Opinion

John Satchell v. Department of Justice

Court: Merit Systems Protection Board
Filed: Aug 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN SATCHELL, DOCKET NUMBER

Appellant, SF-1221-22-0128-W-2

DEPARTMENT OF JUSTICE, DATE: August 1, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.

Clairanne Wise , Esquire, and Judson R. Peverall , Esquire, Springfield,

Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review and the agency has filed a cross

petition for review of the initial decision, which denied the appellant corrective

action in his individual right of action appeal. On petition for review, the

appellant argues, among other things, that the administrative judge erred in

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

finding that he did not make a protected disclosure around August 2012 and did

not establish contributing factor regarding his non-selection for a position in

Bern, Switzerland or transfer to Seattle, Washington. On cross petition for

review, the agency argues, among other things, that the administrative judge erred

in finding that the appellant was perceived to be a whistleblower and in finding

that the appellant made protected disclosures in his fall 2009 interview with the

Office of Professional Responsibility (OPR). Generally, we grant petitions such

as these only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that neither party

has established any basis under section 1201.115 for granting the petition or cross

petition for review. Therefore, we DENY the petition for review and the cross

petition for review. Except as expressly MODIFIED to apply the

knowledge/timing test to the appellant’s Seattle transfer and find that the

appellant did not satisfy that test, we AFFIRM the initial decision.

¶2 The agency contends in its cross petition for review, citing

pre-Whistleblower Protection Enhancement Act (WPEA) case law from the U.S.

Court of Appeals for the Federal Circuit (Federal Circuit), that the administrative

judge erred in finding that the appellant made protected disclosures in his fall

2009 interview with OPR, because disclosures made as part of one’s normal

duties are not protected as a matter of law. Petition for Review (PFR) File, Tab 6

at 17-19. Although we disagree with the agency’s position regarding the

appellant’s fall 2009 disclosures, we agree with the agency that, in the initial

decision, the administrative judge contradicted his earlier jurisdictional ruling

that the Board lacked jurisdiction over the appellant’s OPR interview. 2 Id. at 17;

Satchell v. Department of Justice, MSPB Docket No. SF-1221-22-0128-W-1,

Initial Appeal File (IAF), Tab 25 at 10-11; Satchell v. Department of Justice,

MSPB Docket No. SF-1221-22-0128-W-2 (W-2 AF), Tab 2 at 2, Tab 15, Initial

Decision (ID) at 16-17. The agency was thus deprived of fair notice that the

interview would be at issue. The administrative judge’s contradiction of his

jurisdictional finding did not, however, prejudice the agency, because we agree

with the administrative judge that the appellant did not show that his OPR

interview was a contributing factor in his September 2012 Seattle transfer—the

only personnel action which the appellant challenges on review postdating that

interview. 3 ID at 24-25; PFR File, Tab 3 at 5, 18, Tab 9 at 4.

In arguing that the appellant’s 2009 OPR interview could not have included protected

disclosures because it was made as part of his normal job duties, the agency relies, as

did the administrative judge in initially finding disclosures made during the interview

not protected, on the Federal Circuit decision in Fields v. Department of Justice,

452 F.3d 1297 (Fed. Cir. 2006). PFR File, Tab 6 at 17-19; Satchell v. Department of

Justice, MSPB Docket No. SF-1221-22-0128-W-1, Initial Appeal File , Tab 25 at 10-11.

In Fields, 452 F.3d at 1305, the Federal Circuit relied on its earlier decision in Huffman

v. Office of Personnel Management, 263 F.3d 1341, 1351-54 (Fed. Cir. 2001), which

held that certain disclosures made as part of an employee’s normal duties were not

protected under the Whistleblower Protection Act (WPA). But section 101 of the

WPEA superseded Huffman by clarifying, in relevant part, that disclosures made during

the normal course of an employee’s duties were not excluded from 5 U.S.C. § 2302(b)

(8) coverage if a personnel action was taken in reprisal for the disclosure. Pub. L. 112-

199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (2012) (codified in relevant part, as amended,

at 5 U.S.C. § 2302(f)(2)). In Day v. Department of Homeland Security, 119 M.S.P.R.

589, ¶¶ 10-26 (2013), the Board held that the clarification of the term “disclosure” in

the WPA by section 101 of the WPEA could be applied retroactively, and that

Huffman’s narrow definition of “disclosure” did not have the force of settled law. Thus,

even if the appellant’s OPR interview would not have contained a protected disclosure

under Huffman and Fields, in neglecting to consider the clarifying effect of the WPEA

as described in Day, the administrative judge thus erred in initially concluding that the

OPR interview could not contain a protected disclosure as a matter of law.

The administrative judge found that, although it was not clear when the Bern selection

was made, the selection preceded the appellant’s fall 2009 OPR interview, and it was

thus unnecessary to evaluate whether the interview caused the appellant’s non -selection.

¶3 Because, however, the administrative judge did not fully apply the

knowledge/timing test in his analysis of contributing factor regarding the Seattle

transfer, we do so here. ID at 24-25. The Board has found that personnel actions

alleged to have begun within 1 to 2 years of an appellant’s protected disclosures

satisfy the timing prong of the knowledge/timing test. Cooper v. Department of

Veterans Affairs, 2023 MSPB 24, ¶ 20. Each of the appellant’s real or perceived

disclosures preceded his transfer by well over 2 years, which was too large a gap

to satisfy the test. Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 10

(2003) (finding personnel actions over 2 years and over 3 years removed from an

appellant’s disclosure too remote to satisfy the knowledge/timing test).

¶4 The Board has held that, if an administrative judge determines that an

appellant has failed to satisfy the knowledge/timing test, the administrative judge

shall consider other evidence, such as evidence pertaining to the strength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed at the proposing or deciding officials, and

whether these individuals had a desire or motive to retaliate against the appellant.

Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012). The

administrative judge considered such other evidence in finding that the appellant

still did not establish contributing factor regarding the transfer to Seattle. ID

at 25. The appellant provides no reason to disturb the administrative judge’s

findings.

W-2 AF, Tab 15, Initial Decision at 14 n.9. Although the evidence on which the

administrative judge based this conclusion was meager, id., a September 2009 agency

memorandum shows that the appellant was not among the selecting official’s top three

candidates, indicating that he was likely out of the running before his OPR interview in

October and November 2009. IAF, Tab 13 at 30, Tab 23 at 145. We thus agree that it

was unnecessary to determine whether the appellant’s OPR interview was a contributing

factor in his non-selection for the Bern position. See Sherman v. Department of

Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015) (stating that a disclosure that occurs

after the personnel action at issue cannot be a contributing factor in that personnel

action).

¶5 Finally, we find that the appellant provides no sufficiently sound reason to

overturn the credibility determinations upon which the administrative judge

concluded that he did not make protected disclosures to the Assistant Special

Agent in Charge (ASAC) around August 2012. ID at 22; see Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We thus need not

consider whether the appellant’s alleged conversation with the ASAC around

August 2012 was a contributing factor in his Seattle transfer.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Boards 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

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

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.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

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. 5 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

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.