Michael Stevens v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL G. STEVENS, DOCKET NUMBER
Appellant, AT-1221-14-0743-W-2
v.
DEPARTMENT OF THE AIR FORCE, DATE: July 26, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael G. Stevens, Daphne, Alabama, pro se.
Filomena Gehart and William V. Cochrane, Jr., Eglin Air Force Base,
Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of 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 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. 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 to
address the appellant’s allegations of whistleblower reprisal under 5 U.S.C.
§ 2302(b)(9), we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant filed an IRA appeal alleging that in reprisal for 31 alleged
protected disclosures that he made between March 2005 and June 6, 2012, and
more recently between July 10, 2012, and May 31, 2013, he was subjected to
13 personnel actions, which occurred between May 13, 2013, and May 13, 2014.
Stevens v. Department of the Air Force, MSPB Docket No. AT-1221-14-0743-
W‑1, Initial Appeal File (IAF), Tab 1. 2 He did not request a hearing. Id. at 11.
The administrative judge found that the appellant had raised nonfrivolous
allegations of Board jurisdiction and issued a detailed jurisdictional order
identifying the specific disclosures and personnel actions over which the
appellant had established Board jurisdiction. IAF, Tab 26.
¶3 After affording the parties an opportunity to file close-of-record
submissions, the administrative judge issued an initial decision, denying the
2
The appellant’s initial appeal was dismissed without prejudice on September 1, 2016,
and automatically refiled 30 days later. IAF, Tab 34.
3
appellant’s request for corrective action. Stevens v. Department of the Air Force,
MSPB Docket No. AT-1221-14-0743-W-2, Tab 6, Initial Decision (ID). The
administrative judge found that the appellant proved by preponderant evidence
that he made a protected disclosure in March 2005, when he reported a Federal
Travel Regulations violation comprising the denial of his travel request for a
3-day temporary duty assignment in Maitland, Florida. ID at 7 -8. However, the
administrative judge found that the appellant failed to prove that this protected
disclosure in 2005 was a contributing factor in the agency’s personnel actions, the
earliest of which occurred 8 years later. ID at 8. The administrative judge also
found that the agency had strong evidence in support of its personnel actions,
which stemmed from a Headquarters Command notification that funding for the
appellant’s position and many others would be eliminated. Id.¶4 The administrative judge further found that the appellant failed to prove by
preponderant evidence that his remaining protected disclosures were protected.
The administrative judge found that the appellant’s alleged disclosures 6, 9-10,
12, and 19-20 concerned complaints to various individuals about his reassignment
from a GS-12 Physical Scientist (Environmental) position to a GS-11
Environmental Engineer position in the Compliance section, as part of a
reorganization following the headquarters notification that funding for the
appellant’s position and many others would be eliminated. ID at 5, 9. The
administrative judge found that the appellant failed to prove that these alleged
disclosures amounted to a disclosure of one of the categories of wrongdoing set
forth in 5 U.S.C. § 2302(b)(8) because they merely amounted to questions and
concerns regarding the agency’s decision to reassign him and/or disagreement
over the agency’s decision to abolish his position. ID at 9-12.
¶5 The administrative judge found that the appellant’s alleged disclosures
13-16, 21, 24-25, and 27 involved his stated concerns regarding an Environmental
Restoration Program (ERP) manager’s potential conflict of interest in that he
believed that the ERP Manager was requesting that certain contractors perform
4
work outside of their scope and, as a result, the ERP Manager might treat them
more favorably when awarding a contract in the future if she subsequently served
on the Performance Base Contract Board (PCB). ID at 5, 12‑13. The
administrative judge found that such disclosures were not protected because a
reasonable person would not have believed that they amounted to a disclosure of
any of the categories of wrongdoing under section 2302(b)(8) to the extent the
disclosures were speculative in nature, presupposed that the ERP Manager would
serve on the PCB and the subject contractor would bid on a contract, and,
ultimately, disclosed a conflict of interest that might never materialize. ID
at 12-14.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On petition for review, the appellant largely reiterates his alleged
disclosures without explaining how they amount to a disclosure of any of the
categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8). PFR File, Tab 1
at 7-19. He does not identify any error in the administrative judge’s finding that
his disclosures about his reassignment (disclosures 6, 9-10, 12, and 19-20) were
not protected because they amounted to mere disagreement with the agency’s
decision to abolish his position 3 or that his disclosures concerning the ERP
3
The appellant’s alleged disclosures 6, 9, and 10 involved disclosures made in the
context of a grievance. IAF, Tab 26 at 6-7. The Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112-199, 126 stat. 1465, extended the Board’s
jurisdiction over IRA appeals to claims of reprisal for engaging in protected activity by
filing a complaint or grievance seeking to remedy whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8). 5 U.S.C. §§ 1221(a), 2302(b)(9)(A)(i); Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). Here, however, the appellant has not proven, or
even argued, that his grievances involved remedying a violation of 5 U.S.C.
§ 2302(b)(8). Thus, the administrative judge properly analyzed whether these alleged
disclosures amounted to protected disclosures under 5 U.S.C. § 2302(b)(8).
5
Manager’s alleged potential conflict of interest (disclosures 13‑16, 21, 24‑25,
and 27) were not protected because they were too speculative. Nor does he
challenge the administrative judge’s finding that he failed to prove that his 2005
disclosure regarding travel reimbursement was a contributing factor in any of the
agency’s personnel actions. Id. at 3. To the extent the appellant has not
identified any specific error in the administrative judge’s analysis, the Board will
not embark upon a complete review of the record. See Baney v. Department of
Justice, 109 M.S.P.R. 242, ¶ 7 (2008); Tines v. Department of the Air Force,
56 M.S.P.R. 90, 92 (1992).
¶8 On review, the appellant argues that the administrative judge erred
generally in finding that his disclosures were not protected because he previously
found that they were protected in a July 26, 2016 jurisdictional order. PFR File,
Tab 1 at 4-6. He also argues that the agency and/or the administrative judge
failed to show that his disclosures were not protected and/or were not a
contributing factor in the agency’s personnel actions. Id. at 4, 6. Such arguments
misconstrue the relevant burdens of proof in an IRA appeal. In his jurisdictional
order, the administrative judge did not find that the appellant proved the merits of
his appeal. Rather, he found that the appellant raised nonfrivolous allegations
that he made a protected disclosure that was a contributing factor in the agency’s
decision to take a personnel action, and thus established Board jurisdiction,
entitling him to a hearing, if requested. IAF, Tab 26. Because the appellant did
not request a hearing, the administrative judge properly issued a close -of-record
order, notifying the appellant of his ultimate burden of proving the merits of his
appeal by establishing those same elements by preponderant evidence. 4 IAF,
Tab 26 at 20; see 5 C.F.R. § 1201.57(c)(4). The appellant’s argument that the
agency and/or the administrative judge failed to show that his disclosures were
4
The administrative judge also had previously notified the appellant regarding these
burdens. IAF, Tab 2.
6
not protected is similarly unavailing because it is the appellant’s burden to prove
that he made a protected disclosure that was a contributing factor in a personnel
action. See 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security,
122 M.S.P.R. 335, ¶ 7 (2015).
¶9 On review, the appellant also contends that the administrative judge erred in
using improper terminology when he referred to the appellant’s disclosures as
relating to his reassignment instead of a downgrade or change to low er grade.
PFR File, Tab 1 at 4. However, any such error does not provide a basis for
reversal to the extent the appellant has not explained how this error was
prejudicial and the record reflects that, although the administrative judge referred
to it as a reassignment, he acknowledged that the reassignment was from a GS -12
Physical Scientist position (Environmental) to a GS-11 Environmental Engineer
position. ID at 5, 9; see Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversing an initial decision).
¶10 Regarding the appellant’s alleged protected disclosures concerning the ERP
Manager’s alleged conflict of interest (disclosures 13-16, 21, 24-25, and 27), the
appellant asserts that the administrative judge discussed, but did not identify,
disclosures 21, 25, and 27 by number, and failed to discuss certain other alleged
disclosures. PFR File, Tab 1 at 5. In particular, he contends that the
administrative judge did not identify disclosure 13, but acknowledges that the
administrative judge quoted a portion of this email disclosure in the initial
decision. Id. Regarding disclosure 14, the appellant asserts that the
administrative judge did not identify this disclosure and incorrectly described the
contents of his supervisor’s email response to this alleged disclo sure. Id.However, we have reviewed this disclosure and find that it disclosed the same
essential facts as disclosure 13, which the administrative judge quoted, and the
administrative judge properly characterized the appellant’s supervisor’s reply. ID
at 13, IAF, Tab 14 at 39-40, 43-44. The appellant also contends that the
7
administrative judge did not identify or discuss disclosure 24. PFR File, Tab 1
at 5. However, this disclosure amounts to a forwarded email of the appellant’s
disclosure 21, which the administrative judge referenced. ID at 13 n.6; IAF,
Tab 13 at 42, Tab 26 at 11. In any event, because the appellant’s disclosures
concerning the ERP Manager’s alleged conflict of interest all disclosed the same
essential facts, any failure on the administrative judge’s part to specifically
discuss the details of each disclosure does not provide a basis for reversal because
the analysis in the initial decision also would apply to each of these alleged
disclosures.
¶11 The appellant’s alleged disclosure 16 was made to the Department of
Defense Inspector General (IG). Although the administrative judge analyzed this
disclosure under 5 U.S.C. § 2302(b)(8), he did not analyze whether it amounted to
protected activity under section 2302(b)(9)(C), which includes disclosing
information to an agency’s IG. 5 Therefore, we modify the initial decision to
address this issue. Under the broadly worded provision of 5 U.S.C.
§ 2302(b)(9)(C), disclosing information to an agency’s IG is protected regardless
of content, as long as the disclosure is made “in accordance with applicable
provisions of law.” Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8.
Thus, we find that the appellant proved by preponderant evidence that he engaged
in protected activity when he disclosed information on January 10, 2013, to the
agency’s IG office by filing a hotline complaint concerning the ERP Manager’s
alleged conflict of interest. IAF, Tab 14 at 52-56.
5
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code. In particular, it amended 5 U.S.C. § 2302(b)(9)(C) to include
disclosing information to the Inspector General “or any other component responsible for
internal investigation or review.” 131 Stat. 1283, 1616. However, the result here
would be the same under both pre- and post-NDAA law because the appellant disclosed
information to the agency’s IG.
8
¶12 However, we find that the appellant failed to prove by preponderant
evidence that his disclosing information to the IG was a contributing factor in any
of the six agency personnel actions at issue in this appeal. 6 The appellant has not
offered any evidence establishing that the relevant deciding officials were aware
that he filed an IG complaint. Rather, he asserts on review that the IG’s email
response to him, which indicated that the IG had referred his concerns to the
appropriate authorities within the Department of Defense for information and any
action they deemed appropriate, IAF, Tab 14 at 57, “most likely raised a few
feathers” with management, PFR File, Tab 1 at 15. Such a bare statement fails to
prove that the appellant’s supervisor or human resources specialist or any other
individual involved in the personnel actions was aware of his IG complaint. See
Jones v. Department of the Treasury, 99 M.S.P.R. 479, ¶ 8 (2005) (finding that an
appellant’s insinuation and unsubstantiated speculation that an individual knew of
his prior whistleblowing activity did not amount to a nonfrivolous allegation of
contributing factor). Additionally, although the record below reflects that the
appellant informed the legal office and Captain A.N. that he had contacted the IG
and sent them a copy of his IG complaint, such individuals do not appear to have
been involved in making the decision to take the relevant personnel actions. 7
6
In the jurisdictional order, the administrative judge found that the appellant
established Board jurisdiction over the following personnel actions: (1) on June 4,
2013, his supervisor informed him that he would no longer be the designated point of
contact for a contractor and took away other duties; (2) on June 12, 2013, the
appellant’s supervisor detailed him to perform GS-11 Compliance duties; (3) in
June/August 2013, the appellant’s supervisor denied his request for an alternative work
schedule; (4) on November 26, 2013, the appellant’s detail to GS -11 duties was
extended to a date not to exceed February 2, 2014; (5) on February 2, 2014, the
appellant’s GS-11 detail ended and he was returned to his former GS-12 position,
however, between February 2 and May 6, 2014, his actual duties remained those of a
GS-11 Environmental Engineer; and (6) on or about April 10, 2014, a human resources
employee informed the appellant that his former position had been abolished; IAF,
Tab 26 at 14-17.
7
We are unable to discern from the appellant’s lengthy submissions below any specific
argument concerning whether the officials involved in taking the relevant personnel
actions were aware of his IG complaint. However, the appellant bears the burden of
9
IAF, Tab 12 at 16, Tab 13 at 54-56. Thus, the appellant has not established
contributing factor via the knowledge/timing test. See 5 U.S.C. § 1221(e)(1)
(explaining that an employee may demonstrate contributing factor through
circumstantial evidence that the official taking the personnel action knew of the
protected activity and the personnel action occurred within a period of time such
that a reasonable person could conclude that the protected activity was a
contributing factor in the personnel action).
¶13 Further, the appellant has not proven contributing factor considering the
strength of the agency’s evidence and the lack of motivation on the part of the
individuals who took the personnel actions. Rumsey v. Department of Justice,
120 M.S.P.R. 259, ¶ 26 (2013) (stating that if an appellant fails to satisfy the
knowledge/timing test, the Board must consider other evidence, suc h as that
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding official, and whether those individuals had a desire or
motive to retaliate against the appellant). The appellant’s IG complaint
concerned an alleged conflict of interest on an ERP manager’s part and was not
directed at his supervisor or the human resources specialist who took the relevant
personnel actions. Thus, we are unable to discern a motive to retaliate on the part
of the relevant officials. Further, as the administrative judge found, the agency
had strong evidence in support of its actions, which stemmed from a
headquarters-directed reorganization in which the appellant’s position was
abolished. Accordingly, we modify the initial decision to find that the appellant
has not proven by preponderant evidence that his protected activity in disclosing
proving contributing factor, 5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1201.57(c)(4), and it is
not the Board’s obligation to pore through the record to construe and make sense of
allegations set forth at various parts of a voluminous case file, see Keefer v. Department
of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002).
10
information to the IG was a contributing factor in any of the agency’ s personnel
actions.
NOTICE OF APPEAL RIGHTS 8
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicab le to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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 particu lar
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, 10, and 11.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court‑appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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 pa rticular
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, 10, and 11.
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
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.