Opinion

Patricia Diffley v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 19, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PATRICIA DIFFLEY, DOCKET NUMBER

Appellant, NY-1221-17-0237-W-1

DEPARTMENT OF HOMELAND DATE: April 19, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

Cynthia J. Pree, Esquire, New York, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal for lack of jurisdiction . On

petition for review, the appellant argues that she did establish Board jurisdiction

over her IRA appeal under 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9). Generally, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 for review. Therefore, we DENY the petition for review. Except as

expressly MODIFIED to clarify why the appellant failed to establish Board

jurisdiction based on 5 U.S.C. § 2302(b)(9), we AFFIRM the initial decision.

¶2 Between November 24, 2014, and August 8, 2016, the appellant disclosed to

agency management and to her U.S. Senator that her supervisor had obtained

personal information from the appellant’s therapist and disclos ed it to others,

violating her privacy and causing her embarrassment. Initial Appeal File (IAF),

Tabs 1, 5. After two investigations, on October 24, 2016, the agency proposed to

suspend the appellant for 3 days, based on charges of disruptive behavior an d

inappropriate conduct. IAF, Tab 10 at 180. On February 14, 2107, she filed a

complaint with the Office of Special Counsel (OSC), alleging that the agency had

proposed her suspension and taken other alleged personnel actions because of her

disclosures. IAF, Tab 1 at 21-40. After OSC advised the appellant that it had

closed its file, id. at 54, she filed an IRA appeal, id. at 1-14, and requested a

hearing, id. at 2.

¶3 In her initial decision based on the written record, the administrative judge

dismissed the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID)

at 1, 17-18. She found that, while the appellant exhausted her remedy before

OSC, ID at 8-9, she failed to nonfrivolously allege that her disclosures were

protected. ID at 10-15. Despite that finding, the administrative judge further

found that, even if the appellant’s disclosures were protected, she failed to

nonfrivolously allege that they were a contributing factor in the agency’s decision

to propose her suspension. ID at 15-17.

¶4 On review, the appellant disputes the administrative judge’s findings that

she failed to nonfrivolously allege that her disclosures were protected under

5 U.S.C. § 2302(b)(8), Petition for Review (PFR) File, Tab 1 at 7-14, and that her

disclosures were not a contributing factor to her proposed suspension or to other

alleged personnel actions, id. at 14-18. We have reviewed the administrative

judge’s finding that the appellant failed to nonfrivolously allege that her

disclosures were protected because her allegations regarding her supervisor do

not satisfy the reasonable belief requirement; that is, because a disinterested

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

by her could not reasonably conclude that the agency’s actions evidenced a

violation of law, rule, or regulation, gross mismanagement, an abuse of authority,

or any of the other conditions set forth at 5 U.S.C. § 2302(b)(8). Lachance v.

White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Regarding these issues, the record

reflects that the administrative judge considered the evidence as a whole, drew

appropriate inferences, and made reasoned conclusions. ID at 9-15; see, e.g, Clay

v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to

disturb the administrative judge’s findings when she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions) ; Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (same). We therefore agree

with the administrative judge that the appellant failed to nonfrivolously allege

that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that, on that

basis, her appeal must be dismissed for lack of jurisdiction. 2

¶5 However, the appellant raised another possible basis for Board jurisdiction.

The record reflects that, on September 25, 2013, she initiated a complaint with

the agency’s Office of Internal Affairs (OIA), in which she raised the same

allegations she raised in her other alleged disclosures regarding her supervisor.

IAF, Tab 10 at 45-106. The appellant referenced this filing in her OSC

complaint, IAF, Tab 1 at 34, and in her Board appeal, id. 7, alleging Board

jurisdiction based not only on 5 U.S.C. § 2302(b)(8), but also (b)(9). IAF, Tab 1

at 9; Tab 5 at 4. Although the administrative judge did, both in her jurisdictional

order and initial decision, set out the basis for Board jurisdiction over an IRA

appeal based on 5 U.S.C. § 2302(b)(9), IAF, Tab 3 at 3; ID at 7, she did not

analyze the appellant’s appeal under that statutory provision. We do so now.

¶6 Under 5 U.S.C. § 2302(b)(9)(A), it is protected activity to exercise “any

appeal, complaint, or grievance right granted by any law, rule, or regulation—

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

than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,

an employee or applicant for employment may seek corrective action from the

Board only for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), the exercise

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

regulation,” seeking to remedy a violation of 5 U.S.C. § 2302(b)(8). 5 U.S.C.

§ 1221(a); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7

(2013).

¶7 As explained above, the substance of the appellant’s complaints to OIA did

not concern remedying an alleged violation of section 2302(b)(8). Rather, her

complaints to OIA concerned an alleged breach of confidentiality by her

Based on this finding, we need not address the appellant’s claims that her disclosures

were a contributing factor to her proposed suspension, or that the agency took other

actions against her that were “personnel actions” under 5 U.S.C. § 2302(a)(2)(A).

supervisor and her therapist, designed, in the appellant’s view, to discredit her

reputation. IAF, Tab 10 at 45-106. Therefore, the appellant’s complaint to OIA

regarding these matters is not within the purview of section 2302(b)(9)(A)(i), and

the Board lacks jurisdiction to consider such allegations in the context of thi s IRA

appeal. Mudd, 120 M.S.P.R. 365, ¶ 7; see 5 U.S.C. § 1221(a).

¶8 Further, we note that, prior to December 12, 2017, the whistleblower

protection statutory scheme included as protected activity “cooperating with or

disclosing information to the Inspector General of an agency, or the Special

Counsel, in accordance with applicable provisions of law.” 5 U.S.C.

§ 2302(b)(9)(C). Section 1097(c)(1) of the National Defense Authorization Act

of 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017), amended

section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an

agency or the Special Counsel, a disclosure to “any other component responsible

for internal investigation” is also protected.

¶9 Here, as noted above, the appellant made purported disclosu res to OIA. ID

at 2-4; IAF, Tab 5 at 20-21, 28-33. All of the events relevant to this appeal

occurred prior to the enactment of the NDAA. Accordingly, we need not decide

whether the appellant’s disclosures fall within the coverage of the amended

section 2302(b)(9)(C) because the Board has found that the statutory provision is

not retroactive. Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 30-33.

Therefore it does not apply to this appeal. As such, we find that the appellant

failed to nonfrivolously allege that she engaged in protected activity protected by

5 U.S.C. §§ 2302(b)(9)(A) or 2302(b)(9)(C), and that, on these bases as well, her

appeal must be dismissed for lack of jurisdiction. 3

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

NOTICE OF APPEAL RIGHTS 4

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. Failu re to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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).

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.

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 fo llowing

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

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:

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. 5 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).

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: