stating that an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if her comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible”
How later courts described this case
- stating that an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if her comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible”
- recognizing that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing
- discussing S. Rep. No. 112-155, at 20
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE, DOCKET NUMBER
Appellant, DA-1221-16-0513-W-2
v.
DEPARTMENT OF THE INTERIOR, DATE: February 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mitch Wine, Mountain View, Arkansas , pro se.
Annette Tarnawsky, Esquire, and John Austin, Esquire, Knoxville,
Tennessee, 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.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of a ction appeal.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition f or review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the applicable legal standards and supplement the administrative judge’s
analysis of the agency’s burden of proof, we AFFIRM the initial decision.
BACKGROUND
¶2 The following facts, as further detailed in the initial decision and record,
appear to be undisputed. At all times relevant to this appeal, the appellant
worked for the Department of the Interior’s Fish and Wildlife Service (FWS).
Wine v. Department of the Interior, MSPB Docket No. DA-1221-16-0513-W-2,
Refiled Appeal File (RAF), Tab 6, Initial Decision (ID) at 2. 2 From June 2003 to
October 2014, he worked as a Transportation Liaison wherein his duties included
coordinating with the Arkansas Highway and Transportation Department
2
To accommodate scheduling conflicts, the administrative judge dismissed the
appellant’s initial appeal without prejudice, for automatic refiling at a later date. Wine
v. Department of the Interior, MSPB Docket No. DA-1221-16-0513-W-1, Initial Appeal
File, Tab 114, Initial Decision. It was refiled on the appointed date as MSPB Docket
No. DA-1221-16-0513-W-2.
3
(AHTD), the Federal Highway Administration (FHA), and other entities to
mitigate the environmental impact of transportation projects. Id.
¶3 In 2011, the appellant purchased a tract of land, and in the years that
followed he sought out a Nationwide Permit (NWP) from the United States Army
Corps of Engineers (USACE) to use that land as a mitigation bank —in his
personal capacity, through a limited liability corporation he owned. ID at 2 -3;
see, e.g., Wine v. Department of the Interior, MSPB Docket No. DA-1221-16-
0513-W-1, Initial Appeal File (IAF), Tab 41 at 23, Tab 45 at 4-10. The appellant
has described mitigation banking in a succinct manner that is useful background
information endorsed by the agency. Wine v. Department of the Interior, MSPB
Docket No. DA-1221-16-0513-W-2, Petition for Review (PFR) File, Tab 7 at 7-8,
Tab 15 at 6. In short, mitigation is required for projects that will negatively
impact the waters of the United States. PFR File, Tab 7 at 7. This is
accomplished through various means, including compensation. Id. Compensation
involves a system regulated by the USACE wherein an entity compensates for the
damage it causes to one parcel through the repair of another. Id. In practice, this
works as follows: If, for example, the AHTD is unable to avoid or minimize
damage to a waterway during the construction of a highway, that damage is
assigned a number of mitigation credits. Id. at 7-8. The AHTD then purchases a
corresponding number of mitigation credits from a mitigation banker, i.e., a
separate individual or entity that generated credits through restoration projects.
Id.
¶4 In September 2013, the appellant sought and received agency approval to
engage in outside employment—mitigation banking. ID at 3-4; IAF, Tab 13
at 125-27. A year later, in October 2014, the appellant left his Transportation
Liaison position to become the agency’s Karst and Cave Biologist. ID at 4.
Despite this change in position, the appellant’s FWS work continued to involve
the AHTD and other outside entities. For example, in his new role, the appellant
assessed whether AHTD projects adversely affected the groundwater and
4
endangered species in the Karst region. ID at 15. In October 2014, just after the
change in his FWS position, the appellant received the NWP he had been seeking
for his personal mitigation bank. ID at 3; IAF, Tab 46 at 5-6.
¶5 Between February and May 2015, the appellant reported what he believed
were violations of the Endangered Species Act, the Clean Water Act, and th e
National Environmental Policy Act in connection with several AHTD projects, as
well as a sewer project for the City of Centerton. ID at 4. Around this same
period, the appellant actively solicited both the AHTD and the USACE regarding
the mitigation credits he had to offer. ID at 5.
¶6 In June 2015, the USACE contacted the FWS, expressing ethics concerns
about the appellant—concerns the USACE described as being shared by the
AHTD and the FHA. ID at 5-6. Specifically, the USACE recounted the
appellant’s “decreasingly professional demeanor” in the form of aggressive
telephone calls and emails, as well as a perceived conflict of interest between the
appellant’s FWS position and his mitigation banking. Id.; IAF, Tab 11 at 116-17.
For example, the USACE official recounted how the appellant had, at times,
called staff to discuss both his FWS work and mitigation banking work in the
same lengthy telephone call. IAF, Tab 11 at 116. This USACE official also
recounted how the appellant had essentially worked on certain AHTD projects in
his FWS role, then claimed violations on those projects, and then hoped for or
expected AHTD to resolve the matter by purchasing the mitigation credits he
personally had available for sale. Id. at 116-17.
¶7 In August 2015, the appellant’s employing agency—FWS—hired an outside
firm to investigate USACE’s allegations. ID at 6-7; see, e.g., IAF, Tab 11 at 73.
Around that same time, the appellant completed a 2 -week detail assignment. ID
at 35; see, e.g., IAF, Tab 11 at 126. After the conclusion of its investigation, the
agency issued a January 2016 letter asking the appellant to either cease his
mitigation banking or resign from his FWS position, effectively rescinding the
5
approval for outside activity that had been granted 2 years e arlier. 3 ID at 7; IAF,
Tab 11 at 20-22. The agency subsequently issued a March 2016 memorandum of
expectations that, among other things, prohibited him from communicating with
USACE or AHTD on official time, with some exceptions, and reassigned some of
his duties. ID at 7-8; IAF, Tab 10 at 60-61.
¶8 The appellant filed two complaints with the Office of Special Counsel
(OSC), alleging that the agency had subjected him to whistleblower reprisal. ID
at 8-9. He later filed the instant IRA appeal alleging the same. IAF, Tab 1.
¶9 After developing the record and holding the requested hearing, the
administrative judge denied the appellant’s request for corrective action. ID at 2.
She first found that the appellant met his burden of proving that he made
protected disclosures, which generally pertained to violations of environmental
laws, and those protected disclosures were a contributing factor in 4 alleged
personnel actions: the 2-week detail assignment (Personnel Action 1); the
decision to rescind his approval to engage in outside activity (Personnel
Action 3); the restriction on his communications with USACE and AHTD
(Personnel Action 4); and the reassignment of certain duties (Personnel
Action 5). 4 ID at 13-20, 22-32. Although the appellant alleged that the agency’s
investigation (Personnel Action 2) constituted another covered personnel action,
the administrative judge found otherwise. ID at 20 -22. Because she found that
the appellant established a prima facie case of reprisal, the administrative judge
shifted the burden and found that the agency proved that it would have taken the
3
In the initial decision, the administrative judge identified this letter as dated
December 2015, but the associated citation and description corresponds to a letter dated
January 2016. Compare ID at 7, with IAF, Tab 11 at 20-22. The appellant has also, at
times, referred to this memorandum as being dated December 2015. PFR File, Tab 7
at 30. For the sake of clarity, our decision will exclusively refer to the January 2016
date.
4
For the sake of clarity, we will utilize the same identifying descriptors from the initial
decision—Personnel Actions 1-5.
6
same actions in the absence of the appellant’s protected whistleblowing. ID
at 32-55.
¶10 The appellant has filed a petition for review. PFR File, Tab 7. The agency
has filed a response, and the appellant has replied. PFR File, Tabs 15, 18. The
appellant has since filed three motions. PFR File, Tabs 19-20, 27. In the first,
the appellant’s attorney requested oral argument before the Board, simply citing
“the complexity of the matter.” PFR File, Tab 19. That request is denied. See
New v. Department of Veterans Affairs, 99 M.S.P.R. 404, ¶ 13 (2005) (denying a
request for oral argument where the appellant failed to indicate what would be
presented at oral argument or show that such argument would add to the
proceedings); Social Security Administration v. Harty, 96 M.S.P.R. 65, ¶ 13
(2004) (same). In the second, filed by the appellant himself because he
terminated his representative, the appellant requests leave to submit additional
arguments and evidence. PFR File, Tab 20 at 4, Tab 23 at 2. The agency
presented an argument in opposition, after the Clerk of the Board denied the
agency’s attempt to submit evidence in opposition. PFR File, Tabs 22, 24. It
seems that the basis for the appellant’s request, which the agency opposes, is a
combination of dissatisfaction with his attorney’s choices, documents from 2016
that he recently discovered, and a new legal theory. PFR File, Tab 20 at 4-6. The
appellant’s request is denied. See, e.g., 5 C.F.R. § 1201.114(a) (recognizing the
pleadings allowed on review); Banks v. Department of the Air Force, 4 M.S.P.R.
268, 271 (1980) (the Board will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and mate rial
evidence not previously available despite the party’s due diligence); Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence); see also Grassell v. Department of Transportation, 40 M.S.P.R. 554,
564 (1989) (to constitute new and material evidence, the information contained in
7
the documents, not just the documents themselves, must have been unavailable
despite due diligence when the record closed). For the same reasons, we also
deny the appellant’s third motion, which also seeks an opportunity to present
additional arguments and evidence, this time regarding what the appellant
describes as medical evidence proving that he was harmed by agency reprisal.
PFR File, Tab 27.
ANALYSIS
¶11 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
Pub. L. No. 112-199, 126 Stat. 1465, the Board has jurisdiction over an IRA
appeal if the appellant has exhausted his administrative remedies before OSC and
makes nonfrivolous allegations that (1) he made a protected 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)(2)(A). Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim, which he must prove by preponderant evidence. Id.
¶12 If the appellant proves that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure. Id. In
determining whether the agency has met this burden, the Board will c onsider the
following 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 involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers, but who are
otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d
8
1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). The U.S. Court of Appeals for the
Federal Circuit has added that “[e]vidence only clearly and convincingly supports
a conclusion when it does so in the aggregate considering all the pertinent
evidence in the record, and despite the evidence that fairly detracts from that
conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir.
2012).
The scope of this appeal is limited to the personnel actions that were identified in
the prehearing summary.
¶13 There appears to be no dispute that the appellant met the exhaustion
requirement regarding several alleged personnel actions. See, e.g., IAF, Tab 54
at 45-46, 50-51. In his complaints to OSC, the appellant alleged that he disclosed
violations of the Endangered Species Act, the Clean Water Act, and the National
Environmental Policy Act by the AHTD, USACE, and City of Centerton, IAF,
Tab 4 at 38, 45-46, Tab 38 at 14-15, 21-22, after which FWS engaged in
retaliation in the form of an investigation (Personnel Action 2), IAF, Tab 4 at 40,
46, Tab 38 at 22, the decision to rescind his approval for outside activity
(Personnel Action 3), IAF, Tab 4 at 40, 47, Tab 38 at 16, 22-23, the restriction on
his communications with USACE and AHTD (Personnel Action 4), IAF, Tab 4
at 40, 47-48, Tab 38 at 16, 23, and the reassignment of certain job duties
(Personnel Action 5), IAF, Tab 4 at 47-48. 5
¶14 On review, the appellant suggests that the administrative judge erroneously
limited the scope of his appeal to exclude two other alleged personnel actions:
the agency’s January 2016 letter rescinding the approval for outside activity and
5
We will not address Personnel Action 1 in this decision, since neither party raised it
on review and the appellant has seemingly abandoned the claim.
9
its March 2016 memorandum of expectations. He seems to suggest that the
documents constitute additional personnel actions, above and beyond Personnel
Actions 3-5, the personnel actions first identified within those documents. PFR
File, Tab 7 at 30. He also alludes to a hostile work environment, as if that may
have been yet another personnel action. Id. at 28. However, the appellant did not
raise these as personnel actions below, in response to the administrative judge’s
prehearing summary, which identified the only issues to be considered. IAF,
Tab 94 at 2-3. Accordingly, we will not consider them on review. See Crowe v.
Small Business Administration, 53 M.S.P.R. 631, 634-35 (1992) (explaining that
an issue is not properly before the Board when it is not included in the
administrative judge’s memorandum summarizing the prehearing conference,
which states that no other issues will be considered, unless either party objects);
see also Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195, ¶ 16 n.2
(2013) (applying this principle in the context of a new theory of alleged
whistleblower retaliation that was not among the issues considered before the
administrative judge, even if that theory had been exhausted before OSC).
The appellant is not entitled to corrective action for Personnel Action 2.
¶15 As mentioned above, there is no dispute that the appellant met his burden of
proving exhaustion for the matters properly before us on review, including
Personnel Actions 2-5. Supra ¶ 13. Similarly undisputed is the administrative
judge’s finding that the appellant made protected disclosures. ID at 13-19.
Generally speaking, those disclosures involved his various reports of construction
projects either causing environmental damage or failing to meet applicable
standards in violation of the Endangered Species Act, the Clean Water Act, and
the National Environmental Policy Act. ID at 13-15. For example, the appellant
disclosed that the AHTD’s work on a particular project —Highway 5—had
resulted in a nearby stream’s contamination, as demonstrated by his measurement
of turbidity, which would adversely affect species in the region. ID at 14-15; see,
e.g., IAF, Tab 4 at 53-56, Tab 14 at 130. The appellant made these disclosures to
10
numerous officials or entities, including his chain of command, the Arkansas
Department of Environmental Qualify (ADEQ), the USACE, and the U.S.
Attorney’s Office for the Eastern District of Arkansas. ID at 15-18. In fact, for
the aforementioned example, ADEQ responded to the appellant’s disclosure by
investigating and determining that the AHTD had failed to utilize proper controls
to prevent contamination. ID at 15; IAF, Tab 4 at 51-52, 58-59. Further, the
appellant’s first- and second-level supervisors both testified that they agreed with
at least some of the appellant’s assessments of environmental violations, and his
disclosures resulted in the remediation of multiple sites. 6 ID at 16-17.
¶16 It is also undisputed that the appellant’s protected disclosures were close
enough in time to satisfy the contributing factor criterion for
Personnel Actions 2-5. ID at 30-32. However, what is disputed on review is
whether Personnel Action 2 constituted a covered personnel action and, if so,
whether the agency proved that it would have taken the same action in the
absence of the appellant’s whistleblowing. The administrative judge found that
the appellant failed to meet his burden of presenting a prima facie case of
whistleblower reprisal regarding the agency’s investigation, Personnel Action 2,
because that investigation was not a covered personnel action. ID at 20 -22.
On review, the appellant reasserts that the agency’s investigation was a cove red
personnel action, and it would not have occurred in the absence of his
whistleblowing. PFR File, Tab 7 at 10-19.
¶17 A “personnel action” is defined as follows: (i) appointments;
(ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplin ary or
6
The administrative judge recognized that the appellant’s disclosures were “related to”
his duties. ID at 12. However, she noted that the appellant’s supervisor provided
testimony indicating that at least some of the appellant’s disclosures were outside his
normal duties, and the agency does not appear to have argued otherwise. ID at 16; PFR
File, Tab 15 at 10. Accordingly, this appeal does not appear to implicate 5 U.S.C.
§ 2302(f)(2), the provision identifying a heightened legal burden in cases that involve a
disclosure made in the normal course of duties of an employee.
11
corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements;
(vi) restorations; (vii) reemployments; (viii) performance evaluations under
5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or
awards, or involving education or training if it reasonably may be expected to
lead to an appointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing
or examination; (xi) implementations or enforcements of any nondisclosure
policy, form, or agreement; and (xii) any other significant changes in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); Spivey v.
Department of Justice, 2022 MSPB 24, ¶ 6. In arguing that the agency’s
investigation constitutes a covered personnel action, even though it is not
specifically enumerated in section 2302(a)(2)(A), the appellant presents a
two-fold argument about the law, followed by an argument about the facts. We
will address each in turn.
The Applicable Standard 7
¶18 The appellant first refers us to a change in the law between the
Whistleblower Protection Act (WPA) and the WPEA. PFR File, Tab 7 at 10-11.
Among other things, the latter added 5 U.S.C. § 1221(g)(4) to the relevant
statutory scheme. See WPEA § 104. That provision provides as follows: “Any
corrective action ordered under this section to correct a prohibited personnel
practice may include fees, costs, or damages reasonably incurred due to an agency
7
Though not raised by the appellant, we recognize that the National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115 -91, 131 Stat. 1283, was signed
into law on December 12, 2017, just after the issuance of the initial decision in the
instant appeal. Spivey, 22 MSPB 24, ¶ 5 n.1. In particular, Congress added a provision
to 5 U.S.C. § 1214 that allows OSC to petition the Board for corrective action
concerning damages incurred by an employee due to an agency’s investigation of the
employee if it was commenced, expanded, or extended in retaliation for protected
whistleblowing activity. Id.; see 5 U.S.C. § 1214(i). Regardless of questions
concerning retroactivity, the provision does not apply to the instant IRA appeal because
OSC has not petitioned the Board for such relief. Spivey, 2022 MSPB 24, ¶ 5 n.1.
12
investigation of the employee, if such investigation was commenced, expanded,
or extended in retaliation for the disclosure or protected activity that formed the
basis of the corrective action.” 5 U.S.C. § 1221(g)(4). According to the
appellant, the addition of section 1221(g)(4) shows that Congress intended to
expand whistleblower protections to include retaliatory investigations as
actionable personnel actions, on their own. PFR File, Tab 7 at 10 -11. We
disagree.
¶19 Section 1221(g)(4) does not create a separate cause of action fo r retaliatory
investigations. In fact, the legislative history shows that Congress considered and
rejected the option of changing the standard developed under the WPA and Board
precedent to recognize a retaliatory investigation as a personnel action because
Congress wanted to avoid discouraging agencies from undertaking legitimate and
necessary inquiries. See S. Rep. No. 112-155, at 20-22 (2012), as reprinted in
2012 U.S.C.C.A.N. 589, 608-09 (referencing Russell v. Department of Justice,
76 M.S.P.R. 317, 323-25 (1997)). Congress opted to instead authorize an award
of consequential damages once an employee is able to prove a claim u nder the
WPA, if the employee can further demonstrate that an investigation was
undertaken in retaliation for the protected disclosure. Id. at 21-22; see 5 C.F.R.
§ 1201.202(b)(2). Accordingly, the appellant’s first argument about his
retaliation by investigation claim fails.
¶20 The appellant’s second argument, in the alternative, is that the agency’s
investigation qualified as a covered personnel action, even before the WPEA’s
addition of section 1221(g)(4). PFR File, Tab 7 at 11. He asserts that “a
retaliatory investigation was considered a personnel action if it was a pretext for
gathering evidence to retaliate.” Id. (citing Russell, 76 M.S.P.R. at 323-24). On
this point, we again disagree. The appellant appears to misunderstand Board
precedent.
¶21 An investigation into an allegation of misconduct is not a personnel action
per se. Spivey, 2022 MSPB 24, ¶ 10. Instead, the investigation must otherwise fit
13
within one of the items listed under section 2302(a)(2)(A) to constitute a covered
personnel action. See id. (discussing S. Rep. No. 112-155, at 20). However, even
if the investigation does not constitute a significant change in working conditions
or other personnel action enumerated in section 2302(a)(2)(A), the Board will
consider evidence of the conduct of an agency investigation when it is so closely
related to a personnel action that it could have been pretext for gathering
evidence to retaliate. Spivey, 2022 MSPB 24, ¶ 10; Russell, 76 M.S.P.R. at
323-24. In considering such evidence, the Board looks at where the investigation
had its beginnings. Russell, 76 M.S.P.R. at 324.
¶22 The Board’s decision in Mangano v. Department of Veterans Affairs,
109 M.S.P.R. 658 (2008), best illustrates how the appellant’s assertions about the
applicable standard are mistaken. The appellant in Mangano argued that the
administrative judge erred by finding that two investigations—an Administrative
Investigation Board (AIB) and a Quality Improvement Review (QIR) —were not
personnel actions. Id., ¶¶ 3, 36. The Board did not adopt the appellant’s
position, and the Board did not find that the agency’s investigations were covered
personnel actions. Id., ¶¶ 36-44. Instead, the Board recognized that the AIB and
QIR investigations were so closely related to the misconduct charge underlying
the appellant’s removal that they could have been pretext for gathering evidence
to use to retaliate for his whistleblowing. Id., ¶ 44. In doing so, the Board
discussed how the QIR was convened by the subject of the employee’s
whistleblowing and was conducted in an unusual manner, and the agency included
the AIB results in its misconduct charge against the employee in a way that was
inconsistent with the investigatory results. Id. Under those circumstances, the
Board concluded that the appellant’s allegation of retaliation by investigation
concerning the AIB and QIR should be considered on remand in determining the
strength of the agency’s evidence supporting the appellant’s removal. Id. In
other words, the alleged retaliation by investigation was not a separate personnel
action subject to its own burden-shifting analysis. Instead, the Board would
14
consider the alleged retaliation by investigation as part of the burden -shifting
analysis of a personnel action that is enumerated in section 2302(a)(2)(A).
Applying the Applicable Standard to This Appeal
¶23 Turning back to the instant appeal, the administrative judge found that the
appellant failed to establish that the investigation constituted a personnel action
as defined in section 2302(a)(2)(A), or that the investigation was a pretext for
gathering evidence to retaliate for his whistleblowing. ID at 20 -22. She further
found that even if the appellant had met his burden regarding Personnel Action 2,
the agency met its burden of proving that it would have conducted the
investigation in the absence of the appellant’s whistleblowing activity. ID
at 36-46, 52-55. We agree with the administrative judge’s findings of fact.
However, we modify the initial decision to apply those findings of fact to the
proper standards, which we just described.
¶24 Again, an investigation is not a personnel action, per se. Supra ¶ 21.
Furthermore, we found no substantive argument or evidence establishing that the
investigation at issue in this appeal, which was conducted by an outside party,
constituted a significant change in the appellant’s working conditions or other
enumerated personnel action, as defined in section 2302(a)(2)(A).
¶25 The more relevant question is whether retaliation by investigation tainted
any personnel action that is enumerated in section 2302(a)( 2)(A). See supra
¶¶ 21-22. To the extent that the administrative judge applied the burden shifting
framework to the appellant’s retaliation by investigation claim, as if it might be a
separate personnel action, she erred. ID at 36-46, 52-55; see Clarke v.
Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that
the Board may not proceed to the clear and convincing evidence test unless it has
first determined that the appellant established his prima facie case), aff’d,
623 F. App’x 1016 (Fed. Cir. 2015). Nevertheless, we find no basis for
disturbing the underlying findings of fact about the legitimacy or nonretaliatory
nature of the investigation, findings which are more appropriately considered in
15
connection with whether the agency would have taken Personnel Actions 3-5 in
the absence of the appellant’s whistleblowing. See Mangano, 109 M.S.P.R. 658,
¶ 44; supra ¶ 22.
¶26 Although the appellant reasserts that the investigation was a pre text for
retaliation, PFR File, Tab 7 at 11, he has failed to present any persuasive basis for
us to disturb the administrative judge’s findings to the contrary, which are largely
based on hearing testimony and credibility determinations regarding several
witnesses from multiple agencies, ID at 21-22, 36-46, 52-55; see Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (recognizing that the
Board must give deference to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing). The appellant suggests that the USACE
complaint and ensuing investigation was a coordinated effort between officials at
USACE and his management chain to stop his whistleblowing. PFR File, Tab 7
at 11-13 (citing IAF, Tab 48 at 32). Yet the only evidence to which the appellant
refers us is not supportive. IAF, Tab 48 at 32. Instead, that evidence merely
shows that the appellant’s management chain was concerned about the precise
matters raised in USACE’s complaint—the appellant’s tone and professionalism
when dealing with outside entities and the propriety of his mitigation banking
while employed at FWS. Id.
¶27 To the extent that they are relevant under the applicable standards, we have
also considered the appellant’s follow-up arguments about whether the
investigation would have occurred in the absence of his disclosures. PFR File,
Tab 7 at 12-19. Generally speaking, these arguments dispute some of the
underlying allegations from the USACE complaint—the USACE complaint that
precipitated the agency’s investigation. Id. For example, in response to
USACE’s complaint that the appellant was blurring the line between his FWS
work and personal mitigation banking work by conducting both in the same phone
calls to USACE staff, IAF, Tab 11 at 116, the appellant suggests that he was
16
entitled to multiple breaks each day, during which he was free to attend to his
mitigation banking or any other personal matter, PFR File, Tab 7 at 14 -15. In
response to USACE’s complaint about the possible conflict of interest between
his mitigation banking and FWS work, which explicitly cited three sets of
regulatory provisions, see IAF, Tab 11 at 116-17 (citing 5 C.F.R.
§§-2635.401-.403 (governing conflicting financial interests), .501-.503
(governing impartiality in performing official duties), .801 -.809 (governing
outside activities)), the appellant attempts to show that one set of those
regulations did not apply under the circumstances, PFR File, Tab 7 at 16 -17
(citing 5 C.F.R. §§ 2635.401, .402 (governing conflicting financial interests)).
We are not persuaded. Among other things, the administrative judge found that
officials from multiple agencies had valid concerns about the propriety of the
appellant’s actions and were not prompting the investigation as a pretext for
retaliation—a conclusion based largely on credibility. E.g., ID at 46. The
appellant’s arguments do not warrant a different conclusion. See Haebe, 288 F.3d
at 1301.
The appellant is not entitled to corrective action for Personnel Actions 3-5.
¶28 The only matter disputed on review for Personnel Actions 3-5 is whether
the agency met its burden of proving that it would have taken the same actions in
the absence of the appellant’s whistleblowing. PFR File, Tab 7 at 19 -29. Once
again, in analyzing the agency’s burden, the Board will c onsider the following
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 involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who are not whistleblowers, but who are
otherwise similarly situated. Carr, 185 F.3d at 1323; supra ¶ 12.
17
We modify the initial decision to clarify the applicable standards .
¶29 As a preliminary matter, we note that the administrative judge gave the
parties proper notice of the burdens below, describing the Carr factors just as we
have in both the jurisdictional order and a prehearing conference summary. IAF,
Tab 3 at 6, Tab 94 at 2 n.3. However, she characterized the first Carr factor
somewhat differently in the initial decision by referring to “whether the ag ency
had legitimate reasons for the personnel action.” ID at 33. This is consistent
with how the Board has described the first Carr factor, at times, when analyzing a
personnel action that is not disciplinary. ID at 33; see, e.g., Gonzales v.
Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006) (explaining that the first
Carr factor did not apply straightforwardly to the agency’s imposition of a shift
change, which was a covered personnel action but was not disciplinary and did
not require evidence of misconduct, so it was appropriate to consider the broader
question of whether the agency had legitimate reasons for the shift chang e). The
administrative judge later described the first Carr factor as one of “independent
causation” for the personnel actions. E.g., ID at 46, 48, 50. Though not raised by
either party on review, we modify the initial decision to clarify any resulting
confusion. Despite the administrative judge’s different descriptions, the first
Carr factor remains the strength of the agency’s evidence in support of its action.
See Miller v. Department of Justice, 842 F.3d 1252, 1257, 1259 (Fed. Cir. 2016)
(acknowledging that “independent causation” is another way the agency’s overall
burden of proof has been described and recognizing that the first Carr factor is
not a question of “whether the agency has put forward some evidence purporting
to show independent causation, but instead . . . whether such evidence is strong”).
¶30 We also recognize that while the administrative judge initially characterized
the Carr factors as part of the agency’s burden, ID at 32-33, her subsequent
discussion of the second and third Carr factors suggested otherwise by finding
that the appellant did not present any credible motive to retaliate on the part of
pertinent agency officials and did not identify any similarly situated employees.
18
ID at 54-55. The appellant has argued that these findings reflect an improper
shifting of the burden to him. PFR File, Tab 7 at 29. To the extent that the initial
decision could be interpreted as such, we clarify that it was the agency’s burden
regarding each of the Carr factors, not the appellant’s, just as the administrative
judge previously explained. Supra ¶ 12; ID at 32-33; IAF, Tab 3 at 6, Tab 94 at 2
n.3.
The agency met its burden.
¶31 Aside from the modifications explicitly identified below, we discern no
basis for reaching a conclusion different than the administrative judge . The
agency met its burden of proving by clear and convincing evidence that it would
have taken Personnel Actions 3-5—the decision to rescind his approval to engage
in outside activity, the restriction on his communications with USACE and
AHTD, and the reassignment of certain duties—in the absence of the appellant’s
whistleblowing. For the first Carr factor, the administrative judge’s extensive
findings of fact reflect strong evidence in support of Personnel Actions 3-5,
findings with which we agree. ID at 36-52. While we need not recount all of
these findings, we will provide a brief summary.
¶32 Most relevant to Personnel Action 3, the administrative judge’s findings
detail ample evidence of the appellant conducting personal work during business
hours on days in which he was working for FWS, evidence that included the
appellant’s own admissions. E.g., ID at 36-37. Even if we were to assume that
he only did so during breaks, as the appellant asserts, the evidence shows that
officials with the USACE, AHTD, and FHA all perceived his dual role as a
conflict of interest, and they were routinely confused about which role the
appellant was representing during their interactions. E.g., ID at 36-46. In fact,
AHTD credited that conflict of interest for their rejection of the appellant’s
mitigation banking bid on one particular project and denying permission eve n
before the appellant bid on another. ID at 44. The administrative judge’s
findings also detail how multiple FWS officials were involved in the approval of
19
the appellant’s outside activity request, but they did so with limited information
and ultimately regretted the decision as the conflict posed by the appellant’s dual
role became more apparent. ID at 46-47.
¶33 Next, most relevant to Personnel Action 4, some of the same officials from
the USACE and AHTD provided detailed descriptions of the appellant’s behavior,
which they generally characterized as accusatory, aggressive, and threatening. ID
at 38-43. And when given a temporary restriction on his contact with these
entities to investigate the same, the appellant flouted the restriction. ID at 48-50.
Finally, most relevant to Personnel Action 5, the administrative judge detailed
how the FWS had actually reassigned certain duties in response to the appellant’s
own accommodations request for personal health reasons. ID at 50-52.
¶34 Turning to the second Carr factor, the administrative judge found little or
no motive to retaliate on the part of relevant agency officials. ID at 52-54. If
anything, it appears that FWS officials found disclosures like the appellant’s to be
both expected and appreciated of an individual in his position, even if they did
not agree with the manner in which the appellant conveyed some of his concerns.
See, e.g., ID at 15-17, 52. The administrative judge also noted, inter alia, that the
relevant agency officials gave the appellant positive performance reviews during
the same period, they supported his request for a detail assignment, and they
attempted to modify his job duties to alleviate work-related stress. ID at 52.
¶35 On review, the appellant suggests that the administrative judge should have
considered whether FWS officials may have been motivated to retaliate based on
his disclosures reflecting poorly on them or their relations with the USACE,
AHTD, or other outside entities. PFR File, Tab 7 at 28. We agree that this is a
relevant consideration and modify the initial decision accordingly. See Whitmore,
680 F.3d at 1370 (recognizing that “[t]hose responsible for the agency’s
performance overall may well be motivated to retaliate even if they are not
directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in their capacities as
20
managers and employees”). However, the circumstances at hand are notably
dissimilar to those in Whitmore, where the employee’s disclosures were highly
critical of his employing agency and high-level managers, many high-level
managers were aware of and concerned about the disclosures, and there was a
years-long pattern of personnel actions taken against the employee following the
disclosures. Whitmore, 680 F.3d at 1371. In this case, the appellant’s disclosures
implicated wrongdoing on the part of outside agencies or entities , not his
employer—FWS. While that could still create some motive to retaliate,
especially if FWS officials perceived the appellant’s disclosures as damaging to
interagency relationships, we are not aware of any evidence supporting a
conclusion that this motive was significant. We discern no basis for concluding
that the appellant’s protected disclosures caused notable tension between FWS
and the outside agencies implicated by his disclosures beyond that which is
inherent, given their respective missions, e.g., FWS’s protection of the
environment and AHTD’s construction of highways.
¶36 For the third and final Carr factor, the administrative judge found no
evidence of other employees who were not whistleblowers but were otherwise
similarly situated. ID at 54-55. We modify the initial decision to recognize that,
if anything, the absence of evidence concerning the third Carr factor “tends to cut
slightly against the Government,” which the administrative judge failed to
acknowledge. Miller, 842 F.3d at 1262.
¶37 Although the appellant presents several other arguments pertaining to
Personnel Actions 3-5, each is unavailing. The majority of his arguments amount
to little more than disagreement with the administrative judge’s well -reasoned
analysis of hearing testimony as it concerns both the strength of the agency’s
evidence, e.g., PFR File, Tab 7 at 20-21, and the motivations of relevant officials,
e.g., id. at 21-25, which we will not disturb, see Haebe, 288 F.3d at 1301. For
example, the appellant directs us to the transcript of a conversation he had with
agency officials about whistleblower protections, which he apparently obtained
21
by secret recording. PFR File, Tab 7 at 23-24 (referencing IAF, Tab 52 at 67, 70,
76, 79, 82); see ID at 7. According to the appellant, portions of this conversation
provide direct evidence of the agency’s retaliatory intent and a deliberate
cover-up. PFR File, Tab 7 at 24. Yet the administrative judge found otherwise,
based on a review of the transcript, the context of what these officials said, and
the credibility of witnesses who testified about the convers ation. ID at 53-54.
We see no reason to reach a different conclusion.
¶38 While the record includes strong evidence of FWS officials being concerned
with the manner in which the appellant interacted with outside entities and a
conflict of interest, the appellant has not presented any basis for concluding that
they had a significant motive to retaliate for his disclosures, which s upported the
agency’s mission. Separately, the appellant also asserts that the administrative
judge ignored several pieces of evidence, such as evidence about his fall 2015
superior performance appraisal. E.g., PFR File, Tab 7 at 26 (citing IAF, Tab 11
at 34). We have considered this evidence pursuant to our obligation under
Whitmore, 680 F.3d at 1368. However, the appellant has not persuaded us that
his performance appraisal covering the timeframe of October 1, 2014, through
September 30, 2015, IAF, Tab 11 at 34, is relevant to the administrative judge’s
analysis of the strength of the agency’s evidence concerning the personne l
actions, including Personnel Action 4 (which occurred in March 2016), or her
analysis of the motive to retaliate.
¶39 We have considered each of the appellant’s arguments, but agree with the
administrative judge’s conclusion. Weighing each of the Carr factors, and all
relevant evidence, the agency met its burden of proving that it would have taken
the same actions—Personnel Actions 3-5—in the absence of the appellant’s
whistleblowing. See ID at 55.
The appellant’s procedural arguments are unavailing.
¶40 The appellant presents a few additional arguments pertaining to the
administrative judge’s handling of the appeal. First, he argues that the
22
administrative judge erred in allowing the agency to substitute one requested
witness for another, just days before the scheduled hearing. PFR File, Tab 7
at 19-20. We disagree.
¶41 The agency initially requested, and the administrative judge approved, the
agency’s current Ethics Counselor. IAF, Tab 50 at 9, Tab 94 at 4. A few days
before the scheduled hearing, the agency submitted a motion indicating that it had
located its former Ethics Counselor—the one who reviewed the appellant’s 2013
request to engage in the outside activity of mitigation banking —and wanted to
call him instead. IAF, Tab 104 at 1-2; see, e.g., IAF, Tab 13 at 125-26. The
administrative judge granted the motion over the appellant’s objection, which was
primarily based on the timing of the substitution. IAF, Tab 107 at 4. On review,
the appellant describes the agency’s request as a “last minute, surpr ise change of
witnesses” and describes the administrative judge’s decision on the matter as
erroneous. PFR File, Tab 7 at 19-20. Given the former Ethics Counselor’s
unique insight into the 2013 decision to grant the appellant’s outside activity
request, the appellant has not presented any basis for us to conclude that the
decision was an abuse of discretion. See Tisdell v. Department of the Air Force,
94 M.S.P.R. 44, ¶ 13 (2003) (recognizing that an administrative judge has wide
discretion to control the proceedings, to receive relevant evidence, and to ensure
that the record on significant issues is fully developed).
¶42 The appellant next asserts that the administrative judge prejudicially
interfered with his cross-examination by preventing him from using prior
deposition testimony to impeach witnesses. PFR File, Tab 7 at 31. Yet, the
appellant has failed to identify the witnesses, testimony, and impeachment
evidence to which he is referring, so we are not persuaded by this conclusory
argument. See generally Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 8
(2000) (explaining that an administrative judge has wide discretion to control the
proceedings, including authority to exclude testimony he believes would be
irrelevant or immaterial). We are also unpersuaded by the appellant’s final
23
argument—that the administrative judge did not similarly interfere with the
agency’s presentation of its case, reflecting a bias against the appellant and for
the agency. PFR File, Tab 7 at 31; see Bieber v. Department of the Army,
287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (stating that an administrative judge’s
conduct during the course of a Board proceeding warrants a new adjudication
only if her comments or actions evidence “a deep-seated favoritism or antagonism
that would make fair judgment impossible”) (quoting Liteky v. United States,
510 U.S. 540, 555 (1994)); Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980) (observing that, in making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators).
NOTICE OF APPEAL RIGHTS 8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failur e to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
24
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
25
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
26
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
27
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.