Craig Washington v. Department of the Interior ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRAIG C. WASHINGTON, DOCKET NUMBER
Appellant, DE-1221-19-0449-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: June 24, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Craig C. Washington , Albuquerque, New Mexico, pro se.
Nanette Gonzales , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
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. On petition for review, the appellant makes the following arguments: the
administrative judge relied on “hearsay” and made erroneous credibility findings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
and factual determinations; the supervisor that testified at the hearing was not
apprised of the appellant’s prior complaints regarding his purported protected
disclosure, and instead, he made his purported disclosures to his former first-line
supervisor; the agency action terminating him was unsupported; and he was
improperly classified as a probationary employee. 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 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.
As the administrative judge correctly concluded, the appellant’s reference
to “ventilation from these chemicals” in a May 3, 2019 email requesting that
maintenance personnel “repair the screens on the office windows and make sure
the windows are in working condition,” without more, is not sufficient to
establish that he had a reasonable belief that he was disclosing a violation of a
law, rule, or regulation, or a substantial and specific danger to public health and
safety, and so the appellant did not meet his burden of proving that he made a
protected disclosure. Initial Appeal File, Tab 28, Initial Decision (ID) at 7-8; see
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014) (concluding that,
to establish IRA jurisdiction, an appellant must make a specific and detailed
allegation of wrongdoing, rather than a vague one); Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 24 (2013) (finding that the appellant’s
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disclosure of a violation of agency policy or practice, as opposed to a law, rule, or
regulation, is not protected under section 2302(b)(8); Smart v. Department of the
Army, 98 M.S.P.R. 566, ¶ 17 (stating that a revelation of a negligible, remote, or
ill-defined peril that does not involve any particular person, place, or thing is not
a protected disclosure of a substantial and specific danger to public health or
safety), aff’d, 157 F. App’x 260 (Fed. Cir. 2005); cf. Wojcicki v. Department of
the Air Force, 72 M.S.P.R. 628, 634 (1996) (concluding that an appellant’s report
that employees were coughing up blood as a result of improper sandblasting
procedures was a disclosure of a substantial and specific danger).
Regarding the appellant’s challenge to the administrative judge’s factual
findings and credibility determinations, we see no reason to disturb those findings
on review. Petition for Review File, Tab 1 at 2-3. The administrative judge
based her decision to credit the Construction Supervisor’s account of events over
the appellant’s on her demeanor-based credibility determination of each witness’s
testimony. ID at 4, 7-8 (citing Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987)). The appellant’s arguments on review are not sufficient to
disturb the administrative judge’s finding. See Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing); Faucher v. Department of the Air Force,
96 M.S.P.R. 203, ¶ 8 (2004) (stating that “sufficiently sound” reasons for
overturning an administrative judge’s demeanor-based credibility determinations
include circumstances when the administrative judge’s findings are incomplete,
inconsistent with the weight of evidence, and do not reflect the record as a
whole); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility).
4
Regarding the appellant’s challenge to the merits of the agency’s
termination determination and his status as a probationer, the Board does not have
jurisdiction to consider such claims in the context of an IRA appeal. See Geyer v.
Department of Justice, 70 M.S.P.R. 682, 687 (1996) (stating that the Board lacks
the authority in an IRA appeal to adjudicate the merits of an underlying personnel
action and is limited to adjudicating the whistleblower allegations),
aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). 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).
NOTICE OF APPEAL RIGHTS 2
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 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.
2
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.
5
(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.
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
6
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
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:
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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. 3 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
3
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.
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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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.