Cathy Covington v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 5

Docket No. DE-0752-15-0169-I-1

Cathy Covington,

Appellant,

v.

Department of the Interior,

Agency.

January 13, 2023

Nina Ren, Esquire, Washington, D.C., for the appellant.

Frank Lupo, Esquire, and Jared M. Slade, Albuquerque, New Mexico, for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

OPINION AND ORDER

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

sustained her removal. For the reasons set forth below, we GRANT the

appellant’s petition, VACATE the initial decision, and REMAND this matter for

further adjudication consistent with this Opinion and Order.

BACKGROUND

¶2 The appellant was employed as a Forester in the agency’s Bureau of Indian

Affairs (BIA), Trust Services, Navajo Region, in Fort Defiance, Arizona. Initial

2

Appeal File (IAF), Tab 4 at 15-17, Tab 6 at 137. The Navajo Region serves the

Navajo Nation, which it considers its “sole customer.” Hearing Transcript (HT)

at 167 (testimony of the appellant’s first-level supervisor). The Navajo Region is

concerned with maintaining a good relationship between the BIA and the Navajo

Nation. Id.

¶3 Consistent with the Federal Government’s move toward greater autonomy

for Indian tribes, the BIA’s Navajo Region and the Navajo Nation have entered

into what are commonly known as “638 contracts” concerning timber and other

trust assets. HT at 116 (testimony of a BIA Tribal Operations Specialist), 156-57,

173-74, 209-10 (testimony of the appellant’s first-level supervisor). Trust assets

are assets that the Federal Government holds “in trust for Indian tribes and

individual Indians.” 25 C.F.R. § 115.002. The term 638 contracts refers to

contracts that are entered into under the Indian Self-Determination and Education

Assistance Act, Pub. L. No. 93-638, § 102, 88 Stat. 2203, 2206 (1975) (codified

as amended, at 25 U.S.C. § 5321); HT at 156 (testimony of the appellant’s

first-level supervisor). Under these self-determination contracts, tribal

organizations are permitted to self-administer certain programs that would

otherwise be administered on their behalf by the Federal Government. HT

at 156-57, 173-74; see 25 U.S.C. § 5321(a); Hinsley v. Standing Rock Child

Protective Services, 516 F.3d 668, 670 (8th Cir. 2008).

¶4 The Navajo Region has a 638 contract with the Navajo Nation Forestry

Department. HT at 157 (testimony of the appellant’s first-level supervisor).

Pursuant to a self-determination agreement with the BIA, the Navajo Nation

Forestry Department self-administers aspects of its forestry management

operations, including issuing permits for harvesting and selling timber products

on Navajo Nation lands. HT at 157, 169 (testimony of appellant’s first-level

supervisor); IAF, Tab 5 at 26-33. Nevertheless, the BIA’s Navajo Region is

responsible for reviewing and approving permits for harvesting timber. IAF,

Tab 5 at 96-97; 25 C.F.R. §§ 163.1, 163.3, 163.10, 163.26. The BIA Navajo

3

Region’s self-determination officer oversees these 638 contracts with the

assistance of awarding officials, who in turn are assisted by awarding official’s

technical representatives (AOTRs) and sub-awarding technical representatives.

HT at 157-58 (testimony of the appellant’s first-level supervisor).

¶5 In May 2013, while the appellant was serving a 1-year probationary period

as a Supervisory Forester, the agency designated her as the AOTR for the BIA’s

638 contract with the Navajo Nation Forestry Department. IAF, Tab 5 at 36, 51.

On December 2, 2013, she received a telephone call from a Navajo Nation

Forestry Department official. IAF, Tab 5 at 19. He expressed concern that

“timber . . . was being harvested along right-of-way [for Arizona State Highway]

264 . . . [without a] timber sale contract.” Id. at 19; HT at 378-79 (testimony of

the appellant). Highway 264 runs through the Navajo Nation. HT at 163

(testimony of the appellant’s first-level supervisor).

¶6 Two days later, the appellant visited the identified location and observed

the Arizona Department of Transportation (ADOT) cutting down trees along

Highway 264 and loading them onto trailers. IAF, Tab 5 at 19-23, 34. She

interviewed two individuals who advised her that the trees were “being hauled to

the Navajo Nation Forestry Department to be processed and cut into rough cut

lumber.” 1 Id. at 20. She obtained a copy of a “Transportation Permit” issued by

the Navajo Nation Forestry Department that allowed for removal of the timber at

issue along the right-of-way. Id. at 19, 24.

¶7 The following day, the appellant wrote two memoranda notifying her

first-level supervisor, the Regional Director, who was her second-level

1

Although the appellant was not aware of it at the time, ADOT was removing trees

along its right-of-way to widen the highway. HT at 164-65, 170 (testimony of the

appellant’s first-level supervisor). ADOT gave the trees it cut down, free of charge, to

the Navajo Nation Forestry Department. HT at 165, 170-71 (testimony of the

appellant’s first-level supervisor); IAF, Tab 5 at 38. The Navajo Nation later directed

the Forestry Department to share the wood within the community, including with a

tribal member who lost his previous home in a fire. IAF, Tab 5 at 38, 41.

4

supervisor, and the awarding official, that she had shut down this project, which

she described as a “timber permit sale.” Id. at 19-20. The appellant was under

the impression that the right-of-way along Highway 264 was subject to a

638 contract between the BIA and the Navajo Nation. IAF, Tab 5 at 24; HT

at 380 (testimony of the appellant). Such an agreement would require the Navajo

Nation to follow BIA regulations. IAF, Tab 5 at 22; HT at 380, 418 (testimony of

the appellant). She believed that the Navajo Nation Forestry Department had

violated these regulations by failing to have a timber sale contract in place. HT

at 380 (testimony of the appellant). She shut the project down on that basis. Id.

¶8 In her December 5, 2013 memoranda, the appellant asserted that the Navajo

Nation Forestry Department was not authorized to retain any revenues from the

timber sale absent a tribal resolution to that effect and that it was a conflict of

interest for the Navajo Nation Forestry Department to have obtained the timber

sale permit for its own benefit because it distributed the permits. IAF, Tab 5

at 19-21, 51. It is undisputed that shutting down work was outside the scope of

the appellant’s authority as the AOTR. HT at 160-61, 166-67 (testimony of the

appellant’s first-level supervisor), 417-18 (testimony of the appellant); IAF,

Tab 5 at 47-49, 52. By shutting down the Highway 264 project, she caused

tensions between the BIA and the Navajo Nation. HT at 168, 172-73, 245

(testimony of the appellant’s first-level supervisor).

¶9 The Navajo Region later determined that the land from which trees were

being cut was not subject to a 638 contract. HT at 170-71 (testimony of the

appellant’s first-level supervisor). Instead, the agency, with the concurrence of

the Navajo Nation, had provided ADOT with a right-of-way, giving it “rights and

claims” within the area at issue along the highway, which apparently included the

right to dispose of timber located along the right-of-way as they saw fit. HT

at 170 (testimony of the appellant’s first-level supervisor); IAF, Tab 5 at 34. The

Regional Director determined that “[t]he [Navajo Nation] forestry department

ha[d] partnered with ADOT to collect and remove all timber to be utilized for

5

local community needs at no cost” and advised the appellant that “BIA supports

this arrangement” between the two parties. IAF, Tab 5 at 38.

¶10 By letter dated March 11, 2014, the Regional Director returned the

appellant to her prior nonsupervisory position based on the appellant’s actions in

stopping ADOT’s work along Highway 264. Id. at 36. She faulted the appellant

for making a “premature decision” and demonstrating a “lack of expert guidance”

by interfering in the arrangement between ADOT and the Navajo Nation Forestry

Department. Id. According to the Regional Director, the appellant’s action

resulted in an “unnecessary delay of the project” and “forced [BIA] to enter into

an unnecessary [memorandum of understanding] with [ADOT].” Id. The

appellant returned to her prior position effective March 16, 2014. 2 Id.

¶11 Between late December 2013 and early January 2014, as well as on or

around June 18, 2014, the appellant reported additional alleged agency

wrongdoing to the agency’s Office of Inspector General (OIG). IAF, Tab 6

at 27-29, Tab 33 at 10. She also sent a September 11, 2014 email to the Navajo

Nation Forest Manager raising concerns that certain Navajo Nation-proposed tree

harvesting projects did not comply with the National Environmental Policy Act

(NEPA) and other Federal laws. IAF, Tab 5 at 39. The awarding official and the

appellant’s first-level supervisor learned of this email to the Navajo Nation later

that month. Id. at 43, 45.

¶12 On November 6, 2014, the appellant’s first-level supervisor proposed her

removal based on a charge of “Failure to Safeguard Government Records.” IAF,

Tab 6 at 47-48. In its first specification, the agency asserted that on July 22,

2014, despite receiving instructions requiring her to complete an inventory of

2

There is no evidence that the appellant sought to overturn this action before the Board

or in any other forum. HT at 383-84 (testimony of the appellant). It is not at issue in

this appeal. We mention it here for purposes of providing background for the

appellant’s alleged protected disclosures. IAF, Tab 40 at 2-3.

6

documents and get approval before moving those documents from her former duty

station in Fort Defiance, Arizona, to her new office in Gallup, New Mexico, the

appellant “removed and disposed of confidential [G]overnment records in a

public dumpster that contain[ed] the PII [Personally Identifiable Information] of

individuals [such as] names and social security numbers, date[s] of birth, and

[F]ederal records including Indian [Fiduciary Trust] Documents” (e.g., maps). Id.

at 47-49, 158-60. The agency noted that other documents the appellant had

placed in her vehicle were not recovered and it was unknown which of those files

were missing because she did not complete the required inventory. Id. at 49. In

its second specification, the agency alleged that on July 25, 2014, the appellant

loaded inventoried records into a Government vehicle and transported them to her

new office on her own, despite an instruction to travel with ano ther employee in a

different Government vehicle. Id. The appellant filed a complaint with Office of

Special Counsel (OSC) on November 25, 2014, alleging retaliation for

whistleblowing. Id. at 4-35. After the appellant responded to the proposal notice

orally and in writing, the deciding official sustained the charge and effect uated

her removal on December 29, 2014. IAF, Tab 4 at 15, 17-22.

¶13 The appellant filed a Board appeal of her removal. IAF, Tab 1. She raised

affirmative defenses of reprisal for whistleblowing and equal employment

opportunity (EEO) activity and alleged a violation of her right to due process.

IAF, Tab 1 at 6-8, Tab 33 at 4-5, Tab 40 at 2-3, Tab 41 at 4-7, Tab 45 at 1-2.

After a hearing, the administrative judge issued an initial decision affirming the

removal. IAF, Tab 54, Initial Decision (ID) at 1, 36. He found that the agency

proved both specifications of its charge, nexus, and the reasonableness of the

penalty. ID at 7-13, 32-36. He also held that the appellant did not prove

retaliation for EEO activity or a violation of her due process rights. ID at 24-32.

As to the appellant’s whistleblower reprisal claim, the administrative judge held

that the appellant’s December 5, 2013 and September 11, 2014 disclosures

were not protected. ID at 15-17. He reasoned that she reported alleged

7

wrongdoing by the Navajo Nation, rather than the Federal Government. ID

at 16-17. However, he found that her OIG complaints and OSC complaint

constituted protected activity. ID at 17-18. The administrative judge also found

that the appellant proved that this activity was a contributing factor in her

removal, and the agency proved by clear and convincing evidence that it would

have removed her absent this activity. ID at 18-24.

¶14 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 3. The agency has responded to the petition for review, and the

appellant has replied. PFR File, Tabs 5-6.

ANALYSIS

A disclosure of wrongdoing committed by a non-Federal Government entity is

protected only when the Government’s interests and good name are implicated in

the alleged wrongdoing. 3

¶15 In order to prevail on her whistleblower retaliation affirmative defense, an

appellant must prove by preponderant evidence that she made a whistleblowing

disclosure as described under 5 U.S.C. § 2302(b)(8) or engaged in protected

activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the

disclosure or protected activity was a contributing factor in the agency’s decision

to take or fail to take a personnel action outlined in 5 U.S.C. § 2302(a)(2)(A). 4

5 U.S.C. § 1221(e)(1); Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 12 &

3

On review, the parties do not challenge the administrative judge’s determination that

the agency proved the charge and its nexus to the efficiency of the service and that the

penalty of removal was within the tolerable limits of reasonableness. PFR File, Tabs 3,

5-6. They also do not dispute that the appellant failed to prove her claims of EEO

reprisal and a due process violation. Id. We discern no basis to disturb the

administrative judge’s finding regarding the due process violation claim. Moreover,

because the appellant does not challenge the administrative judge’s determination that

the appellant did not prove her affirmative defense of retaliation for EEO activity, we

do not further address this finding here.

4

It is undisputed that the appellant’s removal, which the agency took under chapter 75,

is a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii).

8

n.1 (2015). Regarding her December 5, 2013 and September 11, 2014

disclosures, the appellant argues on review that there is no statutory provision

requiring that a violation of law, rule, or regulation be committed by agency

personnel. PFR File, Tab 3 at 10, 13-14. She contends that she reasonably

believed that her disclosures evidenced a violation of law, rule, or regulation. Id.

at 12-14.

¶16 The relevant statute provides that an agency may not remove an employee

because of “any disclosure” that the employee reasonably believes evidences “any

violation of any law, rule, or regulation.” 5 U.S.C. § 2302(b)(8). The Board has

held that a disclosure of wrongdoing committed by a non-Federal Government

entity may be protected only when the Government’s interests and good name are

implicated in the alleged wrongdoing, and the employee shows that she

reasonably believed that the information she disclosed evidenced that

wrongdoing. Miller v. Department of Homeland Security, 99 M.S.P.R. 175, ¶ 12

(2005); Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶¶ 6-7 (2001).

¶17 Relying on Arauz, 89 M.S.P.R. 529, ¶ 7, and Aviles v. Merit Systems

Protection Board, 799 F.3d 457, 464-66 (5th Cir. 2015), the administrative judge

found that the appellant’s December 5, 2013 and September 11, 2014 disclosures

were not protected because she alleged wrongdoing by the Navajo Nation, rather

than agency personnel. ID at 16-17. The appellant argues that the administrative

judge erred in relying on Arauz because that decision was issued before the

enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA),

which reversed some judicially created limitations on whistleblower protections.

PFR File, Tab 3 at 13.

¶18 In Aviles, 799 F.3d at 464-66, which was decided after enactment of the

WPEA, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) agreed with

the Board and held that, when enacting the WPEA, “Congress did not intend to

protect disclosures of purely private wrongdoing.” As the appellant notes, Aviles

is not necessarily binding on the Board. PFR File, Tab 3 at 13. Prior to late

9

2012, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)

generally was the Board’s sole reviewing court in cases of alleged whistleblower

reprisal. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10 n.6

(recognizing that prior to the passage of the WPEA, Pub. L. No. 112-199, 126

Stat. 1465, 1469, the Board was bound by the decisions of the Federal Circuit in

adjudicating whistleblower reprisal claims). However, since that time, pursuant

to 5 U.S.C. 7703(b)(1)(B), an appellant who seeks review of a final Board

decision and limits any prohibited personnel practice claims to those arising

under 5 U.S.C. § 2302(b)(8) and (b)(9)(A)(i), (B), (C), and (D) may seek review

in any Federal circuit court of appeal of competent jurisdiction. 5 U.S.C.

§ 7703(b)(1)(B); Chambers, 2022 MSPB 8, ¶ 10 n.6.

¶19 Yet the appellant has pointed to no other circuit which has held contrary to

the Board’s precedent in Arauz. The Federal Circuit recently had the opportunity

to do so, but in a nonprecedential decision instead agreed that disclosures of

purely private wrongdoing are not covered by 5 U.S.C. § 2302(b)(8), and in fact

cited Aviles in its decision. Oram v. Merit Systems Protection Board,

No. 2021-2307, 2022 WL 866327 (Fed. Cir. Mar. 23, 2022). 5 In the absence of

any higher authority rejecting the Board’s position in Arauz, we decline to revisit

it here.

The appellant made disclosures regarding alleged wrongdoing by the Navajo

Nation Forestry Department that implicated the Federal Government’s interests

and good name.

¶20 We now consider whether the Government’s interests and good name were

implicated in the alleged wrongdoing. In Arauz, 89 M.S.P.R. 529, ¶¶ 5-7, the

Board found that the Government’s interests and good name were implicated in a

5

The Board may rely on nonprecedential decisions of the Federal Circuit when we find

their reasoning persuasive, as we do here. Alegre v. Department of the Navy,

118 M.S.P.R. 424, ¶ 15 n.2 (2012).

10

disclosure of a non-Governmental organization’s alleged violation of state voter

registration laws because the organization was performing functions within the

scope of a Government program and the agency was in a position to influence or

exercise oversight over the organization’s performance of those functions.

Similarly, in Johnson v. Department of Health & Human Services, 93 M.S.P.R.

38, ¶¶ 9-11 (2002), the Board found that the Government’s interests and

reputation were implicated by the appellant’s disclosure of alleged contract

violations and illegal employment practices by a Government contractor because

the appellant claimed that agency officials ignored the contractor’s conduct.

Finally, in Miller, 99 M.S.P.R. 175, ¶¶ 12-13, the Board found that the Federal

Government’s interests and good name were implicated by an appellant’s

disclosure that state officials allegedly used excessive force because the alleged

wrongdoing occurred during the joint execution of a search warrant by those

officials and the agency.

¶21 With this guidance, we consider the appellant’s December 2013 and

September 2014 disclosures in turn. As explained below, we conclude that the

appellant’s disclosures concerned purported wrongdoing by the Navajo Nation

that implicated the Federal Government’s interests, reputation, and good name.

The appellant’s December 5, 2013 disclosures implicated the

Federal Government’s interests and good name.

¶22 The administrative judge acknowledged that allegations of private

wrongdoing may constitute protected whistleblowing, citing the Board’s decision

in Arauz and the Fifth Circuit’s decision in Aviles, but determined that the

December 5, 2013 memoranda regarding the Navajo Nation Forestry

Department’s securing of a timber harvesting permit were not protected because

the appellant had not explained why she believed that agency personnel were

violating rules or abusing authority, or made specific allegations of wrongdoing

by agency officials. ID at 16-17. Instead, the administrative judge characterized

the memoranda as expressing concerns about the Navajo Nation’s conduct. ID

11

at 17. Consequently, he concluded that the appellant failed to show by

preponderant evidence that she reasonably believed that she was disclosing any

wrongdoing by agency personnel. Id.

¶23 The appellant argues on review that she reasonably believed the project

along Highway 264 was covered by a 638 contract, and thus subject to the

statutes and regulations concerning such projects. PFR File, Tab 3 at 12-13. We

find that the appellant’s December 2013 disclosures are protected because they

implicate the Government’s good name.

¶24 In 1868, the United States and the Navajo Tribe entered into an agreement

that established a reservation covering, as relevant here, the area around

Fort Defiance that was the subject of the appellant’s disclosures. Treaty Between

the United States and the Navajo Tribe of Indians, ratified July 25, 1868, 15 Stat.

667 (the Treaty of 1868); see McClanahan v. State Tax Commission of Arizona,

411 U.S. 164, 173-75 (1973) (explaining that the Treaty of 1868 set aside a

reservation for the Navajo “under general [F]ederal supervision”). The Federal

Government, acting through the agency, generally manages and has pervasive

control over Indian timber, land, and forests on reservation land. See

United States v. Mitchell, 463 U.S. 206, 207-09, 219-23 (1983) (discussing this

control in the context of the Government’s 1861 treat y with the Quinault and

Quileute Tribes, citing, among other authorities, 25 U.S.C. §§ 405-407, 466;

25 C.F.R. part 163). Similarly, the agency has authority to grant rights-of-way

through reservation lands with Tribal or individual owner consent. Id. at 223

(citing 25 U.S.C. §§ 323-25; 25 C.F.R. part 169). This control creates a trust

relationship and resulting fiduciary obligation on the part of the Government

toward the Indian people as to the Government’s “ management and operation” of

these reservation resources. Id. at 224-26; see Navajo Nation v. U.S. Department

of the Interior, 26 F.4th 794, 800, 809-12 (9th Cir. 2022) (finding that, under the

Treaty of 1868, the United States had an implied trust obligation toward the

Navajo Nation as it concerns its rights to access water from the Colorado River,

12

which is “appurtenant to the Nation”), cert. granted, 143 S. Ct. 398 (2022)

(No. 22-51).

¶25 Although the appellant believed that the timber harvested along

Highway 264 was subject to a 638 contract, she was mistaken. IAF, Tab 5

at 19-23. Instead, the area in question was subject to a right-of-way, which gave

ADOT the right to remove the trees. Id. at 38; HT at 170-71 (testimony of the

appellant’s first-level supervisor). As discussed above, the agency has a fiduciary

duty concerning the assets on the reservation land generally and the authority to

award rights-of-way, such as the right-of-way that the agency provided to ADOT

along Highway 264. HT at 151, 170 (testimony of the appellant’s first-level

supervisor); Mitchell, 463 U.S. at 223-26; e.g., 25 U.S.C. §§ 311, 323-35;

25 C.F.R. §§ 169.5-169.6. Accordingly, the appellant’s questioning of the

activities along Highway 264 and her suggestion that the Navajo Nation Forestry

Department had a conflict of interest in obtaining the timber from those activities

implicated the agency’s reputation in its oversight of Indian resources and land.

HT at 151 (testimony of the appellant’s first-level supervisor); see Arauz,

89 M.S.P.R. 529, ¶ 7.

The appellant’s September 11, 2014 disclosure implicated the

Government’s interests and good name.

¶26 The administrative judge concluded that the appellant’s September 11, 2014

email to a Navajo Nation Forest Manager raising concerns about the Navajo

Nation’s proposed tree harvesting project did not constitute whistleblowing. ID

at 17. He reasoned that the appellant failed to show that agency personnel were

violating, or were complicit in the alleged violations of, NEPA. ID at 17.

We disagree.

¶27 By statute, the Federal Government has a trust responsibility for Indian

forest lands. 25 U.S.C. § 3101(2). Only the Secretary of the Interior or her

designee can approve management activities on these lands, including harvesting

timber and forest thinning. 25 C.F.R. §§ 163.1, 163.10; BIA, Indian Forest

13

Management Handbook 53 IAM 2-H, Forest Management Planning, §§ 2.1, 2.4

(2009), https://www.bia.gov/sites/default/files/dup/assets/public/raca/handbook/

pdf/53-IAM-2H-Forest-Management-Planning-HB_OIMT.pdf. In approving such

activities, the Secretary must ensure the activities are compliant with applicable

environmental laws, including NEPA. 25 C.F.R. § 163.34. Thus, the agency is

responsible for ensuring that management activities on Indian forest lands are

NEPA compliant.

¶28 Although not expressly stated in the record, it appears that the appellant’s

September 11, 2014 disclosure concerned activities on Indian forest land. HT

at 116 (testimony of a BIA Navajo Region Tribal Operations Specialist), 151-52,

210 (testimony of the appellant’s first-level supervisor). The BIA’s Navajo

Region is responsible for providing services related to the activities in question,

including reviewing and approving permits for harvesting timber. IAF, Tab 5

at 96-97; 25 C.F.R. §§ 163.1, 163.3, 163.10, 163.26.

¶29 In her September 2014 email, which the appellant sent to a Navajo Nation

Forest Manager pursuant to her role as the AOTR for a proposed tree harvesting

project on Navajo Nation land in the Assayi Lake fire area, she expressed

concerns that the project did not comply with environmental laws and regulations.

IAF, Tab 5 at 39-40. She put the Forest Manager “on notice” that all harvesting

activities were obligated to meet the requirements under NEPA and other Federal

environmental laws. Id. The appellant also noted that during a previous meeting

with the Forest Manager, he seemed “agitated” about the appellant’s request for

additional information to address her concerns about the project plans. Id.

¶30 In a September 15, 2014 response to the appellant’s email, the awarding

official informed the appellant that if there were any potential problems that

“threaten the performance of the contract, the AOTR must immediately contact

the [awarding official] so that remedial measures may be taken.” Id. at 45. By

suggesting the BIA may need to take actions, the awarding official acknowledged

14

that the BIA’s interests and reputation in overseeing the proposed harvesting

project were implicated by the appellant’s disclosure. Id. at 45.

¶31 Based on the foregoing, we conclude that the administrative judge erred

when he determined that the appellant’s disclosures concerned only the Navajo

Nation. ID at 16-17. Instead, we conclude that, given the BIA’s fiduciary

relationship with the Navajo Nation, as well as the oversight role and the

significant amount of control it had over the Navajo Nation Forestry

Department’s functions, the appellant’s disclosures implicated the Government’s

reputation and good name. Miller, 99 M.S.P.R. 175, ¶¶ 12-13; Johnson,

93 M.S.P.R. 38, ¶¶ 10-11; Arauz, 89 M.S.P.R. 529, ¶ 7.

The appellant reasonably believed that her December 5, 2013 disclosures

evidenced wrongdoing under 5 U.S.C. § 2302(b)(8).

¶32 Because the administrative judge found that the appellant’s disclosures

did not implicate the Federal Government, he did not address the reasonableness

of her belief that her disclosures evidenced wrongdoing under 5 U.S.C.

§ 2302(b)(8). ID at 16. We find that the appellant proved she reasonably

believed her December 2013 disclosures evidence wrongdoing, but did not prove

the same regarding her September 2014 disclosure.

The appellant’s December 5, 2013 disclosures were protected.

¶33 As to her December 2013 disclosures, the appellant argues on review that

she reasonably believed the “timber harvesting” along Highway 264 violated the

statutory and regulatory requirements concerning the administration of the

agency’s 638 contract with the Navajo Nation. PFR File, Tab 3 at 10-14, Tab 6

at 7-10. As previously discussed, the appellant’s belief that improper harvesting

was occurring rested on her faulty assumption that the land being harvested was

subject to a 638 contract, when it was instead being harvested as a part of a

right-of-way agreement with ADOT. Nevertheless, there is no dispute that at the

time the appellant drafted the memoranda that made this disclosure, it was her

15

belief that the land at issue was subject to a 638 contract. IAF, Tab 5 at 19-23,

HT at 47-49 (testimony of the appellant).

¶34 The appellant’s first-level supervisor also appears to have initially believed

that the land at issue may have been subject to a 638 contract, and only

discovered that it was not after the appellant made her disclosure. In her

testimony, the appellant’s first-level supervisor acknowledged that, after the

appellant issued the December 2013 memoranda, BIA staff in charge of

638 contracts and BIA managers “got together . . . to figure out what was going

on” regarding the tree harvesting occurring on route 264. HT at 169. She

indicated that BIA management was concerned with potential regulatory

violations and also whether the Navajo Nation violated their 638 contract with the

Federal Government by issuing a permit for the tree harvesting. HT at 169-70

(testimony of appellant’s first-level supervisor). She further testified that only

after the BIA reviewed the contract documents and additional documents

provided by ADOT did it discover that the land was the subject of a right-of-way

agreement with ADOT and not subject to a 638 contract between the BIA and the

Navajo Nation. Id.

¶35 The test for assessing the reasonableness of an appellant’s belief that her

disclosure was protected is not based on after-acquired information; rather, under

the statute, the test for a protected disclosure is whether the appellant had a

reasonable belief that she was disclosing a violation of law, rule, or regulation at

the time she made the disclosure, not in light of events or conversations occurring

thereafter. Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 13 (2015)

(citing 5 U.S.C. § 2302(b)(8)). As explained above, the appellant and agency

management believed at the time the appellant sent her December 2013

memoranda that the trees being cut down were on land covered by a 638 contract.

Further, the appellant testified without contradiction that, under this contract, the

Navajo Nation was required to follow all BIA regulations. HT at 379-80

(testimony of the appellant).

16

¶36 One of the requirements she identified in her December 2013 memoranda

was that the BIA regional director sign off on all timber sale permits. IAF, Tab 5

at 21. Indeed, an agency regulation and an agency handbook provision mandate

that “permits [for removal of forest products] must be approved by the Secretary

[of the Interior].” 25 C.F.R. § 163.26(a); see IAF, Tab 5 at 28 (reflecting the

same requirement in an agency handbook). Therefore, we find that, at the time

the appellant wrote the memoranda, it was reasonable for her to conclude that the

harvesting of timber with a permit that was not signed by the agency violated this

requirement. IAF, Tab 5 at 21, 24, 26. We conclude that the appellant made a

disclosure of conduct that she reasonably believed was a violation of law, rule, or

regulation under 5 U.S.C. § 2302(b)(8).

The appellant’s September 11, 2014 disclosure was not protected.

¶37 The appellant also argues on review that she reasonably believed that her

September 2014 disclosure evidenced a violation of NEPA. PFR File, Tab 3

at 13-14. As discussed above, NEPA compliance is required for timber

harvesting on Indian forest lands. Thus, we find that the content of the

appellant’s disclosure could evidence a violation of law, rule, or regulation. See

Bump v. Department of the Interior, 69 M.S.P.R. 354, 361-62 (1996) (finding that

an appellant reasonably believed a proposed timber sale potentially violated

Federal laws, including NEPA).

¶38 The appellant stated in her September 2014 email that “NEPA issues”

existed with respect to the Navajo Nation Forestry Department’s proposed timber

harvesting activity on a portion of the reservation. IAF, Tab 5 at 39-40. The

Board has found that an employee need not wait until an actual violation of law

occurs for her disclosure to be protected under whistleblower reprisal statutes.

Ward v. Department of the Army, 67 M.S.P.R. 482, 488 (1995). Such a

requirement would mean losing an opportunity to avert wrongdoing and would

have a chilling effect on whistleblowing. Id. When, as here, a disclosure

concerns a potential violation of law, as opposed to an event that has already

17

taken place, an appellant must prove that she reasonably believed the potential

wrongdoing was real and immediate. Bump, 69 M.S.P.R. at 361; Ward,

67 M.S.P.R. at 488-89. In order to strike a balance between preventing

Government wrongdoing on the one hand and encouraging “healthy and normal”

discussions of “possible courses of action” that may avoid such wrongdoing on

the other hand, the determination of whether the disclosure is protected “depends

on the facts.” See Reid v. Merit Systems Protection Board, 508 F.3d 674, 678

(Fed. Cir. 2007).

¶39 We find, under the circumstances presented here, that the appellant has

failed to prove that she reasonably believed any NEPA violation was real and

imminent. Although she stated at one point in her September 2014 email that the

Navajo Nation Forestry Department “may be harvesting trees,” it appears from

the context of her email and other statements that she was only referencing a

proposed tree harvesting project that was under consideration, rather than activity

that was already taking place or imminently about to occur. IAF, Tab 5 at 39-40.

¶40 Further, the appellant’s email reflects that over the course of August 2014,

she had been discussing the potential harvesting with the Navajo Nation Forest

Manager and others, and had requested maps of the affected area. Id. Her

September 2014 email was a summary of those prior discussions and a follow up

request for maps. Id. She did not state in her email that she believed harvesting

had begun or would begin before NEPA compliance was assured, id., nor did she

testify at the hearing regarding the situation leading to her September 2014 email.

There is no evidence in the record supporting the conclusion that the harvesting

was about to occur or that the appellant reasonably believed it was.

¶41 Moreover, within an hour of the appellant sending her September 2014

email to the Navajo Nation Forest Manager, he responded by providing a proposal

for a portion of the harvesting. Id. at 39. He indicated that other activities were

in “the planning stages and [were] currently being GPS’d,” presumably in

response to the appellant’s request for maps. Id. His response supports the

18

conclusion that the Navajo Nation was in the process of discussing the projects

with the BIA and intended to comply with the law. Because the appellant has

neither claimed, nor provided evidence, that she reasonably believed a NEPA

violation of law was real and imminent, we find that she failed to prove her

September 2014 disclosure was protected.

The appellant established that her disclosures were a contributing factor in the

agency’s decision to remove her.

¶42 The administrative judge found that the appellant proved her OSC and OIG

complaints were contributing factors in her removal. ID at 18-19. Because the

administrative judge determined that the appellant’s December 5, 2013

memoranda were not protected disclosures, he did not make any findings

concerning whether the appellant met her burden to prove that they were a

contributing factor in the agency’s removal decision. ID at 16-17. We conclude

that she did.

¶43 To prove that a disclosure was a contributing factor in a personnel action,

the appellant need only demonstrate that the fact of, or the content of, the

disclosure was one of the factors that tended to affect the personnel action in any

way. Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003).

The knowledge-timing test allows an appellant to demonstrate that the disclosure

was a contributing factor in a personnel action through circumstantial evidence,

such as evidence that the official taking the personnel action knew of the

disclosure and that the personnel action occurred within a period of time such that

a reasonable person could conclude that the disclosure was a contributing factor

in the personnel action. Id., ¶ 11.

¶44 Here, the timing prong of the knowledge-timing test is met because the

agency removed the appellant just over 1 year after she submitted the

December 5, 2013 memoranda. See Scoggins v. Department of the Army,

123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that occurs

within 2 years of an appellant’s disclosure satisfies the timing prong of the

19

knowledge-timing test). Further, the deciding and proposing officials were aware

of the December 2013 disclosures prior to issuing the proposal and removal

notices. IAF, Tab 5 at 5, 19-21, 39-40, 43-44; HT at 164-65 (testimony of

appellant’s first-level supervisor), 313-14 (testimony of the deciding official).

Accordingly, we conclude that the appellant has proven contributing factor.

Remand is necessary for the administrative judge to conduct a new Carr

factors analysis.

¶45 Because the appellant met her prima facie burden of proving that she made

a whistleblowing disclosure that was a contributing factor in the agency’s

decision to remove her, the burden shifts to the agency to prove by clear and

convincing evidence that it would have taken the same personnel actions in the

absence of the appellant’s whistleblowing. 5 U.S.C. § 1221(e)(2); Scoggins,

123 M.S.P.R. 592, ¶ 26. In determining whether an agency has shown by clear

and convincing evidence that it would have taken the personnel action in the

absence of the protected activity, the Board will consider all of the relevant

factors, including the following factors (“Carr factors”): (1) The strength of the

agency’s evidence in support of its action; (2) the existence and strength of any

motive to retaliate on the part of the agency officials who were involved in the

decision; and (3) any evidence that the agency takes similar actions against

employees who did not engage in such protected activity, but who are otherwise

similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11;

see also Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed.

Cir. 1999).

¶46 The administrative judge found that the agency met its burden to prove that

it would have removed the appellant absent her OIG and OSC complaints. ID

at 19-22. As to the appellant’s December 2013 and September 2014 disclosures,

he separately stated that, even if protected, the agency had no motive to retaliate

and the proposing and deciding officials credibly testified that they removed the

appellant due to her misconduct. ID at 22. The appellant argues on review that

20

the administrative judge improperly excluded from his Carr factor analysis a

consideration of her protected disclosures. PFR File, Tab 3 at 14-17. In light of

our findings above, we agree and remand the appeal for findings on this issue.

¶47 On remand, the administrative judge should conduct a new analysis of

whether the agency met its burden to prove by clear and convincing evidence that

it would have removed the appellant in the absence of her protected

December 2013 disclosures and her protected activities. In conducting his

analysis, the administrative judge should consider the agency’s combined motive

to retaliate based on all of the appellant’s protected activities and disclosures, and

reweigh all the Carr factors in light of the totality of the appellant’s protected

activities and disclosures. See Whitmore v. Department of Labor, 680 F.3d 1353,

1368 (Fed. Cir. 2012) (finding that “[e]vidence only clearly and convincingly

supports a conclusion when it does so in the aggregate”). 6

The appellant has not shown that the agency engaged in witness intimidation

during the hearing.

¶48 The appellant contends that she felt intimidated by the presence of a human

resources employee at the hearing. PFR File, Tab 3 at 23-24. Although the

appellant testified that she felt intimidated at the hearing, HT at 368-69

6

In conducting his analysis of the third Carr factor, whether the agency took similar

actions against similarly situated nonwhistleblowers, the administrative judge found the

agency treated other employees similarly to the appellant. ID at 23. However, one of

the comparators identified by the agency, an agency manager who was removed for

sending server or router information to his personal email account and misrepresenting

himself as a Government official, had engaged in protected activity. HT at 362-63, 365,

367 (testimony of a human resources employee); Austin v. Department of the Interior,

MSPB Docket No. DE-0752-13-0104-I-3, Initial Decision at 2-6, 21-22 (Apr. 21, 2017).

Consequently, this employee was not a proper comparator under the third Carr factor.

See Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018)

(finding that the Board erred in considering the treatment of similarly situated

whistleblowers under the third Carr factor). Evidence regarding his treatment may be

relevant to Carr factor 2. Id. On remand, the administrative judge should take this fact

into consideration in reanalyzing the Carr factors.

21

(testimony of the appellant), she has not alleged or shown that other witnesses

felt intimidated. In any event, for the Board to find that an agency official

intimidated a witness, an appellant must present evidence showing that the

official threatened the witness with adverse consequences, such as disciplinary

action, or suggested that the witness not testify or not testify truthfully.

Gregory v. Federal Communications Commission, 84 M.S.P.R. 22, ¶ 17 (1999),

aff’d per curiam, 232 F.3d 912 (Fed. Cir. 2000) (Table). The appellant has made

no such showing.

ORDER

¶49 We remand the appeal to the Denver Field Office for further adjudication of

the appellant’s whistleblower reprisal claim consistent with this Opinion and

Order. To the extent appropriate, the administrative judge may adopt his prior

findings regarding the appellant’s removal and the remaining affirmative defenses

in the remand initial decision.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.