Maxim Kidalov v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAXIM V. KIDALOV, DOCKET NUMBER
Appellant, SF-1221-16-0530-W-1
v.
DEPARTMENT OF THE NAVY, DATE: February 13, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Maxim V. Kidalov , Monterey, California, pro se.
Michelle J. Hirth , Monterey, California, 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
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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as MODIFIED to
supplement the administrative judge’s analysis of the contributing factor criterion
for one protected activity, we AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The following facts, as further detailed in the initial decision, appear to be
undisputed. In February 2009, the agency appointed the appellant to a
tenure-track Assistant Professor position specializing in contract law at the Naval
Postgraduate School (NPS), Graduate School of Business and Public Policy
(GSBPP). Kidalov v. Department of the Navy, MSPB Docket No. SF-1221-16-
0530-W-1, Initial Appeal File (IAF), Tab 76, Initial Decision (ID) at 2. The
position generally required that he do three things: teach, engage in significant
research and writing, and engage in service to the school and agency community.
Id. In this time-limited position, the appellant was not guaranteed promotion and
tenure, but he was expected to work toward and eventually apply for promotion
and tenure. 2 ID at 2-3.
2
For an Assistant Professor such as the appellant, promotion and tenure go
hand-in-hand; promotion may not be granted unless tenure is granted. See Kidalov v.
Department of the Navy, MSPB Docket No. SF-1221-16-0530-S-1, Stay Appeal File
(SAF), Tab 11 at 414. Therefore, to the extent that we discuss the appellant’s tenure,
our findings apply equally to his nonpromotion.
3
After a tenure-track employee such as the appellant applies for tenure at the
GSBPP, there are a number of steps to determine whether tenure will be granted.
Generally speaking, the appellant’s qualifications are sequentially considered by
(1) a School Evaluation Committee (SEC), (2) a Faculty Promotion Council
specific to the GSBPP (GSBPP FPC), (3) the Dean of the GSBPP, (4) a Faculty
Promotion Council for the broader school (NPS FPC), (5) a Dean’s Advisory
Council (DAC), (6) the NPS Provost, and (7) the NPS President. ID at 3-4.
While each of the others evaluate a candidate’s qualifications and make
recommendations, the decision to award or deny tenure ultimately lies with the
NPS President. ID at 4.
The appellant became eligible for, and began participating in, the tenure
application process in 2014. After gathering relevant information from the
appellant, agency officials, and reviewers from outside the agency, the SEC
“unanimously recommend[ed] with reservation” that he be granted tenure. ID
at 5; IAF, Tab 13 at 83-86. The GSBPP FPC conducted an initial straw vote of 4
in favor, 8 neutral, and 9 opposed but held a final vote after further consideration
with 13 in favor and 5 opposed. ID at 5-6; IAF, Tab 13 at 87-89. The Dean of
the GSBPP recommended tenure. ID at 6; IAF, Tab 13 at 87-89. The NPS FPC
expressed several reservations about the appellant’s candidacy but ultimately
voted 11 in favor and 2 opposed. ID at 6; IAF, Tab 20 at 79-83. The DAC voted
1 in favor and 3 opposed. ID at 6; IAF, Tab 20 at 83. Finally, the NPS Provost
recommended that the appellant not be granted tenure, and the NPS President
adopted that recommendation. ID at 6-7; IAF, Tab 20 at 88-89. Following that
March 2015 decision, the agency granted the appellant a term appointment to
wrap up his work, as is customary for individuals denied tenure. ID at 4, 7.
Over the following months, the appellant challenged the agency’s decision
to deny him tenure in a number of forums. ID at 7. As a result of an internal
challenge, the NPS President concluded that the GSBPP FPC made a procedural
error by failing to include reasons for the votes opposed to the appellant’s tenure.
4
ID at 8; IAF, Tab 13 at 108-13. Therefore, he instructed the necessary parties to
reconsider the appellant’s application. The NPS President subsequently informed
the appellant that, following re-review of his candidacy, the agency would not
award him promotion and tenure. ID at 10; IAF, Tab 13 at 114.
The appellant also filed a complaint with the Office of Special Counsel
(OSC), in which he alleged retaliation for protected disclosures and activities. ID
at 7; IAF, Tab 10 at 13-262. In March 2016, OSC closed the complaint and this
IRA appeal followed. 3 ID at 7-8; IAF, Tab 1 at 10. After developing the record
and holding a 4-day hearing, the administrative judge issued an initial decision
that denied the appellant’s request for corrective action. ID at 1.
The administrative judge considered the appellant’s 12 alleged disclosures
and activities. ID at 28-57. She found that he met his burden of proving that
Activities 1, 4, 5, 7, and a portion of 11 were protected. Id. Of those, she
determined that the appellant met his burden of proving that Activities 5, 7, and a
portion of 11 were a contributing factor in the personnel action at issue—the
agency’s decision to deny him promotion and tenure. ID at 58-66.
Although the administrative judge found that the appellant presented a
prima facie case of whistleblower retaliation, she also determined that the agency
met its burden of proving that it would have taken the same action in the absence
of the appellant’s protected disclosures and activities. ID at 66-112. The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 5.
The agency has filed a response and the appellant has replied. PFR File,
Tabs 9-10. 4
3
The appellant separately filed a request to stay his appointment’s expiration. SAF,
Tab 1; see 5 C.F.R. § 1209.8. The administrative judge denied the stay request. SAF,
Tabs 9, 12. The appellant does not appear to challenge that stay decision on review.
See McCarthy v. International Boundary and Water Commission, 116 M.S.P.R. 594,
¶ 14 (2011) (explaining the process for challenging a stay decision), aff’d, 497 F. App’x
4 (Fed. Cir. 2012).
4
The appellant also submitted a motion for leave to file a supplemental brief regarding
statutory changes and new precedent issued while he was awaiting a Board decision in
this appeal. PFR File, Tab 13 (referencing, e.g., Hessami v. Merit Systems Protection
5
ANALYSIS
Once jurisdiction is established in an IRA appeal such as this, an appellant
may be entitled to corrective action if he shows by preponderant evidence that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the protected
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 5 U.S.C.
Board, 979 F.3d 1362 (Fed. Cir. 2020)). The agency has opposed the motion. PFR
File, Tab 19. We find that these matters do not warrant further argument or a different
result. Among other things, the appellant is attempting to present a new constitutional
argument as it relates to the appointment of the administrative judge that presided over
his appeal. PFR File, Tab 13 at 5-7 (referencing Lucia v. Securities and Exchange
Commission, 138 S. Ct. 2044 (2018) (holding that the Securities and Exchange
Commission’s appointment of Administrative Law Judges by staff members, rather than
the Commission itself, violated the Appointments Clause); Helman v. Department of
Veterans Affairs, 856 F.3d 920, 926-29 (Fed. Cir. 2017) (finding that a provision
concerning the finality of an administrative judge’s decision in an action taken under
38 U.S.C. § 713 violated the Appointments Clause and indicating that additional
arguments about the separation of powers were moot)). We will not accept further
argument about his Appointments Clause claim, in particular, because it is belated. See
McClenning v. Department of the Army, 2022 MSPB 3, ¶ 25 (declining to consider a
new Appointments Clause claim that was raised for the first time on review). The
appellant did not raise his constitutional arguments below, in his petition for review, or
in the immediate aftermath of the case precedent he relies upon, throughout which he
was represented by an attorney. Compare IAF, Tab 6 (designating an attorney in June
2016), with PFR File, Tab 11 (withdrawal of the same attorney in 2019). He instead
waited until years after to raise these new constitutional arguments for the first time.
PFR File, Tab 13 (April 2022 motion seeking permission to present new constitutional
arguments). To the extent that the appellant is attempting to present a separation of
powers claim as well, it is similarly belated. Moreover, the Board lacks the authority to
consider such a claim, which must instead be pursued through the judiciary. See Jones
Brothers, Inc. v. Secretary of Labor, 898 F.3d 669, 674 (6th Cir. 2018) (“Each of the
three branches of the [F]ederal [G]overnment . . . has an independent obligation to
interpret the Constitution[,] [b]ut only the Judiciary enjoys the power to invalidate
statutes inconsistent with the Constitution.”) (citing Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803) (“It is emphatically the province and duty of the judicial
department to say what the law is. . . . If two laws conflict with each other, the courts
must decide on the operation of each.”)).
5
The Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
No. 112-199, 126 Stat. 1465, which went into effect on December 27, 2012, expanded
the grounds on which an IRA appeal may be filed with the Board. See Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Prior to the enactment
6
§ 1221(e)(1); 5 C.F.R. § 1201.57(c)(4). However, the Board will not order
corrective action if the agency then demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of
Veterans Affairs, 121 M.S.P.R. 221, ¶ 24 (2014); see Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶¶ 12-14 (2015) (applying the burden-shifting scheme
of 5 U.S.C. § 1221(e) to a claim of reprisal for protected activity under 5 U.S.C.
§ 2302(b)(9)(B)). 6
The appellant’s credibility arguments are unavailing.
Before turning to the specific allegations at issue in this appeal, we point
out that the administrative judge made some general credibility findings. ID
at 21-26. She found that the appellant and another witness, the GSBPP Associate
Dean, lacked credibility. 7 ID at 22-26. As to the appellant, the administrative
of the WPEA, an appellant could only file an IRA appeal with the Board based on
allegations of whistleblower reprisal under section 2302(b)(8). See Wooten v.
Department of Health and Human Services, 54 M.S.P.R. 143, 146 (1992), superseded by
statute as stated in Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 5
(2014).
The Board has held that the WPEA should be applied when the appellant’s protected
activity occurred before, but the relevant personnel actions occurred after the
December 27, 2012 effective date of the WPEA because the agency knew of the parties’
rights, liabilities, and duties under the WPEA when it took, or failed to take, the
personnel actions. See Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 50-51. Here, the disclosures and activities at issue occurred between December 2010
and February 2015, IAF, Tab 71 at 5-19, and the personnel action occurred in
March 2015, when the agency denied the appellant tenure or promotion, IAF, Tab 1
at 13. Thus, the WPEA applies in this appeal.
6
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. The changes made by the NDAA do not implicate the issues in this
appeal.
7
The titles and roles of some individuals involved in this appeal changed over the
relevant time period. For example, the same individual is described in the initial
decision as the appellant’s mentor, an Associate Professor, a Professor, and the GSBPP
Associate Dean. E.g., ID at 23, 30 n.9. For the sake of clarity, we will use a single
title.
7
judge explained that he appeared excessively rehearsed. ID at 22. She also found
that he often described things with an extreme assuredness that appeared
unwarranted. ID at 24. In addition, the administrative judge found that some of
the appellant’s testimony was either internally inconsistent or inconsistent with
other evidence of record. ID at 23-25.
On review, the appellant’s petition begins with a number of challenges to
the administrative judge’s credibility findings. PFR File, Tab 5 at 4-12. 8 As
further explained below, we find these arguments unavailing.
The Board has recognized a number of factors that may be relevant in
resolving issues of credibility. Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987). Some of those factors include a witness’s character, the
contradiction of the witness’s version of events by other evidence, the inherent
improbability of the witness’s version of events, and the witness’s demeanor. Id.The Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The appellant first argues that the administrative judge erred by deeming
him not credible on any and all matters. PFR File, Tab 5 at 4. However, this
misrepresents the administrative judge’s findings. Although the administrative
judge did provide general credibility observations, she also addressed the
appellant’s credibility as it pertained to specific matters. Compare ID at 21-26,
with ID at 35-38. For example, concerning Activity 3, the appellant described an
exchange in which the GSBPP Dean asked him to advocate on behalf of the
GSBPP and the appellant declined by reciting rules of the South Carolina bar,
8
It appears that the appellant mistakenly included the same credibility arguments in two
separate sections of his petition for review, containing nearly identical language.
Compare PFR File, Tab 5 at 4-12, with id. at 19-28. Although we have considered both,
we will exclusively cite only one.
8
verbatim. ID at 35; Hearing Transcript 1 (HT1) at 100-01 (testimony of the
appellant). The administrative judge noted that the GSBPP Dean’s testimony did
not corroborate that claim, and she further found it implausible that the appellant
would recite, verbatim, the South Carolina bar rules. ID at 36; Hearing
Transcript 3 (HT3) at 730 (testimony of the GSBPP Dean). Conversely, the
administrative judge appears to have solely relied on and credited the appellant’s
testimony to find that he did engage in Activity 4. ID at 37-38; HT1 at 118-21
(testimony of the appellant).
The appellant also suggests that, while the Board generally defers to
demeanor-based credibility findings, the deference should be limited when
analyzing whether an agency has met its burden of proving by clear and
convincing evidence that it would have taken the same action in the absence of
protected disclosures or activities. PFR File, Tab 5 at 4-5 (referencing Whitmore
v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012); Mattil v. Department of
State, 118 M.S.P.R. 662, ¶ 29 n.3 (2012)). We disagree. As the Board explained
in Mattil, the U.S. Court of Appeals for the Federal Circuit’s decision in
Whitmore requires an evaluation of all the pertinent evidence in determining
whether an agency met its clear and convincing burden; exclusively relying on the
agency’s testimonial evidence in support of its position—without adequately
considering the appellant’s contrary evidence—is inadequate. Mattil,
118 M.S.P.R. 662, ¶ 29 & n.3 (citing Whitmore, 680 F.3d at 1368 (explaining that
the Board must evaluate the evidence regarding the agency’s burden “in the
aggregate,” considering both evidence that supports and detracts from a
conclusion that the agency met its burden)). Neither case, however, requires that
we afford demeanor-based credibility findings any less deference. See Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285, ¶¶ 31-33 (2013) (discussing
the requirements of Whitmore while still deferring to the administrative judge’s
demeanor-based credibility findings); Durr v. Department of Veterans Affairs,
119 M.S.P.R. 195, ¶¶ 14-15 (2013) (remanding for an administrative judge to
9
comply with the requirements of Whitmore, while recognizing that the
administrative judge may need to resolve conflicting testimony based on the
demeanor of witnesses).
The appellant next presents several arguments that suggest we should
overturn the administrative judge’s demeanor-based credibility findings. For
example, the appellant asserts that the administrative judge improperly faulted his
training as a lawyer and ability to speak at length about certain issues. 9 PFR File,
Tab 5 at 5-8. In fact, the administrative judge simply observed that the
appellant’s legal training likely contributed to his testimony, which oftentimes
appeared to be more of a rehearsed legal argument than an explanation of
observed facts. ID at 22. The appellant also argues that the administrative judge
improperly faulted his testimony for “extreme assuredness.” PFR File, Tab 5
at 8-9. However, the administrative judge thoroughly supported that
characterization with examples, ID at 24, which the appellant has not
persuasively disputed. While the appellant disagrees with them, he has not
presented sufficiently sound reasons for overturning the administrative judge’s
well-reasoned demeanor-based credibility findings.
As previously mentioned, in addition to demeanor-based credibility
findings, the administrative judge found that the appellant’s general credibility
was diminished by inconsistencies between his testimony and the remainder of
9
Within this argument, the appellant references his motion for discovery -related
sanctions. PFR File, Tab 5 at 7-8. The administrative judge denied that motion but
concluded that it would be inappropriate to consider some specific evidence because the
agency was unable to produce explanatory documents. ID at 10-21. To the extent that
the appellant’s credibility arguments could also be construed as an argument that the
administrative judge erred in denying his motion for sanctions, we have considered the
matter and find no abuse of discretion. See Defense Intelligence Agency v. Department
of Defense, 122 M.S.P.R. 444, ¶ 16 (2015) (recognizing that administrative judges have
broad discretion to regulate the proceedings before them, including the authority to rule
on discovery motions and to impose sanctions as necessary to serve the ends of justice);
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 9 (recognizing that an
administrative judge’s determination regarding sanctions will not be reversed, absent an
abuse of discretion).
10
the record. In an example, the administrative judge explained that the appellant
described a witness’s prior sworn testimony, definitively, in a way that was
inconsistent with the evidence of record. ID at 23-24; compare IAF, Tab 1
at 47-48, and Hearing Transcript 2 (HT2) at 510 (testimony of the appellant),
with IAF, Tab 40 at 197, and HT3 at 686 (testimony of the SEC Chair), 707,
709-10 (testimony of a GSBPP FPC member). Put more simply, the appellant
insisted that the GSBPP Associate Dean advocated against his tenure during the
GSBPP FPC meeting, but the evidence did not support that claim. On review, the
appellant presents a complicated argument to suggest that he merely made a
reasonable and valid deduction. PFR File, Tab 5 at 9-11. However, in doing so,
he seems to acknowledge that multiple firsthand witnesses were asked about the
matter during his Board hearing and none corroborated his claim. Id. at 10-11;
HT3 at 86 (testimony of the SEC Chair), 707, 718-19 (testimony of the GSBPP
Dean); Hearing Transcript 4 (HT4) at 873-74 (testimony of a GSBPP FPC and
DAC member). After considering the appellant’s arguments, we are not
persuaded that the administrative judge’s credibility finding on this point was
erroneous. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility).
In a final argument concerning the administrative judge’s general
credibility findings, the appellant argues that the administrative judge improperly
blamed him for staying on tenure track after engaging in protected activity. PFR
File, Tab 5 at 11-12. Once again, this misrepresents the administrative judge’s
observations. The administrative judge simply acknowledged the internal
inconsistencies in the appellant’s testimony. ID at 24-25. On the one hand, the
appellant testified that he had no indications that he would have difficulty getting
tenure. HT1 at 27, 30-31 (testimony of the appellant). On the other hand, he
testified that he was afraid tenure would be denied in reprisal for protected
11
activity, while more generally describing several individuals who would influence
the tenure decision as unethical and vindictive. E.g., HT1 at 82, 197 (testimony
of the appellant); HT2 at 418 (testimony of the appellant). The administrative
judge’s recognizing this does not impugn the appellant’s decision to remain with
the agency; it correctly recognizes that the appellant’s testimony appeared
somewhat inconsistent.
The administrative judge correctly analyzed the appellant’s prima facie case of
reprisal.
As we previously recognized, the appellant has the burden of proving that
he made a protected disclosure or engaged in protected activity, and that the
protected disclosure or activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action. Supra ¶ 9. On those points, the
administrative judge found that the appellant met his burden of proving that
Activities 1, 4, 5, 7, and a portion of 11 were protected. ID at 28-57. Of those,
she determined that the appellant met his burden of proving that
Activities 5, 7, and a portion of 11 were a contributing factor in the personnel
action at issue—the agency’s decision not to grant him promotion and tenure. ID
at 58-66. On review, the appellant presents arguments pertaining to each of the
12 disclosures and activities he asserted. PFR File, Tab 5 at 13-19. We will
address each in turn.
Activity 1—December 2010 communications regarding the Civilian
Expeditionary Workforce
The appellant’s first alleged activity is generally summarized 10 as follows:
the appellant expressed interest in an overseas mission whereby he would provide
procurement advice through the Civilian Expeditionary Workforce. IAF, Tab 40
at 240-42. Agency officials expressed some reservations because it would
interfere with his normal course load. Id. at 244-47. While discussing the matter
10
A more detailed explanation of the appellant’s 12 alleged disclosures and activities is
included in the appellant’s closing brief, IAF, Tab 71 at 5-19, and the initial decision,
ID at 28-57.
12
with one of those agency officials (the GSBPP Associate Dean), the appellant
explained that Department of Defense (DOD) policy precluded retaliation for
expressing interest in or actually serving an expeditionary requirement. IAF,
Tab 10 at 264-65. The GSBPP Associate Dean responded by suggesting that the
provision would not apply if the agency denied his request to serve the mission.
Id. The appellant then replied by reasserting that it would. Id.
The administrative judge found that the aforementioned reply message
constituted a protected disclosure but the appellant failed to prove the
contributing factor requirement. ID at 31, 59-61. She reasoned that this activity
was too remote in time to satisfy the knowledge/timing test and the appellant
failed to otherwise establish that his disclosure contributed to the agency’s
promotion and tenure decision. ID at 59-61.
On review, the appellant argues that the administrative judge failed to
account for other officials’ role in the matter. PFR File, Tab 5 at 13. He seems
to suggest that the protected activity extended beyond the email message
identified by the administrative judge as protected to also include the prior
conversations during which agency officials expressed reservations about him
accepting the overseas mission. Id. However, even if it violated DOD policy or
was otherwise inappropriate for those officials to express reservations about him
accepting the overseas mission, the appellant has not clearly shown that he
disclosed the same. Further, even if he had, the appellant has failed to articulate
any basis for us to conclude that these conversations contributed to the agency
denying him promotion and tenure more than 3 years later. See Ayers v.
Department of the Army, 123 M.S.P.R. 11, ¶ 25 (2015) (recognizing that the most
common way to satisfy the contributing factor requirement is through the
knowledge/timing test); see also, e.g., Costello v. Merit Systems Protection
Board, 182 F.3d 1372, 1377 (Fed. Cir. 1999) (finding that “[a] two-year gap
between disclosures and the allegedly retaliatory action is too long an interval to
justify an inference of cause and effect between the two”).
13
Activity 2—Late 2011 communications regarding intellectual property
protections
The appellant’s second alleged activity is generally summarized as follows:
a student of the appellant, who was also a Contract Specialist at the NPS, asked
him a question about Government contracting and intellectual property. HT1
at 84-85 (testimony of the appellant). The appellant reportedly responded by
recommending that the school include particular language in contracts to ensure
the Government retains rights to intellectual property developed by contractors,
and he followed up by providing the same recommendation to other agency
officials. Id.; IAF, Tab 10 at 275-76.
The appellant argued that this was a protected disclosure because he was
revealing gross mismanagement or gross waste of funds in the form of millions of
dollars lost if the agency failed to use proper contract language protecting
intellectual property. HT1 at 92-94 (testimony of the appellant). The
administrative judge disagreed. ID at 31-35. She found that, inter alia, the
appellant may have disclosed the potential for, but he did not disclose any actual,
waste of funds. ID at 35.
On review, the appellant appears to argue that existing contracts were
already at risk for a waste of funds when he made this alleged disclosure. PFR
File, Tab 5 at 13. Alternatively, he suggests that his disclosure was protected
even if it revealed the potential for gross mismanagement or a waste of funds. Id.However, the only evidence the appellant cites for the underlying argument is his
own testimony, agreeing when asked if he “became aware that some contracts for
services provided to NPS did not provide adequate protections for intellectual
property rights.” Id.; HT1 at 82-84 (testimony of the appellant). In other words,
he has not identified any actual contracts that were flawed or actual losses that
resulted.
The Federal Circuit has cautioned that while “a disclosure of an impending
action can qualify . . . we do not intend to convey the idea that any mere thought,
14
suggestion, or discussion of an action that someone might consider to be a
violation of a law, rule, or regulation is a justification for a whistleblower
complaint. Discussion among employees and supervisors concerning various
possible courses of action is healthy and normal.” Reid v. Merit Systems
Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007). The context here suggests
that the appellant simply answered a legal question by providing legal advice of a
best practice. It does not suggest that he disclosed or reasonably believed that he
was disclosing a violation of law, gross mismanagement, gross waste of funds, or
any other category of protected disclosure.
Activity 3—Refused request for personal representation
The appellant’s third alleged activity is generally summarized as follows:
the GSBPP Dean reportedly asked the appellant to provide professional advisory
service and advocacy for the GSBPP, to oppose the agency at large. HT1
at 99-101 (testimony of the appellant). The appellant reportedly declined,
indicating that it would violate an applicable rule from the South Carolina bar,
which he recited verbatim. Id.The administrative judge recognized that the GSBPP Dean provided
testimony that contradicted the appellant’s claim. ID at 36; HT3 at 730
(testimony of the GSBPP Dean). She also concluded that the appellant’s
testimony on the matter, particularly the claim that he recited the South Carolina
bar rule, verbatim, was not plausible. ID at 36. Accordingly, the administrative
judge found that he failed to prove, by preponderant evidence, that this
conversation even occurred. Id. She alternatively found that, even if the
conversation did occur as alleged by the appellant, it did not amount to a
protected disclosure or activity. ID at 37.
On review, the appellant challenges the administrative judge’s findings by
asserting that it was more implausible that he did not know the bar rule, verbatim,
given his prior employment history as an in-house lawyer at a corporation and
counsel for a U.S. Senate committee. PFR File, Tab 5 at 14; IAF, Tab 20 at 90.
15
In essence, the appellant is asking that we overturn the administrative judge’s
well-reasoned credibility findings, but we find no basis for doing so. See Crosby,
74 M.S.P.R. at 105-06.
Activity 4—February 2012 communications with the Inspector General
The appellant’s fourth alleged activity is generally summarized as follows:
the appellant answered questions from the agency’s Inspector General in concert
with an investigation as to whether the NPS Provost and President accepted meals
and alcohol as gifts from a prohibited source. HT1 at 118-22 (testimony of the
appellant).
The administrative judge found that this activity was protected by
section 2302(b)(9)(C). ID at 37-38. However, she found that the appellant failed
to prove that it was a contributing factor in the agency’s promotion and tenure
decision because there was no evidence that anyone who participated in the tenure
decision had knowledge of this activity. ID at 61-62.
On review, the appellant’s sole argument pertaining to Activity 4 is that
while the administrative judge correctly found his activity protected, she “omitted
the context: NPS/GSBPP culture of heavy reliance on slush funds funded by
illegal gifts.” PFR File, Tab 5 at 14. As follows, we modify the initial decision
to supplement the administrative judge’s contributing factor analysis for this
protected activity, while still finding that the appellant did not meet his burden.
An appellant may establish the contributing factor criterion through the
knowledge/timing test, i.e., proof that the official taking the personnel action
knew of the whistleblowing and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the
whistleblowing was a contributing factor in the personnel action. 5 U.S.C.
§ 1221(e)(1). But the knowledge/timing test is not the only way to demonstrate
the contributing factor element. Dorney v. Department of the Army, 117 M.S.P.R.
480, ¶ 14 (2012). The Board will also consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
16
personnel action, whether the whistleblowing was personally directed towards the
officials taking the action, or whether these individuals had a desire or motive to
retaliate against the appellant. Id., ¶ 15.
The administrative judge recognized these standards when informing the
parties of their burdens of proof in this appeal. IAF, Tab 3 at 4-5. She also
recounted the same in the initial decision. ID at 58-59. However, for Activity 4,
the administrative judge solely discussed the knowledge/timing test while finding
that the appellant failed to prove the contributing factor criterion. ID at 61-62.
Looking beyond the knowledge/timing test, we find that the appellant has
not otherwise established the contributing factor criterion for Activity 4. As
detailed throughout this decision and the initial decision, evidence pertaining to
the agency’s reasons for taking the personnel action is strong. ID at 66-100.
Plus, Activity 4 was not personally directed towards the officials taking the
actions at issue in this appeal. Activity 4 was instead directed toward a prior NPS
Provost and President that were removed, i.e., ones that preceded the NPS
Provost and President that played roles in the personnel action before us.
Compare HT1 at 118, 122 (testimony of the appellant, describing the former NPS
Provost and President as being removed by the agency as a result of the 2012
investigation in which he participated), 98, 196 (testimony of the appellant,
describing the new Provost and President who ruled on the appellant’s tenure as
starting in the summer of 2013), with IAF, Tab 20 at 88-89 (2015 decision, signed
by the new NPS Provost and President, denying the appellant tenure). Finally,
the appellant has not directed us to persuasive argument or evidence that the new
NPS Provost and President had a desire or motive to retaliate against the
appellant for Activity 4. His generic and cursory claim about the culture at the
agency is not one that suffices for purposes of finding that Activity 4, which
occurred years earlier and concerned other individuals, improperly motivated
those responsible for denying him promotion and tenure.
17
Activity 5—Legal advice regarding Acquisition Chair task order
The appellant’s fifth alleged activity is generally summarized as follows:
agency officials wanted to contract with a retired military officer to serve as its
Chair of Acquisition. HT1 at 129 (testimony of the appellant). Although the
agency had done the same in years past, a question arose as to whether the
contract would be improper because the work requested was inherently
governmental. HT2 at 564-65 (testimony of the NPS Contracting Officer); HT3
at 730-31 (testimony of the GSBPP Dean), 790-91 (testimony of the GSBPP
Associate Dean). The official in charge of requesting the contractual services, the
GSBPP Associate Dean, asked the appellant for his legal opinion on the matter
and the appellant indicated that it would, in fact, be improper. HT1 at 129-32
(testimony of the appellant); IAF, Tab 10 at 320-26, 329-33.
The administrative judge found that the appellant proved that this was a
protected disclosure. ID at 38-40. She explained that he had a reasonable belief
that the information contained in his conversations about the contract revealed a
violation of applicable contracting regulations. ID at 40. The administrative
judge further found that the appellant proved that this disclosure was a
contributing factor to the agency’s promotion and tenure decision, based on the
knowledge/timing test. ID at 62-63.
Even though the administrative judge found that the appellant met his
burden for Activity 5, the appellant’s petition for review contains an argument
about the same. As best as we can understand, the appellant alleges that the
administrative judge mischaracterized the nature of the conversation between him
and the GSBPP Associate Dean, during which the appellant made the disclosure.
PFR File, Tab 5 at 14-15. While the administrative judge surmised that the
GSBPP Associate Dean was merely trying to understand why the proposed
contract was improper, when it had been accepted in years past, ID at 40, the
appellant suggests that he instead had nefarious intentions of trying to circumvent
hiring policies to pay the Chair of Acquisition far more than would be permissible
18
if he were a Government employee, PFR File, Tab 5 at 14-15. Although we will
further discuss the motive to retaliate below, we are not persuaded by the
appellant’s speculation on this point. The administrative judge expressly
recognized that the appellant’s disclosure contributed to the GSBPP Associate
Dean having the unexpected and significant burden of not being able to contract
for the Chair of Acquisition. ID at 103.
Activity 6—Objection to advice to Embassy Suites
The appellant’s sixth alleged activity is generally summarized as follows:
after the NPS contracted with the Embassy Suites to host a symposium, the NPS
delayed payment because of an accounting matter. HT3 at 590-92 (testimony of
the NPS Contracting Officer). According to the appellant, the GSBPP Associate
Dean approached him after a Bible study with a plan to get rid of the NPS
Contracting Officer for the delay by having the Embassy Suites put the contract
into collections. Id.; HT1 at 186-89 (testimony of the appellant). The appellant
reportedly responded by indicating that this would violate 18 U.S.C. § 205. 11
HT1 at 189 (testimony of the appellant).
The administrative judge found that the appellant failed to prove that this
alleged disclosure occurred. ID at 41-44. She found his testimony on the matter
not credible. ID at 42. Alternatively, she found that, even if the conversation
occurred as the appellant alleged, he did not have a reasonable belief that the plan
11
Section 205 of Title 18 of the U.S. Code provides, in pertinent part, as follows:
(a) Whoever, being an officer or employee of the United States in the executive,
legislative, or judicial branch of the Government or in any agency of the United States,
other than in the proper discharge of his official duties—
(1) acts as agent or attorney for prosecuting any claim against the United States, or
receives any gratuity, or any share of or interest in any such claim, in consideration of
assistance in the prosecution of such claim; or
(2) acts as agent or attorney for anyone before any department, agency, court, court-
martial, officer, or civil, military, or naval commission in connection with any covered
matter in which the United States is a party or has a direct and substantial interest;
shall be subject to the penalties set forth in section 216 of this title.
19
violated 18 U.S.C. § 205. ID at 43; see Mithen v. Department of Veterans Affairs,
122 M.S.P.R. 489, ¶ 24 (2015) (recognizing that an individual making a
disclosure may be protected from retaliation for whistleblowing based on his
reasonable belief that his disclosure evidenced one or more of the categories of
wrongdoing listed in 5 U.S.C. § 2302(b)(8), even when his belief is mistaken),
aff’d per curiam, 652 F. App’x 971 (Fed. Cir. 2016). The administrative judge
explained that while that provision generally prohibits a Federal employee from
acting as an agent or attorney for prosecuting any claim against the United States
or receiving any gratuity or share of such claim, the alleged plan at issue was to
merely advise the Embassy Suites of an option it could pursue to expedite the
payment it was owed. ID at 43-44.
On review, the appellant challenges the administrative judge’s credibility
findings, but he has not presented any persuasive basis for us to disturb them.
PFR File, Tab 5 at 15-16. The appellant also reasserts that the alleged plan to
inform the Embassy Suites that it could file a collection action to recoup the
payment it was owed would have violated 18 U.S.C. § 205, but we are not
persuaded. Id. Even if the GSBPP Associate Dean did have a conversation with
the appellant, indicating that he would recommend to the Embassy Suites that it
could speed up payment by “put[ting] it in collections,” as the appellant alleges, a
disinterested observer would not consider that a violation of 18 U.S.C. § 205.
HT1 at 188 (testimony of the appellant); see Mithen, 122 M.S.P.R. 489, ¶ 24
(recognizing that the test for reasonableness is whether a disinterested observer
with knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions of the agency evidence the
wrongdoing disclosed); Mudd v. Department of Veterans Affairs, 120 M.S.P.R.
365, ¶ 9 (2013) (considering an appellant’s lack of special expertise in legal
matters as a factor in the reasonableness of her belief that an agency violated a
law, rule, or regulation).
20
Activity 7—Communications regarding the McGraw-Hill company contract
The appellant’s seventh alleged activity is generally summarized as
follows: agency officials asked the appellant to review a proposed contract with
McGraw-Hill. HT1 at 199-202 (testimony of the appellant); IAF, Tab 10
at 299-307. In reviewing the proposed contract, the appellant identified and
reported a problem with an unlimited indemnity provision in the agreement. HT1
at 203-06 (testimony of the appellant); IAF, Tab 10 at 299-307.
The administrative judge found that the appellant proved that Activity 7
was a protected disclosure because it revealed that the agency’s proposed contract
would violate the Anti-Deficiency Act. ID at 44-45. She also found that the
appellant met his burden of proving that this disclosure was a contributing factor
in the agency’s promotion and tenure decision, based on the knowledge/timing
test. ID at 63-64.
Although the administrative judge found that the appellant met his burden
regarding Activity 7, she included a footnote explaining that the appellant
provided misleading testimony about the dangers of the proposed indemnity
provision. ID at 45, n.13. In short, the appellant estimated that the indemnity
provision posed a financial risk of up to $5,000,000,000, but the administrative
judge found that his estimate was based on assumptions that were, at best,
strained. Id. On review, the appellant essentially disagrees, asserting that the
administrative judge improperly “berated” him for his belief as to the financial
risk. PFR File, Tab 5 at 16. We find nothing improper about the administrative
judge’s analysis. She simply recognized that while the appellant met his burden
for Activity 7, some of his testimony about the matter was questionable.
Activity 8—Refusal to participate in media efforts to discredit an agency
Inspector General report
The appellant’s eighth alleged activity is generally summarized as follows:
several NPS faculty members disagreed with the findings included in an Inspector
General report about the NPS Provost accepting gifts from a prohibited source.
21
HT3 at 737 (testimony of the GSBPP Dean). During efforts to set the record
straight, two members of the faculty asked the appellant to write an editorial
arguing that the NPS Provost’s actions were not illegal, but the appellant
declined. HT1 at 229-37 (testimony of the appellant). According to the
appellant, he was refusing to do something that would have violated the law. Id.
at 236-37; see Consolidated Appropriations Act, 2012, Pub. L. No. 112 -74,
125 Stat. 786, 804 § 8001 (“No part of any appropriation contained in this Act
shall be used for publicity or propaganda purposes not authorized by the
Congress”).
The administrative judge found that the appellant failed to prove that he
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(D). ID at 45-48. This
provision prohibits retaliation for an employee’s refusal to obey an order that
would require he violate a law. 5 U.S.C. § 2302(b)(9)(D). In short, the
administrative judge concluded that the appellant may have been asked to write
an editorial, but he failed to prove that those individuals ordered him to do so
during working hours in potential violation of law. ID at 46-48. Therefore, his
refusal was not protected by section 2302(b)(9)(D), because that provision applies
only in the context of an order, and only if that order is unlawful. 12 Id.On review, the appellant reasserts that while the professors who made the
request were not in his immediate chain of command, they nonetheless had the
authority to tell him what to do. PFR File, Tab 5 at 16-17. He further argues that
12
As the administrative judge correctly recognized, at the time the appellant filed this
appeal, section 2302(b)(9)(D) made it a prohibited personnel practice to take an action
against an employee for “refusing to obey an order that would require the individual to
violate a law.” ID at 46. The Federal Circuit considered the provision and held that
“law” only included statutes. Rainey v. Merit Systems Protection Board, 824 F.3d
1359, 1361-62, 1364-65 (Fed. Cir. 2016). However, on June 14, 2017, while the
appellant’s petition for review was pending in the instant appeal, the President signed
an amendment to section 2302(b)(9)(D), so that it now provides protections for
“refusing to obey an order that would require the individual to violate a law, rule, or
regulation.” Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 12. Nevertheless,
the Board has determined that this expansion does not apply to events occurring before
its enactment, and so it does not change the analysis in this case. Id., ¶ 19.
22
he interpreted their request as not only an order, but one to complete the task
during working hours, not on his personal time. Id. However, the appellant has
not identified any persuasive evidence in support of his position. In fact, it
appears that the only evidence supporting his version of the events is the
appellant’s own testimony, which the administrative judge found not credible,
based on his demeanor, evasiveness, and the inherent improbability of his version
of events. ID at 47 (referencing HT1 at 229-37 (testimony of the appellant); HT2
at 414-16 (testimony of the appellant)). We discern no basis for overturning
those findings. See Haebe, 288 F.3d at 1301.
Activity 9—The appellant’s research as an Assistant Professor
The appellant’s ninth alleged activity is generally summarized as follows:
the appellant’s academic research and writing efforts included the topic of
contracting between the agency and small businesses. HT1 at 240-45 (testimony
of the appellant). According to the appellant, the resulting papers included
protected disclosures because they described agency shortcomings, such as the
NPS failing to reach its stated goal of the percentage of contract dollars spent on
contracts with small businesses. IAF, Tab 10 at 349-408, 645-824, Tab 71
at 15-16.
The administrative judge found that the appellant failed to prove that he
reasonably believed the contents of his research papers disclosed a violation of
law, rule, or regulation. ID at 48-50. She explained that he essentially had
focused on the barriers that small businesses faced in fully participating in
Government contracting and what NPS could do to better facilitate those efforts.
ID at 49. The administrative judge further found that while the research papers
discussed the agency’s small business goals, they did not include any assertion
that the agency violated associated regulations. ID at 50.
On review, the appellant suggests that while the research papers at issue
did not disclose specific violations of law or regulation, they did disclose how the
agency failed to meet goals, policies, or rules. PFR File, Tab 5 at 17.
23
Specifically, he alleges that his report “called on NPS to implement the required
controls, outreach, effective competition, and warned that Senior Executives in
charge of NPS must improve practices or risk poor ratings on compliance and
spending goal increases.” Id. However, we reaffirm that it was the appellant’s
burden of proving, by preponderant evidence, that he made a protected disclosure.
We find nothing in his argument on review to reach a conclusion different than
the administrative judge concerning Activity 9. While the appellant has presented
vague assertions that the agency needed to improve when it came to small
business contracting, and his research papers contain much more complicated,
academic discussions of the same, he has not clearly articulated and identified
when and how he made a specific disclosure of a violated law, rule, or regulation.
See generally Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 13 (2006)
(recognizing that a disclosure must be specific and detailed, not a vague
allegation of wrongdoing regarding broad or imprecise matters).
Activity 10—Objecting to an order to fail a student’s thesis
The appellant’s tenth alleged activity is generally summarized as follows:
for one particular student, the appellant both supervised her thesis and
co-authored a separate paper with her that included the thesis. HT1 at 250
(testimony of the appellant). After the appellant submitted the thesis to the
Acquisition Research Program for editing support, the appellant alleges that the
GSBPP Associate Dean directed him to fail the student, remove her from the
submission, or both, and the appellant refused. Id. at 251; HT2 at 283-84
(testimony of the appellant).
The administrative judge found that the appellant failed to prove that
Activity 10 was protected. ID at 50-53. The appellant characterized the
interaction as him refusing to obey an order that would violate the law. IAF,
Tab 71 at 16. Instead, the administrative judge found that the evidence suggested
the GSBPP Associate Dean had simply expressed concern and confusion as to
why the appellant had submitted the student’s thesis for editing support. ID
24
at 51-52. In essence, while the appellant had funding to support the editing of his
own work, the student’s work did not appear to qualify, so the GSBPP Associate
Dean questioned whether the appellant either had done the student’s work himself
or had submitted the student’s work as his own. Id. Alternatively, the
administrative judge found that, even if the GSBPP Associate Dean had ordered
the appellant to fail the student, the appellant did not establish how doing so
would have violated the law. ID at 52-53.
On review, the appellant argues that funded researchers routinely work in
conjunction with students and the record contains no evidence of a ban on doing
so. PFR File, Tab 5 at 18. However, even if true, that does not require a
different result. The administrative judge found that the appellant did not show
that the GSBPP Associate Dean gave him any order, much less an unlawful one.
ID at 51-53. The appellant’s assertions concerning the propriety of his
submission for editing support do not address either of those dispositive
conclusions.
Activity 11—Perceiving the appellant as an associate of whistleblowers
The appellant’s eleventh alleged activity is generally summarized as
follows: according to the appellant, two agency employees, a Contract Specialist
and the Director of the NPS Contracting Directorate, were perceived as
whistleblowers for a number of reasons. HT2 at 298-99 (testimony of the
appellant). He further alleged that the agency perceived him as an associate of
those individuals. Id.Regarding the Contract Specialist, the administrative judge found that she
did qualify as a whistleblower based on a paper she authored that included claims
of Anti-Deficiency Act violations; she did not qualify as a whistleblower on the
other bases asserted by the appellant: being involved either in contracts that were
highlighted in a presentation about bad contracting, or in an Inspector General
investigation. ID at 54-56. Regarding the Director of the NPS Contracting
Directorate, the administrative judge found that she did qualify as a
25
whistleblower based on evidence that she cooperated with an Inspector General
investigation. ID at 55-56. She also found that the appellant proved that he was
perceived as an associate of those whistleblowers. ID at 56. Finally, the
administrative judge found that the appellant’s association with the Contract
Specialist was a contributing factor in the agency’s promotion and tenure
decision, but not his association with the Director of the NPS Contracting
Directorate. ID at 64-65.
On review, the appellant argues that the administrative judge discounted
the whistleblowing of the Contract Specialist and the Director of the NPS
Contracting Directorate, “baselessly speculating they might be incompetent.”
PFR File, Tab 5 at 18-19. Once again, the relevance of this argument is not
readily apparent, and it generally misrepresents the administrative judge’s
findings. As explained above, the administrative judge determined that the
appellant failed to prove that the Contract Specialist was perceived as a
whistleblower in connection with an ad hoc committee’s presentation about bad
contracting within the NPS. ID at 54-55. Based on her review of that
presentation, the administrative judge concluded that the presentation may have
portrayed the Contract Specialist—rightly or wrongly—as incompetent, but did
not portray her as a whistleblower. ID at 55; IAF, Tab 10 at 843-44. The
appellant’s argument on review does not warrant a different conclusion.
Activity 12—Advice regarding the appropriate contracting vehicle
The appellant’s twelfth alleged activity is generally summarized as follows:
the GSBPP Associate Dean tasked the appellant with determining whether the
agency could require that research funds be awarded through contracts rather than
grants. HT2 at 304-06 (testimony of the appellant). The appellant researched the
matter and provided a response. Id. at 308-09.
The administrative judge found that the appellant essentially verified
another agency official’s legal opinion; his communications did not reveal a
violation of law, rule, regulation, or other protected disclosure. ID at 57. She
26
further found that while the appellant testified that he believed the GSBPP
Associate Dean was asking the question for nefarious purposes, he did not
disclose the same. Id.On review, the appellant asserts that the administrative judge “ruled that [a]
disclosure within legal advice is unprotected” when, in fact, Government lawyers’
advice can be protected. PFR File, Tab 5 at 19. However, the administrative
judge did not find that lawyerly advice cannot be protected; rather, she found that
the appellant’s answer when asked to verify a legal opinion was not a protected
disclosure of agency wrongdoing. ID at 57. The appellant has failed to present
us with any reason to conclude otherwise. Based on his own testimony about the
matter, it appears that the appellant did not disclose that a violation of law, rule,
regulation, or other impropriety had occurred; he simply provided an answer
when asked what the applicable laws, rules, and regulations required. HT2 at 309
(testimony of the appellant).
In sum, as detailed above, we agree with the administrative judge’s
findings as to the appellant’s alleged protected activities and whether he met his
burden to prove those activities contributed to the agency’s decision to deny him
tenure and promotion.
The administrative judge correctly found that the agency proved, by clear and
convincing evidence, that it would have denied the appellant a promotion and
tenure in the absence of his protected activities.
When an appellant meets his burden to establish a prima facie case of
reprisal for whistleblowing, the burden shifts to the agency to prove by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s whistleblowing. Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 26 (2016). Clear and convincing evidence is “that measure
or degree of proof that produces in the mind of the trier of fact a firm belief as to
the allegations sought to be established.” 5 C.F.R. § 1209.4(e). In determining
whether an agency has met this burden, the Board will consider the following
27
factors: (1) the strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999); Scoggins, 123 M.S.P.R. 592, ¶ 26. The Federal
Circuit has held that “[e]vidence only clearly and convincingly supports a
conclusion when it does so in the aggregate considering all the pertinent evidence
in the record, and despite the evidence that fairly detracts from that conclusion.”
Whitmore, 680 F.3d at 1368; Scoggins, 123 M.S.P.R. 592, ¶ 26.
The administrative judge conducted an extensive analysis of the three Carr
factors to determine that the agency met its burden. ID at 66-112. The majority
of that analysis involved the first Carr factor. The administrative judge found
that the agency had strong evidence in support of its promotion and tenure
decision. ID at 66-100. For the second Carr factor, she found that several
individuals involved in the agency’s promotion and tenure decision had varying
degrees of motive to retaliate, but that motive was not strong for any. ID
at 100-10. Finally, she found that there was little evidence of comparators for
purposes of the third Carr factor, and that evidence which was available rendered
the factor neutral. ID at 110-11. On balance, the administrative judge concluded
that the evidence in support of the agency’s promotion and tenure decision was
far stronger than the motive to retaliate. ID at 111-12.
On review, the appellant first argues that the administrative judge’s
analysis of the Carr factors is flawed because she placed the burden of proof on
him, rather than on the agency. PFR File, Tab 5 at 28. We disagree. The
administrative judge utilized the proper standard, requiring that the agency prove
that it would have taken the same action notwithstanding the appellant’s protected
activities. E.g., ID at 66. While she did discuss the appellant’s arguments and
28
matters that detracted from the agency’s case, consistent with the requirements of
Whitmore, she did not improperly place the burden of proof on the appellant.
The appellant next disputes the administrative judge’s findings concerning
the first Carr factor by reasserting that his performance warranted promotion and
tenure. PFR File, Tab 5 at 29-48. Specifically, he disagrees with her finding that
the SEC gave strong reasons for its decision to recommend the appellant with
reservations. On this point, the appellant essentially disputes each of the
administrative judge’s findings by presenting separate arguments for his
performance, including the number and quality of his publications in academic
journals, id. at 29-33, the number of theses he advised, id. at 34-35, the amount of
funding he secured, id. at 35-36, the quality of his teaching, id. at 36-40, his
service, id. at 40-41, his collegiality, id. at 42-45, and his prior performance
ratings, id. at 46-47. Although we have considered each of his arguments, we are
not persuaded, as further explained in the examples below.
As previously recognized, the SEC is one of many groups or individuals
that considered the appellant’s qualifications before “unanimously
recommend[ing] with reservation” that he be awarded tenure. Supra ¶ 4; IAF,
Tab 13 at 83-86. In addition to providing the first significant evaluation of a
promotion and tenure candidate, upon which subsequent evaluations may rely, the
record suggests that the SEC’s evaluation is the most extensive. The SEC gathers
information from various sources, such as former students and peers at outside
institutions, before issuing a detailed report about the candidate’s strengths and
weaknesses. Kidalov v. Department of the Navy, MSPB Docket No. SF-1221-16-
0530-S-1, Stay Appeal File (SAF), Tab 11 at 430-35. In the appellant’s case, the
SEC’s detailed assessment recognized some areas in which he had provided
meaningful contributions, and others in which the SEC deemed him to have
struggled. For example, the SEC concluded that his distance learning work
needed improvement and reviews of his collegiality were mixed because some
peers found that he was not reliable or timely in completing tasks. IAF, Tab 13
29
at 86. In another example, the SEC found that while his research was highly
valued among his peers, he had “limited impact in the traditional academic
literature.” Id.
As he did below, the appellant argues that it was improper for the SEC to
issue its recommendation with reservations, which he characterizes as a “scarlet
letter.” PFR File, Tab 5 at 29-30. However, the administrative judge provided a
detailed analysis of the SEC, how it came up with its final assessment, and the
requirement that it provide an “objective evaluation” regarding the appellant’s
candidacy for promotion and tenure. ID at 76-79. Despite the appellant’s
suggestion that the SEC should have provided a more definitive recommendation,
the administrative judge found nothing in the agency’s policies preventing the
SEC from expressing reservations as part of its conclusion. ID at 78-79; SAF,
Tab 11 at 429-35. On review, the appellant points to the instruction for a “clear
recommendation.” PFR File, Tab 5 at 29; IAF, Tab 13 at 70. However, we are
not persuaded that a “clear recommendation” requires a simple yes or no, devoid
of any qualifiers or other explanatory signals.
In another example, we note that the administrative judge provided a
lengthy analysis of the appellant’s and his peers’ publications. ID at 96-99.
Among other things, she found that the appellant was advised to increase the rate
of publication during his third-year review, but he failed to do so. ID at 96. She
further found that the appellant produced fewer publications than two specific
comparators he identified. ID at 96-97. The administrative judge also recognized
that his peers gave mixed reviews on the quality of the journals in which he
published. ID at 98-99. While the appellant asserted that the GSBPP Associate
Dean told him in which journals to publish, the administrative judge found that
testimony not credible. Id.
On review, the appellant disagrees with each of the administrative judge’s
findings concerning the quantity and quality of the journals in which he
published. PFR File, Tab 5 at 30-33. However, we find his arguments are not
30
persuasive. Moreover, we agree with the administrative judge’s broader
conclusion—the appellant continually treats the promotion and tenure decision as
if it were based on his accomplishing a set number of tasks, but that
oversimplifies the agency’s holistic decision-making process. ID at 71-72, 111.
For example, the appellant repeatedly has argued that seven was the target
number of publications for promotion and tenure, and he met that target. PFR
File, Tab 5 at 30-32; IAF, Tab 71 at 23. However, he seems to have no evidence,
other than his own testimony, to support that assertion. HT1 at 43 (testimony of
the appellant); HT2 at 400-01 (testimony of the appellant). After reviewing
agency policy regarding promotion and tenure, we find no set target number of
publications. See, e.g., SAF, Tab 11 at 410-14; IAF, Tab 13 at 53-55.
To be clear, the appellant’s publications were, in many respects, praised. A
notable example of this is reflected in the SEC evaluation of his candidacy for
promotion and tenure, which included “predominantly positive” reviews by both
agency officials and members of academia from outside the agency. IAF, Tab 13
at 84-86. However, one external reviewer from Ohio State University explained
that while the appellant’s scholarly activity was very good, it would not meet his
university’s standards for tenure “due to the quality of the journals in which he
placed his research, the rate of productivity, and number of citations to his work
by other scholars.” Id. at 85-86. As previously mentioned, the SEC gathers such
external reviews of a tenure candidate’s research as part of its recommendation.
SAF, Tab 11 at 431. The record paints a similar picture in other aspects of the
appellant’s candidacy: while he was largely considered an effective educator,
officials found his teaching in a distance learning capacity lacking; while some of
his peers considered the appellant a good colleague, others found him unreliable
and untimely. IAF, Tab 13 at 86. In other words, the appellant’s reviews were
largely good, but mixed. Although it appears unlikely that the agency would have
denied the appellant promotion and tenure based on any one of his perceived
31
deficiencies, their sum caused a notable number of evaluators to recommend that
his candidacy be denied.
As thoroughly detailed throughout the initial decision, the record contains
substantial evidence of the appellant’s mixed reviews and the underlying causes
for concern about his candidacy, both in terms of documentation and witness
testimony that the administrative judge found credible. A small sampling of that
evidence includes testimony from the SEC Chair about her unfavorable view of
the appellant’s publications and teaching, HT3 at 645, 649-51 (testimony of the
SEC Chair), testimony about faculty observations of the appellant’s teaching and
the resulting concerns, HT3 at 752-55 (testimony of an SEC member),
documentation of the appellant’s untimeliness, even in the context of his
promotion and tenure submissions, IAF, Tab 43 at 29, 31-33, 49-55, and
documentation of distance learning students’ complaints about many aspects of
his teaching, such as his untimeliness and disorganization, id. at 66, 75-76.
While the appellant insists that he deserved promotion and tenure, we agree with
the administrative judge’s conclusion that the agency presented strong evidence
in support of its decision.
The appellant’s final arguments concern the administrative judge’s
conclusions regarding the second Carr factor—the motive to retaliate. PFR File,
Tab 5 at 48-60. To recall, the appellant presented a prima facie case of reprisal
concerning the following activities:
 Activity 5—the appellant’s disclosure to the GSBPP Associate Dean
that a proposed contract for a Chair of Acquisition would violate
applicable contracting regulations in response to a question about the
same;
 Activity 7—the appellant’s disclosure to agency officials that a
proposed McGraw-Hill contract would violate the Anti-Deficiency Act
in response to a request from the GSBPP Dean that he review the
contract; and
 Activity 11—the appellant’s association with a whistleblower, who was
both a student and Contract Specialist for the agency, who disclosed
Anti-Deficiency Act violations in a paper she authored.
32
Supra ¶¶ 35-37, 41-43, 53-54.
To also recall, the appellant’s qualifications for promotion and tenure were
considered by and evaluated as follows:
(1) the SEC “unanimously recommend[ed] with reservation” that he
be granted tenure;
(2) the GSBPP FPC voted 13 in favor and 5 opposed to granting the
appellant tenure;
(3) the Dean of the GSBPP recommended tenure;
(4) the NPS FPC voted 11 in favor and 2 opposed to granting tenure;
(5) the DAC voted 1 in favor and 3 opposed to granting tenure;
(6) the NPS Provost recommended that the appellant not be granted
tenure; and
(7) the NPS President denied the appellant promotion and tenure.
Supra ¶¶ 3-5.
The administrative judge first found that the SEC members themselves had
little, if any, awareness of the appellant’s protected activity or motive to retaliate.
ID at 100-01. However, she acknowledged that the SEC relied on information
from two pertinent individuals, an individual who once served as the appellant’s
Area Chair and the GSBPP Associate Dean. ID at 101. For the Area Chair, the
administrative judge found no evidence he knew of Activities 5, 7, or 11. ID
at 102. For the GSBPP Associate Dean, she found that he had the greatest motive
to retaliate, given his knowledge of and involvement in Activity 5, but that
motive still was not strong. ID at 103-04. The administrative judge further
found no evidence that the GSBPP Associate Dean was even aware of
Activities 7 or 11. ID at 104.
Moving past the SEC to other evaluators of the appellant’s promotion and
tenure candidacy, the administrative judge found no evidence of the official
responsible for the GSBPP FPC process having been aware of the appellant’s
protected activities. ID at 104-05. Next, she found that the GSBPP Dean was
aware of Activities 5 and 7, and had some limited motive to retaliate, but he
33
actually recommended the appellant be granted tenure. ID at 105-06. The
administrative judge then found that a Professor who was involved in both the
NPS FPC and the DAC was aware of Activity 7 and the underlying contract, and
had some limited motive to retaliate. ID at 107-08. She next found no evidence
that the DAC members who voted against the appellant’s tenure or the Provost
who recommended he not be granted tenure had any knowledge of his protected
activities. ID at 109. Finally, the administrative judge found that the President,
who made the final decision to deny the appellant tenure, was only aware of
Activity 11. Id. She further found that the context suggested that the President
had little motive to retaliate and was likely considering that activity a positive
because it was ultimately bringing renown to the NPS. Id.
On review, the appellant argues that the record presents a convincing
mosaic of strong retaliatory motives for numerous officials involved in the
promotion and tenure process, such as the NPS President, the Provost, various
Deans, Acting Deans, or Associate Deans, the members of the NPS FPC, and the
members of the DAC. PFR File, Tab 5 at 48-60. In large part, the appellant’s
argument relies on cases wherein the Board found that an individual’s disclosures
of subordinate employees’ wrongdoing created a motive to retaliate on the part of
their supervisors. Id. at 49; see, e.g., Chavez, 120 M.S.P.R. 285, ¶¶ 32-33.
According to the appellant, “Board law makes clear [that] these motives are
strong . . . as a matter of law.” PFR File, Tab 5 at 49. We disagree.
While it is true that officials who are not directly implicated in a protected
disclosure may still have a motive to retaliate, these matters are considered on a
case-by-case basis. See, e.g., Robinson v. Department of Veterans Affairs,
923 F.3d 1004, 1019-20 (Fed. Cir. 2019) (discussing a professional motive to
retaliate when assessing the second Carr factor); Whitmore, 680 F.3d at 1371(recognizing that an individual may have a motive to retaliate for a protected
disclosure, even if “outside that whistleblower’s chain of command, not directly
involved in alleged retaliatory actions, and not personally named in the
34
whistleblower’s disclosure”); Runstrom v. Department of Veterans Affairs,
123 M.S.P.R. 169, ¶ 17 (2016) (finding little evidence of retaliatory motive for
the whistleblower’s supervisor; no evidence that another official was even aware
of the whistleblowing; and evidence that the disclosure did not reflect negatively
on the one official who potentially had a motive to retaliate based on his
supervising the alleged wrongdoer, because the agency quickly investigated and
found no wrongdoing). Moreover, the appellant’s arguments in this regard omit
pertinent facts and findings by the administrative judge which run counter to the
appellant’s assertions. For example, while the appellant argues that the Provost
had a strong motive to retaliate by virtue of his position, PFR File, Tab 5 at 49, he
seems to ignore the administrative judge’s conclusion that the Provost was
altogether unaware of his protected activities, ID at 109. While the appellant
argues that the GSBPP Professor who sat on the DAC also had a strong motive to
retaliate by virtue of his position, PFR File, Tab 5 at 49, he seems to ignore the
fact that the Professor at issue was the only member of the DAC who voted in
favor of his candidacy, IAF, Tab 20 at 83, 85; HT4 at 857-62 (testimony of the
DAC member).
The appellant also presents extensive arguments alleging that the
administrative judge failed to properly account for the financial motives of
individuals involved in the agency’s promotion and tenure decision. PFR File,
Tab 5 at 49-54. As an example, even though he has alleged that he saved the
agency as much as $5,000,000,000 by disclosing that a proposed McGraw-Hill
contract would violate the Anti-Deficiency Act (Activity 7), he suggests that
agency officials were motivated to retaliate for that disclosure because it
threatened the agency’s funding. Compare id. at 50, with HT1 at 212 (testimony
of the appellant). He also discusses the findings of financial improprieties by the
agency’s Inspector General, suggesting that those instances of wrongdoing
support his case, without clearly articulating how the one has anything to do with
the other. PFR File, Tab 5 at 50-53. Again, we are not persuaded. The
35
administrative judge provided a well-reasoned analysis of the pertinent officials
and their potential motive to retaliate. ID at 100-10.
Although the appellant’s petition for review references the third Carr
factor, it does not clearly articulate any argument about the same. PFR File,
Tab 5 at 28. In short, the administrative judge found that there was limited
evidence of comparators, but that the evidence which was available showed that
the agency analyzed the appellant’s qualifications in a manner consistent with
other candidates. ID at 110-11; IAF, Tab 61 at 6-7, 56-58. She therefore
concluded that the third Carr factor was neutral. ID at 110-11. Absent any
substantive argument to the contrary, we find no basis for reaching a contrary
conclusion.
Despite the appellant’s numerous arguments to the contrary, we agree with
the administrative judge’s findings. Although the appellant presented a prima
facie case of whistleblower reprisal, the agency met its burden of proving by clear
and convincing evidence that it would have taken the same personnel action in the
absence of his protected activity. Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 13
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
13
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.
36
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.
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
37
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
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
38
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. 14 The court of appeals must receive your
14
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.
39
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 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.