Stevens v. MSPB , 678 F. App'x 1014 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
R. SCOTT STEVENS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2567
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-15-0481-W-1.
______________________
Decided: February 7, 2017
______________________
R. SCOTT STEVENS, Douglasville, GA, pro se.
JEFFREY GAUGER, Office of the General Counsel, Unit-
ed States Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK, KATHERINE M. SMITH.
______________________
Before DYK, CLEVENGER, and HUGHES, Circuit Judges.
PER CURIAM.
2 STEVENS v. MSPB
R. Scott Stevens seeks review of the final decision of
the Merit Systems Protection Board (the “Board”) dis-
missing his Individual Right of Action (“IRA”) appeal for
lack of jurisdiction. The Board found Mr. Stevens’s alle-
gations too vague and conclusory to bring his complaint
within the protection of the Whistleblower Protection
Enhancement Act (“WPEA”), 5 U.S.C. § 2302(b)(8).
Because Mr. Stevens has not overcome the jurisdictional
burden of showing that he made protected disclosures
within the meaning of the WPEA, this court affirms.
I
The facts of this case are set forth with great specifici-
ty in the administrative judge’s (“AJ”) opinion. Set forth
below are only those facts necessary to resolve the issues
presented on appeal. Mr. Stevens is a Supervisory Com-
puter Specialist within the Department of Transporta-
tion’s Office of Information and Technology (“AIT”),
Federal Aviation Administration (“FAA”), in Atlanta,
Georgia. The agency underwent reorganization between
2011 and 2013. In approximately July 2013, the agency
assessed its information technology employees and then
notified them of their new assignments within AIT. As a
result of the reassignments, Mr. Stevens became Manag-
er, Infrastructure Applications, in the Infrastructure and
Operations Service Division.
On approximately November 21, 2013, he filed a com-
plaint with the Office of Special Counsel (“OSC”), alleging
that AIT employees were improperly assigned to new
positions using noncompetitive processes during the
reorganization. On November 22, 2013, Mr. Stevens
complained to his fifth-level supervisor about the reas-
signments and informed him that he was in the process of
making disclosures regarding the reassignments. In late
November 2013, he filed a complaint with the agency
Administrator’s Hotline. He also filed related Inspector
STEVENS v. MSPB 3
General complaints in November 2013 and February
2014.
In June 2014, Mr. Stevens applied for the position of
Deputy Director, Enterprise Program Management Ser-
vice. He was not selected for the position, and alleged in
his OSC complaint that he was significantly more quali-
fied than the person who was ultimately selected.
On September 5, 2014, Mr. Stevens filed a complaint
with OSC, alleging that he suffered adverse personnel
actions, including non-selection for various promotion
positions, because of his previous complaints. Specifical-
ly, he complained that four senior agency executives
placed approximately 700 information technology employ-
ees in positions without completing the necessary and
proper job documentation and without open and fair
competition during the reorganization. On April 7, 2015,
OSC informed Mr. Stevens that it had investigated his
complaint and terminated its inquiry into his allegations.
Mr. Stevens then filed an IRA with the Board’s regional
office.
In his initial decision, the AJ found that Mr. Stevens’s
jurisdictional response failed to specify the type of pro-
tected disclosure that he allegedly made and held that
“vague and conclusory allegations like those provided by
the appellant here are not sufficient to bring the matter
within the protection of the [WPEA].” Stevens v. Dep’t of
Transp., No. AT-1221-15-0481-W-1, Initial Decision at 9
(M.S.P.B. July 13, 2015). Accordingly, the AJ dismissed
Mr. Stevens’s appeal for lack of jurisdiction.
Mr. Stevens then filed a petition for review of the AJ’s
initial decision with the Board. The Board agreed with
the AJ that Mr. Stevens merely alleged generally that the
agency’s noncompetitive reassignment of personnel dur-
ing the reorganization violated merit systems principles.
Stevens v. Dep’t of Transp., No. AT-1221-15-0481-W-1,
Final Order at 6 (M.S.P.B. July 1, 2016). Considering Mr.
4 STEVENS v. MSPB
Stevens’s status as “a supervisory employee with manage-
rial aspirations” and a person with “32 years of superviso-
ry and technical leadership experience, 24 years in the
U.S. Navy, and [certification] as a project management
professional[,]” the Board found that he had “at least
some familiarity with agency reorganization and sources
of authority for the reassignment of employees in some
circumstances.” Id. at 7. Thus, the Board concluded that
he could not have had a reasonable belief to speculate
that a noncompetitive reassignment is, by its very nature,
suspect. Id. (citing Phillip v. M.S.P.B., No. 2016-1002,
2016 WL 929856, at *2 (Fed. Cir. Mar. 11, 2016) (holding
that a claim that “possible unscrupulous practices” were
occurring at the workplace did not constitute a nonfrivo-
lous allegation of a protected disclosure)). The Board
found that, at most, Mr. Stevens’s disclosures constituted
a general disagreement with the agency regarding the
reorganization, which does not otherwise constitute a
protected disclosure under the WPEA. Id. at 8. Thus, the
Board affirmed the AJ’s initial decision. Mr. Stevens
timely appealed to this court. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9).
II
This court will affirm the Board’s decision unless it is
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without required
procedure; or unsupported by substantial evidence. 5
U.S.C. § 7703(c); Ellison v. M.S.P.B., 7 F.3d 1031, 1034
(Fed. Cir. 1993). The Board’s dismissal of an appeal for
lack of jurisdiction presents an issue of law that we re-
view without deference. Delalat v. Dep’t of the Air Force,
557 F.3d 1342, 1343 (Fed. Cir. 2009).
To maintain an IRA under the WPEA, a petitioner
must establish Board jurisdiction by demonstrating by a
preponderance of the evidence that: “1) she engaged in a
whistleblowing activity by making a disclosure protected
STEVENS v. MSPB 5
under 5 U.S.C. § 2302(b)(8); 2) based on the protected
disclosure, the agency took or failed to take, or threatened
to take or fail to take, a ‘personnel action’ as defined in
5 U.S.C. § 2302(a); and 3) her administrative remedies,
including those available through the OSC, have been
exhausted.” King v. Dep’t of Health & Human Servs., 133
F.3d 1450, 1452 (Fed. Cir. 1998) (citations omitted).
Protected whistleblowing occurs when an appellant
makes a disclosure that he reasonably believes evidences
a violation of law, rule, or regulation, gross mismanage-
ment, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health and
safety. 5 U.S.C. § 2302(b)(8)(A); see also Chambers v.
Dep’t of the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008).
The test for determining whether an employee had a
reasonable belief that his disclosures were protected is
whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions
evidence one of the categories of wrongdoing listed in
§ 2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381
(Fed. Cir. 1999).
We address the issue of whether Mr. Stevens made a
non-frivolous allegation that his statements were the kind
of disclosures protected under the WPEA. Mr. Stevens
contends that he made allegations of gross mismanage-
ment, a gross waste of funds, and an abuse of authority.
The Board has defined “gross mismanagement” as “a
management action or inaction that creates a substantial
risk of significant adverse impact upon the agency's
ability to accomplish its mission.” Embree v. Dep’t of the
Treasury, 70 M.S.P.R. 79, 85 (1996). For gross misman-
agement, the employee must disclose “such serious errors
by the agency that a conclusion the agency erred is not
debatable among reasonable people,” and the matter that
is the subject of the disclosure must be “significant.”
White v. Dep’t of the Air Force, 391 F.3d 1377, 1382 (Fed.
6 STEVENS v. MSPB
Cir. 2004). Additionally, a “gross waste of funds” is
defined as a “more than debatable expenditure that is
significantly out of proportion to the benefit reasonably
expected to accrue to the government.” Van Ee v. E.P.A.,
64 M.S.P.R. 693, 698 (1994) (quoting Nafus v. Dep’t of the
Army, 57 M.S.P.R. 386, 393 (1993)). Further, the Board
has defined an abuse of authority as an “arbitrary or
capricious exercise of power by a federal official or em-
ployee that adversely affects the rights of any person or
that results in personal gain or advantage to himself or to
preferred other persons.” Ramos v. Dep’t of the Treasury,
72 M.S.P.R. 235, 241 (1996) (citation omitted).
The record shows that the agency conducted an inves-
tigation into Mr. Stevens’s allegations and terminated its
inquiry after finding no policy violation and that the
agency had authority to reassign employees noncompeti-
tively. We agree with the Board’s characterization of Mr.
Stevens’s position as, at most, a disagreement with the
agency’s actions, which does not otherwise constitute a
protected disclosure under the WPEA. On the record
before us, we cannot say that the Board erred in finding
that Mr. Stevens failed to allege specific facts that show
that the agency’s reassignment process constituted a
violation of law or agency regulations or created a sub-
stantial risk of significant adverse impact on the agency’s
ability to accomplish its mission, that the agency misap-
propriated funds, or that the agency’s course of action in
dealing with Mr. Stevens was anything less than a rea-
sonable exercise of discretion in the agency’s handling of
personnel matters. Mr. Stevens himself agrees that “my
pleadings may appear vague on the surface.” Informal
Br. of Pet’r 11–12. Accordingly, we find that the Board
did not err in concluding that Mr. Stevens’s multiple
complaints were not protected disclosures under the
WPEA because he did not sufficiently allege gross mis-
management, a gross waste of funds, or abuse of authori-
ty. Nor does the record indicate that Mr. Stevens’s
STEVENS v. MSPB 7
complaints specifically alleged facts consistent with any
other category of § 2302(b)(8).
CONCLUSION
Because we agree with the Board that Mr. Stevens
failed to make a non-frivolous allegation that he made a
protected disclosure, this court affirms the Board’s dis-
missal of Mr. Stevens’s IRA appeal for lack of jurisdiction.
AFFIRMED
COSTS
No Costs.