Albert Medlin v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALBERT MEDLIN, DOCKET NUMBER

Appellant, AT-1221-17-0003-W-1

v.

DEPARTMENT OF HOMELAND DATE: July 20, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

E. Michael Ruberti, Esquire, Saint Simons Island, Georgia, for the

appellant.

Seamus Kevin Barry, Glynco, Georgia, 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

denied his request for corrective action in an individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only in the following

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 by this Final Order to clarify

the appellant’s protected disclosures and protected activity and to find that the

Board lacks jurisdiction over the appellant’s claims of reprisal for engaging in

activity protected under 5 U.S.C. § 2302(b)(9), we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant, a Firearms Instructor at the agency’s Federal Law

Enforcement Training Center (FLETC), filed this IRA appeal alleging that his

nonselection for a Supervisory Law Enforcement Specialist position on

January 12, 2016, constituted reprisal for making protected disclosures and

engaging in protected activity. Initial Appeal File (IAF), Tab 1 at 3 -5. He did

not request a hearing. Id. at 2. The administrative judge issued an order

informing the appellant of his jurisdictional burden. IAF, Tab 3. In response, the

appellant submitted various documents, including letters from the Office of

Special Counsel (OSC), but he did not clearly articulate the nature of his

whistleblower claims. IAF, Tab 4. Based on the written record, the

administrative judge issued an initial decision, denying the appellant’s request for

corrective action. IAF, Tab 25, Initial Decision (ID). The administrati ve judge

3

construed the appellant’s claims as alleging that he made various protected

disclosures in the context of a Board appeal concerning a removal action, a

grievance of a suspension, and a tort lawsuit the appellant filed in the U.S.

District Court for the Southern District of Georgia against the proposing and

deciding officials in his prior removal and suspension actions. ID at 6-7. The

administrative judge found that the appellant failed to exhaust his administrative

remedies regarding his disclosures made during his grievance and Board appeal

proceedings. ID at 7-8. The administrative judge found that the appellant

exhausted his remedies regarding his disclosures made in the context of his

lawsuit and established Board jurisdiction by making nonf rivolous allegations

that he disclosed a violation of law, rule, or regulation and/or an abuse of

authority. ID at 8. However, the administrative judge found that the appellant

failed to prove by preponderant evidence that his disclosures were protected. ID

at 10-13.

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

File, Tab 1. The agency has filed an opposition to the appellant’s petition, PFR

File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his

administrative remedies with OSC before seeking corrective action from the

Board in an IRA appeal. Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not

exhausted his OSC remedy unless he has filed a complaint with OSC and either

OSC has notified him that it was terminating its investigation of his allegations or

120 calendar days have passed since he first sought corrective action. Simnitt v.

Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). To satisfy the

exhaustion requirement, the appellant must provide OSC with a sufficient basis to

pursue an investigation that might lead to corrective action. Chambers v.

4

Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. An appellant may

give a more detailed account of their whistleblowing activities to the Board than

they did to OSC. Id. If an appellant has proved exhaustion with OSC, he can

establish Board jurisdiction over an IRA appeal based on whistleblower reprisal

by nonfrivolously alleging that he made a protected disclosure and/or engaged in

protected activity that was a contributing factor in the agency’s decision to take a

personnel action. 5 U.S.C. § 1221(e)(1); Yunus v. Department of Veterans

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Once an appellant establishes

jurisdiction over his IRA appeal, he then must establish a prima facie case of

whistleblower retaliation by proving by preponderant evidence that he made a

protected disclosure or engaged in protected activity that was a contributing

factor in a personnel action taken against him. 5 U.S.C. § 1221(e)(1); Lu v.

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).

¶5 The administrative judge characterized the appellant’s disclosures as

follows:

1. That, after the appellant was reinstated to the agency following the

agency’s rescission of the removal, he was placed in a substandard

office and he disclosed this allegation to the agency through a union

grievance;

2. That the agency forced the appellant to attend training in violation of

FLETC directives and he disclosed this violation to the agency

through a union grievance;

3. That, after the appellant returned to work, the deciding official

intentionally idled the appellant in retaliation for filing the mooted

Board appeal and this allegation was disclosed through a union

“cease and desist” memo to agency management;

4. That the deciding official violated a FLETC regulation by requiring

the appellant to take training and this allegation was disclosed

through a union grievance;

5. That the deciding official suspended the appellant for

14 nonconsecutive calendar days, instead of 14 consecutive calendar

days, resulting in the appellant being actually suspended for 18 days

and this allegation was disclosed during the arbitration of the

5

appellant’s suspension and to the Board’s administrative judge who

presided over his mooted removal;

6. That the appellant alleged to an arbitrator and to the Board that the

deciding official violated the appellant’s due process rights when he

relied on two documents not contained in the evidence file in

removing him from duty; and

7. That the appellant filed a tort lawsuit against the deciding official in

the U.S. District Court for the Southern District of Georgia alleging

that the deciding official violated a law, rule, or regulation by:

i. instituting “false, malicious” and “libelous” disciplinary

charges against the appellant;

ii. relying on two documents not contained in the ev idence file

for the proposed removal;

iii. making a decision to remove/suspend him without reviewing

the investigative file;

iv. making a decision to remove/suspend him prior to receiving

the appellant’s reply; and

v. extending the appellant’s 14-day suspension to an 18-day

suspension.

ID at 6-7. 2 To the extent the appellant intended to raise claims 1 -6 as

characterized by the administrative judge, we agree that the appellant failed to

prove that he exhausted such claims before OSC. 3 However, we find that, based

on the appellant’s written response to OSC, he exhausted his claims that his

nonselection constituted reprisal for filing a Board appeal of his removal and a

grievance of his 14-day suspension. Id. at 8. We further find that the appellant

exhausted claims that his nonselection constituted reprisal for filing a lawsuit in

2

These claims appear to differ from those apparently identified by the appellant in a

conference call. IAF, Tab 14. However, neither party addresses this issue on review.

3

In any event, as the administrative judge found, many of these claims appear to

reference acts of reprisal, not allegations of alleged protected disclosures or activity.

ID at 7. However, the sole personnel action raised belo w was the appellant’s

nonselection for the Supervisory Law Enforcement Specialist position on January 12,

2016. IAF, Tab 1 at 5, Tab 14.

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which he disclosed that the deciding official in his removal appeal had violated a

law, rule, or regulation when the deciding official considered information beyond

the investigative file, he made a decision prior to reviewing the investigative file

or receiving a reply from the appellant, and he extended the appella nt’s 14-day

suspension to an 18-day suspension. Id.

The Board lacks jurisdiction over the appellant’s claims of reprisal unde r

section 2302(b)(9)(A)(i).

¶6 The Whistleblower Protection Enhancement Act of 2012 (WPEA) extended

the Board’s jurisdiction to hear appeals of violations of 5 U.S.C.

§ 2302(b)(9)(A)(i), i.e., allegations of reprisal for exercising a right to complain,

when the substance of that complaint seeks redress for a viol ation of 5 U.S.C.

§ 2302(b)(8). Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7

(2013). However, the WPEA did not extend the Board’s jurisdiction in IRA

appeals to claims arising under 5 U.S.C. § 2302(b)(9)(A)(ii), which covers

retaliation for exercising any appeal, complaint, or grievance right that does not

seek to remedy a violation of section 2302(b)(8). See Young v. Merit Systems

Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020) (explaining that claims

of reprisal for activity protected under section 2302(b)(9)(A)(ii) are remediable

through different mechanisms and not by an IRA appeal to the Board).. Here, the

record reflects that the appellant’s Board appeal concerning his removal, his

grievance of his 14-day suspension, and his tort lawsuit did not seek to remedy

whistleblower reprisal. Thus, although such activities might be protected activity

under 5 U.S.C. § 2302(b)(9)(A)(ii), they are not protected activities within the

Board’s jurisdiction in the context of an IRA appeal under 5 U.S.C.

§ 2302(b)(9)(A)(i).

7

The administrative judge properly found that the appellant failed to prove that he

made a protected disclosure under section 2302(b)(8). 4

¶7 Protected whistleblowing occurs when an appellant makes a disclosure that

he reasonably believes evidences a violation of law, rule, or regulation, gross

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

and specific danger to public health or safety. See 5 U.S.C. § 2302(b)(8); Mason,

116 M.S.P.R. 135, ¶ 17. The proper test regarding a reasonable belief is whether

a disinterested observer with knowledge of the essential facts known to and

readily ascertainable by the employee reasonably could conclude that the actions

of the Government evidenced one of the categories of wrongdoing identified in

5 U.S.C. § 2302(b)(8). Mason, 116 M.S.P.R. 135, ¶ 17.

¶8 Regarding the appellant’s alleged disclosures made in the context of his

lawsuit, we agree with the administrative judge that a disinterested observer

would not have concluded that the appellant’s disclosures evidenced any of the

categories set forth in 5 U.S.C. § 2302(b)(8). First, the appellant alleged that he

disclosed that the deciding official in his removal action violated a law, rule , or

regulation when he considered two documents outside of the evidence file. IAF,

Tab 4 at 8. The administrative judge found that a disinterested observer would

not have concluded that this amounted to a violation of law, rule, or regulation

because the agency provided the appellant with the documents and an o pportunity

to reply to the deciding official prior to the issuance of the removal decision. ID

at 11; IAF, Tab 15 at 6. We discern no error in the administrative judge’s

analysis.

4

We find that disclosure 7(i)—that the appellant filed a tort lawsuit alleging that the

deciding official instituted false, malicious, and libelous disciplinary charges against

him—amounts to an allegation that the appellant engaged in protected activity under

section 2302(b)(9) by filing a lawsuit, not an allegation that he made a protected

disclosure under section 2302(b)(8).

8

¶9 On review, the appellant argues that the administrative judge erred in

finding that no violation occurred without analyzing whether or not the appellant

had a reasonable belief that he disclosed a violation of law, rule , or regulation.

PFR File, Tab 1 at 9-10. We disagree. Because the violation was cured and the

appellant was aware that no violation had occurred when he made his disclosure

to the court, we agree with the administrative judge that t he appellant did not

have a reasonable belief that he was disclosing a violation of law, rule, or

regulation.

¶10 Second, we agree with the administrative judge that the appellant failed to

prove that a disinterested observer would have believed that the deciding official

violated a law, rule, or regulation and/or abused his authority when he made the

decision to remove the appellant without reviewing the investigative file or

receiving the appellant’s reply. ID at 12-13. The record reflects that the deciding

official considered the appellant’s oral response and the investigative file. IAF,

Tab 22 at 103, 172. On review, the appellant contends that the administrative

judge erred in finding that he did not have a reasonable belief. PFR File, Tab 1

at 16. The appellant reiterates his argument that, based on an affidavit he

obtained from a Labor Relations Specialist, he had a reasonable belief that the

deciding official’s mind was made up before reviewing the investigative file and

hearing the appellant’s oral response. Id. at 12. However, we agree with the

administrative judge that these facts would not lead a disinterested person to

believe that the deciding official violated a law, rule, or regulation, or abused his

authority. Rather, as the administrative judge correctly found, a disinterested

observer would simply believe that, having reviewed the investigative file and the

appellant’s reply, the deciding official continued to believe removal was

appropriate.

¶11 Next, regarding the appellant’s claim that he disclosed that the deciding

official violated a law, rule, or regulation when he issued the appellant an 18-day

suspension instead of a 14-day suspension, we agree with the administrative judge

9

that a disinterested observer would not have concluded that this amounted to a

violation of a law, rule, or regulation. The appellant has not explained how such

a decision would have amounted to a violation of law, rule, or regulation.

¶12 Accordingly, we conclude that the administrative judge properly found that

the appellant failed to prove that he made a protected disclosure. The initial

decision is affirmed as modified herein.

NOTICE OF APPEAL RIGHTS 5

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 appropriat e for your situation and

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 applica ble to your

claims and carefully follow all filing time limits and requirements. Failure 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 choice s 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.

5

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.

10

(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 particu lar

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

11

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (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:

12

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 s ection

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. 6 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:

6

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.

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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.

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.