Frederick Jacob Roll v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FREDERICK JACOB ROLL, DOCKET NUMBER

Appellant, AT-1221-14-0613-W-1

v.

DEPARTMENT OF VETERANS DATE: April 15, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Frederick Jacob Roll, Fort White, Florida, pro se.

Dana C. Heck, Esquire, St. Petersburg, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied corrective action in his individual right of action (IRA) whistleblower

appeal. Generally, we grant petitions such as this one only when: the initial

decision contains erroneous findings of material fact; the initial decision is based

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. See 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 by this Final Order as to the administrative judge’s analysis

of the appellant’s alleged protected disclosure, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant retired from service with the agency effective January 28,

2012. Initial Appeal File (IAF), Tab 5, Subtab 4e. After retiring, the Office of

Personnel Management (OPM) informed him that his Civil Service Retirement

System (CSRS) annuity would be offset by $215.00 per month because of his

eligibility to receive social security benefits. IAF, Tab 1 at 29; see 5 U.S.C.

§ 8349. The appellant, however, previously had received a retirement annuity

estimate from his former employing agency that did not account for this offset.

IAF, Tab 1 at 31. Upon learning of the offset, the appellant complained to

several different Government agencies, agency employees, and elected officials

about the miscalculation, and subsequently sought reinstatement to employment

with the agency. Id. at 57-61. After the agency elected not to reinstate him, the

appellant filed a whistleblower complaint with the Office of Special Counsel

3

(OSC), and then filed the instant IRA appeal alleging a retaliatory failure to

reinstate him to employment based on protected whistleblowing. 2

¶3 Following a hearing, the administrative judge found that the appellant

established jurisdiction over his IRA appeal but denied his request for corrective

action on the merits, finding that he failed to prove by preponderant evidence that

he reasonably believed he made a protected disclosure under 5 U.S.C.

§ 2302(b)(8). 3 IAF, Tab 12, Initial Decision (ID) at 6-7. The appellant filed a

petition for review of the initial decision, and the agency filed a response in

opposition. Petition for Review (PFR) File, Tabs 1, 4.

ANALYSIS

¶4 To secure corrective action from the Board in an IRA appeal, an appellant

must first seek corrective action from OSC. Aquino v. Department of Homeland

Security, 121 M.S.P.R. 35, ¶ 9 (2014). If an appellant exhausts his administrative

remedies with OSC, 4 he then must establish Board jurisdiction by nonfrivolously

alleging that he made a protected disclosure that was a contributing factor in the

challenged personnel action. Id. Once an appellant establishes jurisdiction over

his IRA appeal, he is entitled to a hearing on the merits of his claim. Id. To

prevail on the merits of his claim, the appellant must prove by preponderant

evidence that (1) he made a protected disclosure concerning one or more

2

The appellant also filed an appeal with the Board alleging that his retirement was

involuntary based upon agency misinformation. See Roll v. Department of Veterans

Affairs, MSPB Docket No. AT-0752-14-0612-I-1. The administrative judge joined the

instant appeal and the involuntary retirement appeal for hearing, but issued separate

initial decisions. IAF, Tab 6. Only the appellant’s whistleblower reprisal allegations

are addressed herein.

3

Section 2302(b)(8) lists the following categories of protected whistleblowing: a

violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds;

an abuse of authority; and a substantial and specific danger to public health or safety.

5 U.S.C. § 2302(b)(8); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 20

(2013).

4

The agency has not challenged the administrative judge’s finding that the appellant

exhausted his remedies with OSC. ID at 5-6; IAF, Tab 5, Subtab 4d.

4

categories of wrongdoing enumerated in section 2302(b)(8), and (2) his protected

disclosure was a contributing factor in the challenged personnel action. Id., ¶ 10.

If the appellant makes such a showing, the burden shifts to the agency to prove by

clear and convincing evidence that it would have taken the same action in the

absence of the disclosure. Id.; see 5 U.S.C. § 1221(e)(2).

The administrative judge incorrectly imposed an actual violation standard in

concluding that the appellant did not have a reasonable belief that he made a

protected disclosure.

¶5 In his initial decision, the administrative judge found that the appellant

failed to establish that he reasonably believed he made a protected disclosure

under section 2302(b)(8) when he complained about an agency human resources

specialist’s failure to inform him that his retirement annuity would be offset by

his social security benefits. ID at 6-7. In reaching this conclusion, the

administrative judge relied upon his findings in the appellant’s involuntary

retirement appeal that the appellant failed to prove that the human resources

specialist provided him with material misinformation that caused him to retire

involuntarily. ID at 6-7. Based upon those findings, the administrative judge

concluded that a person in the appellant’s position could not have reasonably

believed that he disclosed one of the categories of wrongdoing under section

2302(b)(8) when he complained about the omitted offset information. 5 ID at 7.

¶6 We respectfully disagree with the administrative judge’s reasoning in this

regard. The Board has held that an appellant need not establish an actual

violation of one of the categories of wrongdoing listed in section 2302(b)(8) in

order to demonstrate that he had a reasonable belief that he made a protected

disclosure. See Stiles v. Department of Homeland Security, 116 M.S.P.R. 263,

¶ 17 (2011). Rather, an appellant need prove only that a disinterested observer

with knowledge of the essential facts known to and readily ascertainable by the

5

As explained below, the administrative judge did not identify which category of

wrongdoing the appellant’s disclosure allegedly involved. ID at 6-7.

5

employee could reasonably conclude the agency’s actions evidenced one of the

categories of wrongdoing listed therein. See 5 U.S.C. § 2302(b)(13); Shannon v.

Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 22 (2014). Here, because

the administrative judge relied on his factual conclusion that the agency did not

provide the appellant with materially misleading information that caused him to

retire involuntarily, we find that the administrative judge employed a higher

standard that focused on whether the appellant proved some quantum of actual

agency wrongdoing. Such a showing of an actual wrongdoing is not needed for

an appellant to establish that he had a reasonable belief that he made a protected

disclosure under section 2302(b)(8). See Chavez v. Department of Veterans

Affairs, 120 M.S.P.R. 285, ¶ 26 (2013).

The appellant failed to prove that he made a protected disclosure of a violation of

law, rule, or regulation under section 2302(b)(8).

¶7 Upon our review of the record, we find that the appellant failed to prove

that he made a protected disclosure of a violation of a law, rule, or regulation

under section 2302(b)(8) concerning the conduct of the agency’s human resources

specialist. 6 The test for establishing a protected disclosure under section

2302(b)(8) is not onerous. Both the Board and the U.S. Court of Appeals for the

Federal Circuit have found that an appellant is not required to identify the

particular statutory or regulatory provision by title or number that the agency

allegedly violated when his statements and the circumstances of those statements

clearly implicate an identifiable law, rule, or regulation. See Langer v.

6

Based upon the nature of the appellant’s allegations, none of the other categories set

forth in 5 U.S.C. § 2302 are implicated in this appeal. To the extent the appellant

alleged that the Director abused his discretion by not reinstating him to employment,

IAF, Tab 3 at 17, we have found no evidence in the record that the appellant presented

this particular allegation of wrongdoing to OSC in his whistleblower complaint, IAF,

Tab 5, Subtab 4d (OSC close out letter referencing that the appellant disclosed that the

human resources specialist “misadvised [him] regarding [his] retirement benefits”).

The Board may consider only the specific allegations of reprisal that have been

presented to OSC. See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004).

6

Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001); Mason v.

Department of Homeland Security, 116 M.S.P.R. 135, ¶ 17 (2011). Rather, an

appellant need prove only that a disinterested observer in his position could have

reasonably concluded that his disclosure evidenced a violation of a law, rule, or

regulation. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6

(2015). Despite this modest pleading standard, an employee must make more

than a vague, conclusory, or unsupported allegation of wrongdoing under section

2302(b)(8). See Phillip v. Merit Systems Protection Board, No. 2016–1002, 2016

WL 929856, at *2 (Fed. Cir. Mar. 11, 2016) (holding that a claim that “possible

unscrupulous practices” were occurring at the workplace did not constitute a

nonfrivolous allegation of a protected disclosure) 7; Barela v. Merit Systems

Protection Board, 388 F. App’x 965, 967 (Fed. Cir. 2010); Linder v. Department

of Justice, 122 M.S.P.R. 14, ¶ 14 (2014); McDonnell v. Department of

Agriculture, 108 M.S.P.R. 443, 447 (2008).

¶8 We have considered whether the statutory amendments of the

Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No.

112‑199, 126 Stat. 1465 (WPEA), 8 have altered the law regarding vague and

conclusory allegations and find that they have not. In enacting the WPEA,

Congress amended several provisions within title 5 of the U.S. Code, including

the definition and scope of a protected disclosure under 5 U.S.C. § 2302(b)(8).

See Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 12, 18 (2013)

(citing WPEA, § 101). Among these amendments are (1) a change in the

language of section 2302(b)(8) from a violation of any law, rule, or regulation, to

any violation of any law, rule, or regulation, and (2) the addition of several new

7

The Board has held that it may rely on unpublished decisions of the Federal Circuit if,

as it does here, it finds the reasoning persuasive. Graves v. Department of Veterans

Affairs, 114 M.S.P.R. 245, ¶ 11 n.2 (2010).

8

This appeal was filed after the December 27, 2012 effective date of the WPEA, and

the WPEA’s provisions thus apply.

7

subsections in section 2302(f) that clarify the definition of a protected disclosure.

See WPEA, § 101(a), (b)(2)(C); Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶5 n.3 (2013); Day, 119 M.S.P.R. 589, ¶¶ 18-26.

Additionally, under the WPEA, Congress expanded the grounds upon which an

appellant can file an IRA appeal with the Board to include certain classes of

protected activity under sections 2302(b)(9)(A)(i), (B), (C), or (D). 9 See 5 U.S.C.

§ 1221(a); Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9

(2014).

¶9 Absent from the WPEA’s various amendments, however, is any change to

the Board’s decisional authority finding that vague and conclusory allegations fail

to meet this standard. Congress’s silence on these topics in the WPEA is

germane, especially in light of the substantial amendments it made to existing

Federal whistleblower protections. See Butterbaugh v. Department of Justice,

336 F.3d 1332, 1342 (Fed. Cir. 2003) (“Congress may be presumed to know of

long-standing administrative or judicial constructions, and to adopt that

interpretation when it re-enacts a statute without change.”); Haywood v. Office of

Personnel Management, 65 M.S.P.R. 603, 609-10 (1994) (stating that, when

Congress adopts a new law incorporating sections of a prior law without change,

Congress is presumed to have been aware of the administrative or judicial

interpretation of the incorporated sections and to have adopted that

interpretation).

¶10 After extensively reviewing the appellant’s written submissions, we are

unable to conclude that his complaints about the human resources specialist prove

any violation of any law, rule, or regulation. In September 2012, the appellant

received notice from OPM that his CSRS retirement annuity would be offset by

his social security benefits. IAF, Tab 1 at 29. The following month, he wrote to

the Director of the North Florida/South Georgia Veterans Health System

9

None of the additional bases for filing an IRA appeal with the Board are implicated in

this case.

8

complaining that the human resources specialist failed to explain that his

retirement annuity would be subject to an offset. Id. at 57-61. In his letter to the

Director, the appellant summarized his history of Federal service, stated that had

he known his annuity would be offset he would not have retired, and sought

reinstatement to his previous position. Id. Although he asserted that he did not

receive all of the information he thought he should have received prior to retiring

and contended that he was told his CSRS retirement annuity would not be offset,

a contention concerning a mere mistake or simple error without more does not

prove a violation of a law, rule, or regulation.

¶11 The appellant wrote to the Director a second time on December 2, 2012,

again stating that he would not have retired had he known that his annuity would

be offset, that he was told by the human resources specialist that his annuity

would not be offset, and that he wanted to be reinstated. Id. at 62-71. Similar to

his first correspondence, the appellant made no allegation of illegality or a

violation of any law, rule, or regulation in this correspondence, and only asserted

that he had been misinformed prior to retiring. Id. The appellant also

acknowledged that another human resources specialist had contacted him about

his reinstatement request and that he was working with her in applying for

reinstatement. Id. at 62-63.

¶12 Finally, the appellant wrote to the Director a third time later in December

2012, this time questioning why the Director had not responded to him, asserting

that he was of good character and should be reinstated, and arguing for the first

time that the human resources specialist broke “the federal law and the federal

code of conduct by lieing [sic] to me.” Id. at 55. Apparently prior to receiving

this last correspondence, the Director responded to the appellant in a letter dated

December 31, 2012. 10 IAF, Tab 3 at 17-18. In this letter, the Director apologized

10

The Director’s letter references the appellant’s October 3 and December 2, 2012

correspondence, but does not reference the appellant’s third letter dated later in

December 2012. IAF, Tab 3 at 17.

9

for the confusion surrounding the appellant’s annuity estimate, explained the

CSRS offset process, and referenced that a human resources specialist had been

assigned to help him seek reinstatement. Id.

¶13 Based upon the statements contained within the appellant’s submissions to

the Director, we find that he has failed to prove that he disclosed a violation of

any law, rule, or regulation under section 2302(b)(8). Rather, the appellant’s

statements about the human resources specialist’s conduct are similar to other

general assertions of alleged wrongdoing that the Board has found do not

constitute protected disclosures of any law, rule, or regulation. See Boechler v.

Department of the Interior, 109 M.S.P.R. 542, ¶¶ 11-12 (2008) (finding that a

statement that an employee violated the law by participating in the cancellation of

a contract was too vague to even qualify as a nonfrivolous allegation of a

protected disclosure), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); Mc Corcle v.

Department of Agriculture, 98 M.S.P.R. 363, ¶ 21 (2005) (determining that

general allegations of harassment and discrimination were too vague to constitute

nonfrivolous allegations of protected disclosures). The Board, moreover, has

found that an individual’s allegation that another employee lied, without more,

does not constitute a protected disclosure under section 2302(b)(8). See Rzucidlo

v. Department of the Army, 101 M.S.P.R. 616, ¶ 17 (2006). Similarly, the

appellant’s allegation that the human resources specialist broke “the federal law

and the federal code of conduct” by purportedly lying to him does not clearly

implicate an identifiable law, rule, or regulation for the purpose of proving that

he made a protected disclosure under section 2302(b)(8). 11 See Chavez,

11

Among the additional correspondence in the record are two letters the appellant

wrote, one to the former Secretary of the Department of Veterans Affairs in April 2013

complaining about the Director, and a second to the President in December 2013

accusing the human resources specialist of violating both “the merit systems principles”

and 18 U.S.C. § 1001. IAF, Tab 1 at 72-77, 79. These letters could not have influenced

the agency’s decision not to reinstate the appellant because they both postdate the

challenged action. Id. at 33 (Director’s letter to U.S. Congressman Ander Crenshaw

dated February 15, 2013, explaining that the appellant had not been selected for

10

120 M.S.P.R. 285, ¶ 19 (finding that an allegation that medical carts were not

cleaned and stocked at a shift change, supposedly pursuant to agency regulations,

which the appellant failed to provide, did not clearly implicate a specific law,

rule, or regulation).

¶14 Based on the foregoing, we find that the appellant has failed to prove that

he made a protected disclosure under section 2302(b)(8), and we affirm as

modified the initial decision denying the appellant corrective action in his IRA

appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to

request review of this final decision by the U.S. Court of Appeals for the Federal

Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the U.S. Court of Appeals for the

reinstatement); see MSPB Docket No. AT-0752-14-0612-I-1, Tab 27, Hearing Compact

Disc (testimony of the Director). These letters therefore do not change the disposition

of this appeal. See Orr v. Department of the Treasury, 83 M.S.P.R. 117, ¶ 15 (1999)

(explaining that an act taken prior to a disclosure could not have been influenced by

that disclosure), aff’d, 232 F.3d 912 (Fed. Cir. 2000) (Table).

11

Federal Circuit or any court of appeals of competent jurisdiction. The court of

appeals must receive your petition for review within 60 days after the date of this

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time. You may choose to request review of the

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other

court of appeals of competent jurisdiction, but not both. Once you choose to seek

review in one court of appeals, you may be precluded from seeking review in any

other court.

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,

2012). You may read this law as well as other sections of the U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information about other

courts of appeals can be found at their respective websites, which can be accessed

through the link below:

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

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

12

Merit Systems Protection Board neither endorses the services provided by any

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.