimant in a Social Security disability case. In
January 2011, the Orange Hearing Office received an inquiry
from the claimant’s congressional representative requesting
a status update and asking for help in expediting the disability
payments to the claimant. In investigating the inquiry,
Daniels concluded that ALJ Kays’s decision was erroneous
and benefits should not have been awarded to the claimant.
SSA procedures specified that, when responding to
congressional inquiries, any concerns with an ALJ’s decision
should be brought to the Office of the Regional Chief ALJ.
Daniels did not follow these procedures. Instead, he
discussed his concerns with the Hearing Office’s Chief ALJ,
Helen Hesse.6 Daniels describes this communication with
ALJ Hesse as his first disclosure protected under the WPA
(hereafter “Disclosure #1”).
After discussing his concerns with ALJ Hesse, Daniels
also communicated with Pamela Franklin, a manager at the
Payment Center responsible for initiating benefits payments
based on an ALJ’s decision. Daniels informed Franklin of his
conclusion (that ALJ Kays’s decision was legally
6
ALJ Hesse agreed with Daniels’s conclusion that ALJ Kays’s decision
was erroneous. However, the SSA later asked Sarah Hong, a Regional
Quality Review Officer, to review ALJ Kays’s decision and provide an
analysis regarding the legal sufficiency of the decision. Officer Hong
determined that, while the decision should have discussed specific medical
records, the medical evidence in the file supported ALJ Kays’s
determination that the claimant was entitled to the award of benefits.
DANIELS V. MSPB 9
insufficient) and opined that the Payment Center should
withhold payment. Daniels describes this communication
with Franklin as his second disclosure protected under the
WPA (hereafter “Disclosure #2”).
The Office of the Regional Chief Judge for the San
Francisco Region investigated Daniels’s actions. When
questioned, Daniels claimed not to remember having
discussed the case with ALJ Hesse nor to recall the substance
of his communications with the Payment Office. In October
2011, Regional Chief ALJ William J. King issued a decision
suspending Daniels for fourteen days. ALJ King explained
three reasons for the suspension. First, Daniels’s “actions
constituted conduct unbecoming a federal employee because
they demonstrated a willingness to subvert established
procedures to advance [Daniels’s] personal views.” ALJ
King concluded that Daniels “improperly told Ms. Franklin
that the ALJ decision was wrong; that it should not be
effectuated; and that it should be referred to the Appeals
Council.” Second, Daniels failed to follow the SSA’s
“specific procedures for responding to congressional
inquiries” and thus “impeded the efficiency of the [response]
and created a risk of adverse publicity from the congressional
office.” Finally, ALJ King concluded that Daniels’s
statements to investigators “lacked candor” and thus
“reflect[ed] a lack of integrity in the performance of Daniels’s
duties and interfered with [ALJ King’s] investigation.”
B. Disclosures #3–5: Procedures for Purchasing
Interpreter Services
During the period when SSA officials were investigating
Daniels’s actions related to the congressional inquiry, Daniels
contacted Allyson Stokes, the Director of Acquisition Support
10 DANIELS V. MSPB
in the Office of Acquisition and Grants, with an unrelated
complaint. Daniels informed Stokes that he had been advised
not to use an office form known as “optional form (OF) 347”
for purchase orders for interpreter services at the Orange
Hearing Office and that this seemed contrary to Federal
Acquisition Regulations and agency policy. Daniels
describes this communication with Stokes as his third
disclosure protected under the WPA (hereafter “Disclosure
#3”).
Shortly after Daniels’s conversation with Stokes, ALJ
King sent a directive to ALJ Hesse explaining that the Orange
Hearing Office should cease using OF-347 to order the
services of interpreters, but should instead use micro-
purchase cards. Daniels filed a grievance, in which he
alleged that ALJ King’s purchasing directive violated Federal
Acquisition Regulations and agency policy.
On May 31, 2011, ALJ King denied Daniels’s grievance,
reasoning that the requirement stated in his directive reflected
a matter of policy. In a closing footnote, ALJ King reminded
Daniels that “until this issue is resolved, you are obliged to
carry out proper orders by officials authorized to give them.”
On June 3, 2011, Daniels filed a grievance with Chief
ALJ Debra Bice appealing ALJ King’s decision. Daniels
alleged that ALJ King’s closing footnote implied a threat to
take retaliatory personnel action against Daniels for refusing
to obey an order that would require him to violate Federal
Acquisition Regulations. Daniels describes this
communication with Chief ALJ Bice as his fourth disclosure
protected under the WPA (hereafter “Disclosure #4”).
DANIELS V. MSPB 11
On June 29, 2011, Daniels notified SSA Deputy
Commissioner Glenn Sklar of ALJ King’s “inferred threat.”
Daniels describes this communication with Sklar as his fifth
disclosure protected under the WPA (hereafter “Disclosure
#5”).
III.
In August 2011, Daniels filed a complaint with the Office
of Special Counsel.7 In March 2012, the Office of Special
Counsel informed ODAR that it was investigating Daniels’s
complaint, that it had concluded there was enough evidence
to support Daniels’s claims, and that it intended to seek
corrective action. However, before the Office of Special
Counsel was able to seek any corrective action, Daniels
exercised his right to file an IRA appeal to the Board. As a
result, the Office of Special Counsel closed its file on
Daniels’s complaint.
Daniels’s IRA was first reviewed by an administrative
judge. The administrative judge concluded that Daniels
failed to show that his disclosures were protected by the WPA
and denied Daniels’s request for corrective action.
7
The Office of Special Counsel was established by 5 U.S.C. § 1211.
Aggrieved employees are required to “seek corrective action from the
Special Counsel before seeking corrective action from the Board.”
5 U.S.C. § 1214(a)(3). The Office of Special Counsel is tasked with
investigating allegations of prohibited personnel practices and may seek
corrective action from the Board on an aggrieved employee’s behalf. See
id. § 1214(a)(1)(A). However, the Special Counsel’s findings are not
binding on the Board. See Frazier v. Merit Sys. Prot. Bd., 672 F.2d 150,
164 & n.51 (D.C. Cir. 1982).
12 DANIELS V. MSPB
Daniels filed a petition for review with the Board. On
November 6, 2012, in a unanimous non-precedential final
order, the Board denied the petition. The Board concluded
that Daniels had failed to allege a non-frivolous protected
disclosure under the WPA and dismissed his claims for lack
of jurisdiction. This petition for review followed.
IV.
The Ninth Circuit has only recently been granted
jurisdiction to review Board decisions. Until 2012, the
Federal Circuit had exclusive jurisdiction over such petitions.
However, when Congress amended the WPA in 2012, it
amended the procedures for judicial review of Board
decisions. Now, 5 U.S.C. § 7703(b)(1)(B) provides for
judicial review either in “the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent
jurisdiction.”8 As such, although Federal Circuit
jurisprudence in this area is well established, this case
presents issues of first impression for our court.
V.
“Whether the [B]oard had jurisdiction to adjudicate a case
is a question of law, which we review de novo.” See Forest
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995); see
8
Section 7703(b)(1)(B) also contains a “sunset provision,” whereby,
upon expiration, the Federal Circuit will presumably retain exclusive
jurisdiction to review Board decisions. Originally, § 7703(b)(1)(B) was
only effective “[d]uring the 2-year period beginning on the effective date
of the Whistleblower Protection Enhancement Act of 2012 [December 30,
2012].” 5 U.S.C. § 7703 (effective through September 25, 2014).
However, the current version of § 7703(b)(1)(B) extends this time frame
to five years.
DANIELS V. MSPB 13
also Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d
1133, 1136 (9th Cir. 2008) (“This court reviews questions of
jurisdiction de novo.”).
VI.
The Board did not err by dismissing Daniels’s IRA appeal
for lack of jurisdiction, because Daniels failed to make
sufficient non-frivolous allegations.
A. Daniels failed to make a non-frivolous allegation
that his disclosures regarding ALJ Kays’s
adjudicatory decisions were protected disclosures
under the WPA (Disclosures #1–2)
Daniels’s disclosure of ALJ Kays’s decision is not a
disclosure protected under the WPA. For WPA protections
to apply, the employee must reasonably believe that the
disclosed information evidences either (1) a “violation of any
law, rule, or regulation” or (2) “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). An agency ruling or adjudication, even if
erroneous, cannot reasonably suffice under either prong.9 An
ALJ, who makes an erroneous decision, does not violate the
9
Daniels also faults the Board for failing to conduct a “reasonable
belief” analysis concerning his disclosures. However, the initial decision
of the administrative judge concluded that “a reasonable person with facts
readily ascertainable to him would not find that a violation of law or
regulation occurred or that the ALJ authorized a gross waste of funds.”
Further, the Board’s conclusion that Daniels’s claims were frivolous
necessarily incorporates the conclusion that Daniels’s claims were
objectively unreasonable.
14 DANIELS V. MSPB
law (or engage in gross mismanagement) any more than does
a district judge who is subsequently reversed on appeal.10
On this point, we agree with the decisions of the Federal
Circuit and the Board. In Meuwissen v. Department of
Interior, the Federal Circuit concluded that “the ‘disclosure’
of a decision by an administrative judge, albeit an incorrect
one, is not a disclosure protected under the WPA.” 234 F.3d
9, 13 (Fed. Cir. 2000), superseded by statute on other
grounds, WPEA, Pub. L. No. 112-199, § 108, 126 Stat. at
1469. The court reasoned that “[s]uch a decision . . . is not a
‘violation’ of that law or any other law within the meaning of
the WPA.” Id. Likewise, in an Opinion and Order,11 the
Board concluded that “an employee’s disagreement with an
agency ruling or adjudication does not constitute a protected
disclosure,” reasoning that erroneous agency rulings “are
corrected through the appeals process—not through
insubordination and policy battles between employees and
their supervisors.” O’Donnell v. Dep’t of Agric., 2013
M.S.P.B. 69, 120 M.S.P.R. 94, 99–100 (2013) (citing
10
We distinguish statements that disclose malfeasance, fraud, or the like
by adjudicators. Such disclosures may indeed be subject to WPA
protections. See Cassidy v. Dep’t of Justice, 2012 M.S.P.B. 60,
118 M.S.P.R. 74, 78 (2012) (finding that petitioner made a non-frivolous
allegation when he complained that an immigration judge’s “conduct and
unnecessary delays violated the due process rights of detained aliens”).
Daniels has not made any such disclosure here. Instead, he has merely
expressed his disagreement with an ALJ’s decision.
11
“An Opinion and Order is a precedential decision of the Board and
may be appropriately cited or referred to by any party.” 5 C.F.R.
§ 1201.117(c)(1). In contrast, “[a] nonprecedential Order is one that the
Board has determined does not add significantly to the body of MSPB
case law.” § 1201.117(c)(2).
DANIELS V. MSPB 15
Meuwissen, 234 F.3d at 13–14), aff’d, 561 F. App’x 926 (Fed.
Cir. 2014).
Daniels is correct that Congress (in passing the WPEA)
explicitly superseded Meuwissen. S. Rep. No. 112-155, at 5,
2012 U.S.C.C.A.N. at 593. However, Congress’s contention
with Meuwissen was its holding that “disclosures of
information already known are not protected.”12 Id., 2012
U.S.C.C.A.N. at 593. As the Board later recognized in
O’Donnell, “the WPEA did not disturb [Meuwissen’s] more
general finding that erroneous administrative rulings are not
the type of danger or wrongdoing that whistleblower
protections were meant to address.” 120 M.S.P.R. at 99 n.5.
Thus, we do not undermine congressional intent nor do we
improperly limit the definition of “disclosure” by concluding
that an erroneous agency ruling or adjudication is not a
violation of law for purposes of the WPA. Indeed, in
enacting the WPEA, Congress explicitly stated that it only
intended to protect disclosures “of certain types of
wrongdoing.”13 S. Rep. No. 112-155, at 5, 2012
U.S.C.C.A.N. at 593. An agency ruling or adjudication, even
if erroneous, is not the type of “wrongdoing” contemplated by
the WPA.
12
As a result, the WPEA established 5 U.S.C. § 2302(f)(1)(B) to make
clear that a disclosure does not lose its protected status when “the
disclosure revealed information that had been previously disclosed.”
13
The types of wrongdoing contemplated by Congress are “the kinds of
misconduct listed in section 2302(b)(8).” S. Rep. No. 112-155, at 10–11,
2012 U.S.C.C.A.N. at 598–99. The WPEA did not amend section
2302(b)(8) and, therefore, did not change the types of wrongdoing or
misconduct entitled to WPA protection.
16 DANIELS V. MSPB
B. Daniels failed to make a non-frivolous allegation
that his disclosures regarding ALJ King’s directive
were protected disclosures under the WPA
(Disclosures #3–5)
ALJ King’s directive to use micro-purchase cards (instead
of OF-347) to order the services of interpreters was not a
violation of the law for purposes of the WPA. Instead, ALJ
King’s directive represents a policy decision. The WPA
explicitly excludes “communication[s] concerning policy
decisions” from its definition of “disclosure.”14 5 U.S.C.
§ 2302(a)(2)(D). Thus, Daniels’s communications
concerning procedures for ordering interpreter services do not
qualify as disclosures under the plain text of the WPA.
Even assuming Disclosures #3–5 qualify as “disclosures”
under the WPA, Daniels still must show that the SSA “t[ook]
. . . or threaten[ed] to take . . . a personnel action” as a result
of such disclosures. See 5 U.S.C. § 2302(b)(8)(A). Again,
Daniels fails—he offers no evidence that any personnel action
was taken (or threatened) as a result of Disclosures #3–5.15
14
Under the WPA, communications concerning policy decisions do not
qualify as protected disclosures unless the employee “reasonably believes
that the disclosure evidences (i) any violation of any law, rule, or
regulation; or (ii) gross management, 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). We agree with the Board’s conclusion that
“there is no evidence in the record that would support a reasonable belief
that the directive . . . amounts to a violation of any law, rule, or
regulation.”
15
Daniels’s fourteen-day suspension was the result of his response to the
congressional investigation (Disclosures #1–2) and was unrelated to
Disclosures #3–5. Indeed, ALJ King’s decision suspending Daniels refers
only to Daniels’s conduct in responding to the congressional investigation
DANIELS V. MSPB 17
Instead, Daniels argues that ALJ King implied a threat to take
personnel action when he reminded Daniels that he was
“obliged to carry out proper orders by officials authorized to
give them.” Even if § 2302(b)(8) covers implied threats, it
was not reasonable for Daniels to believe that ALJ King made
any such implied threat when he instructed Daniels to follow
the orders of authorized officials.
VII.
Daniels has not alleged a non-frivolous protected
disclosure under the WPA. Disclosures #1–2 are not
protected disclosures, because an agency ruling or
adjudication, even if erroneous, is not a violation of the law
or gross mismanagement under the WPA. Disclosures #3–5
are not protected disclosures, because communications
concerning policy decisions are explicitly excluded from
protection under the WPA. Further, there is no evidence that
the SSA took any personnel action against Daniels as a result
of Disclosures #3–5.
Accordingly, we DENY the petition.
and contains no reference to Daniels’s unrelated complaint regarding
procedures for ordering interpreter services. Daniels has not presented
any evidence that suggests the suspension was also connected to
Disclosures #3–5.