Opinion

Deanna Reed v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Aug 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEANNA REED, DOCKET NUMBER

Appellant, DC-1221-21-0085-W-1

DEPARTMENT OF HOUSING AND DATE: August 16, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Deanna Reed , Washington, D.C., pro se.

Brooke DuBois , Esquire, Matthew Watson , Esquire, Kimberly Stratton ,

Esquire, and William Barteau , Esquire, Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication of

this appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

applied the doctrine of collateral estoppel to dismiss this individual right of

action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

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

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

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

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

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

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

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

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

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to VACATE the administrative judge’s finding that the appellant’s

claims regarding one of her alleged disclosures are barred by collateral estoppel,

and to FIND instead that the appellant failed to nonfrivolously allege that this

disclosure was protected whistleblowing, we AFFIRM the initial decision.

BACKGROUND

The appellant was a Special Needs Assistance Specialist with the

Department of Housing and Urban Development (HUD) serving under a term

appointment. Reed v. Department of Housing & Urban Development, MSPB

Docket No. DC-1221-21-0085-W-1, Initial Appeal File (0085 IAF), Tab 1, Tab 6

at 41. On July 6, 2018, the appellant filed a complaint with the Office of Special

Counsel (OSC) alleging whistleblower retaliation for making protected

disclosures in a May 2018 meeting with her supervisor and other agency

personnel. Reed v. Department of Housing & Urban Development , MSPB Docket

No. DC-1221-19-0258-W-1, Initial Appeal File (0258 IAF), Tab 6 at 10-23.

After 120 days passed without receiving a close-out notice from OSC, the

appellant filed an IRA appeal on February 1, 2019. 0258 IAF, Tab 1, Tab 11,

Initial Decision (0258 ID) at 3.

After briefing by the parties, the administrative judge dismissed that appeal

for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege

that any of her alleged disclosures were protected whistleblowing. 0258 ID

at 5-8. The administrative judge found that the appellant, whose position was

funded through an interagency agreement between the agency and the Department

of Justice (DOJ), made only vague and conclusory assertions that she disclosed

that funds designated under the interagency agreement were being used for other

purposes, her workload violated the interagency agreement, and funds between

HUD and DOJ were improperly commingled. 0258 ID at 3, 5-8. The

administrative judge additionally found that the appellant failed to exhaust with

OSC her disclosures that the performance standards in her annual review did not

match her position description and that a white colleague was receiving credit for

her work; thus, the administrative judge did not further consider these disclosures

in the appeal. 0258 ID at 3 n.3. The administrative judge further found that,

although the appellant appeared to have filed a complaint with the agency’s

Inspector General (IG) office, she did not allege that any of the personnel actions

at issue were based on reprisal for filing such a complaint. 0258 ID at 7 n.6. As

such, the administrative judge similarly did not consider the appellant as alleging

retaliation for protected activity under 5 U.S.C. § 2302(b)(9). Id. The appellant

did not file an appeal of this decision, and it became final on April 23, 2019.

0258 ID at 8.

On September 17, 2020, OSC provided the appellant with a close-out letter

from her original 2018 complaint and informed her that she may file an IRA

appeal with the Board. 0085 IAF, Tab 5 at 10-11. The appellant subsequently

filed an IRA appeal challenging the same personnel actions at issue in her 2018

Board appeal. Compare 0085 IAF, Tab 1 at 5, Tab 5 at 4-7, with 0258 IAF, Tab 1

at 6, Tab 8 at 4-8. The administrative judge informed the appellant of her burden

of establishing jurisdiction over her IRA appeal. 0085 IAF, Tab 3 at 2-8. The

appellant again alleged that the agency took personnel actions due to her

protected disclosures made during the May 2018 meeting between herself, her

supervisor, and other agency personnel. 0085 IAF, Tab 5 at 7-8. She additionally

reraised her argument that she disclosed that her performance standards in her

annual review did not match her position description. Id. at 7. The agency

subsequently filed a motion to dismiss for lack of jurisdiction, in part because the

doctrine of collateral estoppel should bar relitigation of issues that were decided

in the 2019 appeal. 0085 IAF, Tab 6 at 4-10. The appellant did not respond to

this submission.

Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision applying collateral estoppel to dismiss the appeal for

lack of jurisdiction. 0085 IAF, Tab 8, Initial Decision (0085 ID) at 1, 10. She

found, in part, that the 2019 IRA appeal and the instant appeal both were based

on the same 2018 OSC complaint. 0085 ID at 7-10. The administrative judge

found that OSC’s issuance of a subsequent close-out letter on the same matter did

not provide a basis for relitigating issues that had been actually litigated by the

parties and were necessary to the administrative judge’s decision in the prior

appeal. Id.

The appellant has filed a petition for review, and the agency has responded.

Petition for Review (PFR) File, Tabs 1, 3. The appellant subsequently filed a

reply, which was both untimely and partially illegible. PFR File, Tab 4. As

instructed by the Office of the Clerk of the Board, the appellant resubmitted the

portion of her reply that was illegible. PFR File, Tab 5, Tab 9 at 2-9. 2

The agency has moved to strike the appellant’s reply as untimely. PFR File, Tab 6.

The appellant has submitted a motion to waive the time limit for her reply. PFR File,

Tab 7. We do not reach the issue of the timeliness of the appellant’s reply because we

DISCUSSION OF ARGUMENTS ON REVIEW

The doctrine of collateral estoppel bars relitigation of most, but not all, of the

appellant’s allegations.

Collateral estoppel, or issue preclusion, is appropriate when the following

elements are met: (1) the issue is identical to that involved in the prior action;

(2) the issue was actually litigated in the prior action; (3) the determination of the

issue in the prior action was necessary to the resulting judgment; and (4) the party

against whom issue preclusion is sought had a full and fair opportunity to litigate

the issue in the prior action. Hau v. Department of Homeland Security,

123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection

Board, 878 F.3d 1320 (Fed. Cir. 2017). Collateral estoppel may be grounds for

dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a

prior decision is afforded collateral estoppel effect and the appellant provides no

other valid basis of Board jurisdiction. Id.

In the instant appeal, the appellant alleged retaliation for making the

following three disclosures: (1) her workload violated the interagency agreement

between HUD and the DOJ; (2) the funds designated in the interagency agreement

were inappropriately used and erroneously commingled; and (3) her performance

standards did not match her position description. 0085 IAF, Tab 5 at 7-8, 10. As

pertains to the first two disclosures, we agree with the administrative judge that

relitigation of these issues is barred by collateral estoppel.

In the former IRA appeal, the administrative judge considered and found

that the appellant failed to nonfrivolously allege that either of the first two

disclosures was protected. 0258 ID at 3, 6-7. The appellant in the instant appeal

raises the same disclosures. Because the jurisdictional issues in this appeal were

involved and actually litigated in the 2019 appeal, the first two criteria for

find that the evidence and argument contained therein is immaterial to the dispositive

issues of collateral estoppel and the Board’s jurisdiction. We deny the appellant’s

motion for leave to submit additional evidence because she has not shown that the

records she wishes to submit were not readily available before the record closed or

would bear on the dispositive issues. PFR File, Tab 10; see 5 C.F.R. § 1201.114(k).

collateral estoppel are satisfied. See McNeil v. Department of Defense,

100 M.S.P.R. 146, ¶ 19 (2005). The third and fourth criteria for collateral

estoppel are also satisfied because the jurisdictional determinations made in the

former appeal were necessary to the resulting judgment to dismiss the appeal for

lack of jurisdiction and because the appellant, as a party to the former appeal, had

a full and fair opportunity to litigate these jurisdictional issues. See id. On

review, the appellant has challenged the application of collateral estoppel in

general terms, but she has not identified how either of these disclosures is

different from those litigated in the former appeal. PFR File, Tab 1 at 4-5.

Accordingly, we agree with the administrative judge that the doctrine of collateral

estoppel bars relitigation regarding these two disclosures.

As pertains to the third disclosure, however, we vacate this aspect of the

initial decision and decline to apply the doctrine of collateral estoppel. The

administrative judge in the 2019 appeal found that the appellant had failed to

prove that, at that time, she had exhausted her administrative remedies with OSC

regarding her disclosure that her performance standards did not match her

position description, and thus he did not further consider this disclosure. 3 0258

ID at 3 n.3. OSC’s September 17, 2020 close-out letter, however, explicitly

mentions this alleged disclosure, and thus it is clear that, at some point, she raised

the issue with OSC. 0085 IAF, Tab 5 at 10. It is not clear from the record when

the appellant “exhausted” this issue with OSC, and OSC’s close-out letter is dated

about 19 months after the February 1, 2019 decision in the first IRA appeal. We

find it is unnecessary to decide this aspect of the appellant’s claims on exhaustion

grounds because, for the reasons set forth below, the Board lacks jurisdiction over

it for other reasons. Under these circumstances, we decline to apply the doctrine

of collateral estoppel to the appellant’s claims regarding her third alleged

The administrative judge also found that the appellant failed to exhaust her disclosure

that a white colleague was receiving credit for her work. 0258 ID at 3 n.3. The

appellant has not raised this disclosure in the instant appeal, and thus we need not

consider it.

disclosure. Cf. Milligan v. U.S. Postal Service, 106 M.S.P.R. 414, ¶ 9 (2007)

(explaining that, even when the criteria for collateral estoppel have been met,

there are circumstances in which the Board may refrain from applying the

doctrine). For the following reasons, however, we find that the appellant has still

failed to establish the Board’s jurisdiction over such claims.

The appellant has failed to nonfrivolously allege that her alleged disclosure

regarding her performance standards is protected whistleblowing.

To establish the Board’s jurisdiction in a typical IRA appeal, the appellant

must show by preponderant evidence that she exhausted her administrative

remedies before OSC and make nonfrivolous allegations of the following: (1) she

made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);

and (2) the disclosure or protected activity was a contributing factor in the

agency’s decision to take or fail to take a personnel action. Corthell v.

Department of Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on

other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39.

In this context, a nonfrivolous allegation is an allegation of sufficient factual

matter, accepted as true, to state a claim that is plausible on its face. Hessami v.

Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020); 5 C.F.R.

§ 1201.4(s).

A protected disclosure is a lawful disclosure of information that the

appellant reasonably believes evidences at least one of the categories of

wrongdoing specified in 5 U.S.C. § 2302(b)(8), i.e., any violation of law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety. See 5 U.S.C.

§ 2302(b)(8); Hessami, 979 F.3d at 1367; Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 6 (2016). The proper test for determining whether an

employee had a reasonable belief that her disclosures were protected 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 evidenced one of the categories of wrongdoing described in 5 U.S.C.

§ 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6. To be protected, a disclosure must

be specific and detailed, not vague allegations of wrongdoing. Id.

Here, the appellant seemingly alleged that, during a meeting with her

supervisor, her union representative, and a human resources official, she

disclosed that her performance standards did not match her position description

and that she was not being rated on the “pay for success” duties included in her

position description. 0085 IAF, Tab 5 at 7, 10. 4 It appears that the appellant may

be implicitly arguing that she reasonably believed she was disclosing that her

performance standards were invalid. Under 5 U.S.C. § 4302(c)(1), agencies are

required to implement performance standards that, to the maximum extent

feasible, permit the accurate evaluation of job performance on the basis of

objective criteria related to the job in question. Lee v. Environmental Protection

Agency, 115 M.S.P.R. 533, ¶ 29 (2010). Standards must be reasonable, realistic,

attainable, and clearly stated in writing. Id. Provided these requirements are met,

however, the Board will defer to managerial discretion in determining what

agency employees must do in order to perform acceptably in their positions. Id.

The appellant has not alleged that she disclosed that her performance

standards were not reasonable, realistic, attainable, or clearly stated in writing.

Indeed, it does not appear she disclosed any challenge to the existing performance

standards, but rather, she seemingly asserted that the agency was not rating her

OSC’s close-out letter similarly indicates that, in June 2018, the appellant filed a

report with HUD’s IG raising the same disclosures. 0085 IAF, Tab 5 at 10. This IG

complaint was addressed in the appellant’s former IRA appeal. 0258 ID at 7 n.6.

Therein, the administrative judge found that the appellant advanced no argument that

any of the personnel actions at issue were based on reprisal for filing this IG complaint,

and thus, the administrative judge did not construe an allegation of whistleblower

retaliation for protected activity under 5 U.S.C. § 2302(b)(9). Id. In the instant appeal,

the appellant similarly does not advance an argument that any personnel actions were in

retaliation for filing the IG complaint. Given that the appellant was on notice that she

needed to explicitly raise such a claim, we similarly find that the appellant has not

raised in these proceedings an allegation of retaliation for protected activity.

performance on other duties from her position description. We find that the

appellant has not alleged facts that if proven could establish that she had a

reasonable belief that she was disclosing wrongdoing of any type covered by

5 U.S.C. § 2302(b)(8). For instance, the appellant has not identified, and we are

not aware of, any law, rule, or regulation that requires an agency to rate an

employee on every duty listed in her position description. See Hessami, 979 F.3d

at 1371 n.6 (finding that the appellant failed to raise any colorable argument for

why she reasonably believed that her disclosures evidenced a violation of law,

rule, or regulation). We further find that she failed to make a nonfrivolous

allegation that the creation or application of her performance standards was an

abuse of authority. An abuse of authority occurs when there is an arbitrary or

capricious exercise of power by a Federal official or employee that adversely

affects the rights of any person or results in personal gain or advantage to himself

or preferred other persons. Pasley v. Department of the Treasury, 109 M.S.P.R.

105, ¶ 18 (2008). The appellant has alleged no facts that could support a finding

that she reasonably believed she was disclosing such arbitrary or capricious

conduct in connection with her performance standards. See Salerno,

123 M.S.P.R. 230, ¶ 6 (finding that a disclosure must be specific and detailed, not

vague allegations of wrongdoing). 5

Accordingly, we find that she has failed to make a nonfrivolous allegation

that she engaged in protected whistleblowing in connection with her alleged

disclosure about her performance standards, and thus she has failed to establish

IRA jurisdiction concerning her reprisal claims based on that alleged disclosure.

On review, the appellant alleges that, as a result of her 2018 complaint, HUD had a

“mandatory whistleblowing discussion” with OSC regarding new Federal directives on

whistleblowing. PFR File, Tab 1 at 5. She further asserts that her disclosures resulted

in a change in accounting codes within the agency and that OSC obtained various

corrective actions from the agency based on her complaint. Id. This evidence and

argument does not alter our analysis as it does not explain why she reasonably believed

her specific disclosure regarding performance standards evidenced one of the

circumstances outlined in section 2302(b)(8).

NOTICE OF APPEAL RIGHTS 6

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

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:

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.

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. 7 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