Daniels v. Merit Systems Protection Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS C. DANIELS, No. 13-73913

Petitioner,

MSPB No.

v. SF-1221-12-0426-W-1

MERIT SYSTEMS PROTECTION

BOARD, OPINION

Respondent.

On Petition for Review of an Order of the

Merit Systems Protection Board

Submitted May 4, 2016*

Pasadena, California

Filed August 9, 2016

Before: Harry Pregerson, Jay S. Bybee,

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 DANIELS V. MSPB

SUMMARY**

Whistleblower Protection Act

The panel denied a petition for review of a decision of the

Merit Systems Protection Board (“MSPB”) dismissing a

federal employee’s individual right of action appeal for lack

of jurisdiction because the employee did not make a non-

frivolous allegation under the Whistleblower Protection Act

(“WPA”).

Under the WPA, a federal employer is prohibited from

taking personnel action against an employee who has

disclosed information that evidences a violation of law, or

gross mismanagement, gross waste of funds, abuse of

authority, or substantial danger to public health or safety. An

aggrieved employee, such as petitioner, may file with the

MSPB an individual right of action that includes “non-

frivolous allegations.”

Petitioner was employed by the Social Security

Administration, and he was suspended for fourteen days by

an administrative law judge based on three charges. He filed

an individual right of action with the MSPB, arguing that he

made five disclosures that were protected whistleblowing

activity under the WPA.

The panel held that the standard for determining whether

a petitioner has made a non-frivolous disclosure is analogous

to the standard for reviewing a motion to dismiss.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DANIELS V. MSPB 3

The panel held that petitioner did not allege a non-

frivolous protected disclosure under the WPA. Specifically,

the panel held that Disclosures #1-2 were not protected

disclosures because an agency ruling or adjudication, even if

erroneous, was not a violation of the law or gross

mismanagement under the WPA. The panel further held that

Disclosures #3-5 were not protected disclosures because

communications concerning policy decisions were explicitly

excluded from protection under the WPA. The panel also

held that there was no evidence that the federal agency took

any personnel action against petitioner as a result of

Disclosures #3-5.

COUNSEL

Thomas C. Daniels, Temple City, California, pro se

Petitioner.

Calvin M. Morrow, Attorney; Bryan G. Polisuk, General

Counsel; Office of the General Counsel, Merit Systems

Protection Board, Washington, D.C.; for Respondent.

Marleigh D. Dover and Anne Murphy, Attorneys; André

Birotte Jr., United States Attorney; Stuart F. Delery, Assistant

Attorney General; Civil Division, United States Department

of Justice, Washington, D.C.; for Amicus Curiae Social

Security Administration.

4 DANIELS V. MSPB

OPINION

N.R. SMITH, Circuit Judge:

The Merit Systems Protection Board (“Board”) has

jurisdiction over individual right of action (“IRA”) appeals

only when a petitioner makes “non-frivolous allegations.”

See Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371

(Fed. Cir. 2001). Thomas Daniels, an employee of the Social

Security Administration (“SSA”),1 petitions for review of a

Board order dismissing his IRA appeal for lack of

jurisdiction. Daniels has not made a non-frivolous allegation

under the Whistleblower Protection Act (“WPA”).

Accordingly, we deny Daniels’s petition for review.

I.

Under the WPA, a federal employer (such as the SSA) is

prohibited from taking a “personnel action[2] with respect to

1

We deny the SSA’s motion to intervene as untimely, but have

considered the SSA’s filings as briefs amici curiae.

2

The WPA defines “personnel action” as:

(i) an appointment; (ii) a promotion; (iii) an action

under chapter 75 of this title or other disciplinary or

corrective action; (iv) a detail, transfer, or

reassignment; (v) a reinstatement; (vi) a restoration;

(vii) a reemployment; (viii) a performance evaluation

under chapter 43 of this title or under title 38; (ix) a

decision concerning pay, benefits, or awards, or

concerning education or training if the education or

training may reasonably be expected to lead to an

appointment, promotion, performance evaluation, or

other action described in this subparagraph; (x) a

DANIELS V. MSPB 5

any employee . . . because of any disclosure of information by

an employee” if the employee “reasonably believes [the

disclosed information] evidences (i) any violation of any law,

rule, or regulation, or (ii) gross mismanagement, a gross

waste of funds, an abuse of authority, or a substantial and

specific danger to public health or safety.” 5 U.S.C.

§ 2302(b)(8)(A).

An aggrieved employee (such as Daniels) may “seek

corrective action from the [Board]” by filing an IRA.

5 U.S.C. § 1221(a). For the Board to have jurisdiction over

an IRA appeal:

the appellant [must] exhaust[] his

administrative remedies before the [Office of

Special Counsel] and make[] “non-frivolous

allegations” that (1) he engaged in

whistleblowing activity by making a protected

disclosure under 5 U.S.C. § 2302(b)(8), and

(2) the disclosure 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).

decision to order psychiatric testing or examination;

(xi) the implementation or enforcement of any

nondisclosure policy, form, or agreement; and (xii) any

other significant change in duties, responsibilities, or

working conditions; with respect to an employee in . . .

a covered position in an agency.

5 U.S.C. § 2302(a)(2)(A).

6 DANIELS V. MSPB

Yunus, 242 F.3d at 1371.3 Under federal regulations, an

allegation is non-frivolous in this context if it “(1) Is more

than conclusory; (2) Is plausible on its face; and (3) Is

material to the legal issues in the appeal.” 5 C.F.R.

§ 1201.4(s). Thus, the standard for determining whether a

petitioner has made a non-frivolous disclosure is analogous

to the standard for reviewing a motion to dismiss.4 Cf.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (concluding that

a complaint must state a claim that is more than conclusory

and plausible on its face in order to survive a motion to

dismiss). If a petitioner fails to make a non-frivolous

allegation, the Board will dismiss the action for lack of

jurisdiction without a hearing on the merits. See John J.

Dvorske, Annotation, Merit Systems Protection Board

Jurisdiction over Individual Right of Action (IRA) Appeal,

24 A.L.R. Fed. 2d 459, § 21 (2007) (collecting cases where

petitioners failed to establish jurisdiction before the Board).

3

The “non-frivolous allegation” jurisdictional standard is well

established in the Federal Circuit, see Yunus, 242 F.3d at 1371–72

(collecting cases), and Congress has cited such standard with approval, see

S. Rep. No. 112-155, at 6 (2012), as reprinted in 2012 U.S.C.C.A.N. 589,

594.

4

The Federal Circuit has a different approach, instead equating the non-

frivolous standard with the standard for summary judgment. See Kahn v.

Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008); Dorrall v. Dep’t

of the Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled on other

grounds by Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir.

2006). However, we agree with the Fifth Circuit that the motion-to-

dismiss standard is more analogous. See Aviles v. Merit Sys. Prot. Bd.,

799 F.3d 457, 462 & n.4 (5th Cir. 2015) (“[B]ecause the applicable federal

regulations closely track our motion-to-dismiss standard—not our

summary judgment standard—we decline to follow the Federal Circuit’s

approach.”).

DANIELS V. MSPB 7

In 2012, Congress amended the WPA. See Whistleblower

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

112-199, § 108, 126 Stat. 1465, 1469 (2012). Congress

identified and abrogated specific judicial decisions by the

Federal Circuit that had concluded that disclosures made in

certain contexts (for example, during the course of an

employee’s regular duties, or where the information disclosed

was already known) would not be eligible for WPA

protection. See generally S. Rep. No. 112-155, at 4–5, 2012

U.S.C.C.A.N. at 592–93. Congress concluded that such

decisions impermissibly narrowed the scope of the WPA and

clarified that it “intend[ed] to protect ‘any disclosure’ of

certain types of wrongdoing in order to encourage such

disclosures” and “that the protection for disclosing

wrongdoing is extremely broad and will not be narrowed

retroactively by future [Board] or court opinions.” Id. at 5,

2012 U.S.C.C.A.N. at 593.

II.

Daniels was employed by the SSA as a Hearing Office

Director5 in its Office of Disability Adjudication and Review

(“ODAR”) in Orange, California. Daniels was suspended for

fourteen days by an administrative law judge (“ALJ”) based

on three charges: (1) conduct unbecoming a federal

employee; (2) failure to follow agency instructions; and

(3) lack of candor. Faced with disciplinary proceedings,

Daniels filed an IRA with the Board, alleging that he engaged

in protected whistleblowing activity under the WPA for

which he could not be disciplined. As outlined below,

5

The record also describes this position as a Supervisory Attorney

Adviser.

8 DANIELS V. MSPB

Daniels argues that he made five disclosures that were

protected under the WPA.

A. Disclosures #1–2: The Congressional Inquiry

In December 2010, ALJ John Kays issued a decision

favorable to a claimant in a Social Security disability case. In

January 2011, the Orange Hearing Office received an inquiry

from the claimant’s congressional representative requesting

a status update and asking for help in expediting the disability

payments to the claimant. In investigating the inquiry,

Daniels concluded that ALJ Kays’s decision was erroneous

and benefits should not have been awarded to the claimant.

SSA procedures specified that, when responding to

congressional inquiries, any concerns with an ALJ’s decision

should be brought to the Office of the Regional Chief ALJ.

Daniels did not follow these procedures. Instead, he

discussed his concerns with the Hearing Office’s Chief ALJ,

Helen Hesse.6 Daniels describes this communication with

ALJ Hesse as his first disclosure protected under the WPA

(hereafter “Disclosure #1”).

After discussing his concerns with ALJ Hesse, Daniels

also communicated with Pamela Franklin, a manager at the

Payment Center responsible for initiating benefits payments

based on an ALJ’s decision. Daniels informed Franklin of his

conclusion (that ALJ Kays’s decision was legally

6

ALJ Hesse agreed with Daniels’s conclusion that ALJ Kays’s decision

was erroneous. However, the SSA later asked Sarah Hong, a Regional

Quality Review Officer, to review ALJ Kays’s decision and provide an

analysis regarding the legal sufficiency of the decision. Officer Hong

determined that, while the decision should have discussed specific medical

records, the medical evidence in the file supported ALJ Kays’s

determination that the claimant was entitled to the award of benefits.

DANIELS V. MSPB 9

insufficient) and opined that the Payment Center should

withhold payment. Daniels describes this communication

with Franklin as his second disclosure protected under the

WPA (hereafter “Disclosure #2”).

The Office of the Regional Chief Judge for the San

Francisco Region investigated Daniels’s actions. When

questioned, Daniels claimed not to remember having

discussed the case with ALJ Hesse nor to recall the substance

of his communications with the Payment Office. In October

2011, Regional Chief ALJ William J. King issued a decision

suspending Daniels for fourteen days. ALJ King explained

three reasons for the suspension. First, Daniels’s “actions

constituted conduct unbecoming a federal employee because

they demonstrated a willingness to subvert established

procedures to advance [Daniels’s] personal views.” ALJ

King concluded that Daniels “improperly told Ms. Franklin

that the ALJ decision was wrong; that it should not be

effectuated; and that it should be referred to the Appeals

Council.” Second, Daniels failed to follow the SSA’s

“specific procedures for responding to congressional

inquiries” and thus “impeded the efficiency of the [response]

and created a risk of adverse publicity from the congressional

office.” Finally, ALJ King concluded that Daniels’s

statements to investigators “lacked candor” and thus

“reflect[ed] a lack of integrity in the performance of Daniels’s

duties and interfered with [ALJ King’s] investigation.”

B. Disclosures #3–5: Procedures for Purchasing

Interpreter Services

During the period when SSA officials were investigating

Daniels’s actions related to the congressional inquiry, Daniels

contacted Allyson Stokes, the Director of Acquisition Support

10 DANIELS V. MSPB

in the Office of Acquisition and Grants, with an unrelated

complaint. Daniels informed Stokes that he had been advised

not to use an office form known as “optional form (OF) 347”

for purchase orders for interpreter services at the Orange

Hearing Office and that this seemed contrary to Federal

Acquisition Regulations and agency policy. Daniels

describes this communication with Stokes as his third

disclosure protected under the WPA (hereafter “Disclosure

#3”).

Shortly after Daniels’s conversation with Stokes, ALJ

King sent a directive to ALJ Hesse explaining that the Orange

Hearing Office should cease using OF-347 to order the

services of interpreters, but should instead use micro-

purchase cards. Daniels filed a grievance, in which he

alleged that ALJ King’s purchasing directive violated Federal

Acquisition Regulations and agency policy.

On May 31, 2011, ALJ King denied Daniels’s grievance,

reasoning that the requirement stated in his directive reflected

a matter of policy. In a closing footnote, ALJ King reminded

Daniels that “until this issue is resolved, you are obliged to

carry out proper orders by officials authorized to give them.”

On June 3, 2011, Daniels filed a grievance with Chief

ALJ Debra Bice appealing ALJ King’s decision. Daniels

alleged that ALJ King’s closing footnote implied a threat to

take retaliatory personnel action against Daniels for refusing

to obey an order that would require him to violate Federal

Acquisition Regulations. Daniels describes this

communication with Chief ALJ Bice as his fourth disclosure

protected under the WPA (hereafter “Disclosure #4”).

DANIELS V. MSPB 11

On June 29, 2011, Daniels notified SSA Deputy

Commissioner Glenn Sklar of ALJ King’s “inferred threat.”

Daniels describes this communication with Sklar as his fifth

disclosure protected under the WPA (hereafter “Disclosure

#5”).

III.

In August 2011, Daniels filed a complaint with the Office

of Special Counsel.7 In March 2012, the Office of Special

Counsel informed ODAR that it was investigating Daniels’s

complaint, that it had concluded there was enough evidence

to support Daniels’s claims, and that it intended to seek

corrective action. However, before the Office of Special

Counsel was able to seek any corrective action, Daniels

exercised his right to file an IRA appeal to the Board. As a

result, the Office of Special Counsel closed its file on

Daniels’s complaint.

Daniels’s IRA was first reviewed by an administrative

judge. The administrative judge concluded that Daniels

failed to show that his disclosures were protected by the WPA

and denied Daniels’s request for corrective action.

7

The Office of Special Counsel was established by 5 U.S.C. § 1211.

Aggrieved employees are required to “seek corrective action from the

Special Counsel before seeking corrective action from the Board.”

5 U.S.C. § 1214(a)(3). The Office of Special Counsel is tasked with

investigating allegations of prohibited personnel practices and may seek

corrective action from the Board on an aggrieved employee’s behalf. See

id. § 1214(a)(1)(A). However, the Special Counsel’s findings are not

binding on the Board. See Frazier v. Merit Sys. Prot. Bd., 672 F.2d 150,

164 & n.51 (D.C. Cir. 1982).

12 DANIELS V. MSPB

Daniels filed a petition for review with the Board. On

November 6, 2012, in a unanimous non-precedential final

order, the Board denied the petition. The Board concluded

that Daniels had failed to allege a non-frivolous protected

disclosure under the WPA and dismissed his claims for lack

of jurisdiction. This petition for review followed.

IV.

The Ninth Circuit has only recently been granted

jurisdiction to review Board decisions. Until 2012, the

Federal Circuit had exclusive jurisdiction over such petitions.

However, when Congress amended the WPA in 2012, it

amended the procedures for judicial review of Board

decisions. Now, 5 U.S.C. § 7703(b)(1)(B) provides for

judicial review either in “the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent

jurisdiction.”8 As such, although Federal Circuit

jurisprudence in this area is well established, this case

presents issues of first impression for our court.

V.

“Whether the [B]oard had jurisdiction to adjudicate a case

is a question of law, which we review de novo.” See Forest

v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995); see

8

Section 7703(b)(1)(B) also contains a “sunset provision,” whereby,

upon expiration, the Federal Circuit will presumably retain exclusive

jurisdiction to review Board decisions. Originally, § 7703(b)(1)(B) was

only effective “[d]uring the 2-year period beginning on the effective date

of the Whistleblower Protection Enhancement Act of 2012 [December 30,

2012].” 5 U.S.C. § 7703 (effective through September 25, 2014).

However, the current version of § 7703(b)(1)(B) extends this time frame

to five years.

DANIELS V. MSPB 13

also Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d

1133, 1136 (9th Cir. 2008) (“This court reviews questions of

jurisdiction de novo.”).

VI.

The Board did not err by dismissing Daniels’s IRA appeal

for lack of jurisdiction, because Daniels failed to make

sufficient non-frivolous allegations.

A. Daniels failed to make a non-frivolous allegation

that his disclosures regarding ALJ Kays’s

adjudicatory decisions were protected disclosures

under the WPA (Disclosures #1–2)

Daniels’s disclosure of ALJ Kays’s decision is not a

disclosure protected under the WPA. For WPA protections

to apply, the employee must reasonably believe that the

disclosed information evidences either (1) a “violation of any

law, rule, or regulation” or (2) “gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety.” 5 U.S.C.

§ 2302(b)(8)(A). An agency ruling or adjudication, even if

erroneous, cannot reasonably suffice under either prong.9 An

ALJ, who makes an erroneous decision, does not violate the

9

Daniels also faults the Board for failing to conduct a “reasonable

belief” analysis concerning his disclosures. However, the initial decision

of the administrative judge concluded that “a reasonable person with facts

readily ascertainable to him would not find that a violation of law or

regulation occurred or that the ALJ authorized a gross waste of funds.”

Further, the Board’s conclusion that Daniels’s claims were frivolous

necessarily incorporates the conclusion that Daniels’s claims were

objectively unreasonable.

14 DANIELS V. MSPB

law (or engage in gross mismanagement) any more than does

a district judge who is subsequently reversed on appeal.10

On this point, we agree with the decisions of the Federal

Circuit and the Board. In Meuwissen v. Department of

Interior, the Federal Circuit concluded that “the ‘disclosure’

of a decision by an administrative judge, albeit an incorrect

one, is not a disclosure protected under the WPA.” 234 F.3d

9, 13 (Fed. Cir. 2000), superseded by statute on other

grounds, WPEA, Pub. L. No. 112-199, § 108, 126 Stat. at

1469. The court reasoned that “[s]uch a decision . . . is not a

‘violation’ of that law or any other law within the meaning of

the WPA.” Id. Likewise, in an Opinion and Order,11 the

Board concluded that “an employee’s disagreement with an

agency ruling or adjudication does not constitute a protected

disclosure,” reasoning that erroneous agency rulings “are

corrected through the appeals process—not through

insubordination and policy battles between employees and

their supervisors.” O’Donnell v. Dep’t of Agric., 2013

M.S.P.B. 69, 120 M.S.P.R. 94, 99–100 (2013) (citing

10

We distinguish statements that disclose malfeasance, fraud, or the like

by adjudicators. Such disclosures may indeed be subject to WPA

protections. See Cassidy v. Dep’t of Justice, 2012 M.S.P.B. 60,

118 M.S.P.R. 74, 78 (2012) (finding that petitioner made a non-frivolous

allegation when he complained that an immigration judge’s “conduct and

unnecessary delays violated the due process rights of detained aliens”).

Daniels has not made any such disclosure here. Instead, he has merely

expressed his disagreement with an ALJ’s decision.

11

“An Opinion and Order is a precedential decision of the Board and

may be appropriately cited or referred to by any party.” 5 C.F.R.

§ 1201.117(c)(1). In contrast, “[a] nonprecedential Order is one that the

Board has determined does not add significantly to the body of MSPB

case law.” § 1201.117(c)(2).

DANIELS V. MSPB 15

Meuwissen, 234 F.3d at 13–14), aff’d, 561 F. App’x 926 (Fed.

Cir. 2014).

Daniels is correct that Congress (in passing the WPEA)

explicitly superseded Meuwissen. S. Rep. No. 112-155, at 5,

2012 U.S.C.C.A.N. at 593. However, Congress’s contention

with Meuwissen was its holding that “disclosures of

information already known are not protected.”12 Id., 2012

U.S.C.C.A.N. at 593. As the Board later recognized in

O’Donnell, “the WPEA did not disturb [Meuwissen’s] more

general finding that erroneous administrative rulings are not

the type of danger or wrongdoing that whistleblower

protections were meant to address.” 120 M.S.P.R. at 99 n.5.

Thus, we do not undermine congressional intent nor do we

improperly limit the definition of “disclosure” by concluding

that an erroneous agency ruling or adjudication is not a

violation of law for purposes of the WPA. Indeed, in

enacting the WPEA, Congress explicitly stated that it only

intended to protect disclosures “of certain types of

wrongdoing.”13 S. Rep. No. 112-155, at 5, 2012

U.S.C.C.A.N. at 593. An agency ruling or adjudication, even

if erroneous, is not the type of “wrongdoing” contemplated by

the WPA.

12

As a result, the WPEA established 5 U.S.C. § 2302(f)(1)(B) to make

clear that a disclosure does not lose its protected status when “the

disclosure revealed information that had been previously disclosed.”

13

The types of wrongdoing contemplated by Congress are “the kinds of

misconduct listed in section 2302(b)(8).” S. Rep. No. 112-155, at 10–11,

2012 U.S.C.C.A.N. at 598–99. The WPEA did not amend section

2302(b)(8) and, therefore, did not change the types of wrongdoing or

misconduct entitled to WPA protection.

16 DANIELS V. MSPB

B. Daniels failed to make a non-frivolous allegation

that his disclosures regarding ALJ King’s directive

were protected disclosures under the WPA

(Disclosures #3–5)

ALJ King’s directive to use micro-purchase cards (instead

of OF-347) to order the services of interpreters was not a

violation of the law for purposes of the WPA. Instead, ALJ

King’s directive represents a policy decision. The WPA

explicitly excludes “communication[s] concerning policy

decisions” from its definition of “disclosure.”14 5 U.S.C.

§ 2302(a)(2)(D). Thus, Daniels’s communications

concerning procedures for ordering interpreter services do not

qualify as disclosures under the plain text of the WPA.

Even assuming Disclosures #3–5 qualify as “disclosures”

under the WPA, Daniels still must show that the SSA “t[ook]

. . . or threaten[ed] to take . . . a personnel action” as a result

of such disclosures. See 5 U.S.C. § 2302(b)(8)(A). Again,

Daniels fails—he offers no evidence that any personnel action

was taken (or threatened) as a result of Disclosures #3–5.15

14

Under the WPA, communications concerning policy decisions do not

qualify as protected disclosures unless the employee “reasonably believes

that the disclosure evidences (i) any violation of any law, rule, or

regulation; or (ii) gross management, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health or safety.”

5 U.S.C. § 2302(a)(2)(D). We agree with the Board’s conclusion that

“there is no evidence in the record that would support a reasonable belief

that the directive . . . amounts to a violation of any law, rule, or

regulation.”

15

Daniels’s fourteen-day suspension was the result of his response to the

congressional investigation (Disclosures #1–2) and was unrelated to

Disclosures #3–5. Indeed, ALJ King’s decision suspending Daniels refers

only to Daniels’s conduct in responding to the congressional investigation

DANIELS V. MSPB 17

Instead, Daniels argues that ALJ King implied a threat to take

personnel action when he reminded Daniels that he was

“obliged to carry out proper orders by officials authorized to

give them.” Even if § 2302(b)(8) covers implied threats, it

was not reasonable for Daniels to believe that ALJ King made

any such implied threat when he instructed Daniels to follow

the orders of authorized officials.

VII.

Daniels has not alleged a non-frivolous protected

disclosure under the WPA. Disclosures #1–2 are not

protected disclosures, because an agency ruling or

adjudication, even if erroneous, is not a violation of the law

or gross mismanagement under the WPA. Disclosures #3–5

are not protected disclosures, because communications

concerning policy decisions are explicitly excluded from

protection under the WPA. Further, there is no evidence that

the SSA took any personnel action against Daniels as a result

of Disclosures #3–5.

Accordingly, we DENY the petition.

and contains no reference to Daniels’s unrelated complaint regarding

procedures for ordering interpreter services. Daniels has not presented

any evidence that suggests the suspension was also connected to

Disclosures #3–5.