Bradley Ellerman v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRADLEY THOMAS ELLERMAN, DOCKET NUMBER
Appellant, CH-1221-18-0364-W-1
v.
DEPARTMENT OF THE ARMY, DATE: December 29, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley Thomas Ellerman , Mauston, Wisconsin, pro se.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
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 in the following
circumstances: 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 the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We MODIFY the initial decision to
expressly consider whether the appellant made a nonfrivolous allegation of a
protected disclosure of a violation of 5 C.F.R. § 330.1300 or 5 C.F.R.
§ 731.103(d)(1). Except as so modified to supplement the administrative judge’s
analysis, we AFFIRM the initial decision.
To establish jurisdiction over a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before the Office of
Special Counsel (OSC) and make nonfrivolous allegations of the following:
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016);
5 C.F.R. § 1201.57(a)(1), (b), (c)(1). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). An
allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that is more than conclusory,
plausible on its face, and material to the legal issues in the appeal. Id. As the
U.S. Court of Appeals for the Federal Circuit in Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020) determined:
“[T]he question of whether the appellant has non-frivolously alleged protected
3
disclosures [or activities] that contributed to a personnel action must be
determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Pro forma
allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S Postal
Service, 123 M.S.P.R. 466, ¶ 6 (2016), aff’d, 679 F. App’x 1006 (Fed. Cir. 2017),
overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13,
¶ 20 n. 11.
On petition for review, the appellant argues, among other things, that he
established jurisdiction because he nonfrivolously alleged that the agency
retaliated against him for his alleged protected disclosures questioning the
agency’s selection procedures for promotional opportunities and disagreeing with
certain office practices “regarding misuse of background information and
improper procedures for withdrawing job offers from applicants for employment.”
Petition for Review (PFR) File, Tab 1 at 5. As relevant to this IRA appeal, the
term “disclosure” means “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” one of the
categories of wrongdoing described in 5 U.S.C. § 2302(b)(8), i.e., “(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 and safety.” See 5 U.S.C. § 2302(a)(2)(D). The test to determine
whether an employee had a reasonable belief in his disclosures is an objective
one: whether a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee could reasonably conclude
that the actions evidenced any violation of any law, rule, or regulation, or one of
the other types of wrongdoing set forth in 5 U.S.C. § 2302(a)(2), (b)(8). See
Salerno, 123 M.S.P.R. 230, ¶ 6.
4
We agree with the administrative judge’s conclusion that the appellant has
failed to make a nonfrivolous allegation that he made such a protected disclosure.
Initial Appeal File (IAF), Tab 6, Initial Decision (ID) at 6. As part of his
analysis, the administrative judge generally considered whether the appellant had
nonfrivolously alleged that he made a protected disclosure of a violation of
5 C.F.R. part 731. ID at 6-8. We hereby supplement the initial decision to
consider specifically whether the appellant nonfrivolously alleged that he made a
protected disclosure of a violation of 5 C.F.R. § 330.1300 and 5 C.F.R.
§ 731.103(d)(1). These regulations pertain to when, during the hiring process
(unless an exception is granted by the Office of Personnel Management), agencies
can inquire about applicants’ background information of the sort asked on the
Optional Form 306 (OF-306), “Declaration for Federal Employment,” to
determine their suitability for Federal employment. 81 Fed. Reg. 86555, 86555
(Dec. 1, 2016). The record contains only a few assertions that could potentially
implicate these regulations. 2 PFR File, Tab 1 at 5; IAF, Tab 1 at 17-21. For the
following reasons, we find that the appellant has failed to make an assertion that,
if proven, could establish that he made any disclosures that he could have
reasonably believed evidenced a violation of these regulations.
The appellant is a Human Resources Specialist with the agency. IAF,
Tab 1 at 1, 6, 16. His OSC complaint contains the most expansive description in
the record of his reprisal claim. In his OSC complaint, he asserted in general
terms that in June 2017, prior to the alleged personnel actions at issue in this
appeal, he had “begun [to] question” the agency’s screening process, was
involved in “[m]any discussions,” and had sent “communications” to supervisors
2
The appellant’s failure to identify these particular regulations is not in and of itself
dispositive of the jurisdictional issue. See Langer v. Department of the Treasury,
265 F.3d 1259, 1266 (Fed. Cir. 2001) (holding that a disclosure may be considered
protected, even in the absence of identification of a specific statute or regulation, “when
the employee’s statements and the circumstances surrounding the making of those
statements clearly implicate an identifiable violation of law, rule, or regulation”);
accord Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 19 (2013).
5
“regarding correcting of the background disclosure process.” Id. at 17-20. He
did not specify what statements he made or what information he provided as a
part of these discussions and communications. He did not claim to have
expressed a belief, even in general terms, of a violation of any law, rule, or
regulation. He claimed that, at the time he filed his OSC complaint in September
2017, he was being informed that agency officials were “still” reviewing the
process and seeking guidance from “CHRA,” which we presume to mean the
Civilian Human Resources Agency. Id. at 14, 19. He further stated his belief
that, at the time of his OSC complaint, other staffing specialists were “still
sending” OF-306 information to hiring managers, “allowing them to change their
selection decision, thus bypassing the suitability process.” Id. at 19; accord id.
at 18 (briefly describing the agency’s “[c]urrent process” in similar terms). 3
Based on his brief statements in the record, we deduce that he was
“question[ing]” and “discuss[ing]” the stage in the selection process at which
selecting officials were being provided with information of the type contained on
the OF-306, during a time at which the agency was reviewing its processes. Id.
at 17-21. At most, he has broadly asserted that he expressed his personal opinion
that the agency should “correct[]” its process. Id. at 20. He has not asserted,
however, what facts or circumstances known to, or readily ascertainable by, him
could have led him to reasonably believe that any violation of any law, rule, or
regulation had occurred or would occur, or that he expressed such a belief or
communicated such facts to anyone. 4 Based on his limited presentation, we find
3
He has never alleged that the agency retaliated against him for his OSC complaint
itself or for disclosing any information to OSC.
4
In an IRA appeal, an appellant is not required to allege or prove that the disclosed
wrongdoing actually occurred; rather, the issue is his reasonable belief based on the
known and readily ascertainable facts. See, e.g., Mithen v. Department of Veterans
Affairs, 122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). As to
whether the appellant could have reasonably believed that he was revealing any
violation of any law, rule, or regulation, we observe that 5 C.F.R. § 330.1300 and
5 C.F.R. § 731.103(d)(1) do not contain an absolute bar to an agency’s inquiry into
criminal or credit background information, but rather, these regulations set forth a
6
that he has not made a nonfrivolous allegation that he made a disclosure that he
reasonably believed evidenced any violation of any law, rule, or regulation
(including 5 C.F.R. § 330.1300 or § 731.103(d)(1)), or one of the other types of
wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 2302(a)(2)(D);
Salerno, 123 M.S.P.R. 230, ¶ 7 (finding that the appellant’s purported disclosure
of a disregard for compliance issues was not sufficiently specific to constitute a
nonfrivolous allegation of a protected disclosure); Tuten v. Department of Justice,
104 M.S.P.R. 271, ¶¶ 9-11 (2006) (holding that the appellant’s conclusory
allegations that the agency falsified medical records and illegally transferred sick
inmates to pass program review were insufficiently specific to constitute a
nonfrivolous allegation of a protected disclosure), aff’d, 2007 WL 2914787 (Fed.
Cir. 2007); Sobczak v. Environmental Protection Agency, 64 M.S.P.R. 118, 122
(1994) (concluding that the appellant’s allegations that a consulting firm “might
be involved in illegal business practices . . . mishandling their contracts with the
[Environmental Protection Agency] or getting preferential treatment in obtaining
government benefits” were based on unsupported speculation and thus he failed to
prove that he had a reasonable belief that he was disclosing evidence of illegal
practices); see also Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036
(Fed. Cir. 1993) (“The law . . . is well settled that the mere recitation of a basis
for jurisdiction by a party is not sufficient. Rather, substantive details
establishing jurisdiction must be alleged in the complaint.”).
The appellant did not respond to the administrative judge’s jurisdictional
order, and thus he missed an opportunity to further explain his allegations. IAF,
Tab 3. On petition for review, he claims not to have understood that he needed to
general rule concerning the timing of such inquiries and further expressly provide for
exceptions to that general rule. Thus, the circumstances of the handling of this
information must be taken into consideration before a reasonable conclusion could be
drawn as to whether these regulations have been violated. To the extent it can be
inferred from the appellant’s allegations that his alleged protected disclosures are based
on his knowledge that agency personnel were sending such background information to
hiring managers, such knowledge alone could not support a reasonable belief that a
violation of these regulations had occurred.
7
respond to that order. PFR File, Tab 1 at 5. We find this claim unavailing
because the appellant was a registered e-filer with a duty to monitor case activity
to ensure receipt of all case-related documents, IAF, Tab 1 at 2; see 5 C.F.R.
§ 1201.14(j)(3), and the administrative judge’s jurisdictional order clearly
explained that he must respond with evidence and argument on the issues
described in that order, IAF, Tab 3 at 7-8. In any event, his petition for review
does not provide any material new detail. PFR File, Tab 1 at 5. 5 In relevant part,
he merely states that he was retaliated against “after [his] questioning of selection
procedures for promotional opportunities, and after disagreement with our offices
[sic] practices regarding misuse of background information and improper
procedures for withdrawing job offers from applicants for employment.” Id.Even assuming that he questioned procedures and disagreed with office practices
as he asserts, he has failed to allege facts that, if proven, could support a
conclusion that he made a disclosure that he reasonably could have believed
evidenced any violation of any law, rule, or regulation, or one of the other types
of wrongdoing described in 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 2302(a)(2)(D);
Tuten v. Merit Systems Protection Board, 2007 WL 2914787, at *2 (Fed. Cir.
Oct. 5, 2007) (affirming the Board’s dismissal of an IRA appeal for lack of
jurisdiction when the appellant had “provided nothing more than bare assertions
of wrongdoing by the agency, even after being given an opportunity to provide
more detail”) (citing Ellison, 7 F.3d at 1036); 6 Salerno, 123 M.S.P.R. 230, ¶ 7;
Tuten, 104 M.S.P.R. 271, ¶¶ 9-11; Sobczak, 64 M.S.P.R. at 122. 7
5
The documents attached to his petition for review are identical to the documents
attached to his initial appeal. PFR File, Tab 1 at 7-24; IAF, Tab 1 at 6-23.
6
The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit when, as in this instance, it finds the analysis persuasive. E.g., Graves
v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 10 n.1 (2016).
7
His brief assertions on review show no error in the administrative judge’s finding that
he failed to make a nonfrivolous allegation establishing jurisdiction on the theory that
the agency at least “perceived” him to be a whistleblower. ID at 6; see Rumsey v.
Department of Justice, 120 M.S.P.R. 259, ¶¶ 7-8 (2013) (explaining that one issue in a
“perceived as” whistleblower reprisal case is whether the relevant agency officials
8
The appellant also claims that the agency subjected him to retaliation for
filing an EEO complaint. PFR File, Tab 1 at 5. However, retaliation for filing an
EEO complaint is a matter relating solely to discrimination and is not protected
by 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D); thus, this claim is not a
basis for finding jurisdiction in this IRA appeal. See Edwards v. Department of
Labor, 2022 MSPB 9, ¶¶ 10, 21-23 25, aff’d, No. 2022-1967, 2023 WL 4398002(Fed. Cir. July 7, 2023). The appellant’s OSC complaint contains an assertion
that the agency also retaliated against him for requesting a reasonable
accommodation of his disabilities. IAF, Tab 1 at 17. This claim is not a source
of IRA jurisdiction because such a request for accommodation is not the “exercise
of any appeal, complaint, or grievance right,” and it does not concern “remedying
a violation of [5 U.S.C. § 2302(b)(8)].” See 5 U.S.C. § 2302(b)(9)(A)(i); Graves
v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 18 (2016) (finding that
the appellant had not exercised any appeal, complaint, or grievance right as
described in section 2302(b)(9) when the appellant’s actions did not constitute an
initial step toward taking legal action against an employer for a perceived
violation of employment rights).
Accordingly, the Board lacks jurisdiction over this appeal. 8
NOTICE OF APPEAL RIGHTS 9
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
believed that the appellant had made disclosures of the type described in 5 U.S.C.
§ 2302(a)(2), (b)(8)).
8
The appellant’s arguments on review about the merits of his 3-day suspension are
immaterial to the dispositive jurisdictional issues. PFR File, Tab 1 at 5.
9
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.
9
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 applicable 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).
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 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, 10, and 11.
10
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
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
11
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 file
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
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. 10 The court of appeals must receive your petition for
10
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
12
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 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, 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.
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.
13
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.