Justin Christopher Graves v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2016 MSPB 24

Docket No. CH-1221-15-0123-W-1

Justin Christopher Graves,

Appellant,

v.

Department of Veterans Affairs,

Agency.

June 17, 2016

Shereef H. Akeel, Esquire, Troy, Michigan, for the appellant.

Amy C. Slameka, Esquire, Detroit, Michigan, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of an initial decision that

dismissed this individual right of action (IRA) appeal for lack of jurisdiction. For

the following reasons, we DENY the appellant’s petition for review and AFFIRM

the initial decision AS MODIFIED by this Opinion and Order, still DISMISSING

the appeal for lack of jurisdiction. We modify the initial decision to supplement

the administrative judge’s conclusion that the appellant did not make a protected

disclosure under 5 U.S.C. § 2302(b)(8), or engage in protected activity under

5 U.S.C. § 2302(b)(9)(B).

2

BACKGROUND

¶2 The agency terminated the appellant’s appointment to the position of

GS-0404-05 Biological Science Lab Technician based on a lack of work available

in the agency’s Research Service. Initial Appeal File (IAF), Tab 7 at 9-10.

¶3 The appellant filed this IRA appeal disputing the agency’s rationale for his

termination and asserting that the agency committed a prohibited personnel

practice because it terminated him in retaliation for protected activity, i.e., his

truthful testimony before an Administrative Investigation Board (AIB) in support

of a lead researcher, C.K., who was being investigated by the agency for

scientific research misconduct. IAF, Tab 1 at 6, 9.

¶4 The administrative judge ordered the appellant to establish that the Board

had jurisdiction over the appeal. IAF, Tab 3. In his response to the order, the

appellant asserted that, after he testified before the AIB and disclosed, by means

of a grievance, gross mismanagement, a gross waste of funds, and a hostile work

environment, the agency terminated his employment. IAF, Tab 4 at 5. The

appellant noted that Department of Veterans Affairs (VA) Directive 0700

required him to cooperate with such investigations to the extent permitted by

governing laws, regulations, policies, and collective bargaining agreements. Id.

at 4.

¶5 The agency moved to dismiss the appeal for lack of jurisdiction. IAF,

Tab 7 at 6, Tab 8. After the appellant filed several responses to the agency’s

motion, IAF, Tabs 10, 12-13, 15, the administrative judge dismissed the appeal

for lack of jurisdiction, IAF, Tab 17, Initial Decision (ID) at 1, 6. The

administrative judge found that the Board did not have jurisdiction over the

appeal under 5 U.S.C. chapter 75 because (1) the agency appointed the appellant

to a position in the Veterans Health Administration under 38 U.S.C. § 7405(a),

which excluded him from coverage, and (2) the appellant was serving in a

temporary appointment limited to 2 years or less and did not qualify as an

“employee” under 5 U.S.C. § 7511(a)(1). ID at 2. The administrative judge

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further found that, although the appellant exhausted his remedy with the Office of

Special Counsel (OSC) regarding his IRA appeal, he did not nonfrivolously

allege that he engaged in the protected activity of testifying for or otherwise

lawfully assisting any individual in the exercise of any appeal, complaint, or

grievance right granted by any law, rule, or regulation. ID at 3-4. In this regard,

the administrative judge held that the appellant’s testimony in support of C.K. on

November 1, 2012, during an AIB investigation concerning alleged research

misconduct did not involve protected activity under 5 U.S.C. § 2302(b)(9)(B)

because it was not provided pursuant to an appeal, complaint, or grievance right

exercised by C.K. ID at 4.

¶6 The administrative judge also held that, although the appellant asserted that

his filing of grievances led to his termination, retaliation for the filing of a

grievance is not a protected activity unless the grievance was itself intended to

remedy a violation of 5 U.S.C. § 2302(b)(8), i.e., retaliation for whistleblowing.

ID at 4. The administrative judge found that the appellant’s grievances were not

intended to remedy a prior instance of whistleblower retaliation, but instead

related to the agency’s alleged creation of a hostile work environment, disregard

for potential workplace violence, withholding of salary, and gross disregard for

VA policy. ID at 5.

¶7 Finally, the administrative judge held that, although the appellant claimed

in his OSC complaint to have reported gross mismanagement, the complaint and

correspondence from OSC provided no supporting details regarding this

conclusory assertion. Id. The administrative judge found that a reference in an

OSC letter to an alleged disclosure of a gross waste of funds was similarly a

conclusory, secondhand assertion that did not rise to the level of a nonfrivolous

allegation of a protected disclosure. ID at 5 n.1.

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ANALYSIS

¶8 Although the appellant appears to argue on review that the administrative

judge erred in finding he was not an employee for purposes of filing an IRA

appeal, he is mistaken. PFR File, Tab 1 at 16-18. As the administrative judge

properly found, the appellant does not meet the definition of employee for

purposes of filing an adverse action appeal under 5 U.S.C. chapter 75. ID at 2;

IAF, Tab 7 at 9; see 5 U.S.C. § 7511(a)(1)(C) (defining those

nonpreference-eligible individuals in the excepted service who meet the

definition of “employee” for purposes of chapter 75). However, the

administrative judge went on to analyze the appellant’s claim as an IRA appeal,

thus implicitly finding that the appellant met the definition of employee for

purposes of filing a whistleblower reprisal claim. ID at 2; see Wilcox v.

International Boundary & Water Commission, 103 M.S.P.R. 73, ¶ 11 (2006)

(finding that an individual meets the definition of an employee under the

Whistleblower Protection Act (WPA) if he has been (1) appointed in the civil

service by a Federal official acting in his official capacity, (2) engaged in the

performance of a Federal function under authority of law or executive act, and (3)

under the supervision of a named Federal official while engaged in the

performance of the duties of his position); 5 C.F.R. § 1209.2(a) (identifying

individuals who generally may file a whistleblower reprisal appeal as employees,

former employees, or applicants for employment). We agree with this

conclusion.

¶9 The appellant also asserts on review that he met the required elements for a

nonfrivolous claim of jurisdiction because he raised before OSC a claim that the

agency terminated him in reprisal for reporting gross mismanagement and a gross

waste of funds. Petition for Review (PFR) File, Tab 1 at 18-19. The

administrative judge found that the appellant’s OSC complaint and other

correspondence from OSC provided no supporting details regarding these

conclusory assertions. ID at 5 & n.1. The appellant has provided no further

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details on review regarding the nature of these alleged protected disclosures.

PFR File, Tab 1 at 18-19. Under these circumstances, we find that the appellant

has shown no error in this determination by the administrative judge. See, e.g.,

Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661,

¶ 12 (2015) (holding that vague, conclusory, and unsupported allegations do not

satisfy the Board’s nonfrivolous pleading standard).

¶10 In any event, it appears from the pleadings the appellant submitted to the

Board that his assertions regarding gross mismanagement and a gross waste of

funds relate to his contention that, after the agency initiated its investigation and

precluded the appellant and others from continuing their research, the agency

nevertheless instructed the affected individuals to come to work and get paid “for

not working.” IAF, Tab 15 at 8-9. The appellant, however, identified these

assertions as having been made only in the course of his grievances. Id. at 8-9,

55-56, 70, 118. Under these circumstances, and assuming that the appellant

exhausted his OSC remedies regarding these allegations, any such disclosures are

not protected under 5 U.S.C. § 2302(b)(8) and do not serve as a basis for Board

jurisdiction over this IRA appeal. See, e.g., Miller v. Merit Systems Protection

Board, 626 F. App’x 261, 269 (Fed. Cir. 2015) (finding that the Board does not

have jurisdiction over an IRA appeal arising out of disclosures made solely

during grievance proceedings and not separately disclosed to the agency); 1 Serrao

v. Merit Systems Protection Board, 95 F.3d 1569, 1575-76 (Fed. Cir. 1996)

(same), abrogated on other grounds by Yunus v. Department of Veterans Affairs,

242 F.3d 1367, 1371-72 & n.1 (Fed. Cir. 2001).

¶11 The appellant also asserts on review that the Board should recognize that,

consistent with the purposes of the WPA and the Whistleblower Protection

1

The Board may rely on unpublished decisions of the U.S. Court of Appeals for the

Federal Circuit if it finds the court’s reasoning persuasive, as we do here. Mauldin v.

U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).

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Enhancement Act of 2012 (WPEA), his testimony during the AIB investigation is

protected activity that can form the basis of a retaliation claim. PFR File, Tab 1

at 20-21. He contends that reading the WPA broadly to protect his testimony is

consistent with its purposes of strengthening and improving protection of Federal

employees who are willing to criticize Government management and encouraging

employees to disclose Government problems. Id. at 21. The appellant asserts

that the Board should go beyond the literal language of the statute if reliance on

that language would defeat the purpose of the statute and that courts have done so

in interpreting the retaliation provisions in other employment statutes. Id. at 22.

Therefore, he asserts that the retaliation protections afforded by 5 U.S.C.

§ 2302(b)(9)(B) should apply to Federal employees who testify within the scope

of their employment, regardless of the process at issue. Id. at 23.

¶12 The Board has jurisdiction over an IRA appeal if the appellant exhausts his

administrative remedies before OSC and makes nonfrivolous allegations 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). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). Under

5 U.S.C. § 2302(b)(9)(B), it is a protected activity to “testify[ ] for or otherwise

lawfully assist[] any individual in the exercise of any right referred to in

subparagraph (A)(i) or (A)(ii).” Section 2302(b)(9)(A), in turn, covers the

protected activities of “the exercise of any appeal, complaint, or grievance right

granted by any law, rule, or regulation – (i) with regard to remedying a violation

of paragraph (8); or (ii) other than with regard to remedying a violation of

paragraph (8).”

¶13 The interpretation of a statute begins with the language of the statute itself.

Bostwick v. Department of Agriculture, 122 M.S.P.R. 269, ¶ 8 (2015). If the

language provides a clear answer, the inquiry ends and the plain meaning of the

7

statute is regarded as conclusive absent a clearly expressed legislative intent to

the contrary. Id.; Hall v. Office of Personnel Management, 102 M.S.P.R. 682, ¶ 9

(2006). Under the maxim of statutory interpretation expressio unius est exclusio

alterius (“the expression of one thing is the exclusion of the other”), it should not

be assumed that other things that could have been listed in a statute were meant to

be included; rather, the specific mention of certain things implies the exclusion of

other things. Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 11 (2015).

¶14 The administrative judge correctly found that the investigation at issue in

this case did not constitute the exercise by C.K. of an “appeal, complaint, or

grievance right.” ID at 4. Instead, C.K. was the subject of an agency-initiated

investigation. Id. Section 2302(b)(9)(B) clearly applies to testifying for or

otherwise lawfully assisting any individual in the exercise of any appeal,

complaint, or grievance right granted by any law, rule, or regulation, and the

specific mention of these types of activities implies the exclusion of others.

¶15 In support of the administrative judge’s finding, we note that, even before

the enactment of the WPEA, 5 U.S.C. § 2302(b)(9) made it a prohibited personnel

practice to retaliate against an employee or applicant for employment “because of

the exercise of any appeal, complaint, or grievance right granted by any law, rule,

or regulation.” Linder, 122 M.S.P.R. 14, ¶ 7. Reprisal in violation of

section 2302(b)(9) was viewed as “‘reprisal based on exercising a right to

complain.’” Serrao, 95 F.3d at 1575 (quoting Spruill v. Merit Systems Protection

Board, 978 F.2d 679, 690 (Fed. Cir. 1992)). The Board had held that claims of a

prohibited personnel practice, such as reprisal under section 2302(b)(9), did not

serve as an independent basis for a finding of Board jurisdiction over an IRA

appeal. Linder, 122 M.S.P.R. 14, ¶ 7. In interpreting the pre-WPEA version of

5 U.S.C. § 2302(b)(9), the Board held that a claim of reprisal for exercising a

right to complain in certain administrative proceedings, such as Board appellate

proceedings, the equal employment opportunity complaint process, grievance

8

proceedings, and unfair labor practice proceedings, was not a basis for a finding

of Board jurisdiction. Id. 2

¶16 In Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 505-06,

508 (1993), overruled on other grounds by Thomas v. Department of the

Treasury, 77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of

the Treasury, 86 M.S.P.R. 32 (2000), the appellant alleged that the agency

retaliated against her for submitting a CA-1 Notice of Traumatic Injury. The

Board found that an employee who files a CA-1 is exercising his or her right to

file a “claim” for “payment of compensation” under the Federal Employees’

Compensation Act (FECA). Id. at 508. The Board determined that, in

adjudicating a FECA claim, the Office of Workers’ Compensation Programs

(OWCP) decides whether the claimant has provided sufficient evidence of a

nexus between the injury and her course of employment and, if so, the amount

and kind of compensation to be awarded. Id. The Board noted that the OWCP is

not empowered to grant relief for any underlying personnel practices that may

have led to the injury. Id.

¶17 Comparing the nature and scope of a FECA claim with, for example, an

appeal to the Board, a complaint filed with the Equal Employment Opportunity

Commission, a grievance, or an unfair labor practice complaint, the Board

concluded in Von Kelsch that the submission of a FECA claim for compensation

for a work-related injury did not constitute an initial step toward taking legal

action against an employer for the perceived violation of an employee’s rights.

Id. Accordingly, the Board found that the filing of a CA-1 is not the “exercise of

2

We note that the appellant does not contend that the content of his testimony during

the AIB investigation qualifies as a disclosure of either “a violation of any law, rule, or

regulation,” “gross mismanagement,” or an abuse of authority under section 2303(b)(8).

Thus, we have no occasion to consider whether the Board has jurisdiction when

disclosures allegedly protected under section 2303(b)(8) are made solely in the course

of an agency-initiated investigation and never presented outside that context.

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any appeal, complaint, or grievance right” within the terms of 5 U.S.C.

§ 2302(b)(9). Von Kelsch, 59 M.S.P.R. at 508-09.

¶18 The WPEA amended various provisions of the WPA, including 5 U.S.C.

§ 2302(b)(9). Pub. L. No. 112-199, § 101(b)(2)(B), 126 Stat. 1465, 1465-66. As

set forth above, the new statutory language provides that it is a prohibited

personnel practice to retaliate against an employee or applicant because of “the

exercise of any appeal, complaint, or grievance right granted by any law, rule, or

regulation – (i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)];

or (ii) other than with regard to remedying a violation of [5 U.S.C.

§ 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A). Nothing in the WPEA, however,

altered the Board’s previous analysis in Von Kelsch concerning the meaning of

the terms “appeal, complaint, or grievance” in the statutory language. Linder,

122 M.S.P.R. 14, ¶ 10. Thus, we agree with the administrative judge that the

investigation by the AIB did not constitute the exercise of an appeal, complaint,

or grievance right by C.K. because it did not constitute an initial step toward

taking legal action against the agency for a perceived violation of employment

rights. Id., ¶ 11 (filing a motion to dismiss an indictment does not constitute an

initial step toward taking legal action against an employer for a perceived

violation of employment rights); cf. Carney v. Department of Veterans Affairs,

121 M.S.P.R. 446, ¶ 6 (2014) (representing an agency employee during an

informal grievance meeting clearly falls within the protective umbrella of the

WPEA).

¶19 In fact, the term “administrative investigation” means “a systematic

process for determining facts and documenting evidence about matters of

significant interest to the VA.” VA Directive 0700, § 1.a (Mar. 25, 2002). 3 Such

3

Although the parties did not submit a copy of VA Directive 0700 into the record, the

appellant referenced the directive in his pleadings, and we may take official notice of

the Directive, which is publicly available at www.va.gov/ogc/investigations.asp (last

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investigations “are conducted to collect and analyze evidence to determine what

actually happened and why it happened, so that individual and systemic

deficiencies can be identified and effectively corrected.” Id. The VA’s policy

provides that “significant incidents occurring and issues arising within VA

facilities or staff offices, or as a result of VA activities, shall be reported and

investigated as necessary to meet the informational and decision-making needs of

the VA.” VA Directive 0700, § 2.a(1). “VA employees are required to cooperate

with administrative investigations in accordance with 38 [C.F.R.] § 0.735-12(b)

and other applicable authorities.” VA Directive 0700, § 2.b(4). Under 38 C.F.R.

§ 0.735-12(b), titled “Furnishing testimony,” employees “will furnish information

and testify freely and honestly in cases respecting employment and disciplinary

matters.” There is no indication in the record or in VA Directive 0700 suggesting

that an administrative investigation constitutes an initial step by an employee

toward taking legal action against the agency for a perceived violation of

employment rights or that the AIB is empowered to grant relief for any personnel

action related to the investigation.

¶20 Despite the appellant’s contentions that the purpose of the WPA is to

strengthen, improve, and protect the rights of Federal employees, prevent

reprisal, and help eliminate wrongdoing within the Government, and that

remedial statutes should be interpreted broadly, the statutory language at issue in

this case is clear as to the types of protected activities that fall under 5 U.S.C.

§ 2302(b)(9)(B). The appellant has not identified any clearly expressed

legislative intent indicating that testifying for or otherwise lawfully assisting an

individual during an agency investigation constitutes protected activity under

section 2302(b)(9)(B). The Board “does not have the authority to determine the

visited June 17, 2016). See Willingham v. Department of the Navy, 118 M.S.P.R. 21,

¶ 18 (2012) (taking official notice of a publicly available Department of Defense

Instruction).

11

most efficient and effective means to prevent agency retaliation”; rather, “it has

only as much authority as Congress chooses to give it.” King v. Jerome, 42 F.3d

1371, 1375 (Fed. Cir. 1994). The Board is not permitted, therefore, to create new

remedies that the appellant believes Congress may have overlooked. Id.

at 1375-76.

¶21 Finally, the appellant asserts that the administrative judge erred in relying

on Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1427-28 (Fed.

Cir. 1984), to deny him a hearing based upon a determination that there was no

factual dispute bearing on the issue of jurisdiction. PFR File, Tab 1 at 24-25; ID

at 1. The appellant contends that he is entitled to a “hearing on jurisdiction”

under the standard set forth in Garcia v. Department of Homeland Security,

437 F.3d 1322, 1330 (Fed. Cir. 2006) (en banc). PFR File, Tab 1 at 25-26. We

disagree.

¶22 An appellant meets his jurisdictional burden in an IRA appeal and is

entitled to a hearing on the merits if, after exhausting his remedy with OSC, he

makes nonfrivolous allegations that he engaged in protected activity that was a

contributing factor in a personnel action. Carney, 121 M.S.P.R. 446, ¶¶ 4, 11.

An employee is not entitled to a jurisdictional hearing in an IRA appeal because

the Board has jurisdiction over such an appeal only if the employee

nonfrivolously alleges that he satisfied the prima facie elements of his claim.

Spencer v. Department of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003).

“Whether allegations are non-frivolous is determined on the basis of the written

record.” Id. The employee is only entitled to a hearing once jurisdiction is

established, and that hearing is on the merits, not on jurisdiction. Id.; see

Oscar v. Department of Agriculture, 103 M.S.P.R. 591, ¶ 7 (2006) (finding that,

because an appellant made a nonfrivolous allegation of jurisdiction, the hearing

held by the administrative judge was properly characterized as a hearing on the

merits). By contrast, in adverse action appeals or constructive adverse action

appeals, unlike IRA appeals, an appellant is entitled to a jurisdictional hearing if

12

he makes nonfrivolous allegations of jurisdiction. Downs v. Department of

Veterans Affairs, 110 M.S.P.R. 139, ¶ 18 n.5 (2008); see Garcia, 437 F.3d

at 1324-25, 1344. As set forth above, the administrative judge correctly found in

this appeal that the appellant did not make nonfrivolous allegations that he made

protected disclosures or otherwise engaged in protected activity. Thus, the

administrative judge correctly held that the appellant was not entitled to a hearing

in this IRA appeal and dismissed this case for lack of jurisdiction.

ORDER

¶23 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

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

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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 your 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

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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.