The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID MASTERS, DOCKET NUMBER
Appellant, DC-1221-17-0646-W-1
v.
DEPARTMENT OF HOMELAND DATE: March 19, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Adam A. Carter , Esquire, Washington, D.C., for the appellant.
Aditi Shah , Esquire, Michelle L. Perry , Esquire, and Letitia Yates , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision in this
individual right of action (IRA), which denied his request for corrective action,
finding that he failed to make a protected disclosure. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND the case to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is an Engineering Advisor with the Science and Technology
Directorate (S&T) within the Homeland Security Advance Research Projects
Agency (HSARPA) of the Department of Homeland Security (DHS). Initial
Appeal File (IAF), Tab 12 at 17-18. S&T provides “research, development, test,
and evaluation” services to DHS. Id. at 47. From 2011 to approximately 2013,
the appellant was involved in S&T’s development for DHS’s Customs and Border
Protection (CBP) of a modeling tool to test how well various technologies would
detect underground tunnels. IAF, Tab 7 at 44-45, Tab 23, Hearing Compact Disc
One (HCD1), Track 4 at 5:30 (testimony of the appellant). S&T received
approximately $8 million in Federal funds to develop this modeling tool, which
the appellant testified was successfully completed. HCD1, Track 4 at 6:16
(testimony of the appellant).
Subsequently, in approximately August 2015, DHS “obligated” $1.6
million to conduct the “analysis of alternatives” (AoA) at issue in this appeal.
HCD1, Track 2 at 1:08:38 (testimony of a Border Patrol Supervisory Program
Manager). 2 The AoA team consisted of two employees from CBP and two from
S&T, but did not include the appellant. Id. at 1:11:56 (testimony of the Border
Patrol Supervisory Program Manager). An AoA is an analytical comparison of
alternative solutions for specific capability gaps and needs. IAF, Tab 18 at 44.
An AoA explores the alternatives with the goal of identifying the most promising
approach for the user. Id. Here, the AoA was being conducted to outline
alternative proposals for building current and future systems to detect and locate
clandestine tunnels along the southern United States border. IAF, Tab 1 at 42,
Tab 18 at 162. DHS contracted with the Homeland Security Studies and Analysis
2
The U.S. Border Patrol is a component of CBP. HCD1, Track 2 at 1:11:44 (testimony
of the Border Patrol Supervisory Program Manager).
3
Institute (HSSAI) to conduct the AoA, ultimately paying HSSAI around
$1 million for its work. HCD1, Track 2 at 1:07:57 (testimony of the Border
Patrol Supervisory Program Manager). As the expert in the field of tunnel
detection technology, 3 the appellant was brought on to the project to facilitate
moving things forward, including being invited to a “working group meeting” on
August 22, 2016, between S&T and CBP. 4 IAF, Tab 12 at 19-20, 25.
According to the appellant, during the meeting, which became loud and
confrontational, he expressed concerns with the performance of the AoA,
including HSSAI, CBP, and S&T’s mismanagement of the project, excessive cost,
and failure to follow DHS directives pertaining to AoAs. IAF, Tab 1 at 20 -21,
Tab 12 at 25, 29, Tab 17 at 21. Specifically, he alleges that he stated that the
AoA was not using the modeling tool S&T previously developed for testing
tunnel technologies and that HSSAI did not provide an adequate analysis on how
it selected various alternatives. IAF, Tab 1 at 20, Tab 12 at 25 -26. Seemingly
unbeknownst to the appellant, most everyone else in the meeting was already
aware of HSSAI’s failures and that the AoA was not going well, and intended the
meeting to serve as a catalyst to get things back on track. IAF, Tab 24, Hearing
Compact Disc Two (HCD2), Track 1 at 6:59:50 (testimony of a Deputy Director
within HSARPA).
According to a Chief Systems Engineer with S&T, who was present at the
meeting, the appellant continually talked over and interrupted others, became
defensive, and raised his voice. IAF, Tab 12 at 29, Tab 18 at 115-16. The day
after the meeting, the appellant met with the S&T Director and an HSARPA
Deputy Director at the agency to discuss the incident. IAF, Tab 12 at 29.
3
An S&T Chief Systems Engineer testified that it was “obvious” that the appellant was
the technical expert in S&T on the technology at issue. HCD1, Track 1 at 1:00:40
(testimony of a Chief Systems Engineer).
4
The parties dispute the extent of the appellant’s involvement with the AoA in question
prior to the August 22, 2016 meeting. PFR File, Tab 1 at 14-15, Tab 3 at 18; IAF,
Tab 7 at 39, Tab 18 at 104-07.
4
According to the Director, the appellant again became “rude towards [them], also,
arguing and talking over [them].” Id. The appellant claims that he essentially
repeated his disclosures at this meeting. Id. at 26.
On October 12, 2016, the S&T Director proposed to suspend the appellant
for 3 days for “inappropriate behavior” at the August 22 and 23, 2016 meetings.
IAF, Tab 12 at 28-29. On November 1, 2016, the agency sustained the 3-day
suspension. Id. at 18-22. The appellant filed a whistleblower retaliation
complaint with the Office of Special Counsel (OSC). IAF, Tab 7 at 121-34. OSC
subsequently informed the appellant that it was closing his complaint and that he
could file an IRA appeal with the Board. Id. at 119. The appellant filed this
appeal. IAF, Tab 1. In response to a jurisdictional order, he alleged that at the
August 22, 2016 meeting he raised the concern that the AoA was not transparent.
IAF, Tab 7 at 16. He cited Appendix G of the DHS Acquisition
Instruction/Guidebook, which sets forth the agency’s rules and guidance
involving the performance of AoAs. IAF, Tab 7 at 16, 80, 82-84. In relevant
part, the Instruction/Guidebook states that analyses conducted during the AoA
“must be completed at a sufficient level of transparency and traceability to clearly
show the effectiveness, suitability, and financial justification for each alternative
considered.” Id. at 16, 83.
Following the appellant’s and agency’s responses to the jurisdictional
order, the administrative judge found that the appellant had established
jurisdiction by exhausting his administrative remedies before OSC. IAF, Tab 10
at 1. The administrative judge also found that the appellant made a nonfrivolous
allegation of a protected disclosure of “concerns about mismanagement of the
[AoA]” at the August 22 and 23, 2016 meetings. Id. at 1-2. In a summary of the
telephonic prehearing conference, the administrative judge set forth the
appellant’s burden of proof, and, over the agency’s objection, declined to impose
any higher burden on the appellant regardless of whether his disclosures were
made in the normal course of his duties. IAF, Tab 20 at 2 n.1. After holding a
5
hearing, he issued an initial decision denying the appellant’s request for
corrective action, finding that he failed to make a protected disclosure. IAF, Tabs
23-24, Tab 25, Initial Decision (ID) at 1, 34-35. In doing so, he identified the
appellant’s disclosures as alleging gross mismanagement when he was not
selected to be a member of the AoA team and a gross waste of funds because the
AoA team was repeating the same activities the appellant had already performed
from 2011 to 2013 to create his modeling tool. ID at 31.
In reaching his conclusion, the administrative judge suggested that the
appellant’s statements at the August 22, 2016 meeting were not protected because
several other persons in attendance at the meeting, as well as members of S&T
management, were already aware of the information the appellant was allegedly
disclosing. Id. The administrative judge additionally discussed the agency’s
rationale in disciplining the appellant, crediting testimony that his behavior was
rude, argumentative, and unprofessional. ID at 32-33. The administrative judge
further concluded that, rather than gross mismanagement or a gross waste of
funds, the actions of HSSAI, S&T, and CBP with which the appellant took
offense were legitimate management decisions. ID at 33. Finally, the
administrative judge found that the appellant did not identify any management
action or inaction that created a substantial risk of significant impact on the
agency’s ability to accomplish its mission. ID at 34. The administrative judge
did not address the appellant’s claim that his disclosure evidenced a violation of a
law, rule, or regulation, other than to note that the test for whether an appellant
has a reasonable belief that a disclosure evidences a violation of an agency rule or
regulation “is an objective one.” ID at 30.
The appellant has filed a petition for review challenging the initial decision
and reasserting that his communications in the August 22 and 23, 2016 meetings
were protected disclosures that were contributing factors in the agency’s decision
to suspend him for 3 days. Petition for Review (PFR) File, Tab 1 at 4. The
appellant predominantly challenges the determination that the disclosure
6
identified by the administrative judge did not reveal what the appellant
reasonably believed was gross mismanagement or a gross waste of funds. Id.
at 14-18. In particular, he argues that his disclosure of the failure to use him on
the AoA and repetition of S&T’s prior work were part of a larger disclosure that
the AoA was “irredeemable” and “needed to be redone.” Id. at 14-15. In support
of his claim that he had a reasonable belief of gross mismanagement or a gross
waste of funds, he asserts that the AoA was restarted, re -performed, and, under
his leadership, became the “gold standard” of AoAs. Id. at 17. He disputes that
this was merely a policy disagreement that was debatable, as he was able to
convince the Border Patrol Supervisory Program Manager that “there was no
technical merit in maintaining the current path.” Id. He further claims that, due
to the temporal proximity of his disclosures and the personnel action, his
disclosures were a contributing factor in his 3-day suspension. Id. at 19-20.
Finally, based on the inconsistencies in the notice of proposed suspension with
the testimony in the hearing, which according to him demonstrate that the
justifications were “verifiably false,” he claims that the agency cannot meet its
burden of proving by clear and convincing evidence that it would have
disciplined him absent his disclosures. Id. at 20-21.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the administrative judge’s jurisdictional finding to properly identify
the two disclosures that the appellant exhausted with OSC.
The administrative judge did not properly identify the disclosures
that the appellant exhausted.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
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), 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.
7
§ 2302(a). 5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 5 (2016). 5 The administrative judge addressed two purported
disclosures. ID at 31. We agree that the appellant exhausted one of these
disclosures. We modify the administrative judge’s remaining findings on
exhaustion.
Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). The Board, in
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, recently
clarified the substantive requirements of exhaustion. The requirements are met
when an appellant has provided OSC with a sufficient basis to pursue an
investigation. Id., ¶ 10. The Board’s jurisdiction is limited to those issues that
previously have been raised with OSC. Id. However, an appellant may give a
more detailed account of his whistleblowing activities before the Board than he
did to OSC. Id. (citing Briley v. National Archives & Records Administration,
236 F.3d 1373, 1378 (Fed. Cir. 2001)). An appellant may demonstrate exhaustion
through his initial OSC complaint, evidence that he amended the original
complaint, including but not limited to OSC’s determination letter and other
letters from OSC referencing any amended allegations, and his written responses
to OSC referencing the amended allegations. Id., ¶ 11; Mason, 116 M.S.P.R.135,
¶ 8. Alternatively, exhaustion may be proven through other sufficiently reliable
evidence, such as an affidavit or declaration attesting that the appellant raised
with OSC the substance of the facts in his appeal. Skarada v. Department of
Veterans Affairs, 2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11.
The appellant provided his OSC complaint with attachments and OSC’s
letter closing out his complaint. IAF, Tab 1 at 13-96. In these documents, he
specifically alleged that on August 22 and 23, 2016, he identified the following
5
In addition to protected disclosures, certain protected activities may serve as the basis
for an IRA appeal. Salerno, 123 M.S.P.R. 230, ¶ 5. The appellant has not alleged that
he engaged in a protected activity.
8
deficiencies in the AoA: (1) the failure to employ the modeling tool to test tunnel
detection technology that S&T had developed between 2011 and 2013, and
(2) “lapses in technical analysis.” Id. at 20-21. The appellant also identified
these two disclosures in his response to a jurisdictional order requiring that he list
his disclosures and activities. IAF, Tab 4 at 7, Tab 7 at 7-8, 44-45. However, the
administrative judge addressed only the first disclosure in the initial decision, and
not the second. ID at 31; Mastrullo v. Department of Labor, 123 M.S.P.R. 110,
¶ 14 (2015) (remanding an appeal because the administrative judge failed to
identify and analyze each of the appellant’s alleged disclosures from his OSC
complaint and failed to articulate the relevant standard of proof). The appellant
alludes to his second disclosure on review. PFR File, Tab 1 at 8-9. Therefore,
we modify the initial decision to find that the appellant exhausted this disclosure
and we address it further below.
The administrative judge analyzed the merits of a purported third
disclosure: that the agency should have included the appellant on the AoA as the
Technical Advisor. ID at 31. However, this was in error because the appellant
did not identify this disclosure in his OSC complaint or in his response to the
administrative judge’s jurisdictional order. ID at 31; IAF, Tab 1 at 13-96, Tab 4
at 7, Tab 7 at 4-23. Thus, we vacate the administrative judge’s findings as to this
third unexhausted disclosure because the Board lacks jurisdiction to address it.
We do not address the appellant’s arguments on review that this disclosure was
protected. PFR File, Tab 1 at 14.
Finally, the appellant has suggested on review that he more broadly
disclosed that the AoA was “irredeemable” and “needed to be redone.” PFR File,
Tab 1 at 14-15. To the extent the appellant is alleging that he separately
disclosed wrongdoing in connection with this claim, the Board lacks jurisdiction
over it. The appellant has not shown that he raised this claim with OSC. IAF,
Tab 1 at 20-21, Tab 7 at 8.
9
The appellant nonfrivolously alleged that his disclosures of the
failure to use prior tunnel detection technology and the lack of
analysis in the AoA were protected and contributing factors in his
3-day suspension.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Skarada,
2022 MSPB 17, ¶ 12. The test to determine whether a putative whistleblower has
a reasonable belief in the disclosure is an objective one: whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions of the agency
evidenced 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. Id.; see 5 U.S.C. § 2302(b)(8). The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Salerno,
123 M.S.P.R. 230, ¶ 6.
First, the appellant claimed that the AoA was grossly mismanaged and a
gross waste of funds because it did not utilize the existing modeling tools
specifically designed to aid in this process. IAF, Tab 1 at 20. The administrative
judge generally found that the Board has jurisdiction over the appellant’s
disclosures, without specifically identifying them. IAF, Tab 10; ID at 2-3.
Nonetheless, the parties do not challenge the Board’s jurisdiction over this
disclosure.
We modify the initial decision to specifically find that the Board has
jurisdiction over this disclosure. See MacDonald v. Department of Justice,
105 M.S.P.R. 83, ¶ 7 (2007) (finding that before the Board may proceed to the
merits of an IRA appeal, it must first address the matter of jurisdiction). The
reasonable person in the appellant’s position could believe that the agency’s
expenditure of what was likely a large amount of money on a project without
10
using relevant existing technology was a gross waste of funds. A gross waste of
funds is a more than debatable expenditure that is significantly out of proportion
with the benefits reasonably expected to accrue to the Government. MaGowan v.
Environment Protection Agency, 119 M.S.P.R. 9, ¶ 7 (2012). In particular, the
appellant alleged that the AoA cost the agency $2 million. IAF, Tab 1 at 20,
Tab 12 at 25-26. This belief was objectively reasonable given that $1.6 million
was, in fact, allocated for the project. HCD1, Track 2 at 1:08:38 (testimony of a
Customs and Border Patrol Supervisory Program Manager).
Further, the individuals who proposed and finalized the appellant’s
suspension were aware of his disclosures at the time that they issued the action,
which was within the 3 months following the disclosures. IAF, Tab 12 at 18-21,
25, 28-29. Thus, the appellant established that the disclosure was a contributing
factor in the suspension under the knowledge/timing test. See Salerno,
123 M.S.P.R. 230, ¶ 14 (explaining that an appellant may establish contributing
factor by showing that individuals with knowledge of his disclosures took a
personnel action within 1 to 2 years of the disclosures).
As to the second disclosure, the appellant alleged that he pointed out the
lack of analysis in the AoA. IAF, Tab 12 at 19-20, 25. According to the
appellant, he specifically disclosed the failure of the AoA to employ methods
such as “physics, numerical methods, modeling performance, laboratory testing,
and field testing.” IAF, Tab 1 at 20. We find that the Board has jurisdiction over
this disclosure, which the administrative judge did not address.
There is no dispute that the AoA lacked analysis. IAF, Tab 18 at 12-13,
47-49, 51, 59-61, 65-66, 73-85, 87, 99-100. The appellant alleged in conjunction
with the lack of analysis that the AoA team had not followed “the DHS AoA
Directive.” IAF, Tab 12 at 25. This appears to be a reference to Appendix G of
the DHS’s Acquisition Instructions/Guidebook, which provides guidance on how
to conduct an AoA and Alternative Analysis (AA) (Oct. 1, 2011). IAF, Tab 7
at 80. Appendix G provides that: “Analyses conducted during the AoA/AA (e.g.,
11
trade studies, modeling, simulation, and experimentation) must be completed at a
sufficient level of transparency and traceability to clearly show the effectiveness,
suitability, and financial justification for each alternative considered.” Id. at 83.
We find that the reasonable person in the appellant’s position could have believed
that the lack of analysis in the AoA constituted a violation of the Appendix G.
Further, given the close proximity in time between when the appellant disclosed
the violation of Appendix G and his 3-day suspension, we conclude that he also
nonfrivolously alleged contributing factor as to this disclosure under the
knowledge/timing test. IAF, Tab 7 at 83, Tab 12 at 18-21, 25, 28-29. Thus, the
appellant met his jurisdictional burden as to this disclosure.
We remand the appeal for a determination of whether the appellant proved that he
reasonably believed that the AoA’s lack of analysis violated Appendix G of the
Acquisition Instructions/Guidebook or evidenced other agency wrongdoing.
After an appellant establishes jurisdiction over an IRA appeal, he must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he (1) made a protected disclosure, and (2) that the
protected disclosure was a contributing factor in a personnel action taken against
him. 6 5 U.S.C. § 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662,
¶ 11 (2012). We agree with the administrative judge that the appellant did not
meet his burden to prove that he reasonably believed that the failure to use S&T’s
existing tunnel model disclosed Government wrongdoing. ID at 31-32. We
modify those findings as discussed below. We remand the appellant’s disclosure
that the AoA lacked analysis to the administrative judge for further adjudication.
6
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
12
We agree with the administrative judge that the appellant was not
required to meet the “extra proof” requirement set forth in 5 U.S.C.
§ 2302(f)(2), but we modify the initial decision to clarify the basis
for that finding.
Before addressing the disclosures, we must first address one of the
administrative judge’s findings concerning the nature of the appellant’s burden.
In a telephonic conference summary order that set forth the parties’ respective
burdens, the administrative judge acknowledged the agency’s argument that,
pursuant to 5 U.S.C. § 2302(f)(2), disclosures made during the normal course of
an employee’s duties were subjected to a higher burden, but concluded that
neither the Board’s commentary in Benton-Flores v. Department of Defense,
121 M.S.P.R. 428, ¶ 15 (2014), nor the language of 5 U.S.C. § 2302(f)(2) created
any burden greater than that which already exists. IAF, Tab 20 at 2 n.1. In the
initial decision, the administrative judge noted that the appellant’s disclosures
appeared to be related to his duties as an Engineer in the S&T, but determined
that the WPEA removed the principle that a disclosure is not protected if made
within the scope of one’s duties. ID at 4.
As the Board recently held in Salazar v. Department of Veterans Affairs ,
2022 MPSB 42, ¶¶ 10-14, 22, the effect of an amendment to 5 U.S.C. § 2302(f)(2)
in the National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA),
signed into law on December 12, 2017, is that disclosures made in the normal
course of duties of an employee whose principal job function is not to regularly
investigate and disclose wrongdoing fall under the generally applicable
provisions in 5 U.S.C. § 2302(b)(8), and are not subject to the requirement of
proving actual reprisal in 5 U.S.C. § 2302(f)(2). In Salazar, 2022 MSPB 42,
¶¶ 15-21, the Board held that the 2018 NDAA’s amendment to 5 U.S.C. § 2302(f)
(2) clarified the prior version of that statute enacted in the WPEA, and so the
amendment applied retroactively to appeals pending at the time the statute was
enacted.
13
The administrative judge did not have the benefit of our decision in Salazar
at the time he issued the initial decision. The appellant’s position description
identifies his principal job functions as an Engineering Advisor as including the
following: providing expert advice and counsel on projects within the S&T’s
portfolio; interpreting the impact of scientific and technical advances on broad
DHS requirements; conceiving of, proposing for review, evaluating, and
recommending the integration of others’ proposals for basic and applied research
efforts; serving on panels and committees and providing technical presentations,
briefings, and papers; and advising S&T division leadership on best practices or
approaches for addressing areas of concerns, among other duties. IAF, Tab 12
at 46-49. Because there is no indication that the appellant’s principal job
function at the time of his disclosure was to regularly investigate and disclose
wrongdoing, we conclude that the administrative judge correctly declined to
apply the higher burden of proof set forth in 5 U.S.C. § 2302(f)(2) to determine
whether the appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8).
ID at 4. Because we have found that section 2302(f)(2) is not applicable, we
vacate the administrative judge’s finding that the appellant’s disclosures appeared
to be related to his job duties. ID at 4.
We agree, as modified, with the administrative judge’s finding that
the appellant’s disclosure that the agency failed to use S&T’s
modeling tool was not protected.
For months leading up to the August 22, 2016 meeting, the appellant was
made aware that numerous entities involved in the AoA process were attempting
to use his modeling tool. IAF, Tab 18 at 133-37. During this time, he was
informed that there were problems with the tool and he agreed to conduct training
sessions with various parties to help them better use the tool. Id. As such, the
appellant could not have reasonably believed that the failure to use the tool
evidenced Government wrongdoing.
14
To the extent that the administrative judge suggested that the disclosure
was not protected because it concerned legitimate managerial decisions or
disclosed matters that were already known, we modify those findings to reflect
our reasoning as stated here. ID at 31-32. A disclosure is not excluded from
protection merely because it revealed information that had been previously
disclosed. 5 U.S.C. § 2302(f)(1)(B); Day v. Department of Homeland Security,
119 M.S.P.R. 589, ¶ 18 (2013). Thus, the administrative judge’s reasoning to the
contrary is mistaken. ID at 32. There is an exclusion, however, for disclosures
that express general philosophical or policy disagreements with agency decisions
or actions, unless the disclosures separately constitute a protected disclosure of
one of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8). 5 U.S.C.
§ 2302(a)(2)(D); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8
(2015). It appears that the administrative judge may have attempted to invoke
this exception when discussing the legitimate managerial nature of the agency’s
decisions. ID at 31-32. However, as discussed above, there was an attempt to
use the existing tunnel modeling tool, and the appellant was aware of that
attempt. Therefore, the alleged failure to use the tool, if any, was not a matter of
philosophical or policy debate. Rather it was a practical decision based on the
difficulty of using the tool.
We remand for further consideration of the appellant’s disclosure
that the AoA lacked analysis.
The administrative judge did not address the appellant’s disclosure of a
“lack of analysis in the AoA’s technical approach and the AoA team not
following the DHS AoA directive.” IAF, Tab 12 at 25. According to the
appellant, these errors in the AoA performance occurred due to gross
mismanagement and resulted in a gross waste of funds. IAF, Tab 1 at 15, 20.
However, at the heart of that disclosure is the appellant’s insistence that the AoA
was not performed in accordance with the requisite rules. IAF, Tab 1 at 15, 33,
Tab 7 at 16.
15
There is no de minimis exception for a disclosure involving a violation of a
law, rule, or regulation. Fisher v. Environmental Protection Agency ,
108 M.S.P.R. 296, ¶ 9 (2008). Moreover, although the WPEA does not define a
“rule,” the Board has suggested that it includes established or authoritative
standards for conduct or behavior. Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, ¶ 25 (2013). The DHS Acquisition Instruction/Guidebook sets
forth the agency-wide rules for the completion of an AoA. IAF, Tab 18 at 40, 42.
It provides a “systematic analytical” and comprehensive approach to the
completion of AoAs. IAF, Tab 7 at 82-84. Appendix G sets forth the steps of the
process, the roles of the various parties involved, and what is required after the
completion of the AoA. Id. at 88-99. The Appendix routinely refers to
procedures that must be done for the proper completion of an AoA, including, as
cited by the appellant, that it “must be completed at a sufficient level of
transparency and traceability to clearly show the effectiveness, suitability, and
financial justification for each alternative considered.” Id. at 82-84 (emphasis
added). Accordingly, we agree with the appellant that the failure to comply with
the AoA would be a violation of an agency rule.
However, we cannot decide the reasonableness of the appellant’s belief in
the first instance because the credibility of witnesses testifying at hearing,
including the appellant, is at issue. Canada v. Department of Homeland Security,
113 M.S.P.R. 509, ¶ 20 (2010). Deciding issues of credibility is normally the
province of the trier of fact. Id. Therefore, we must remand this appeal for the
administrative judge to determine whether the appellant proved the
reasonableness of his belief that the agency committed wrongdoing. On remand,
the administrative judge should also consider whether the appellant’s disclosure
fell within any other category of wrongdoing under 5 U.S.C. § 2302(b)(8); see El
v. Department of Commerce, 123 M.S.P.R. 76, ¶ 11 (2015) (explaining that an
administrative judge properly attempted to read an appellant’s claimed
disclosures in the broadest possible way because an appellant is not required to
16
correctly label a category of wrongdoing), aff’d per curiam, 663 F. App’x 921
(Fed. Cir. 2016).
The appellant’s disclosure of a lack of analysis may be protected
regardless of whether it concerned the conduct of HSSAI, a
Government contractor.
Here, the actual lack of analysis was at least partially attributable to the
conduct of HSSAI, with which the agency contracted to complete the AoA. E.g.,
IAF, Tab 17 at 129, Tab 18 at 71-85. The Board has held that allegations against
a Government contractor may constitute protected disclosures when the agency
was in a position to influence or exercise oversight over the organization’s
performance of those functions such that the Government’s interests and good
name are implicated in the alleged wrongdoing at issue. Johnson v. Department
of Health & Human Services, 93 M.S.P.R. 38, ¶ 10 (2002); see Covington v.
Department of the Interior, 2023 MSPB 5, ¶¶ 15-19 (finding that the WPEA did
not change the longstanding principle that a disclosure of wrongdoing committed
by a non-Federal Government entity may be protected only when the Federal
Government’s interests and good name are implicated in the alleged wrongdoing).
Here, the parties agree that DHS contracted with HSSAI to conduct the AoA.
IAF, Tab 17 at 5, Tab 18 at 10. HSSAI was conducting the AoA to assist in the
development of tunnel detection programs, which is a function related to the
overall responsibilities of both S&T and CBP. HSSAI was working directly and
frequently with S&T and CBP, and those DHS components identified problems
with HSSAI’s work on the AoA and actively sought to resolve them. IAF, Tab 17
at 94, 99, 133, Tab 18 at 71. S&T and CBP were ultimately in a position to steer
the work of HSSAI, including the decision to pause its work on the AoA. IAF,
Tab 17 at 94, 99, 133; PFR File, Tab 1 at 17-18. Accordingly, CBP and S&T
were in a position to influence and exercise oversight over HSSAI’s performance
of this function. Thus, the Government’s interest of properly and accurately
detecting tunnels is implicated in the alleged wrongdoing. Additionally, the
17
Government’s good name, i.e., the reputation of S&T to provide a quality product
to its clients, is also implicated in the alleged wrongdoing. IAF, Tab 18 at 71.
Accordingly, the appellant’s disclosures may be protected even though they at
least partially concern the conduct of HSSAI.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
The administrative judge should provide the parties with an opportunity to submit
additional evidence and argument on the issues discussed above and, if necessary,
hold a supplemental hearing to further develop the record.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.