Wen Chiann Yeh v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WEN CHIANN YEH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3216
______________________
Petition for review of Merit Systems Protection Board
in No. CH1221110433-W-2.
______________________
Decided: June 27, 2013
______________________
WEN CHIANN YEH, of Cary, North Carolina, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were BRYAN G.
POLISUK, General Counsel and KEISHA DAWN BELL, Depu-
ty General Counsel.
______________________
Before PROST, O’MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
2 YEH v. MSPB
Wen Chiann Yeh, pro se, petitions for review of the fi-
nal decision of the Merit Systems Protection Board
(“Board”) dismissing her individual right of action (“IRA”)
under the Whistleblower Protection Act (“WPA”) for lack
of jurisdiction. Because we find that Yeh did not ade-
quately invoke the Board’s jurisdiction, we affirm.
BACKGROUND
Yeh was hired as an Information Technology Special-
ist with the Defense Information Systems Agency
(“DISA”) on April 12, 2010. On September 9, 2010, she
was terminated from employment during her probation-
ary period for “failure to demonstrate fitness for contin-
ued employment.” Respondent’s Appendix (“RA”) 6, 23.
Yeh thereafter filed a complaint with the Office of
Special Counsel (“OSC”) regarding potential retaliatory
conduct by DISA in violation of 5 U.S.C. § 2302(b)(8), the
pertinent provision of the WPA. Following an exchange of
correspondence with the OSC, on January 14, 2011,
Malvina Hrynicwicz, a Complaints Examiner at OSC,
identified the following allegations from Yeh’s complaints:
(1) retaliation for disclosure of DISA officials’ gross mis-
management, waste of funds, and abuse of authority; (2)
retaliation for disclosure of Yeh’s coworkers’ misuse of an
online computer “chat” system; (3) retaliation for disclo-
sure of Yeh’s coworkers’ late arrival to work; (4) defama-
tion by Yeh’s supervisor during the termination process;
(5) racial discrimination of Yeh during the termination;
(6) procedural defects in effecting Yeh’s termination; and
(7) misapplication by DISA of the factors set forth in
Douglas v. Dept. of Veterans Affairs, 5 M.S.P.R. 280 (1981)
for disciplining employees.
The OSC informed Yeh that it found her WPA claims
meritless because OSC could not determine whether Yeh’s
disclosures were protected and, even if they were, wheth-
er they were a “contributing factor” in her termination.
RA 50. The OSC found Yeh’s other claims meritless as
well, noting that issues of racial discrimination need to be
YEH v. MSPB 3
raised to the Equal Employment Opportunity Commission
(not to OSC), the alleged procedural defects are based on
a statute that applies to the Department of Defense
Education Activity—not to DISA employees like Yeh, and
the Douglas factors are guidelines for disciplinary actions
against employees, but the agency retains ultimate dis-
cretion on discipline. The OSC further advised Yeh of her
right to file an IRA appeal under the WPA.
In March 2011, Yeh filed an IRA appeal alleging her
termination was made in retaliation for protected whis-
tleblowing. On March 31, 2011, the Board issued an
acknowledgement order apprising Yeh of her burden to
establish Board jurisdiction, namely, that she “must make
a non-frivolous allegation she made one or more whistle-
blowing disclosures and that the disclosures were a con-
tributing factor in the personnel action at issue.” 1 RA 65.
On September 12, 2011, Yeh filed a brief with the Board
alleging numerous protected disclosures. According to
Yeh, she disclosed the misuse of government communica-
tion channels by superiors and fellow employees, citing
some dates and names. She alleged that a human re-
source officer threatened to terminate her if she continued
to complain; thereafter, he allegedly took part in her
termination. Yeh also claimed that she reported this
response to a union representative, and was retaliated
against for this disclosure as well. She also alleged dis-
closure of her coworkers’ misuse of “on duty time.” RA 70.
Additionally, Yeh alleged race discrimination by her
1 At this time, a concurrent termination appeal filed
by Yeh was pending before the Board. On April 7, 2011,
the Board dismissed Yeh’s IRA appeal without prejudice
until the first termination appeal was resolved. Following
a dismissal of the first appeal, the administrative judge
reopened Yeh’s IRA appeal, which is the matter presently
before us.
4 YEH v. MSPB
supervisor, and other allegations not pertinent to this
appeal.
The agency moved to dismiss the appeal for lack of ju-
risdiction, arguing that Yeh’s allegations were vague and
conclusory and that she had made no non-frivolous allega-
tion that her disclosures were a contributing factor in her
termination.
On December 6, 2011, in its initial decision, adjudi-
cated without an oral hearing, the Board dismissed Yeh’s
appeal for lack of jurisdiction. See RA 6-14 (“Initial
Decision”). Noting that the printout Yeh submitted of an
instant messenger dialogue failed to identify the parties
involved, the Board found that Yeh’s allegation regarding
misuse of the chat room was conclusory and not grounded
in facts sufficient to fall within statutory standards for
gross mismanagement, gross waste of funds, or an abuse
of authority. Initial Decision at 5. Noting Yeh’s extrapo-
lation of $240 million in misused federal funds from one
coworker’s supposed abuse of leave time (as well as Yeh’s
failure to rule out whether the coworker was on travel
status), the Board further held that her coworkers’ alleg-
edly fraudulent timekeeping and attendance was specula-
tive, lacking basis in fact, and therefore not a violation of
the WPA. Id. Thus, the Board held that Yeh’s disclosures
were not protected under 5 U.S.C. § 2302(b)(8). Id. at 6.
On July 16, 2012, the Board denied Yeh’s petition for
review. See RA 1-5 (“Final Order”). Although the Board
found the administrative judge failed to notify Yeh of her
burden to show that her disclosures were a contributing
factor in her dismissal in order to establish jurisdiction, it
found the error harmless because Yeh did not satisfy the
other jurisdictional requirements and, moreover, she
received notice of all the jurisdictional requirements from
the agency’s motion to dismiss. See Final Order at 2-3,
n.2. The Board ultimately affirmed the administrative
judge’s decision, finding that Yeh failed to make a non-
frivolous allegation that her disclosures were protected.
See Final Order at 3.
YEH v. MSPB 5
Yeh timely filed her appeal of the final decision to this
court.
STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9). 2 Our standard of review in an appeal from
the Board is limited by statute. See 5 U.S.C. § 7703(c)
(2006); Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321
(Fed. Cir. 1999); O’Neill v. Office of Pers. Mgmt., 76 F.3d
363, 364-65 (Fed. Cir. 1996). We may reverse a decision
of the Board only if it is “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c). Whether
the Board has jurisdiction over an appeal is a question of
law, which we review de novo. See Herman v. Dep’t of
Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). Because
the Board dismissed Yeh’s appeal without affording her a
jurisdictional hearing, we review the record de novo to
determine whether Yeh raised a non-frivolous allegation
2 Our review is limited to the final order of the
Board. See 28 U.S.C. § 1295(a)(9). Since the Board lacks
general jurisdiction to entertain all statutory challenges
to an employment practice, instead being strictly confined
to matters over which it retains jurisdiction by statute,
rule, or regulation, we can review only the issues raised in
Yeh’s appeal over which the Board could exercise jurisdic-
tion. See 5 U.S.C. § 7701(a); 5 C.F.R. § 1201.3; Meeker v.
Merit Systems Protection Bd., 319 F.3d 1368, 1374 (Fed.
Cir. 2003). Therefore, although Yeh alleges in her open-
ing and reply briefs that DISA violated laws pertaining to
“cyberstalking, . . . whistleblowers, . . . deformation, [sic] .
. . false statement, . . . discrimination/retaliation, . . .
employment, [and] wrongful termination,” we may only
consider her IRA claim under the WPA.
6 YEH v. MSPB
to establish jurisdiction. See Coradeschi v. Dep’t of Home-
land Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006).
DISCUSSION
For Yeh to establish that the Board has jurisdiction
over her IRA appeal, she must exhaust her administrative
remedies before the OSC (a fact the parties do not dis-
pute) and make non-frivolous allegations that: (1) she
engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8) and (2) the disclo-
sure 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). 3 See Yunus v. Dep’t of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001). Before the Board,
an appellant bears the burden of establishing Board
jurisdiction. See 5 C.F.R. § 1201.56(a)(2)(i); Kahn v. Dep’t
of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (citing
McCormick v. Dep’t of the Air Force, 307 F.3d 1339, 1340
(Fed. Cir. 2002)), overruled on other grounds by Garcia v.
Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir.
2006) (en banc)).
3 While the administrative judge failed to give Yeh
notice of the contributing factor requirement for establish-
ing jurisdiction, see Initial Decision at 2-3, as Respondent
notes, the jurisdictional elements were correctly disclosed
to Yeh in the administrative judge’s acknowledgement
order, issued prior to her initial decision, see RA 64-66,
and the agency’s motion to dismiss, see RA 79-80. Even
though Yeh appeared pro se, we conclude that the admin-
istrative judge’s failure to provide notice was harmless
error. See Yost v. Dep’t of Health & Human Servs., 4 Fed.
App’x 900, 904 (Fed. Cir. 2001) (holding that an adminis-
trative judge’s failure to give notice to pro se petitioner of
jurisdictional requirements in an acknowledgment order
was cured by proper notice given in the agency’s motion to
dismiss and, therefore, was harmless error).
YEH v. MSPB 7
The WPA prohibits personnel decisions taken in re-
sponse to a disclosure of information by an employee
which the employee reasonably believes evidences a
violation of any law, rule, or regulation, or gross misman-
agement, gross waste of funds, or abuse of authority, or a
substantial and specific danger to public health or safety.
See 5 U.S.C. § 2302(b)(8). A reasonable belief is one that
a disinterested observer with the employee’s knowledge of
essential facts could reasonably conclude was evidence of
a violation of a law, rule, or regulation. See Lachance v.
White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
From the record, we can ascertain two intelligible al-
legations of protected whistleblower disclosures. Even
though pro se pleadings are liberally construed, see Durr
v. Nicholson, 400 F.3d 1375, 1380 (Fed. Cir. 2005), we find
that neither amounts to a non-frivolous allegation of a
WPA-protected disclosure.
Yeh’s first alleged purported disclosure was of her
coworkers’ misuse of the agency’s instant messaging
system. See RA 36-37, 70. Despite attaching a two-page
copy of an instant messaging transcript (which does not
identify any individual participant by name) to her OSC
complaint, see RA 47-49, the record contains no articula-
tion of how a disinterested observer with Yeh’s knowledge
could conclude this instant messaging exchange was a
violation of law, rule, or regulation, or a gross misman-
agement, gross waste of funds, abuse of authority, or
creates a substantial and specific danger to public health
or safety. See § 2302(b)(8); Lechance, 174 F.3d at 1381.
Gross mismanagement is a management action or in-
action which creates a substantial risk of significant
adverse impact to an agency’s ability to accomplish its
mission. See Kavanagh v. Merit Systems Protection Bd.,
176 F. App’x 133, 135 (Fed. Cir. 2006) (citing White v.
Dep’t of the Air Force, 63 M.S.P.R. 90, 95 (1994)). Without
more information regarding the pervasiveness of the
purported chat-room misconduct, any significant adverse
impact on the agency’s mission cannot be assessed.
8 YEH v. MSPB
An abuse of authority is comprised of an arbitrary and
capricious exercise of power by a Federal official or em-
ployee that adversely affects the rights of any person or
results in personal gain or advantage to the official or
preferred other persons. See Doyle v. Dep’t of Veterans
Affairs, 273 F. App’x 961, 964 (Fed. Cir. 2008) (citing
Embree v. Dep’t of the Treasury, 70 M.S.P.R. 79, 85
(1996)). Even if the communications channels were
misused, it is unclear how this would amount to an arbi-
trary and capricious exercise of power adversely affecting
the rights of another.
A gross waste of funds requires a more than debatable
expenditure that is significantly out of proportion to the
benefit reasonably expected to accrue to the government.
See Chambers v. Dep’t of Interior, 515 F.3d 1362, 1366
(Fed. Cir. 2008) (citing Van Ee v. Envt’l Prot. Agency, 64
M.S.P.R. 693, 698 (1994)). Yeh has provided no factual
information regarding the expenditures incurred from
purported misuse of the instant messaging system, and
the degree of misuse is much in doubt. Any resulting
waste of funds from the purported misuse cannot be
assessed, and it is doubtful that such waste is significant-
ly out of proportion with the benefits obtained by the
system.
A substantial and specific danger to public health or
safety requires allegations of a likelihood of the harm,
when the alleged harm may occur, and the nature of the
harm. See Chambers, 515 F.3d at 1369. Even had Yeh
made the requisite allegations, it is unclear how the
misuse of the chat room system at issue here would
endanger public health or safety.
Further, in her briefing to this court, Yeh did not de-
velop her instant messaging allegation, let alone address
the frivolousness issue. Despite specific requests for
details by the administrative judge, see RA 67-68, Yeh
presented only allegations that were conclusory. We
therefore agree with the Board that it lacks jurisdiction—
no disinterested observer could reasonably conclude that
YEH v. MSPB 9
Yeh disclosed evidence of a violation of a law, rule, or
regulation.
Yeh’s second alleged disclosure revealed her cowork-
ers’ purportedly improper timekeeping and attendance.
Specifically, she claims that a co-worker attended a four-
day conference and did not return to work on the fifth
day, thus defrauding the government of eight hours of
work at $50 per hour, or $400. See RA 36-37. But Yeh
made no allegation refuting the possibility that the em-
ployee was granted paid leave. As pled, Yeh’s disclosure
constitutes unsubstantiated speculation, which cannot
make out a non-frivolous allegation. See Kahn, 528 F.3d
at 1341 (quoting Dorrall v. Dep’t of the Army, 301 F.3d
1375, 1380 (Fed. Cir. 2002)). Her allegations that other
employees abused their leave privileges and came to work
late are just as speculative. See RA 28, 36-37. Given the
lack of factual basis adduced by Yeh for these claims, we
fail to see how a disinterested observer with her
knowledge could conclude such activities were violations
of any law, rule or regulation, or gross mismanagement,
gross waste of funds, abuse of authority, or a substantial
and specific danger to public health or safety under the
standards cited herein. See Kavanagh, 176 F. App’x at
135; Doyle, 273 F. App’x at 964; Chambers, 515 F.3d at
1366, 1369. Such an observer could not reasonably con-
clude that a substantial risk of significant adverse impact
to the agency’s ability to accomplish its mission resulted,
that the rights of any person were adversely affected, that
an expenditure was made that was significantly out of
proportion to the benefit reasonably expected to accrue, or
that there was a likelihood of harm to public safety of
health. We therefore again agree with the Board that
jurisdiction was not conferred by this allegation.
Since we conclude that none of Yeh’s disclosures were
protected by the WPA, we need not answer the latter
question—whether she adequately asserts that her disclo-
sures were a contributing factor in her termination.
Yunus, 242 F.3d at 1371.
10 YEH v. MSPB
Finally, Yeh makes vague claims that she was denied
discovery in the Board proceedings in violation of 5 C.F.R.
§ 1201. Appellant’s Opening Br. at 1. Procedural matters
relative to discovery and evidentiary issues fall within the
sound discretion of the Board and its officials, and the
court will not overturn the Board on a discovery matter
unless an abuse of discretion is clear and harmful. See 5
C.F.R. § 1201.41(b)(4) (1988); Curtin v. Office of Pers.
Mgmt., 846 F.2d 1373, 1378-79 (Fed. Cir. 1988) (citing
Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169, 173
(Fed. Cir. 1986)). Petitioner must show substantial harm
which could have affected the outcome of the case. See
Curtin, 846 F.2d at 1379. Appellant’s briefing fails to
indicate how discovery would have aided her in establish-
ing jurisdiction before the Board. Therefore, Yeh makes
no showing of substantial harm and we cannot overturn
the Board’s procedural decision on these grounds.
CONCLUSION
For the foregoing reasons, the decision of the Board
dismissing Yeh’s appeal for lack of jurisdiction is af-
firmed.
AFFIRMED