Dennis McKeown v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS C. MCKEOWN, DOCKET NUMBER
Appellant, SF-0752-19-0170-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 13, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dennis C. McKeown , Richmond, California, pro se.
Linda M. Aragon , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his furlough action as moot. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the Board’s jurisdiction over the appeal and to expand upon
the administrative judge’s discussion of the appellant’s protected disclosures as a
part of his whistleblower reprisal affirmative defense, we AFFIRM the initial
decision.
The administrative judge determined that the agency’s furlough action
against the appellant was “completely rescinded” and that he received full back
pay and benefits for the time covered by the furlough, and she adjudicated his
affirmative defense of whistleblower reprisal based on her finding that he “met
his burden to state a cognizable claim of retaliation for whistleblowing activity in
connection with an otherwise appealable furlough action.” Initial Appeal File
(IAF), Tab 16 at 2, Tab 37, Initial Decision (ID) at 4-10. The administrative
judge mistakenly found jurisdiction over this appeal under 5 U.S.C. § 7513,
which includes furloughs of 30 days or less. See 5 U.S.C. § 7512(5). Here, the
appellant’s furlough lasted 34 days. IAF, Tab 33 at 11-14. A furlough of more
than 30 days is appealable to the Board as a reduction-in-force (RIF) action under
5 C.F.R. § 351.901. See Chandler v. Department of the Treasury, 120 M.S.P.R.
163, ¶ 5 (2013). To establish the Board’s jurisdiction over a RIF appeal, the
appellant must show that he was either furloughed for more than 30 days,
separated, or demoted by the RIF action. See Adams v. Department of Defense,
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96 M.S.P.R. 325, ¶¶ 8-9 (2004); 5 C.F.R. § 1201.56(b)(2)(i)(A). Because the
record establishes that the appellant was furloughed for 34 days, we find that the
appellant established the Board’s jurisdiction over this appeal as an appeal of a
RIF action.
Additionally, in her adjudication of the appellant’s whistleblower reprisal
affirmative defense, the administrative judge found that the appellant’s disclosure
that he reported allegedly fraudulent billing by a Government contractor
constituted a protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 6. We
emphasize here, however, that the appellant’s disclosure did not concern a
Federal agency or employee, but rather a Government contractor. IAF, Tab 13
at 1. An allegation of wrongdoing by persons not employed by the Government
may constitute a protected disclosure under the whistleblower protection statutes
when the Government’s interests and good name are implicated in the alleged
wrongdoing at issue and when the employee shows that he reasonably believed
that the information he disclosed evidenced that wrongdoing. See Covington v.
Department of the Interior, 2023 MSPB 5, ¶¶ 16, 19; Arauz v. Department of
Justice, 89 M.S.P.R. 529, ¶ 6 (2001).
Here, the nongovernmental entity is a Government contractor that appears
to perform disaster relief tasks in conjunction with the Federal Government,
including, among other things, strategically preparing for typhoons or tropical
storms by assessing physical effects on infrastructure and analyzing
vulnerabilities. IAF, Tab 13 at 35. Because these functions contribute to the
public’s perception of the Federal Emergency Management Agency’s ability to
efficiently manage national emergencies, we find that the appellant’s disclosure
implicates the Government’s interest and good name. Further, the administrative
judge found that, when the appellant made the disclosure, he reasonably believed
that the situation evidenced a gross waste of funds and that his disclosures,
therefore, constituted protected disclosures. ID at 6. Accordingly, the
administrative judge correctly found that the appellant made a protected
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disclosure, and ultimately, that he failed to establish that the furlough constituted
reprisal for whistleblowing.
Regarding the appellant’s argument on review that the administrative judge
erred in excluding testimony from two of his witnesses, the administrative judge
provided both parties with multiple opportunities to object to her ruling on
witnesses and indicated that failure to do so would waive any future right to do
so. IAF, Tab 32 at 9, Tab 34, Hearing Compact Disc (statements by the
administrative judge). The appellant did not object and, therefore, he is
precluded from challenging the administrative judge’s witness rulings on review.
See Alaniz v. U.S. Postal Service, 100 M.S.P.R. 105, ¶ 9 (2005).
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law 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
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
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
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
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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
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
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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. 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.