Petition for Writ of Certiorari — Kidd v. Department of the Interior

Eupreme Court, U.S

| FILED

93-949 | DEC 13 1993

No: aig OFFICE OF TriE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

DEL A. KIDD, Petitioner,

v.

DEPARTMENT OF THE INTERIOR, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DEL A. KIDD,

1303 Darlene Way #406B

Boulder City, NV 89005

Phone: (702) 293-3680

PETITIONER PRO SE

Date: December 9, 1993

QUESTION PRESENTED

Section 1221(e)(1) of the Whistleblower Protection Act of

1989 provides that reprisal for whistleblowing will be found if a

federal employee against whom a personnel action was taken

demonstrates that a disclosure described under §2302(b)(8) was a

“contributing factor" in the decision to order the personnel action.

Under §1221(e)(1), is the Merit Systems Protection Board

obligated to consider each and every factor that contributed to the

ordering of the personnel action or may some contributing factors

be ignored?

Likewise, upon appeal, is the U.S. Court of Appeals for

the Federal Circuit obligated to consider all “contributing factors"

in a case alleging reprisal for whistleblowing?

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................... i

TABLE OF AUTHORITIES ................... ii

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EME UUM VOLVED coc ccc cccccccccccces 2

DeAtmmen OF THE CASE ... ww. cc cc ccc cccce 3

REASONS FOR GRANTING THE WRIT .......... 7

I. In passing § 1221(e)(1) of the WPA, it was not

the intent of Congress to allow the MSPB to

ignore "contributing factors" in cases

challenging personnel actions and alleging

reprisal for whistleblowing. ............... 7

il. The U.S. Court of Appeals for the Federal

Circuit clearly errored in affirming an MSPB

decision that, in this case, contradicts the

ST Chea es OOS 0 W446 bn 66-8 0 6b 0'a'e Kc 9

Ill. If the Supreme Court does not act to enforce

the "contributing factor" standard, the MSPB

and the Federal Circuit will have effectively

ee 10

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NP a a eee Al

TABLE OF AUTHORITIES

Authority: Page (s)

Statutes:

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ee ES OIC Re aOR rai ag tard tee ss

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MF om ee ea ee aA re irar o- oer Peery 1, 11

i es os ed a cy tore ie eevee eres 2,7,8

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Pe ag gk Soi a oe. wo he ea ae ee 9

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2 Oe Ce ccc ee cae ae eee ee is

Civil Service Reform Act of 1978 ........... 10, 11, 12

Pub. L. 95-454, 95th Congress, 1978, 92 Stat

1111, Sections (1)(3) & (4)

Whistleblower Protection Act of 1989. 2,5, 6, 7, 8, 9, 10, 11

Pub. L. 101-12, 103 Stat 16. (codified as

amended in scattered sections of 5 U.S.C.)

United States Constitution ................... 6, 12

References:

Federal Civil Service Law and Procedures,

A Basic Guide, Second Edition: Ellen M. Bussey,

Editor. The Bureau of National Affairs, Inc..,

og Ee ee ee 7,8

Whistleblowing Protection and the Office of

Special Counsel: the Development of Reprisal Law in

the 1980’s: Bruce D. Fong, The American University

Law Review, Vol. 40: 1015 ............... .8, 10, 11

ate enamel

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

DEL A. KIDD, Petitioner,

v.

DEPARTMENT OF THE INTERIOR, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE U.S. COURT OF APPEALS FOR THE FEDERAL

CIRCUIT

The petitioner Del A. Kidd respectfully requests that a

writ of certiorari be issued to review the judgement and opinion

of the United States Court of Appeals for the Federal Circuit,

entered in the above-entitled proceeding on September 16, 1993.

OPINIONS BELOW

The opinion of the Court of Appeals for the Federal

Circuit has not been reported. It is reprinted in the appendix

hereto, p. A-1, infra. The initial decision of the administrative

law judge for the Merit Systems Protection Board (MSPB)

automatically became the Board’s final decision pursuant to 5

C.F.R. 1201.113 (1982). The MSPB’s initial decision is

reprinted in the appendix hereto, pp. A-2 through A-12 infra.

JURISDICTION

Petitioner’s 14-day suspension was appealed for corrective

action to the Merit Systems Protection Board under 5 U.S.C.

$1209 and §1221(a) and in compliance with §1214(a)(3). The

administrative law judge dismissed the appeal in an initial decision

dated July 3, 1991. That initial decision became the Board’s final

decision pursuant to 5 C.F.R. 1201.113 (1982) when the

petitioner opted to file in federal court rather than request full

Board review.

Invoking federal jurisdiction under 5 U.S.C. 1221(h) and

7703(b), petitioner filed suit in the U.S. Court of Appeals for the

Federal Circuit on August 22, 1991. The Federal Circuit's

judgement was entered against the petitioner on July 12, 1993.

A combined petition for rehearing and suggestion for rehearing en

banc, timely filed by the petitioner, was denied and entered on

September 16, 1993.

The jurisdiction of this Court to review the judgement of

the Federal Circuit is invoked under 28 U.S.C. 1254(1).

STATUTE INVOLVED

5 U.S.C. "§ 1221(e)(1) of The Whistleblower Protection Act

(WPA) of 1989, Pub. L. No. 101-12, 103 Stat 16 (codified as

amended in scattered sections of 5 U.S.C.)

“Subject to the provisions of paragraph (2), in any case

involving an alleged prohibited personnel practice as described

under section 2302(b)(8), the Board [Merit Systems Protection

Board] shall order such corrective action as the Board considers

appropriate if the employee, former employee, or applicant for

employment has demonstrated that a disclosure described under

section 2302(b)(8) was a contributing factor in the personnel

action which was taken or is to be taken against such employee,

former employee, or applicant.

"(2) Corrective action under paragraph (1) may not be

ordered if the agency demonstrates by clear and convincing

evidence that it would have taken the same personnel action in the

absence of such disclosure.

STATEMENT OF THE CASE

Petitioner, Del Kidd, has been employed by the federal

government since 1970 and by the Department of Interidr’s

Bureau of Reclamation since 1983.

Beginning in March, 1988, Kidd was harassed on his job

at the Yuma Projects Office (YPO). The continued harassment

caused him to file two grievances against his supervisors. In

processing Kidd’s grievances the Bureau of Reclamation (the

agency) flagrantly violated established grievance regulations and

delayed the grievance proceedings.' When a formal hearing

before the Office of Hearings and Appeals was finally scheduled

in late August, 1989, Kidd suffered a fire in his home in Yuma.

The fire marshall told Kidd the fire was arson. The fire and the

agency's actions led Kidd to write the Secretary of the Interior on

September 11, 1989, disclosing how the agency had violated

specific grievance regulations and asking the Secretary to assume

jurisdiction of the grievances. The letter also asked the Secretary

why Kidd’s supervisor, who he suspected of arson, was being

defended by the agency’s Solicitor in a criminal matter. (ACR p.

193)’ Kidd sent copies of this letter to U.S. Congressmen

Wayne Owens and Morris Udall. Later, on September 20, 1989,

Kidd and 14 fellow YPO employees met in Kidd’s home with a

member of Congressman Udall’s staff to report the waste, fraud,

abuse of authority, and mismanagement at the YPO.

In July 1990, Kidd received a 14-day suspension without

pay from his duties with the agency. The Notice of the

Suspension stated that Kidd was suspended primarily for repeated

accusations that his former supervisor had set fire to his home.

' Kidd's first grievance filed on April 10, 1989 was not finally decided

by the agency until May 12, 1992. In Kidd's Case, a process that, by

regulation, should have taken no more that 3 to 4 months took three years

to complete.

The Appeals Court record is cited in this petition as ACR with page

references to the Appendix for Petitioner's Briefs submitted to the Court of

Appeals with petitioner's reply brief. The record is referenced for the

convenience of opposing attorneys.

However, the Notice listed numerous specific reasons for the

suspension, including Kidd’s having written his September 11th

letter to the Secretary of the Interior with copies to the

Congressmen, and for hosting the September 20th meeting and

discussing his concerns with Congressman Udall’s staff. (ACR

pp. 337-341 and 354-356)

Kidd immediately filed a grievance within the agency

claiming that the suspension was ordered, at least in part, as

reprisal for his whistleblowing. Kidd also filed a complaint with

the Office of Special Counsel (OSC). Based upon the failure of

the OSC to stay the suspension or otherwise proceed, Kidd

retained a lawyer and filed an appeal for corrective action before

the Merit System Protection Board (MSPB) pursuant to 5 U.S.C.

1214(a)(3) and 5 U.S.C. 1209.

Kidd’s appeal to the Board was based on his claim that the

statements he made in his September 11th letter to the Secretary

with copies to the Congressmen and the statements he made to a

member of Congressman Udall’s staff at the September 20th

meeting were protected disclosures. Under the heading "Details

of whistleblowing,” Kidd’s appeal states:

“Mr. Kidd met with fourteen other government

employees of the Yuma Project Office and a

representative from Congressman Morris Udall’s

office on September 20, 1989. The topics

discussed, and information disclosed, included

mismanagement, violations of government

regulations, and the abuse of authority at the

Yuma Project Office. Disclosure of that

information to the congressman’s representative

was protected under law. Yet, in the proposal

letter, [Notice of Proposed 14-Day Suspension]

the agency stated that reputations of government

employees’ were severely damaged when, based

upon your allegations, a member of Congressman

Udall’s staff met with approximately 14 employees

or former employees of YPO to discuss your

concerns on September 20, 1989.’ Mr. Kidd also

attempted to bring his concerns to the Secretary of

the Interior and others within the Department of

|

the Interior, was chastised for doing so, and was

upbraided in the Notice of Proposed Action and

the action itself for doing so." (ACR p. 403)

Kidd argued to the MSPB that for the Agency to have

based the 14-day suspension on such disclosures constituted a

prohibited personnel practice in violation of 5. U.S.C. 2302(b)(8)

of the WPA. Kidd also argued that all of his statements regarding

his suspicions of arson were made in judicial proceedings in state

and/or federal court and were, therefore, protected. And for the

Agency to have based the 14-day suspension on such disclosures

was evidence of a prohibited personnel practice in violation of

§2302(b)(9), reprisal for exercising appeal rights.

Counter to Kidd’s specific claims of whistleblowing, the

agency claimed that-the-only—disclosures—at—issue—were—those

concerning the arson, describing the alleged whistleblowing as

"alleged fire-setting misconduct of managers Pritchett and

Gudgel." (ACR p. 627) The agency then argued that “making

false statements which damage the reputation of others, regardless

of to whom the statements are made, does not constitute protected

activity.” (ACR p. 432) Significantly, nowhere in its arguments

to the MSPB did the Agency say or claim or supply any evidence

to show that it would have taken the personnel action absent

Kidd’s disclosures of agency wrongdoing in his September 11th

letter to the Secretary or the same disclosures made to Udall’s

Staff at the September 20th meeting.

A hearing was held before an administrative law judge for

the MSPB on June 26, 1991. In response to the agency’s inquiry

during informal pre-hearing discussions, the Administrative Law

Judge stated that the agency would be required to rely on all of

its stated reasons for ordering the 14-day suspension. However,

during the course of the hearing the judge restricted testimony to

only the issue of arson. (ACR, Exhibit I: Transcript, p. 23, 25.)

The Board subsequently issued its initial decision on July

3, 1991, dismissing Kidd’s appeal! upon finding:

"that the appellant is not entitled to the protection

of the WPA because the disclosures he made --

accusations of arson against his supervisors and

the letter he issued to prospective witnesses -- are

not protected by the Whistleblower Protection

Act." See p. A-10, infra.

The decision omits any and all reference to the disclosures Kidd

made at the meeting with Udall’s staff person and simply ignores

the fact that these disclosures were a contributing factor in the

decision to order Kidd’s suspension. And, with regards to Kidd’s

disclosures of the agency’s violations of grievance regulations

found in his September 11th letter to the Secretary of the Interior

with copies to two Congressmen, the decision addresses only

those portions of the letter concerning the arson. The decision

States:

"The appellant also argues that his communication

letter to Secretary Lujan must be accorded

protection ’on its face’ as lst Amendment free

speech and a disclosure of a violation of the law.

However, as found above, the appellant’s

accusations of arson are not ‘protected

disclosures.” And, the appellant’s claim that his

constitutional rights have been abridged, in and of

itself, is insufficient to bring this matter within the

Board’s jurisdiction." See p. A-8, infra.

The decision also misstates Kidd’s claim to protection

under 5 U.S.C. 2302(b)(9), reprisal for having exercised his

appeal rights under the law. Kidd claimed that his disclosures

regarding the arson, having all be2n made in judicial proceedings,

were protected 5 U.S.C. 2302(u)(9). The decision inaccurately

States:

“Moreover, insofar as the appellant claims that the

agency is retaliating against him under 5 U.S.C.

§ 2302(b)(9) -- reprisal for having written this

letter [the letter to the witnesses] in connection

with his grievance, I disagree." See p. A-9, infra.

Neither Kidd nor the agency claimed that the contents of Kidd’s

April 13, 1990, letter to potential witnesses contained protected

disclosures or evidenced reprisal under either §2302(b) (8) or (9).

Kidd appealed the Board’s decision to the U.S. Court of

Appeals for the Federal Circuit, appearing pro se. Oral

arguments were not permitted. In a ruling issued July 12, 1993,

the Appeals Court simply adopted the Board’s narrowed

consideration of only the disclosures regarding arson and Kidd’s

letter to prospective witnesses and affirmed. See p. A-1, infra.

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

The facts of this case establish that the MSPB is willing

and able to decide cases of alleged reprisal for whistleblowing

without duly considering all of the factors that contribute to an

agency’s decision to take a personnel action against a federal

employee. This case further demonstrates that the U.S. Court of

Appeals for the Federal Circuit condones the Board’s actions.

That being the case, this writ of certiorari to the Court of

Appeals for the Federal Circuit should be granted for the

following three reasons:

In passing § 1221(e)(1) of the WPA, it was not

the intent of Congress to allow the MSPB to

ignore "contributing factors" in cases

challenging personnel actions and alleging

reprisal for whistleblowing.

The WPA of 1989 was intended to strengthen and improve

the protection provided to federal employees and applicants who

disclose wrong doing within the government by making it easier

to establish reprisal.’

Prior to the WPA, to establish prima facie reprisal for

whistleblowing under section 2302(b)(8), as well as for the

exercise of appeal rights under 2302(b)(9), the following four

elements had to be proved by a preponderance of evidence: (1)

that the employee engaged in protected conduct; (2) that the

> Federal Civil Service Law and Procedures, A Basic Guide, Second

Edition: Ellen M. Bussey, Editor. The Bureau of National Affairs, Inc.,

Washington D.C. 1990, p. 128, citing Section 2(b) of the Whistleblower

Protection Act, 103 Stat 16; 5 U.S.C. 1201 note.

7

offending official knew about the disclosure; (3) that a personnel

action was taken, or failed to be take, in retaliation for the

disclosure; and (4) that there was a causal connection between the

protected activity and the adverse personnel action. And prima

facie reprisal was established only if the protected disclosure was

found to have been a significant factor in the decision to take the

personnel action.‘

Now, under the WPA, reprisal will be found if the

disclosure was a “contributing factor" in the challenged personnel

action.” Based on the explanatory discussion in the enactment

history of the Act, it seems clear that this new contributing factor

standard was intended to make corrective action the norm

whenever a protected disclosure, alone or in conjunction with

other factors, tended to affect in any way the outcome of the

agency's decision to order the personnel action.°®

The Board’s decision in the instant case defies the

"contributing factor" standard. For while the decision

painstakingly analyzed both Kidd’s disclosures of suspected arson

4

Id., pp. 126-127, citing numerous MSPB cases.

: U.S.C. 1221(e)(1) (employee actions involving reprisal) and

1214(b)(4)(B)(i) (Special Counsel corrective actions).

* Whistleblower Protection and the Office of Special Counsel: the

Development of Reprisal Law in the 1980’s; Bruce D. Fong, The American

University Law Review, Vol. 40: 1015 at 1062, citing: 135 CONG. REC.

$2779-80 (daily ed. Mar. 16, 1989) (remarks of Sen. C., Levin) (proving

retaliation requires showing disclosure was only contributing and not

substantial factor); see id. at $2781 (reprinted letter from Attorney General

Thomburg to Sen. Levin, Mar, 3, 1989) (clarifying new standard as

contributing factor); id. at S2787 (remarks of Sen. W. Cohen)

(whistleblowing need only be a contributing factor); id. at $2788 (remarks

of Sen. C. Grassley) (same); id. at $2793 (remarks of Sen. D. Pryor)

(contributing factor is new standard). On the House side, see 135 CONG.

REC. H747 (daily ed. Mar. 21, 1989) (remarks of Rep. S. Kursh)

(agreeing to clarify word “factor” by adding “contributing"); id. at H751

(remarks of Rep. P. Schroeder) (contributing factor means any factor that

tends to affect outcome); id. at H752 (remarks of Rep. B. Gilman)

(contributing factor is new standard.)

8

and the contents of Kidd’s letter to prospective witnesses, it

omitted all reference to Kidd’s disclosures that the agency had

flagrantly violated grievance regulations and it ignored the fact

that those disclosures were stated reasons for Kidd’s suspension.

The U.S. Court of Appeals for the Federal

Circuit clearly errored in affirming an MSPB

decision that, in this case, contradicts the WPA.

Upon appeal to the Federal Circuit, Kidd again argued that

his disclosures of the agency’s flagrant violation of established

grievance regulations contributed to the agency’s decision to order

his suspension. Kidd based this argument on the fact that these

disclosures were made in Kidd’s September 11th letter to the

Secretary, with copies to Congressmen Owens and Udall, and at

the September 20th meeting in Kidd’s home with a member of

Congressman Udall’s staff, both of which were specifically cited

as reasons for ordering Kidd’s suspension in the agency’s letter

proposing the suspension and in the Suspension Notice itself.

Kidd also argued that it was wrong for the Board to have ignored

these disclosures because they were contributing factors in the

agency’s decision.

But the Federal Circuit rejected Kidd's arguments and

adopted the Boards narrowed consideration of just the disclosures

concerning the arson and those contained in Kidd’s letter to

Prospective witnesses and affirmed. Then, citing 5 U.S.C.

7703(c) (1988), the Federal Circuit went on to condone the

board’s action by concluding that the decision had been “issued

in accordance with applicable provisions of the law" -- that is, in

compliance with the WPA. See p. A-1, infra. This conclusion,

likewise, defies the "contributing factor" standard established

under the WPA and is plain error.

If the Supreme Court does not act to enforce

the "contributing factor" standard, the MSPB

and the Federal Circuit will have effectively

overturned the WPA and rewritten law.

The practice of ignoring contributing factors in cases

alleging reprisal for whistleblowing cannot be condoned by this

Court without far-reaching consequences. For the practice

undermines hard fought reforms enacted by Congress in the Civil

Service Reform Act (CSRA) of 1978 and the WPA.

A primary goal of the CSRA was to encourage federal

employees to disclose wrongdoing within the government in order

to provide the people of the United States with a more competent,

honest, productive federal work force.’

To protect the whistleblowers, the CSRA empowered the

OSC to investigate allegations of prohibited personnel practices

and reprisal and to file complaints against agency officials who

engaged in such conduct.* But as that legislation proved

ineffective, the WPA was enacted to strengthen whistleblower

protection.

Two significant changes to the substantive law were the

deletion of the word reprisal from sections 2302(8) and (9), and

the substitution of the phrase “because of." Congress made these

changes in direct response to what it perceived to be the unduly

restrictive decisions of the Board and the courts which had made

it difficult to prove reprisal.’

7 CSRA, Pub. Law 95-454, 95th Congress, 1978. 92 STAT 1111,

Sections: (1),(3), & (4).

* — Id., Section (4).

% — Whistleblower Protection and the Office of Special Counsel: the

Development of Reprisal Law in the 1980's at p. 1061. Citing S.REP. No.

413, 100th Congress. 2nd Session. 15-16 (1988) (noting Board has been

overly restrictive in standards for proving reprisal.)

10

The Act also defined precisely the quantum of proof

required to justify corrective action in cases alleging reprisal for

whistleblowing. Believing that the existing law required proof

that the protected disclosure be a significant or substantial factor

in the action taken, Congress lowered the threshold burden of

proof by establishing the “contributing factor” test.

Clearly the goals of Congress have been to better

government by encouraging federal employees to disclose

wrongdoing and to protect those employees who do so. And the

“contributing factor" standard is essentially the linchpin for both.

The CSRA enacted an elaborate scheme that purports to define,

administer, and protect the rights of federal employees in the

work place. The Act established the sole remedies available to

federal employees whose rights have been violated by their

employer, and appeal to the Board was very limited.'°

The WPA provides a new independent right of action but

only to whistleblowers alleging a violation of 2302(b)(8),"" And

as noted above, in order to prove whistleblowing, an employee

must prove that his disclosures were a “contributing factor" in the

agency’s decision to affect the personnel action. This applies

equally to an employees constitutional rights, as evidenced by the

instant case. Kidd alleged to the Board that for the agency to

have suspended him for having met with the staff of a

Congressman and for having made disclosures of agency

wrongdoing at that meeting and in a letter to the Secretary and

0 Id. at p. 1060, citing § 1221. (Under the CSRA, only employees

who had completed their one-year probationary period in the competitive

service and certain veterans holding appointments in the excepted service

were given the right to appeal to the MSPB. 5 U.S.C. § 7511 (1988). Even

then, the right was limited to actions which were significant, i.e., removal,

suspension for more than 14 days, reduction in grade, reduction in pay, and

certain furlough decisions. )

- '' §U.S.C.A. § 1221 (West Supp. 1990) (allowing the right of action

in certain reprisal cases.) See also Whistleblower Protection and Office of

Special Counsel: the Development of Reprisal Law in the 1980's, at p.

1060: (The WPA of 1989 contained most of the pro-whistleblowers features

of earlier proposals with the exception of authority of the Special Counsel

to seek judicial review of a decision of the MSPB.)

1]

two congressmen, violated his right to petition congress and his

constitutional rights of speech and assembly. But, as the Board

noted in its decision, the claim that Constitutional rights have

been abridged in and of itself -- that is absent proof of being a

whistleblower -- is insufficient to bring the matter within the

Board's jurisdiction. See Decision, p. A-8 infra.

If the board is now allowed to ignore some factors and is

not made to enforce the standard, not only will whistleblowers go

unprotected and suffer reprisal but the offending officials and the

wrongdoers will have nothing to fear and will go unpunished.

There will then be no incentive for federal employees to disclose

official government wrongdoing, and reprisal against those

employees who do blow the whistle will be open and unchecked.

But, most important, by simply ignoring the “contributing factor”

standard the Board and the Federal Circuit will have effectively

rewritten the law and defeated its purpose.

Pursuant to specific provisions of the CSRA, virtually all

federal whistleblowing cases pass through the Board and the Ninth

Circuit. This system forecloses any traditional “percolation”

among the circuits of federal whistleblower issues like the one

presented here. And the fact that not all Board decisions are

appealable further forecloses the possibility of traditional

“ripening” of whistleblower issues.

CONCLUSION

Only review by the Supreme Court will correct the issue

presented here. And so, for the reasons argued above, the

petitioner respectfully asks that this petition for writ of certiorari

to the Federal Circuit be granted. Or, in the alternative, the

petitioner asks that the Supreme Court summarily reverse the

Board’s decision in this case.

12

APPENDIX

cone aie

NOTE: Pursuant to Fed. Cir. R. 47.8, this disposition is not

citable as precedent. It is a public record. The disposition will

appear in tables published periodically.

United States Court of Appeals for the Federal

Circuit

91-3546

DEL A. KIDD,

Petitioner,

Vv.

DEPARTMENT OF THE INTERIOR,

Respondent.

DECIDED: July i2, 1993

Before MAYER, MICHEL, AND LOURIE, Circuit Judges.

PER CURIAM.

Del A. Kidd appeals the July 3, 1991, decision of the

Merit Systems Protection Board, No. DE122191W0210, finding

that he was not entitled to protection under the Whistleblower

Protection Act of 1989. We affirm.

Kidd alleged before the board that his 14-day suspension

was an act of reprisal for two disclosures about his supervisors.

First, he alleged to several sources that they were involved in an

arson on his property, and second, he wrote a letter to prospective

witnesses in a grievance action against his supervisor which

warned that the witnesses may also be subject to harassment by

the supervisors. The board found that neither of these allegations

constituted protected disclosures under 5 U.S.C. § 1221(e)(1).

We conclude that the board’s decision was not arbitrary or

Capricious, was supported by substantial evidence, and was

issued in accordance with applicable provisions of the law. See

5 U.S.C. § 7703 (c) (1988).

Al

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER REGIONAL OFFICE

Agency.

)

DEL A. KIDD )

Appellant, ) DOCKET NO.

) DE122191W0210

v. )

)

DEPARTMENT OF THE INTERIOR, ) DATE:

) JULY 3, 1991

)

)

Jerre Dixon, Esquire, Dixon & Snow, Denver

Colorado, for the appellant.

Bob Moeller, Esquire, Phoenix, Arizona, for the

agency.

Before

Steven L. Chaffin

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant seeks Board review of his 14-day

suspension, effective July 16, 1990. See Appeal Record, Tabs |

and 4-41. The appellant asserts Board jurisdiction over the matter

appealed by claiming the protection of the Whistleblower

Protection Act of 1989.

The appellant was given the opportunity to present

evidence and argument on the issue of whether he was a

whistleblower under 5 U.S.C. § 2302(b)(8). And, because of

A2

allegations made by the appellant, a hearing was held on June 26.

1991. The appeal record closed upon the completion of the

hearing.

For the reasons stated below, I find that the appellant is

not a whistleblower and I DISMISS the appeal of his 14-day

suspension.

ANALYSIS AND FINDINGS

Factual Background

Most of the facts of this case are undisputed. See Appeal

Record, Tab 21 (Stipulated Facts). The appellant served in the

position of Environmental Specialist, GS-12, in the Lower

Colorado Division of the Bureau of Reclamation. On July 16,

1990, the appellant was suspended for 14 days for repeatedly

accusing his former supervisor - - Ray [sic] Pritchett - - of setting

fire to the appellant’s home on August 26, 1989, and for writing

a letter to prospective witnesses on April 13, 1990.

These accusations, as set forth in the notice of proposed

removal, first occurred on the night of the fire, August 26, 1989.

See Appeal Record, Tab 4-4M. Then, on the next Monday

morning, August 28, the appellant and his wife secured

injunctions against Pritchett and David Gudgel -- the appellant's

second line supervisor -- in the Yuma, Arizona, Municipal

Court.’ These injunctions indicated that Pritchett and Gudgel

were to stop al) acts of intimidation, threats, bodily harm, or acts

Causing property damage. See Appeal Record, Tab 5-4AA. The

injunction also noted the fire at the appellant’s house and stated

a belief that Pritchett was capable of such arson.

Then, on September II, 1989, the appellant wrote a letter

to Manuel Lujan, Secretary of the Interior. See Appeal Record,

Tab 5-4Y. In that letter, the appellant indicates that he suspected

Pritchett and Gudgel of starting the fire at his house on August

26, 1989.

' These injunctions were obtained ex parte and without a hearing.

Thus, I do not consider the granting of the injunctions by the Yuma

Municipal Court to be probative evidence that the allegations contained

therein in support of the injunction were true.

A3

In March of 1990, the appellant sought a renewal of the

injunction against Pritchett and Gudgel. In seeking this renewal

the appellant raised the same accusations against the two

individuals.

Finally, the notice of proposed suspension cites an April

13, 1990, letter the appellant wrote to 30 prospective witnesses

for a grievance hearing.’ That letter, noting the withdrawal of

the grievance, suggests that the witnesses might also be subject to

harassment by Pritchett and Gudgel. See Appeal Record, Tab 4-

4Q.

Other, less germane facts, are also undisputed. The

appellant had difficulty working under Pritchett’s supervision for

several years. During this period, reprimands were issued,

grievances filed, and hearings held. This series of events

presumably ended in July of 1989, when the appellant was

reassigned from the agency’s Yuma, Arizona office to the

agency’s Boulder City, Nevada Office.’ This reassignment

occurred approximately three weeks before the fire at the

appellant’s Yuma residence.

In 1990, the appellant sought review of his suspension by

the Office of Special Counsel (OSC). However, on January 2,

1991, the OSC notified the appellant that it would take no further

action on his complaint. The appellant was informed of his right

to seek corrective action from the Board, and did so on March 7,

1991.

Applicable law

In order to establish a claim of retaliation for

The parties are in agreement that the letter was erroneously dated

March 13, 1990, and should have been dated April 13, 1990.

* It is undisputed that all of the “personnel actions” leading up to the

appellant's reassignment, including the reassignment itself, were effected or

proposed prior to July 9, 1989, the effective date of the Whistleblower

Protection Act. Thus, they are not subject to review here under that Act.

See Herring V. Department of the Treasury, 44 M.S.P.R. 673, 675 (1990.

aff'd 918 F.2d 186 (Fed. Cir. 1990) (Table); Marshall v. Department of

Veterans Affairs, 44 M.S.P.R. 28, 31-33 (1990).

A4

whistleblowing, an employee must show that he made a protected

disclosure and that the disclosure was a “contributing factor" in

the agency’s decision to effect the personnel action. See 5

U.S.C. §1221(e)(1); Christopher v. Defense Logistics Agency, 44

M.S.P.,R. 264, 271 (1990); Gergick v. General Services

Administration, 43 M.S.P.R. 651, 569 (1990). Here, there can

be no disagreement that the appellant’s disclosures were a

contributing factor in his 14-day suspension: the suspension action

was specifically taken for those disclosures. Thus, the issue

before me is whether the appellant’s disclosures as set forth in the

notice of proposed suspension were "protected" disclosures under

the Whistleblower Protection Act of 1989.

Analysis

The agency’s suspension action can be divided into two

parts. The first part relies on the appellant’s repeated accusations

of arson against Pritchett and Gudgel. Specifically, these

accusations occurred on August 26, 1989 - - the night of the fire -

- to police and fire officials; on the Monday following the fire in

the request for a court injunction; in the September 11, 1989

letter to Secretary Manuel Lujan; and in March 1990, when the

appellant sought to renew the injunctions against Pritchett and

Gudgel.

The second part of the agency’s suspension action involves

the appellant’s letter dated April 13, to prospective witnesses.

The issuance of this letter raises different issues and will be

discussed later.

The central issue with regard to these accusations of arson

against Pritchett and Gudgel is whether they constitute a violation

of the law and whether the appellant reasonably believed he was

reporting such a violation. Seed 5 U.S.C. § 2302(b)(8). The test

for such "reasonable belief" is not the subjective belief of the

* The appellant cites earlier protected disclosures with regard to his

several grievances with the agency. However, the appellant presented no

evidence to show that these earlier disclosures were a contributing factor in

the agency’s decision to suspend ;him for 14 days. Moreover, it is not

clear that the disclosures made are of the type which can be considered

protected.

A 5

appellant/discloser. Rather, it is whether a “reasonable person in

the appellant’s position would believe that the matter reported was

protected. See Special Counsel V. Hoban, 24M.S.P.R. 154, 160

(1984).°

Thus, the instant case must be examined not from the

appellant’s perspective, but from the perspective of a reasonable

person, confronted with the appellant’s circumstances and the

evidence available to the appellant. And, based on the evidence

presented, I find that a reasonable person could not have

“reasonably believed" the accusations made.

To support his accusations, the appellant first alludes to a

conversation he had with several fellow employees some 18

months before the fire. See Hearing Tape (the appellant’s

testimony). During this conversation which tivolved Pritchett’s

alleged harassment, one of the fellow employees stated that

Pritchett would stop at nothing, even burning a residence, to

harass employees. See Id.

This statement, according to the appellant, formed the

basis for his belief that Pritchett had committed arson. Yet, this

fellow employee apparently did not provide any factual basis to

support his supposition; it was apparently nothing more than an

unsubstantiated opinion.

Moreover, as noted, while the appellant and Pritchett had

been having difficulties in the workplace, no evidence has been

produced to show that these difficulties ever occurred outside the

workplace. That is, even assuming arguendo that Pritchett

harassed the appellant, and I do not make this assumption, the

appellant has presented no evidence to show that Pritchett has

ever Said or done anything to suggest that he was capable of such

activities outside the mantle of work supervision.

The appellant next justifies his accusations by asserting

that he was only cooperating with law enforcement officials. That

is, the appellant claims that on the night of the fire, both the Fire

Marshall and the investigating police officer suggested that the

* I note that this case was issued prior to the Whistleblower

Protection Act of 1989. However, the language of the statute requiring that

the employee “reasonable believe” his disclosure is unchanged by the Act.

A6

fire was arson and asked for the names of Suspects. Thus, the

appellant was only complying with these law enforcement officials

by providing his supervisors’ names.

However, while the appellant testified that he was asked

to provide such information, he has submitted no evidence to

show that the Fire Marshall or the Police Officer ever asked for

such information on the night of the fire.°

In fact, the final police report indicates that the fire was

due to "unknown" causes.’ See Appeal Record, Tab 5-4AB.

And, the report of the investigating police officer Suggests that the

appellant first raised the specter of arson, and that the appellant

and his wife suggested that Pritchett and Gudgel might be

involved. See Id.

More importantly, I note that the available evidence

provided at least one alternative to arson and should have

Suggested caution to the appellant in making his accusations.

First, the appellant had recently been reassigned from Yuma,

Arizona, to Boulder City, Nevada. Thus, the appellant was no

longer living in his former Yuma residence -- his daughter was --

and the evidence shows that Pritchett was not even aware of the

appellant’s presence in Yuma on the night of the fire. See Id.

Further, on the day of the fire, the appellant’s son-in-law

had cleaned the storage room where the fire started. Se Id; see

also Hearing Tape (testimony of Judy Kidd). This cleaning

involved the stacking of paint and other combustible materials.

While these chemicals were ultimately found not to be the cause

of the fire, the possibility of such an occurrence was extant at the

time of the fire.

I am also disturbed by the fact that on the Monday after

* — I note that the parties stipulated that the Fire Marshall found that

the fire was arson. However, I am unable to find any evidence of this in

the appeal record. Nor was I able to find any record of the appellant’s

conversation with the Fire Marshall on the night of the fire.

During his testimony, the appellant indicated that insofar as the fire

was arson, he had become the prime suspect because of certain

discrepancies in his story and that he was deemed to have failed a lie

detector test on the matter. See Hearing Tape (the appellant’s testimony).

=

A7

the fire, and then some two weeks later when he wrote to

Secretary Lujan, the appellant repeated his charge of arson

without any apparent attempt to check with the police or fire

department to ascertain the development of evidence. In fact, the

appellant stated that he had been unable to secure a copy of the

police report and did not see one until provided by the agency in

its adverse action file. See Hearing Tape (the appellant and Judy

Kidd’s testimony). I note, however, that the agency was able to

obtain a report of investigation without any apparent difficulty.

Having reviewed the appeal file and specifically the

appellant’s testimony at the hearing, I find not one scintilla of

credible, probative evidence available either now or at the time of

the fire, which would suggest that Pritchett and/or Gudgel were

involved in the fire at the appellant’s home. Thus, | find that a

reasonable person could not have reasonably believed that

Pritchett and Gudgel had started the fire at the appellant’s home.

As suggested by the agency in its closing argument, the

appellant’s statements appear to be unfounded suspicions rather

than a reasonable belief.

Accordingly, I conclude that the appellant’s accusations

against Pritchett and Gudgel in this regard are not “protected

disclosures" within the coverage of the Whistleblower Protection

Act. And, because of this conclusion, I make no finding on

whether the appellant’s accusations were in the public interest --

those types of disclosures Congress intended to protect through

the Act -- or solely in his private interest. See Berube v. General

Services Administration, 30 M.S.P.R. 581, 596 (1986) vacated on

other grounds, 820 F.2d 396 (Fed. Cir, 1987).

The appellant also argues that his communication letter to

secretary must be accorded protection “on its face" as Ist

Amendment free speech and a disclosure of a violation of the law.

However, as found above, the appellant’s accusations of arson are

not “protected disclosures." and, the appellant’s claim that his

constitutional rights have been abridged, in and of itself, is

insufficient to bring this matter within the Board’s jurisdiction.

See Sanders V. Merit System Protection Board, 757 F.2d 1288,

1290 (Fed, Cir. 1985) (the Board does not have plenary

jurisdiction.)

The final basis for the 14-day suspension is the appellant’s

A8

letter to approximately 30 fellow employees who were to appear

as witnesses at this grievance hearing. See Appeal Record, Tab

4-4Q. In that grievance the appellant was attempting to show that

he was being harassed. However, on the second day of the

hearing, before calling many of the requested witnesses to testify,

the appellant withdrew the claim of harassment.* See Appeal

Record, Tab 5-4R (Vol. 3 of the grievance transcript, pg. 130).

Yet, he still wrote to these individuals to outline his continuing

plans and to warn the employees of potential harassment.

Having reviewed this letter, I do not believe it contains a

protected disclosure. See Appeal Record, Tab 4-4Q. Rather, the

appellant is complaining of the agency’s alleged harassment

toward him rather than any disclosure of specific mismanagement.

Nothing the appellant disclosed in this letter effectuated the

purposes of 5 U.S.C. § 2302(b)(8). See Berube, 30 M.S.P.R. at

586. That is, any disclosures made involved only the furtherance

of the appellant’s case, not the public interest. Thus, I find that

they were not protected disclosures. See Williams V. Department

of Defence, 46 M.S.P.R. 549, 533-54 (1991); Oliver V.

Department of Health and Human Services, 34 M.S.P.R. 465,

472 (1987), aff'd 847 F.2d 842 (Fed. Cir. 1988) (Table)..

Moreover, insofar as the appellant claims that the agency

is retaliating against him under 5 U.S.c. §2302(b)(9) -- reprisal

for having written this letter in connection with this grievance,

I disagree. The credible evidence of record shows that at the time

the appellant wrote these letters he had withdrawn his grievance.

Moreover, as with the appellant’s constitutional claim, the

allegation that the agency has committed a prohibited personnel

practice is insufficient to bring this matter within Board

jurisdiction. See Hunter V. Department of the Army, 40 .S.P.R.

449, 451 (1989).

Finally, I note that the appellant alleges that the agency’s

actions against him constitute age discrimination. While it is not

clear that the appellant is specifically raising this argument with

* The parties stipulate to this matter but essentially agreed to

disagree. My reading of the hearing transcript convinces me that the

agency's position -- the appellant withdrew the claim of harassment -- is the

correct one. See Appeal Record, Tabes 5-4R and 21.

AQ

regard to his 14-day suspension, I would simply note that the

Board lacks jurisdiction over such an allegation in the absente of

an appealable matter. See Perlmutter v. Department of the Air

Force, 41 M.S.P.R. 38 (1989). Thus, because the Board does

not have jurisdiction over the appellant’s 14-day suspension, or

any of the other personnel actions taken against the appellant, it

cannot consider this allegation of discrimination.

Summary and conclusion

In sum, I find that the appellant is not entitled to the

protection of the Whistleblower Protection Act because the

disclosures he made -- accusations of arson against his

supervisors and the letter he issued to prospective witnesses -- are

not protected by the Whistleblower Protection Act. That is, the

appellant could not have “reasonably believed" the accusations of

arson, and the letter he wrote to prospective witnesses was in his

personal interest, not the public interest.

Further, the appellant’s 14-day suspension, standing alone,

is not an agency personnel action over which the Board has

jurisdiction. See 5 U.S.C. § 7512(2); Gosa V. United States

Postal Service, 43 M.S.P.R. 11, 13 (1989). The appellant’s

suspension was reviewed only because of his allegation that the

personnel action was in retaliation for his whistleblowing activity.

However, having found that the appellant is not a whistleblower,

the appeal must be deemed as outside the Board’s subject matter

jurisdiction.

DECISION

The appeal is DISMISSED.

FOR THE BOARD:

Steven L. Chaffin

Administrative Judge

A10

TI APPELLANT

This initial decision will become final on Aug. 7, 1991,

unless a petition for review is filed by that date or the Board

reopens the case on its own motion. This is an important date

because it is the last day on which you can file a petition for

review with the Board. The date on which the initial decision

becomes final also controls when you can file a petition for

review with the Court of Appeals for the Federal Circuit. The

paragraphs that follow tell you how and when to file with the

Board or the federal court. These instructions are important >

because if you with to file a petition, you must file it within the

proper time period.

BOARD REVIEW

You may request Board review of this initial decision by

filing a petition for review. Your petition for review must state

your objections to the initial decision, supported by references to

applicable laws, regulations, and the record. You must file your

petition with:

The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Suite 802

Washington, DC 20419

Your petition must be postmarked or hand-delivered no later than

the date this initial decision becomes final. If you fail to provide

a Statement with your petition that you have either mailed or

hand-delivered a copy of your petition to the agency, your petition

will be rejected and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board’s final decision, you

may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before this decision

becomes final. To be timely, your petition must be received by

the court no later than 30 calendar days after the date this initial

decision becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of

this initial decision in accordance with the Board’s regulations.

Al2