Opinion

Dennis McKeown v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Sep 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENNIS C. MCKEOWN, DOCKET NUMBER

Appellant, SF-0752-19-0170-I-1

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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,

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

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

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.

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

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. 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

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.