Gray v. Merit Systems Protection Board ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM T. GRAY, III,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3186
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-14-1122-W-1.
______________________
Decided: May 25, 2016
______________________
WILLIAM T. GRAY, III, Washington, DC, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before O’MALLEY, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
2 GRAY v. MERIT SYS. PROT. BD.
William T. Gray, III, appeals a final decision of the
Merit Systems Protection Board (“board”) dismissing his
individual right of action (“IRA”) appeal for lack of juris-
diction. See Gray v. Dep’t of the Army, No. DC-1221-14-
1122-W-1, 2015 MSPB LEXIS 4102 (May 12, 2015) (“Gray
III”). For the reasons discussed below, we affirm.
BACKGROUND
Gray began work as a GS-5 police officer at the Walter
Reed Army Medical Center under a temporary appoint-
ment on December 3, 1984. On March 29, 1985, he was
discharged from his position for failure to follow adminis-
trative procedures. In 1997, Gray filed an appeal with the
board, alleging that the Army terminated him in 1985 in
reprisal for protected whistleblowing activity. Specifical-
ly, Gray asserted that he was discharged in retaliation for
disclosing that other police officers were using illegal
drugs. See Gray v. Dep’t of the Army, No. 98-3229, 1998
U.S. App. LEXIS 25797, at *2 (Fed. Cir. Oct. 13, 1998)
(reported in table format at 173 F.3d 435) (“Gray I”). The
board dismissed Gray’s appeal for lack of jurisdiction, and
on appeal this court affirmed. We explained that the
board had no jurisdiction over Gray’s IRA appeal because
his 1985 discharge occurred prior to July 9, 1989, the
effective date of the Whistleblower Protection Act of 1989
(“WPA”), Pub. L. No. 101-12, 103 Stat. 16. See Gray I,
1998 U.S. App. LEXIS 25797, at *5–6.
More than two decades later, Gray sought to chal-
lenge his 1985 termination by filing a complaint with the
U.S. Office of Special Counsel (“Special Counsel”). In his
complaint, Gray alleged that he had been discharged in
1985 in reprisal for making protected disclosures and
engaging in protected Equal Employment Opportunity
(“EEO”) activity. The Special Counsel closed its investi-
gation into Gray’s complaint on August 19, 2014, inform-
ing him that it had found no violation or prohibited
personnel practice within its investigative jurisdiction. It
GRAY v. MERIT SYS. PROT. BD. 3
explained that it “could not substantiate any violation of 5
U.S.C. § 2302(b)(8),” and that it was its “policy to defer
allegations of discrimination and reprisal for EEO activi-
ties to the EEO process.” The Special Counsel rejected,
moreover, Gray’s claim that “newly discovered evidence”
established that the Army had “voided” his 1985 dis-
charge.
Gray then filed an IRA appeal with the board. In an
initial decision, an administrative judge dismissed Gray’s
appeal for lack of jurisdiction. As the administrative
judge explained, EEO filings are not protected disclosures
under the WPA. See Gray v. Dep’t of the Army, No. DC-
1221-14-1122-W-1, 2014 MSPB LEXIS 8054, at *6–8
(Nov. 21, 2014) (“Gray II”). The judge concluded, moreo-
ver, that while the Whistleblower Protection Enhance-
ment Act of 2012 (“WPEA”), Pub. L. No. 112-199, 126
Stat. 1465, expanded the IRA appeal right set out in 5
U.S.C. § 1221(a) to include retaliation for protected EEO
activity, the WPEA did not apply retroactively to disclo-
sures or activities that occurred before its December 27,
2012, effective date. Id. at *7.
The board affirmed the administrative judge’s initial
decision, holding that the WPEA’s expanded IRA appeal
rights do not apply retroactively to disclosures made prior
to December 27, 2012. Gray III, 2015 MSPB LEXIS 4102,
at *8. Gray then filed a timely appeal with this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of a decision of the board is circumscribed
by statute. We can set such a decision aside only if it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Marino v. Office of Pers.
Mgmt., 243 F.3d 1375, 1377 (Fed. Cir. 2001). Whether a
4 GRAY v. MERIT SYS. PROT. BD.
newly enacted statute can be applied retroactively is a
question of law which we review de novo. See Lapuh v.
Merit Sys. Prot. Bd., 284 F.3d 1277, 1281 (Fed. Cir. 2002).
Before it was amended in 2012, the WPA afforded cer-
tain federal employees the right to bring an IRA appeal
when an agency engaged in any of the prohibited person-
nel practices described in section 2302(b)(8). See Kahn v.
Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008);
Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1574–75
(Fed. Cir. 1996). Specifically, the WPA granted the board
authority to order corrective action in cases in which an
employee suffered reprisal for the disclosure of infor-
mation which he or she reasonably believed evidenced a
“violation of any law, rule, or regulation, or . . . 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). Significantly,
however, the WPA did not provide the board with authori-
ty to order corrective action in cases involving alleged
reprisal for engaging in EEO activity. See Spruill v. Merit
Sys. Prot. Bd., 978 F.2d 679, 690 (Fed. Cir. 1992) (explain-
ing that the WPA did not provide an employee with the
right to bring an IRA appeal based on a claim of reprisal
for making a disclosure protected under section
2302(b)(9)).
With the enactment of the WPEA, Congress signifi-
cantly increased the whistleblowing protections available
to federal employees. See S. Rep. No. 112-155, at 1 (2012),
reprinted in 2012 U.S.C.C.A.N. 589, 589 (explaining that
the WPEA was intended to “strengthen the rights of and
protections for federal whistleblowers so that they can
more effectively help root out waste, fraud, and abuse in
the federal government”). The WPEA expanded the IRA
appeal right provided under 5 U.S.C. § 1221(a) to include
claims for corrective action based not only on the prohib-
ited personnel practices described in section 2302(b)(8),
but also for those described in sections 2302(b)(9)(A)(i),
GRAY v. MERIT SYS. PROT. BD. 5
(B), (C), and (D). See WPEA § 101(b)(1), 126 Stat. 1465–
66; see also 5 U.S.C. § 1214(a)(3). Of relevance here,
under the WPEA an aggrieved employee now has the
right, under certain circumstances, to seek corrective
action from the board when he or she suffers reprisal as a
result of filing an EEO complaint. See 5 U.S.C.
§ 2302(b)(9)(A)(i) (prohibiting an agency from retaliating
against an employee for “the exercise of any appeal,
complaint, or grievance right” related to whistleblowing).
As the board correctly determined, however, neither
the WPA nor the WPEA provides jurisdiction over Gray’s
appeal. As we explained in Gray I, the WPA does not
provide a jurisdictional predicate to review Gray’s chal-
lenge to his 1985 removal because his discharge occurred
prior to the WPA’s July 9, 1989, effective date. 1998 U.S.
App. LEXIS 25797, at *3; see also Knollenberg v. Merit
Sys. Prot. Bd., 953 F.2d 623, 625 (Fed. Cir. 1992) (explain-
ing that the WPA provides the board with jurisdiction
“only when the subject personnel action was taken subse-
quent to [its] effective date”). Gray has no right, in his
present appeal, to relitigate the jurisdictional question we
resolved in Gray I. See Stephen Slesinger, Inc. v. Disney
Enter., Inc., 702 F.3d 640, 644 (Fed. Cir. 2012) (“The
doctrine of issue preclusion, or collateral estoppel, pro-
tects the finality of judgments by preclud[ing] relitigation
in a second suit of issues actually litigated and deter-
mined in the first suit.” (citations and internal quotation
marks omitted)).
Nor can Gray invoke the WPEA to supply a basis for
jurisdiction over his appeal. Congress specifically provid-
ed, with certain exceptions not relevant here, that the
WPEA would become effective on December 27, 2012,
thirty days after it was signed into law. See WPEA § 202,
126 Stat. 1476. Thus, while the WPEA gives the board
jurisdiction over claims for corrective action based on the
prohibited personnel practices described in section
2302(b)(9)(A)(i), it does not apply retroactively to supply
6 GRAY v. MERIT SYS. PROT. BD.
jurisdiction over agency removal actions occurring long
before its enactment. Hicks v. Merit Sys. Prot. Bd., No.
2016-1091, 2016 WL 1105313 (Fed. Cir. Mar. 22, 2016);
see also Lapuh, 284 F.3d at 1280–82 (concluding that
although the Veterans Employment Opportunity Act of
1998, Pub. L. No. 105-339, 112 Stat. 3182, provided the
board with jurisdiction over certain appeals alleging
violations of veterans’ preference rights, it did not apply
retroactively to supply jurisdiction over violations occur-
ring prior to the statute’s effective date); Caddell v. Dep’t
of Justice, 96 F.3d 1367, 1370–71 (Fed. Cir. 1996) (con-
cluding that a 1994 amendment to the WPA did not apply
retroactively to provide jurisdiction over an agency action
that occurred several years prior to the amendment’s
effective date). Accordingly, as the board correctly con-
cluded, section 101(b)(1) of the WPEA does not apply
retroactively to provide jurisdiction over Gray’s claim that
he was discharged in 1985 in reprisal for filing an EEO
complaint. See Gray III, 2015 MSPB LEXIS 4102, at *7.
Finally, we reject Gray’s claim that the Army “re-
voked” its 1985 decision to remove him from his position.
Gray points to a 1986 Standard Form 50 (“SF-50”) that he
received from the Army, and argues that it effectively
voided the Army’s 1985 decision to remove him from his
position. See Gray III, 2015 MSPB LEXIS 4102, at *9. As
the board correctly determined, however, while the 1986
SF-50 corrected certain administrative information relat-
ed to Gray’s discharge, it did not rescind or revoke the
Army’s 1985 termination action. Id. at *10.
CONCLUSION
Accordingly, the decision of the Merit Systems Protec-
tion Board is affirmed.
AFFIRMED