Dunlap v. Department of Navy ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBIN A. DUNLAP,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
______________________
2012-3137
______________________
Appeal from the Merit Systems Protection Board in
No. AT1221100927-B-1.
______________________
Decided: January 11, 2013
______________________
ROBIN A. DUNLAP, of Oviedo, Florida, pro se.
ANTHONY W. MOSES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
______________________
2 ROBIN DUNLAP v. NAVY
Before DYK, PLAGER, and CLEVENGER, Circuit Judges.
PER CURIAM
Robin Dunlap (Dunlap) seeks review of the final deci-
sion of the Merit Systems Protection Board (Board) deny-
ing her request for corrective action on account of her
claim of reprisal for whistleblowing and of involuntary
retirement. Dunlap v. Dep’t of the Navy, Docket No. AT-
1221-10-0927-B-1 (March 20, 2012). We affirm.
I
On August 10, 2010, Dunlap filed an individual
right of action (IRA) appeal with the Merit Systems
Protection Board (Board) alleging that in 2005 the De-
partment of the Navy had retaliated against her for
whistleblowing when it failed to promote her from GS-13
to GS-14 based upon accretion of duties, moved her from a
private office to a cubicle office, and committed other acts
which she believes constituted a hostile work environ-
ment. Dunlap brought her whistleblower complaint to the
Office of Special Counsel (OSC) in 2009, and OSC notified
her on July 30, 2010, that it was terminating its investi-
gation. Further, Dunlap argued that the agency’s crea-
tion of a hostile work environment caused her to retire
involuntarily in 2005.
Dunlap’s August 10, 2010 action was dismissed by
an Administrative Judge (AJ). Regarding her IRA claim,
the AJ held that the whistleblower allegations were
substantially the same as ones Dunlap had raised to the
OSC in 2005, and which the OSC had rejected by termi-
nating its investigation. Following that rejection, Dunlap
did not appeal to the Board. The Board’s regulations
require an appeal from an OSC termination to be filed no
later than 65 days after the issuance of OSC’s written
notification of termination, or if the notification is re-
ceived more than 5 days after its issuance, within 60 days
ROBIN DUNLAP v. NAVY 3
after receipt of the notification. Dunlap did not timely
appeal the 2005 OSC termination. Although Dunlap’s
IRA appeal to the Board was timely with regard to the
July 30, 2010 OSC termination notice, the AJ was of the
view that Dunlap was trying to end-run the obligation of a
timely appeal from the 2005 OSC action, where the alle-
gations of whistleblowing are substantially the same.
Consequently the AJ dismissed Dunlap’s IRA ap-
peal as untimely, rejecting Dunlap’s argument that new
evidence sufficiently differentiated her 2010 appeal from
her earlier request for relief from OSC in 2005.
As for Dunlap’s involuntary retirement appeal,
the AJ dismissed that claim too, holding that Dunlap had
failed to overcome the presumption that her retirement
was voluntary.
Dunlap appealed both dismissals to the full
Board. Regarding the IRA appeal, the full Board held
that Dunlap’s new evidence was sufficient to warrant a
fresh complaint to OSC in 2009, and that her IRA appeal
to the Board was thus timely. Based on allegations in
Dunlap’s complaint to OSC, the full Board held that
Dunlap had made a non-frivolous allegation of making a
protected disclosure that was a contributing factor in the
agency’s decision not to promote her. In particular, the
full Board held that Dunlap’s communication to the
Inspector General on August 2, 2004, about improprieties
in the agency’s hiring process was a non-frivolous allega-
tion of a protected disclosure. Coupled with Dunlap’s
allegation that the agency failed to promote her on July
12, 2005, because of the disclosure to the Inspector Gen-
eral, the full Board held that Dunlap was entitled to a
decision on the merits on at least this one aspect of her
IRA appeal. The Board ordered a remand for full review
of Dunlap’s whistleblower complaint: “On remand, the
administrative judge should also examine any other claim
that the appellant raised in her timely IRA appeal to
4 ROBIN DUNLAP v. NAVY
determine Board jurisdiction, and, if the appellant has
shown jurisdiction, to decide the merits of these claims as
well.” Full Board Opinion, May 20, 2011, page 4.
As for the involuntary retirement appeal, the full
Board sustained the AJ’s decision, noting that evidence
supports the AJ’s finding that Dunlap admitted that she
freely chose retirement in light of her personal family
situation. In the light of the remand on the IRA claim,
the full Board noted that Dunlap could appeal the rejec-
tion of her involuntary retirement claim once the case was
fully adjudicated.
II
Because of the long history of this case, we called
for the complete record before the Board. Dunlap provid-
ed the AJ with a voluminous record in which she detailed
her allegations regarding both her alleged protected
disclosures and the agency actions she alleged had been
taken against her in retaliation for her disclosures. The
full Board Order remanding the case to the AJ identified
one instance of a disclosure and an alleged retaliatory act
sufficient to vest jurisdiction over Dunlap’s IRA appeal.
No doubt in response to the express order to consider
other non-frivolous allegations of protected whistleblow-
ing, the AJ on June 23, 2011, issued an Order and Notice
of Hearing and Prehearing Conference. In the June 23
Order, the AJ identified the August 2, 2004 communica-
tion and the alleged July 12, 2005 failure of promotion as
the IRA claim that the AJ would adjudicate. The AJ also
noted his duty to consider any other claim raised in
Dunlap’s IRA appeal and determine if additional non-
frivolous allegations existed in the record. The AJ noted
that consistent with the remand order, he conducted a
preliminary review of the record and concluded that no
additional non-frivolous allegations had been made. The
AJ consequently stated: “Accordingly, if the appellant
disagrees and still desires that any additional claims be
ROBIN DUNLAP v. NAVY 5
considered in this IRA appeal she is ORDERED to provide
me with the information specified below within 10 days
from the date of this Order. Otherwise the IRA will be
limited to the single alleged protected disclosure and the
alleged personnel action specified in the Board’s Remand
Order.” June 23 Order at 1-2. “The information specified
below” related the statutory language concerning protect-
ed disclosures and personnel actions, and provided specif-
ic instructions to Dunlap on how to present any additional
claims. The June 23 Order set forth dates for a prehear-
ing conference and hearing.
On July 1, 2011, Dunlap responded to the June 23
Order. She set forth 11 specific alleged protected disclo-
sures and additional personnel actions allegedly taken in
reprisal. Subsequently, Dunlap withdrew alleged pro-
tected disclosures 1, 5 and 7-10, and waived her right to a
hearing. On August 19, 2011, the AJ issued an Order and
Summary of Telephonic Status Conference. The Order
stated that the single issue remaining for trial was
“[w]hether the agency retaliated against the appellant for
protected whistleblowing” with the alleged protected
disclosures reduced to disclosures 2, 3, 4, 6 and 11. The
Order stated that “if either party takes exception to any
part of this summary, including its accuracy or inclusive-
ness, the party is ORDERED to state the exception in
writing…within seven days of the date of this Order.”
August 19 Order at 1. For purposes of additional evi-
dence and argument on the single issue specified for trial,
the August 19 Order stated that the record would close on
August 29, 2011. August 19 Order at 2.
On August 29, 2011, Dunlap submitted a 54-page,
single-spaced document, which contained extensive alle-
gations of fact and argument concerning the alleged
protected disclosures and personnel actions specified for
trial. She also sought to introduce one additional issue,
namely that as a “perceived whistleblower” she was
entitled to relief in her IRA case even if her particular
6 ROBIN DUNLAP v. NAVY
disclosures did not qualify under the law for protection.
She cited Holloway v. Dep’t of the Interior, 82 M.S.P.R.
435 (1999) and other Board cases granting relief to indi-
viduals who were perceived as whistleblowers even
though the disclosures they had made fell short of protec-
tion.
III
On October 24, 2011, the AJ issued his decision on
Dunlap’s IRA appeal. The AJ rejected disclosures 2 and 3
(which dealt with the agency’s selection process) and
disclosure 4 (which dealt with appellant’s request for
additional training) on the grounds that a disinterested
observer could not reasonably conclude that any of the
those three disclosures evidenced a violation of law, rule,
or regulation, gross mismanagement, gross waste of
funds, abuse of authority, or substantial and specific
danger to public health or safety – which is the test that
defines a protected disclosure. The AJ rejected disclosure
6, which is Dunlap’s response to questions put to her by
the Inspector General pertaining to an anonymous hotline
complaint. Because Dunlap admitted that she might have
been mistaken about the background facts of the disclo-
sure, the AJ concluded that Dunlap’s speculation did not
qualify as a disclosure. Dunlap’s disclosure 11 concerned
alleged sexual harassment in the workplace. Because
such matters are not considered “whistleblowing” disclo-
sures, the AJ rejected disclosure 11.
Because the AJ rejected each of Dunlap’s disclo-
sures as not qualifying for protection in the IRA appeal,
he denied Dunlap’s request for corrective action without
reaching the merits of Dunlap’s claim that specific actions
had been taken against her in reprisal for protected
whistleblowing. The AJ noted that Dunlap’s involuntary
retirement claim had been previously adjudicated.
Dunlap then petitioned the full Board for review
of the October 24, 2011 decision.
ROBIN DUNLAP v. NAVY 7
IV
The full Board denied Dunlap’s petition for review
on March 20, 2012. The full Board rejected Dunlap’s
claim that the AJ exercised bias against her and issued
improper discovery and evidentiary rulings. Regarding
the alleged protected disclosures, the full Board held that
Dunlap failed to show any error in the AJ’s conclusions
that the disclosures qualified for protection. The Board
also held that Dunlap had not properly raised her per-
ceived whistleblower claim. Finally, the Board noted that
it had already affirmed the rejection of Dunlap’s involun-
tary retirement claim. Dunlap then petitioned for review
in this court, and we have jurisdiction over her appeal
under 28 U.S.C. §1295(a)(9). We must affirm the final
decision of the Board unless we determine that the deci-
sion is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; obtained without
procedures required by law, rule or regulation; or unsup-
ported by substantial evidence. 5 U.S.C. §7703(c)(2000).
V
Dunlap argues on appeal that she had insufficient
notice that her IRA appeal would be limited to the specific
disclosures actually adjudicated. But the record clearly
shows that she was warned on August 19 of a specific
time within which she was required to add any further
claims, apart from the claims already raised in the
Board’s remand order or in her July 1 filing. Further, she
argues that she “had reason to believe that all of her
claims would be adjudicated.” Her brief reiterates many
arguments and factual assertions that she had previously
made before the August 19 Order, and contends that
those arguments and factual assertions should have been
considered by the AJ in the remand decision. Acting pro
se throughout, Dunlap may not have appreciated the
steps taken by the AJ on remand to narrow and confine
the issues for adjudication. The full record indeed con-
8 ROBIN DUNLAP v. NAVY
tains the matters Dunlap now argues the AJ should have
considered in the remand decision. But the record also
includes two Orders, the purpose of which was to define
with precision the issues for adjudication. And, with one
possible exception (not properly preserved on appeal) it is
clear that the only matters left for adjudication were
alleged disclosures 2, 3, 4, 6 and 11. 1
Regarding those specific disclosures, Dunlap on
appeal does not challenge the Board’s legal assessment
that none of the disclosures qualifies for protection. We
have reviewed the record, and the AJ and full Board
decisions after the remand, and we conclude that the
grounds on which the AJ and full Board held the disclo-
sures to be unprotected, under the correct legal test for
protected disclosures, are sound and not incorrect.
We also affirm the final decision of the Board re-
jecting Dunlap’s involuntary retirement claim. The facts
found by the Board, in particular the fact that Dunlap
freely chose retirement, are supported by substantial
evidence, and the legal conclusion that Dunlap’s retire-
ment was not involuntary is correct.
Dunlap has asserted that the Board overlooked a
number of statutory references. As the government
points out in its responsive brief, none of those references
are pertinent to decision of Dunlap’s IRA appeal.
Upon careful review of the record, and all of Dun-
lap’s assertions and arguments, we conclude that the
1 As noted above, the Board determined that Dunlap
waived adjudication of her perceived whistleblower claim
by failing to raise it within seven days after the August 19
Order. Even if the issue was properly raised in Dunlap’s
August 29 brief to the AJ, Dunlap has not adequately
preserved the perceived whistleblower claim on appeal.
See ConocoPhillips v. United States, 501 F.3d 1374, 1381-
82 (Fed. Cir. 2007).
ROBIN DUNLAP v. NAVY 9
Board committed no reversible error in denying Dunlap’s
request for corrective action in her IRA appeal and in
denying her request for relief on account of an involuntary
retirement. The final decision of the Board is therefore
affirmed.
AFFIRMED
COSTS
No costs.