David J. Lachance v. Department of the Interior ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID J. LACHANCE, DOCKET NUMBER
Appellant, CH-1221-14-0284-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: August 19, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David J. Lachance, Milwaukee, Wisconsin, pro se.
Wayne A. Babcock, Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that,
despite the petitioner’s due diligence, was not available when the record closed.
See Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant worked as a GS-12 Geologist at the Bureau of Land
Management (BLM). Initial Appeal File (IAF), Tab 1 at 1, Tab 3, Subtab 4 at 1.
On an unknown date prior to August 27, 2013, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging that the agency had retaliated
against him for disclosing agency fraud committed against two energy companies
and an Ohio “farm couple” when it: (1) significantly changed his duties;
(2) placed him on a fixed work schedule; (3) suspended him and placed him on
administrative leave; (4) charged him as being absent without leave; (5) logged
into his computer system, backdated emails, and sent them from his account;
(6) subjected him to a hostile work environment; and (7) issued him a notice of
proposed removal. 2 IAF, Tab 1 at 4-15. On December 2, 2013, OSC made a
final determination not to pursue the appellant’s complaint. Id.2
The agency subsequently upheld the removal, effective March 7, 2014. Petition for
Review (PFR) File, Tab 1 at 7. The appellant retired 1 day prior to the effective date of
the removal action, and then appealed the removal on the ground that he was coerced
into retirement by the agency. Id.; MSPB Docket No. CH-0752-14-0440-I-1, Initial
3
¶3 On February 4, 2014, the appellant filed an IRA appeal seeking corrective
action with the Board. IAF, Tab 1. The administrative judge issued an order on
jurisdiction and proof requirements, advising the appellant of his burden to
establish Board jurisdiction over his IRA appeal; namely, that he must make
nonfrivolous allegations that he had exhausted his OSC remedies, that he had
made a protected disclosure, and that the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action. IAF, Tab 3
at 1-6. The appellant did not respond to the order on jurisdiction because, he
explains, he did not see the order when it was emailed to him on February 7,
2014. 3 PFR File, Tab 1 at 3.
¶4 Without holding the requested hearing, the administrative judge dismissed
the IRA appeal for lack of jurisdiction on the grounds that the appellant failed to
show that he had exhausted his OSC remedy or made a protected disclosure.
IAF, Tab 5, Initial Decision (ID) at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant timely filed a petition for review of the initial decision, and
the agency timely responded. PFR File, Tabs 1, 7. On review, the appellant
does not identify any specific errors in the administrative judge’s jurisdictional
findings, see id., but avers that he provided OSC and the administrative judge
with “indisputable evidence” that he made protected disclosures under the
Whistleblower Protection Act, id. at 5. Nonetheless, the applicable law and the
record evidence support the administrative judge’s findings that the appellant
Decision at 1 (July 21, 2014). The administrative judge dismissed the appeal without
prejudice to refile pending a final decision on the instant petition for review. Id. at 2-3.
3
The appellant is a registered e-filer. IAF, Tab 1 at 2. As such, he is deemed to have
received the administrative judge’s orders on the date of electronic submission. See
5 C.F.R. § 1201.14(m)(2); Mills v. U.S. Postal Service, 119 M.S.P.R. 482, ¶ 6 (2013).
Further, as an e-filer, the appellant was responsible for monitoring his case activity at
the Repository at e-Appeal Online to ensure that he received all of the case-related
documents. See 5 C.F.R. § 1201.14(j)(3); Mills, 119 M.S.P.R. 482, ¶ 6.
4
failed to make nonfrivolous allegations necessary to establish Board jurisdiction
over this IRA appeal.
¶6 To establish Board jurisdiction over an IRA appeal, the appellant must show
that he exhausted his administrative remedies before OSC and make nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a
protected disclosure; and (2) the disclosure was a contributing factor in the
agency’s decision to take or fail to take a personnel action. Yunus v. Department
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
The appellant did not nonfrivolously allege that he exhausted his administrative
remedies before OSC.
¶7 The administrative judge found that the appellant failed to show that he
exhausted his OSC remedy regarding a disclosure of fraud. ID at 5. On review,
the appellant states that he provided the OSC “rejection letter” with his MSPB
appeal and that he could provide more if “deemed warranted by the MSPB.”
PFR File, Tab 1 at 2-4. However, the appellant did not submit any additional
documents with his petition for review. See id.¶8 Pursuant to 5 U.S.C. § 1214(a)(3), an employee is required to seek
corrective action from OSC before seeking corrective action from the Board.
Briley v. National Archives & Records Administration, 236 F.3d 1373, 1377
(Fed. Cir. 2001). The Board may consider only those charges of whistleblowing
that the appellant raised before OSC. Boechler v. Department of Interior,
109 M.S.P.R. 638, ¶ 6 (2008), aff’d, 328 F.’Appx 660 (2009). Proof of
exhaustion before OSC need not be in the form of the appellant’s complaint to
OSC. Id. To satisfy the exhaustion requirement, an appellant must inform OSC
of the precise ground of his charge of whistleblowing, giving OSC a sufficient
basis to pursue an investigation which might lead to corrective action. Id.¶9 As the only evidence of exhaustion, the appellant has provided: (1) a
document containing the copied text of OSC’s December 2, 2013 final
determination letter, with his typed responses after each of OSC’s findings, IAF,
5
Tab 1 at 4-14; and (2) OSC’s December 2, 2013 notice of right to seek corrective
action from the MSPB, id. at 15. The extent of the information in these letters
regarding the appellant’s actual disclosures is OSC’s statement: “You alleged
that agency officials retaliated against you after you disclosed fraud committed
against Merit Energy Company, Ohio Valley Energy and a farm couple in Ohio
who bought an uneconomical gas well on their land.” Id.¶10 The appellant’s submissions do not convey the specific subject matter of his
disclosures or describe the particular nature of the alleged fraud. See id. The
Board has held that, where an appellant has made only bare allegations of
wrongdoing in his OSC complaint, he has failed to give sufficient details putting
OSC on notice of the specific violations he alleged and has not exhausted his
OSC remedy. Langer v. Department of the Treasury, 265 F.3d 1259, 1268 (Fed.
Cir. 2001). Accordingly, we agree with the administrative judge that the
appellant’s submissions are insufficient to show that he exhausted his
administrative remedies, and the Board lacks jurisdiction over his IRA appeal.
The appellant did not nonfrivolously allege that he made protected disclosures.
¶11 The administrative judge also determined that the appellant’s conclusory
allegations that he disclosed fraud against two energy companies and an Ohio
farm couple were insufficient to constitute a nonfrivolous allegation that he
made protected disclosures. ID at 4. On review, the appellant appears to argue
that the criminal investigation by the BLM Special Investigation Group proves
that he made a qualifying disclosure because “such criminal investigations are
not carried out unless there is clear and convincing evidence that an investigation
is warranted . . . ” PFR File, Tab 1 at 5. He states that he reasonably believed
that the agency’s actions constituted a violation of law and an abuse of authority
based on his experience implementing the relevant laws and regulations for over
38 years. Id. He further asserts that he provided the names and contact
information for the head of the Special Investigation Group and other “highly
6
relevant” individuals, but no one from OSC or the Board called them to discuss
the information he provided. Id.¶12 Disclosures protected by 5 U.S.C. § 2302(b)(8) include any disclosure that
the employee reasonably believes evidences a violation of any law, rule, or
regulation; gross mismanagement; a gross waste of funds; an abuse of authority;
or a substantial and specific danger to public health or safety. Christensen v.
Department of Justice, 82 M.S.P.R. 430, ¶ 10 (1999). The disclosures must be
specific and detailed, not vague allegations of wrongdoing regarding broad or
imprecise matters. Keefer v. Department of Agriculture, 82 M.S.P.R. 687, ¶ 10
(1999). Conclusory, vague, or unsupported allegations are insufficient to qualify
as nonfrivolous allegations of IRA jurisdiction. McDonnell v. Department of
Agriculture, 108 M.S.P.R. 443, ¶ 7 (2008).
¶13 In this case, the extent of the information provided by the appellant
concerning his protected disclosures is that he reported fraud committed by the
agency and his supervisor against two energy companies and an Ohio farm
couple, who bought an uneconomical gas well on their land, to the BLM Special
Investigation Group and Inspector General. See PFR File, Tab 1; IAF, Tab 1
at 4-15. These allegations are conclusory and vague, and are insufficient to
support Board jurisdiction.
¶14 Lastly, the appellant’s suggestion that the administrative judge should have
contacted various individuals to obtain information relevant to his appeal is
misplaced. The parties, not the administrative judge, have the affirmative
responsibility to present relevant evidence and argument. Keefer v. Department
of Agriculture, 92 M.S.P.R. 476, ¶ 20 n.2 (2002).
¶15 We agree with the administrative judge that the appellant has failed to
provide sufficient information regarding his alleged protected disclosures to
constitute a nonfrivolous allegation of Board jurisdiction.
7
CONCLUSION
¶16 As set forth above, we agree with the administrative judge that the appellant
failed to nonfrivolously allege that he exhausted his OSC remedies or that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8). Either of these
findings standing alone is sufficient to warrant dismissal for lack of jurisdiction.
Thus, the appellant has provided no basis upon which to disturb the initial
decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
8
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.