Ronald J. Herman v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONALD J. HERMAN, DOCKET NUMBER

Appellant, DC-1221-10-0164-B-3

v.

DEPARTMENT OF JUSTICE, DATE: July 6, 2015

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Dennis L. Friedman, Esquire, Philadelphia, Pennsylvania, for the appellant.

Gail Elkins, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

denied his request for corrective action. For the reasons discussed below, we

GRANT the appellant’s petition for review, VACATE the initial decision, and

REMAND the case to the regional office for further adjudication in accordance

with this Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The appellant is a GS–13 Human Resource Management Examiner with the

agency’s Bureau of Prisons. In that position, he reviews and evaluates programs

at each of the agency’s 116 correctional facilities and its central Human

Resources Department. Previously, he filed an individual right of action (IRA)

appeal alleging that the agency retaliated against him for protected

whistleblowing. See Herman v. Department of Justice, 115 M.S.P.R. 386 (2011).

The appellant alleged that he made the following disclosures protected under the

Whistleblower Protection Act (WPA): (1) a manager violated the Privacy Act by

telling the appellant’s second-level supervisor, R.S., that the appellant’s review of

the agency’s Consolidated Employee Services Center may have been unduly

harsh because his daughter, who had worked there, had been disciplined; (2) his

first-level supervisor, R.E., abused her authority by issuing two letters of

counseling, issuing a critical mid-year performance review, and threatening to

detail him to another position while indicating that if he (the appellant) applied

for another position she would make everything go away; and (3) R.S. and R.E.

abused their authority during a number of facility reviews by arriving late, not

interacting with the review team, making sarcastic and inappropriate comments in

front of the team, and delegating to an inmate the handling of sensitive

documents. Id., ¶ 2. The appellant alleged that, in retaliation for his alleged

protected disclosures, the agency took the following personnel actions: (1) issued

him two letters of counseling; (2) gave him an unfavorable mid-year performance

review; and (3) reassigned him to a different position. Id.

¶3 The administrative judge dismissed the appeal for lack of jurisdiction,

finding that the appellant failed to make a nonfrivolous allegation that he had

made a protected disclosure. Id., ¶ 4. The Board reversed the initial decision,

found that the appellant had made a nonfrivolous allegation that he made

protected disclosures, thus establishing Board jurisdiction, and remanded the

appeal for a hearing. Id., ¶¶ 12-14; see Peterson v. Department of Veterans

3

Affairs, 116 M.S.P.R. 113, ¶ 8 (2011) (once an appellant establishes jurisdiction

over his IRA appeal, he is entitled to a hearing on the merits of his claim). On

remand, the administrative judge bifurcated the hearing, 2 assumed that the

appellant had made a prima facie case of retaliation under the WPA, and

proceeded directly to whether the agency proved by clear and convincing

evidence that it would have taken the same action absent the appellant’s

whistleblowing, without first deciding whether he had established by

preponderant evidence that he made a protected disclosure and whether that

disclosure was a contributing factor to a personnel action. See Herman v.

Department of Justice, 119 M.S.P.R. 642, ¶ 19 (2013). The administrative judge

allowed testimony only on the issue of whether the agency established its

affirmative defense by clear and convincing evidence, found that the agency met

its burden of proof, and denied the appellant’s request for corrective action. Id.,

¶ 6. The appellant again petitioned for review, arguing that the administrative

judge erred in his fact findings and credibility determinations and prevented him

from fully developing his case. Id., ¶ 7.

¶4 The Board agreed and found that the record was not sufficiently developed

for it to determine whether the agency carried its burden by clear and convincing

evidence. Id., ¶¶ 12-20. The Board also found that in this case the circumstantial

2

As noted, this case arises under the WPA, and, under that statute, administrative

judges often bifurcated the hearing, assuming that the appellant had established his

prima facie case of retaliation by preponderant evidence and proceeding directly to the

agency’s affirmative defense, i.e., whether the agency proved by clear and convincing

evidence that it would have taken the same action absent the whistleblowing. See

Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 17 (2003), aff’d, 97 F. App’x 322

(Fed. Cir. 2004). However, in 2012, Congress passed the Whistleblower Protection

Enhancement Act (WPEA). Pub. L. No. 112-199, 126 Stat. 1465. The WPEA instructs

that a denial of a request for corrective action on the basis that the agency established

its affirmative defense may only be made “after a finding that a protected disclosure

was a contributing factor,” i.e., after a finding that the appellant made his prima facie

case. 5 U.S.C. § 1221(e)(2); see Belyakov v. Department of Health & Human Services,

120 M.S.P.R. 326, ¶ 7 n.3 (2013). Although this case arises under the WPA, we are

also adjudicating it consistent with the provisions of the WPEA.

4

evidence bearing on retaliatory motive includes the substance of the appellant’s

allegedly protected activity as well as the extent to which R.S. was aware of it.

Id., ¶ 20. The Board further found that R.S.’s motive to retaliate is relevant to

both the existence and strength of any motive to retaliate on the part of the

agency officials who were involved in the decision. Id. The Board noted that our

reviewing court, in Kahn v. Department of Justice, 618 F.3d 1306, 1316 (Fed.

Cir. 2010), stated its preference that the Board resolve all issues in an IRA

appeal, including whether the appellant proved his prima facie case.

Herman, 119 M.S.P.R. 642, ¶ 19. The Board’s decision remanded the appeal for

“further adjudication of the appellant’s prima facie case of whistleblower

reprisal” and, if necessary, a new analysis of whether the agency established by

clear and convincing evidence that it would have taken the personnel actions at

issue in the absence of the disclosures. Id., ¶ 21.

¶5 A different administrative judge was assigned to adjudicate the appeal on

the second remand. 3 In the second remand decision, the new administrative judge

determined that the appellant had not met his burden to prove his prima facie case

of retaliation, finding that he had failed to prove by preponderant evidence that he

had made protected disclosures. MSPB Docket No. DC-1221-10-0164-B-3,

Remand Appeal File (RAF), Tab 54, Remand Initial Decision.

¶6 In his petition for review, the appellant contends that the administrative

judge was precluded by the law of the case doctrine from finding that the

appellant had failed to make protected disclosures. MSPB Docket No. DC-1221-

10-0164-B-3, Petition for Review (PFR) File, Tab 5 at 10-11. He asserts that the

Board found in Herman, 115 M.S.P.R. 386, that he had made protected

disclosures. PFR File, Tab 5 at 10-11. He also asserts that the administrative

judge erred in denying his motion to compel discovery of email exchanges

between various agency officials, including R.S. and R.E., to which the agency

3

The original administrative judge in this matter retired.

5

had access, as these emails were relevant to his burden to prove his prima facie

case. Id. at 11-15. The agency has responded to the petition for review, and the

appellant has replied to that response. PFR File, Tabs 8, 12.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s assertions regarding the law of the case doctrine are unavailing.

¶7 The law of the case doctrine refers to the practice of courts to refuse to

reopen what already has been decided in an appeal and of following a prior

decision in an appeal of the same case. Hoover v. Department of the

Navy, 57 M.S.P.R. 545, 552 (1993). Contrary to the appellant’s assertion, the

Board previously did not decide that he had made protected disclosures in

Herman, 115 M.S.P.R. 386. Rather, the Board agreed with the administrative

judge that the appellant had exhausted his procedural remedies before the Office

of Special Counsel (OSC), and, under the “knowledge/timing,” had made a

nonfrivolous allegation that his disclosures were a contributing factor to the

alleged retaliatory personnel actions. Herman, 115 M.S.P.R. 386, ¶ 9. The Board

went on to find that the appellant also made a nonfrivolous allegation that he had

made protected disclosures, thus establishing jurisdiction over his IRA appeal.

See id., ¶ 10-12; see also Yunus v. Department of Veterans Affairs, 242 F.3d

1367, 1371 (Fed. Cir. 2001) (the Board has jurisdiction over an IRA appeal if the

appellant has exhausted his administrative remedies before OSC and makes

nonfrivolous allegations that: (1) he engaged in whistleblowing activity by

making a protected disclosure; and (2) the disclosure was a contributing factor in

the agency’s decision to take or fail to take a personnel action). Thus, the

Board’s prior decision merely precluded the administrative judge from dismissing

the appellant’s IRA appeal for lack of jurisdiction.

6

The administrative judge abused her discretion in denying the appellant’s motion

to compel discovery.

¶8 Discovery is the process by which a party may obtain relevant information

from another party to an appeal. 5 C.F.R. § 1201.72(a). “Relevant information

includes information that appears reasonably calculated to lead to the discovery

of admissible evidence.” Id. What constitutes relevant information in discovery

is to be liberally interpreted, and uncertainty should be resolved in favor of the

movant absent any undue delay or hardship caused by such request. Ryan v.

Department of the Air Force, 113 M.S.P.R. 27, ¶ 15 (2009). “The scope of

discovery is broad: ‘[d]iscovery covers any nonprivileged matter that is relevant

to the issues involved in the appeal . . . .’” Baird v. Department of the

Army, 517 F.3d 1345, 1351 (Fed. Cir. 2008) (quoting 5 C.F.R. § 1201.72(b)).

The Board will not reverse an administrative judge’s rulings on discovery matters

absent an abuse of discretion. Wagner v. Environmental Protection

Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.

1993) (Table).

¶9 In this appeal, the appellant attempted to discover emails, notably those

initiated by R.S. and R.E., to meet his burden of establishing a prima facie case of

reprisal for whistleblowing. 4 See RAF, Tab 14. Specifically, according to the

appellant, the emails would show, among other things, that R.S. communicated

4

In contrast to the nonfrivolous allegations necessary to establish Board jurisdiction, in

order to establish a prima facie case of reprisal for whistleblowing, the appellant must

prove, by preponderant evidence, that: (1) he made a 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 as

defined by 5 U.S.C. § 2302(a). Webb v. Department of the Interior, 122 M.S.P.R. 248,

¶ 6 (2015). To establish that an appellant made a protected disclosure under 5 U.S.C.

§ 2302(b)(8), he need not prove that the matter disclosed actually established one of the

categories of wrongdoing listed under section 2302(b)(8)(A); rather, he must show that

the matter disclosed was one which a reasonable person in his position would believe

evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). Id.

7

with various agency officials, including R.E., in an effort to control and influence

agency actions involving the appellant. PFR File, Tab 5 at 11-15.

¶10 The appellant asserted that the agency’s representation, that it had no access

to emails covering the critical time periods involved in his discovery requests,

was “inconceivable.” RAF, Tab 16 at 9. Based on the appellant’s assertion, the

administrative judge ordered the agency to submit affidavits from employees in

the agency’s information technology (IT) office regarding, among other things,

the systems searched and the information found. RAF, Tabs 19, 23. The

appellant maintained that the agency’s response to the administrative judge’s

order was misleading, and he filed a motion for sanctions. RAF, Tab 33. He

alleged that the agency failed to acknowledge that its email management system,

described as “Netmail” by the employee who conducted the email search in

response to the appellant’s discovery requests, is an archival tool for emails from

which an employee cannot erase emails, and that R.S.’s and R.E.’s

communications during the critical time frame would have been available in

response to the appellant’s discovery request. Id. at 4-6. The administrative

judge denied the appellant’s motion but approved his request for the IT employee

to testify regarding the agency’s archival email system. RAF, Tab 39.

¶11 In his petition for review, the appellant references the IT employee’s

testimony in which he admits that, although he searched Netmail in response to

the appellant’s discovery requests, he failed to search another database called

“GroupWise”. PFR File, Tab 5 at 14. The appellant contends that this testimony

shows that critical emails would have been available through a search of

GroupWise and that the administrative judge erred by failing to sanction the

agency for not producing them. Id. at 11-17.

¶12 As the appellant asserts (and the agency does not appear to dispute), the IT

employee testified that, in addition to Netmail, the agency has an email system

called GroupWise that it used in the past and continues to use. Hearing

Transcript (HT) at 10-11. The witness also testified that “GroupWise allows

8

users to create personal archives that can be stored where the user specifies,

whether it be on their local hard drive or on a network location, and there is no

easy way to determine the location of these emails or to search them.” HT

at 11-12. He further testified that the Netmail system was implemented in 2010,

and, at that time, the agency began to migrate employees’ emails into Netmail.

HT at 13. The appellant, however, filed a Request for Production of Documents

dating from 2008 and 2009. RAF, Tab 14 at 28-29. The IT employee testified

that neither R.S.’s nor R.E.’s emails were pulled into the Netmail system because

they left the agency early in 2010 and the agency started implementing Netmail

around September 2010. HT at 27.

¶13 Because the appellant remained an employee of the agency, his emails were

pulled into Netmail. See HT at 28 (testimony of IT employee). When the

appellant asked at the hearing about the emails that he had sent that were not

retrieved in the IT employee’s Netmail search, the IT employee testified that

GroupWise contains both personal emails, which he does not have the capacity to

search, and GroupWise archived emails, which he can search. HT at 294-95. He

testified, moreover, that the emails that the appellant produced appear to have

come from GroupWise archived emails. HT 295-96. When asked if he searched

those archived emails, the IT employee admitted that he did not. HT at 302. He

also testified about the complex process necessary to search GroupWise personal

emails, concluded that it was possible, and acknowledged that he did not conduct

such a search. HT at 302-05. Finally, when asked what had happened to the

content of R.S.’s email account when she retired, the IT employee answered that

agency policy was to eliminate the account, but he acknowledged that he was not

responsible for that function. HT at 308.

¶14 Based on the record evidence, we find that GroupWise and Netmail are

different email systems, that the content of the two systems, while similar in some

ways, is not identical, and that based on the testimony of the agency’s IT

employee, the agency did not search GroupWise pursuant to the appellant’s

9

discovery request. It is also clear from the record that the GroupWise email

system may contain emails, notably those to or from R.S. and R.E., that may be

relevant to the appellant’s prima facie case, including the reasonableness of his

belief that one of the matters he disclosed is protected, the knowledge of his

disclosures by agency officials, and the motivation of R.S., R.E., or other agency

officials to retaliate against him. 5 Even if the agency carried out its policy to

delete R.S.’s and R.E.’s email accounts after they left the agency, other

employees remained at the agency who may have been the recipients of emails

from R.S. and R.E., emails that may remain in their GroupWise personal archives

because they would have predated the agency’s efforts to pull GroupWise’s

personal archived emails into Netmail.

¶15 Because the appellant bears the burden of establishing his prima facie case

and the emails in the GroupWise system appear that they might be relevant or

might lead to the discovery of relevant evidence, we find that the administrative

judge abused her discretion in failing to grant the appellant’s motion to compel

and order the agency to search the GroupWise email system for emails responsive

to the appellant’s discovery request. Accordingly, we vacate the initial decision

and remand this appeal for the administrative judge to reopen discovery

consistent with this decision. Once discovery is complete, the appellant may

request a supplemental hearing to address issues arising as a result of the

agency’s responses to his discovery request. The administrative judge then shall

issue a new initial decision.

5

The Board, in its second remand order, specifically determined that the appellant must

be permitted to develop the record on the substance of his allegedly protected activity

as well as the extent to which R.S. was aware of it. See Herman, 119 M.S.P.R. 642,

¶¶ 12-20.

10

ORDER

¶16 For the reasons discussed above, we REMAND this case to the regional

office for further adjudication in accordance with this Remand Order. 6

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

6

The appellant also asserts on review that the administrative judge erred in failing to

find whether the agency proved its affirmative defense, i.e., whether it showed by clear

and convincing evidence that it would have taken the personnel actions absent the

appellant’s whistleblowing. This case is not yet in a posture to address whether the

agency proved its affirmative defense. Only if the appellant makes out a prima facie

case is the agency required to prove by clear and convincing evidence that it would

have taken the same personnel action in the absence of the protected disclosure.

5 U.S.C. § 1221(e)(2); see Fellhoelter v. Department of Agriculture, 568 F.3d 965,

970-71 (Fed. Cir. 2009).