Dr Vaughn Hoeflin Standley v. Department of Energy ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VAUGHN HOEFLIN STANDLEY, DOCKET NUMBER
Appellant, DC-1221-16-0168-W-1
v.
DEPARTMENT OF ENERGY, DATE: January 3, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard R. Renner, Washington, D.C., for the appellant.
Saul Ramos, Albuquerque, New Mexico, for the agency.
BEFORE
Susan Tsui Grundmann, 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
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not co nsistent 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. 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, 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 . Except as
expressly MODIFIED by this Final Order, we AFFIRM the i nitial decision. 2
BACKGROUND
¶2 The appellant is a General Engineer, NN-4, with the agency’s National
Nuclear Security Administration. Initial Appeal File (IAF), Tab 1. In
January 2014, he told his supervisor, the Director of the Office of Defense
Nuclear Nonproliferation Research and Development (Director), and the Deputy
Director of his belief that the agency needed to field the Space Atmospheric Burst
Reporting System (SABRS3). Id. at 6. SABRS3 is a satellite payload designed to
detect a nuclear detonation in space. Id. at 4. On July 31, 2014, the appellant
told the Director that he had approved plans developed by the Los Alamos
National Laboratory to begin integrating SABRS3 on a U.S. Air Force (Air Force)
Space Test Program satellite. Id. at 6. On August 8, 2014, the Director told the
appellant that he had decided to stop funding SABRS3. Id. at 7.
¶3 On September 9, 2014, the agency advertised the position of Director for
the Office of Nuclear Detonation Detection (NDD). Id. The appellant asserts
that, on September 14, 2014, the Deputy Director announced that current
employees in the appellant’s department would not be considered for an
2
We have modified the initial decision to correct the administrative judge’s findings
regarding exhaustion.
3
upcoming job posting and, if they desired an explanation of the policy, they
should speak with him privately. Id. The appellant submitted his application for
the position and was referred to the hiring manager. Id. The appellant was not
selected and the vacancy announcement was canceled on or about October 27,
2014. Id. The appellant grieved his nonselection for the position on
November 10, 2014. Id. at 7-8. The agency denied the grievance on
January 7, 2015. Id.¶4 On February 5, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that he was not allowed to compete for tw o job
openings, including the NDD Office Director position. IAF, Tab 5 at 30, 39. In
addition, he complained that the agency allowed his grievance to be closed
without requiring either the Director or the Deputy Director to accept or dispute
facts in the grievance alleging a prohibited personnel practice. Id. The appellant
alleged that this was contrary to the agency’s grievance process. Id. at 30. On
September 28, 2015, OSC closed the appellant’s file, and notified him of his right
to request corrective action from the Board. Id. at 39-40. The appellant filed a
timely appeal. IAF, Tab 1.
¶5 In an initial decision, the administrative judge found that the appellant
exhausted his claims before OSC concerning personnel actions occurring on or
before February 5, 2015, the date he filed his OSC complaint. IAF, Tab 9, Initial
Decision (ID) at 3-4. That period of time includes the agency’s cancelling of the
vacancy for the NDD Office Director position in October 2014. ID at 4. The
administrative judge found no indication that the appellant had exhausted his
remedies for, or that OSC had conducted an investigation into, any alleged
personnel actions that occurred after February 5, 2015. Id. Regarding his
nonselection for NDD Office Director, the administrative judge found that the
appellant failed to nonfrivolously allege that he made a protected disclosure. ID
at 4-7. Specifically, the administrative judge found that the appellant’s opinions
on SABRS3 that he disclosed to management pertained to a policy dispute, rather
4
than to one of the forms of protected disclosure set forth under 5 U.S.C.
§ 2302(b)(8). ID at 5. The administrative judge also rejected the appellant’s
retaliation claim under 5 U.S.C. § 2302(b)(9)(D) because he failed to produce
evidence that the agency retaliated against him for refusing to obey an order that
would require him to violate the National Defense Authorization Act (NDAA) of
2008, Pub. L. No. 110-181, § 1065, 122 Stat. 3 (2008). ID at 5; IAF, Tab 5
at 8-9. Finally, the administrative judge rejected the appellant’s claim that he
had disclosed a substantial and specific danger to public health and safety. ID
at 6. The administrative judge dismissed the appeal for lack of Board
jurisdiction. ID at 6-7. The appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1.
ANALYSIS
¶6 To establish the Board’s jurisdiction over an appeal brought pursuant to the
Whistleblower Protection Enhancement Act (WPEA) , an appellant must exhaust
his administrative remedies before OSC and make nonfrivolous allegations 3 of the
following: (1) he engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), or engaged in other protected activity as
specified in 5 U.S.C. § 2302(b)(9); and (2) the disclosure or activity 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)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221;
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3) in an IRA appeal,
an appellant must inform OSC of the precise ground of his charge of
whistleblowing, giving OSC a sufficient basis to pursue an investigation that
3
Nonfrivolous jurisdictional allegations supported by affidavits or other evidence
confer Board jurisdiction. Dick v. Department of Veterans Affairs, 290 F.3d 1356, 1361
(Fed. Cir. 2002), overruled on other grounds, Garcia v. Department of Homeland
Security, 437 F.3d 1322 (Fed. Cir. 2006) (en banc); Woodworth v. Department of the
Navy, 105 M.S.P.R. 456, ¶ 14 (2007), aff’d, 329 F. App’x 281 (Fed. Cir. 2009).
5
might lead to corrective action. Ward v. Merit Systems Protection Board,
981 F.2d 521, 526 (Fed. Cir. 1992).
¶7 The appellant argues that the administrative judge erred in finding that
OSC’s investigation did not cover personnel actions that occurred after
February 5, 2015. PFR File, Tab 1 at 10-12; ID at 4. The appellant explains that
OSC’s close-out letter suggests that it investigated matters up to
September 28, 2015. Id. at 10. He further explains that, although the
administrative judge stated that his nonselection took place on October 27, 2014,
when the vacancy announcement was canceled, ID at 2, a “second nonselection”
took place in late May 2015, when he learned that another employee “was given
an unauthorized preference or advantage and pre-selected for the subsequent
re-posted NDD Director position.” PFR File, Tab 1 at 11. The appellant argues
that OSC investigated the May 2015 nonselection, and that the agency’s actions
after February 5, 2015, constitute further proof of retaliation. Id. at 11-12.
¶8 While there is no other proof in the record that the appellant raised
post-February 5, 2015 matters with OSC, see, e.g., IAF, Tab 5 at 30-38, OSC’s
September 28, 2015 close-out letter directly addresses his allegations regarding
the agency’s ultimate selection and his own nonselection for the NDD Office
Director position, IAF, Tab 1 at 23-24, Tab 5 at 39-40. Clearly, these matters
were exhausted. We thus correct the initial decision to the extent that the
administrative judge drew an erroneous conclusion regarding the
February 5, 2015 cut-off date.
¶9 Nevertheless, these matters do not change the outcome of the appeal, as the
appellant failed to make a protected disclosure under 5 U.S.C. § 2302(b)(8). A
protected disclosure is defined as:
a formal or informal communication or transmission, but does not
include a communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the disclosure
evidences—
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(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(a)(2)(D); see 5 U.S.C. § 2302(b)(8). A whistleblower need not
prove that the matter he disclosed actually established any of the conditions
described in section 2302(b)(8). Instead, he must make a nonfrivolous allegation
that the matter he disclosed was one that a reasonable person in his position
would believe evidenced any of these conditions. Applewhite v. Equal
Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 12 (2003).
¶10 The test to determine if the appellant had a reasonable belief that his
disclosure evidenced any of the types of wrongdoing identified in 5 U.S.C.
§ 2302(b)(8) is whether a “disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee [could] reasonab ly
conclude that the actions of the government evidence[d]” such wrongdoing. Id.(citing Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). Determining
whether an employee had a reasonable belief that a law, rule, or regulation was
violated turns on the facts of a particular case. Drake v. Agency for International
Development, 543 F.3d 1377, 1381 (Fed. Cir. 2008). The Board, however,
requires an appellant to provide more than vague and conclusory allegations of
wrongdoing. McCorcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 21
(2005).
¶11 Here, the appellant argued that management’s decision to discontinue
funding of SABRS3 was a violation of law and created a substantial and specific
danger to public health or safety. IAF, Tab 1 at 4-5, 8, 11-12, Tab 5 at 8-9,
12-13. The appellant alleged that he disclosed the need to continue funding
SABRS3 because the program was necessary to comply with section 1065 of the
NDAA. IAF, Tab 1 at 4, 6, Tab 5 at 9. He reasserts this position on review. PFR
File, Tab 1 at 6-9. Section 1065 of the NDAA states that the Secretary of
7
Defense shall maintain the “capability for space-based nuclear detection at a level
that meets or exceeds the level of capability as of” January 28, 2008. Although
the appellant has asserted that he reasonably believed that the agency violated
section 1065 of NDAA in deciding to cease implementing SABRS3, he has not
provided any evidence to support his assertion. Under section 1065, the
responsibility to maintain the “capability for space-based nuclear detection” falls
to the Secretary of Defense. The appellant and his colleagues at the Department
of Energy do not bear that responsibility, even if they have been tasked with and
funded for supporting such an activity. PFR File, Tab 1 at 7, 23-24. In addition,
as the administrative judge correctly found, the appellant himself conceded that
policy makers in the Air Force, the United States Strategic Command
(STRATCOM), and the Department of State determined whether SAB RS3 was
needed, and many, including senior members of STRATCOM and the Air Force,
opposed the program. ID at 6; IAF, Tab 1, Further, section 1065 does not limit
the Secretary of Defense to using any particular device or system to maintain
space-based nuclear detection capability. A reasonable and disinterested person
with knowledge of the facts known to and readily ascertainable by the appellant
would not conclude that he was reporting a violation of law.
¶12 Although a disclosure of a substantial and specific danger to public health
or safety is protected under 5 U.S.C. § 2302(b)(8), revealing a negligible, remote,
or ill-defined peril that does not involve any particular person, place, or thing is
not protected. See Johnston v. Merit Systems Protection Board, 518 F.3d 905,
909-10 (Fed. Cir. 2008). In Chambers v. Department of the Interior, 515 F.3d
1362 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit identified
a number of factors that the Board might consider in determining whether
disclosing a danger to public health or safety is sufficiently substantial and
specific to warrant protection under 5 U.S.C. § 2302(b)(8):
One such factor is the likelihood of harm resulting from the danger.
If the disclosed danger could only result in harm under speculative or
8
improbable conditions, the disclosure should not enjoy protection.
Another important factor is when the alleged harm may occur. A
harm likely to occur in the immediate or near future should identify a
protected disclosure much more than a harm likely to manifest only
in the distant future. Both of these factors affect the specificity of
the alleged danger, while the nature of the harm—the potential
consequences—affects the substantiality of the danger. 4
Id. at 1369 (emphasis added); see also Chambers v. Department of the Interior,
602 F.3d 1370, 1376 (Fed. Cir. 2010); see, e.g., Miller v. Department of
Homeland Security, 111 M.S.P.R. 312, ¶ 19 (2009). We do not question that a
delayed response to a nuclear detonation in space would imperil public health and
safety, but the appellant has not shown that such an occurrence is more than a
possibility occurring at an undefined point in the future. 5 Cf., e.g., Johnston,
518 F.3d at 910 (finding that the appellant disclosed a specific and substantial
danger “not only because training exercises take place under extreme weather
conditions and routinely involve the use of live fire and explosives, but also
because a series of accidents had occurred during such exercis es in the past”).
¶13 The record shows that decisions pertaining to continuing SABRS3 followed
considerable interagency consultation and debate in the context of broader
programmatic discussions. IAF, Tab 1 at 7-13, Tab 5 at 12-13. The
administrative judge thus found that the narrow exception for policy disputes
4
The appellant argues that Chambers is “outdated” and was “legislatively rejected” by
Congress with the passage of the WPEA, which “reaffirmed its intent to protect all
disclosures that a whistleblower reasonably believes evidence ” any of the conditions set
forth in 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 18 (italics in original). Although the
WPEA broadened the types of disclosures that might be protected under the statute, the
Chambers factors go to the reasonableness of an employee’s belief that the matter he is
disclosing represents a condition described by the statute. Moreover, our reviewing
court still cites the Chambers factors. See, e.g., Yeh v. Merit Systems Protection Board,
527 F. App’x 896, 901 (2013).
5
The appellant noted that he cannot disclose some information in support of his
argument because it is classified for reasons of national security. IAF, Tab 5 at 9.
Such information, however, would have been considered by the policymakers who
debated whether or not to continue funding the program, and ultimately rejected it.
9
foreclosed the appellant from having made a protected disclosure. ID at 5. The
Board has found that, when the alleged whistleblower is expressing disagreement
with fairly debatable policy decisions, his disclosures do not fall within those
defined as protected under 5 U.S.C. § 2302(b)(8). Cf. O’Donnell v. Department
of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013) (holding that the appellant’s alleged
protected disclosure was “exactly the type of fairly debatable policy dispute that
does not constitute gross mismanagement”), aff’d, 561 F. App’x 926 (Fed. Cir.
2014). The appellant asserts that the administrative judge mischaracterized the
nature of the debates over discontinuing funding for SABRS3. PFR File, Tab 1
at 6-9, 12-15. He further asserts that the fact that discontinuing SABRS3 was
debated on various occasions does not mean that the decision not to fund the
program was debatable because its cancellation would violate section 1065 of the
NDAA. Id. at 15. The appellant’s argument is unavailing because, as explained
above, he failed to nonfrivolously allege that the agency violated section 1065.
¶14 The appellant argues that the administrative judge improperly cited
O’Donnell because that case pertains to gross mismanagement and not to a
substantial and specific danger to public health or safety. Id. at 16-17. The
appellant also argues that the legislative history of the WPEA criticized a case
upon which O’Donnell relies, White v. Department of the Air Force, 391 F.3d
1377, 1382 (Fed. Cir. 2004). PFR File, Tab 1 at 16 (citing S. Rep. No. 112-155,
at 10 n.37 (2012)). In Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 9
(2015), however, the Board clarified the issues raised in the legislative history
and concluded that “if an employee has a reasonable belief that the disclosed
information evidences the kinds of misconduct listed in section 2302(b)(8), rather
than a policy disagreement, [the disclosure] is protected.” Here, the appellant has
failed to nonfrivolously allege that his own belief that canceling the SABRS3
program posed a substantial and specific danger to public health or safety was a
reasonable one.
10
¶15 In the proceeding below, the appellant also asserted that the agency
retaliated against him for refusing to obey an order that would require him to
violate the NDAA. IAF, Tab 1 at 4, Tab 5 at 9; see 5 U.S.C. § 2302(b)(9)(D) (an
agency cannot “take or fail to take, or threaten to take or fail to take, any
personnel action against any employee or applicant for employment . . . for
refusing to obey an order that would require the individual to violate a law ”).
The administrative judge found that this claim failed because the appellant did
not produce any evidence of such retaliation. ID at 5. On review, the appellant
asserts that the initial decision is erroneous in this respect and cites comments
that the Director made regarding the decision to cancel or continue the SABRS3
program. PFR File, Tab 1 at 27-28. These comments, however, do not suggest
any retaliatory motive. The appellant has not substantiated his allegation that the
agency retaliated against him for his opposing the discontinuation of the SABRS3
program.
¶16 The appellant additionally argues on review that the administrative judge
held him to an erroneous jurisdictional standard when he stated that
“[n]onfrivolous jurisdictional allegations supported by affidavits or other
evidence confer Board jurisdiction.” Id. at 28; ID at 4-5. The appellant asserts
that the proper and more recent standard requires only that he “plead allegations
of fact that, if proven, could show that he made a protected disclosure and that the
disclosure was a contributing factor in a personnel ac tion” and that “[a]ny doubt
or ambiguity as to whether [he] made nonfrivolous jurisdictional allegations
should be resolved in favor of finding jurisdiction.” PFR File, Tab 1 at 28. He
further asserts that the veracity of any allegations he made was imma terial at this
stage of the proceeding, and thus any submission of proof would be unnecessary.
Id. at 29. The standard to which the appellant objects, however, is not the
Board’s jurisdictional standard, but rather, the Board’s definition of a
nonfrivolous allegation, which has been codified in the Board’s regulations: “An
allegation generally will be considered nonfrivolous when, under oath or penalty
11
of perjury, an individual makes an allegation that: (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). The administrative judge did not err.
¶17 Finally, the appellant asserts that he has new and material evidence, namely
information he received in 2013 from a colleague who overheard the Director
telling the Deputy Director that he intended “to find ways not to fund
[SABRS3].” PFR File, Tab 1 at 29-31. When he filed his OSC complaint, he
asserts, he did not include this information because the colleague told him at that
time that she could not remember certain details about the conversation she was
recounting. Id. at 30. She later remembered those details and notified the
appellant. Id. The appellant argues that the information was thus unavailable to
him when he filed his OSC complaint, and he asks the Board to consider it now.
Id. at 30-31. Even if the appellant had submitted this information to OSC for
consideration with his complaint, however, he has offered no evidence in support
of this newly raised allegation. See 5 C.F.R. § 1201.4(s). Therefore, the Board
will not consider it.
¶18 Accordingly, we affirm the initial decision as modified.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. 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 di smissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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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 U.S. 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 U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not 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 U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.