Petition for Writ of Certiorari — Weber v. Merit Systems Protection Board

FILED =

94

No. 3 ¢ 3 AUG 3 1994

OFFICE OF THE Cuepy

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

CALVIN J. WEBER,

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

On Petition For Writ Of Certiorari

To The U.S. Court Of Appeals

For The Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

CALVIN J. WEBER, pro se

4620 Charter Dr.

Arnold, MO 63010-4204

314-464-2541

—————————————————————————O—— oe

EN U ON

If there are findings of prohibited

personnel practice by both the OSC and

and the head of the agency during an

OSC investigation into a whistleblower

reprisal complaint (and the agency does

not refute the findings), did the MSPB rule

correctly by applying holdings in pre-

Whistleblower Protection Act (WPA) appellate

jurisdiction cases to deny whistleblower a

hearing for exercising priority transfer

rights and the right to seek reimbursement

of attorney's fees (rights granted by WPA)

if whistleblower files an Individual Right

of Action for Corrective Action ?

REFERENC VER BY

U.S. Court of Appeals for the Federal

Circuit Judgment, dated May 13, 1994,

on appeal from MSPB, in Case No.

8L-1221-91-0388-W-1.

MSPB (Full Board) Opinion and Order,

SL-1221-93-0388-W-1 dated Sep 23, i993

MSPB (Regional Board) Initial Decision,

SL-1221-91-0388-W-1, dated November 13, 1991

DATE OF ENTRY OF JUDGMENT

This petition for a Writ of Certiorari

requests a review of the Judgment entered

on May 13, 1994 by the U.S. Court of Appeais

for the Federal Circuit which affirmed MSPB

(Full Board's) Opinion and Order dated

ant 25, 1993 affirming the Initial Decision

to deny petitioner a hearing to seek

corrective action under the 1989

Whistleblower Protection Act (WPA)

Individual Right of Action (IRA) for

corrective action.

STATUTORY PROVISION BELIEVED TO CONFER

JURISDICTION

Petitioner believes the statutory

aii |

provision of WPA's IRA for "Certain Reprisal

Cases," and the Board's misinterpretation of

that provision, confers on the Supreme Court

jurisdiction to review the judgment made

against petitioner.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provision involved

is the denial of “Due Process of Law."

CONCISE STATEMENT CONCERNING FACTS

The actions leading up to petitioner's

IRA appeal consisted of a complaint first

filed with the OSC, alleging the agency's

(Dept of the Army) proposed and final

decision to remove petitioner from federal

civil service in Feb-May 1990 was in

retaliation for petitioner's whistleblowing

activities regarding waste and mismanagement.

The OSC conducted a ten (10) month

investigation and found sufficient evidence

of prohibited personnel practice to refer

the results of its investigation to the

head of the agency (Office of the Assistant

2

Secretary of the Army) for possible

corrective and disciplinary action. The

head of the agency then conducted a four (4)

month investigation.

Within the "Results of Investigation"

report (approximately 600 pages) was a

finding that "the decision to remove

appellant <petitioner> was tainted by

reprisal for the appellant's engaging in

protected activity." The removal was

cancelled and a suspension substituted.

The suspension was appealed and adjudicated

with a signed agreement by the agency that

included petitioner's right to pursue an IRA

for petitioner's own corrective action for

relief pursuant to 5 U.S.C. 6 1221(b).

However, the Board denied petitioner

the right to seek corrective action by

denying petitioner a hearing. The Board

"concluded that it would follow its prior

holdings in pre-Whistleblower Protection Act

(WPA) appellate jurisdiction cases, that an

agency's recission cf an action divests the

Board of jurisdiction over an appeal."

However, the Board's holding is contrary

to WPA's Individual Right of Action which

states in 5 U.S.C. § 1221(a) that an

individual may seek corrective action from

the Board if prohibited personnel practices

described in section 2302(b)(8) are found;

prohibited personnel practices were found.

Pursuant to 1221(e)(2), the only reason

that corrective action may not be ordered is

if the agency demonstrates by clear and

convincing evidence that it would have taken

the same personnel action in the absence of

such disclosure (the agency submitted no

evidence). Nowhere in 1221 is it stated

that an individual can be denied a hearing

for corrective action simply because the

agency rescinds the action which has been

found to be tainted with reprisal.

BASIS FOR FEDERAL JURISDICTION

The basis for federal jurisdiction in

the Court of Appeals is that CSRA of 1978

grants a judicial review of MSPB's decision.

4

DIRECT AND CONCISE ARGUMENT

The Board's conclusion to follow

its holdings made in pre-WPA cases defeated

the purpose of the Act's IRA. Cases referred

PLE Natit AA SW AE Din A aie Ml aA artic

to by the Board are not similar. There was

no evidence that either of the individuals

first sought and exhausted their remedies

with the OSC, or that OSC gave notice that

corrective action with the Board “may be

filed." Also, there was no "£inding of

prohibited personnel practice" or that

either individual was a prevailing party

meeting in showing “clear and convincing

evidence." Also, the individuals asked for

fuller relief whereas petitioner only asked

for achieving "status quo ante."

Petitioner was denied at a minimum the

right to a Priority Transfer, reimbursement

of legal fees, and the opportunity to expunge

false facts from petitioner's personnel file.

Also, to bolster dismissal, the Board made up

and addressed their own issues not in the IRA,

namely the 30 day suspension and fuller relief.

Note: Pursuant to Fed. Cir. R. 47.6, 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

94-3033

CALVIN J. WEBER,

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

JUDGMENT

ON APPEAL from the Merit Systems Protection

Board in CASE NO §$L1221910388-W-1. This

CAUSE having being heard and considered it

is ORDERED and ADJUDGED: AFFIRMED.

See Fed. Cir. R. 36.

Per Curiam (NEWMAN, MICHEL, and RADER,

Circuit Judges).

DATED: MAY 13, 1994 ENTERED BY ORDER

OF THE COURT

S/Prancis X. Gindhart, Clerk

Issued as a mandate: June 3, 1994

Filed May 13, 1994

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBER

S$L1221910388W1

CALVIN J. WEBER

Appellant

Vv.

DATE: SEP 23, 1993

DEPARTMENT OF THE ARMY

Agency

--—

Calvin J. Weber, Arnold, Missouri, pro se

Abby K,. Horwitz, Esquire, St. Louis, MO

for the agency

BEFORE

Ben L. Erdreich, Chairman

Jessica L. Parks, Vice Chairman

Antonio C. Amador, Member

OPINION AND ORDER

The appellant petitions for review of

the initial decision issued on November 13,

1993, that dismissed his individual-right-

of-action (IRA) appeals. For the reasons

discussed below, we find that the petition

Goes not meet che criteria for review set

forth at 5 C.F.R. § 1201.115, and we

therefore, DENY it. We REOPEN this case

on our own motion under 5 C.F.R. 9 1201.117,

however, AFFIRM the initial decision as

MODIFIED by this Opinion and Order, and

DISMISS the IRA appeals.

BACKGROUND

On March 15, 1990, the agency proposed

to remove appellant from his position of

General Engineer based upon various charges

of niocésiuct. The appellant sought

corrective action regarding this matter

from the Office of Special Counsel,

alleging that the agency proposed his

removal in retaliation for whistleblowing

activities. Although the agency issued a

final decision that set an effective date

for the appellant's removal, it postponed

the removal pending resolution of the

appellant's Special Counsel complaint.

On October 29, 1990, the Special

Counsel notified the agency that it had

completed its investigation of the

appellant's complaint, and was referring

the results of its investigation to the

agency for possible corrective and

disciplinary actions. On April 18, 1991,

the agency's Office of the General Counsel

determined that, although the selection of

the removal penalty was improperly

influenced by the appellant's protected

disclosures, lesser discipline was

warranted for his misconduct. On May 16,

1991, the agency, therefore, cancelled the

decision to remove the appellant. The next

day the agency proposed to suspend the

appellant for 30 days based upon the same

misconduct at issue in the removal action.

On June 14, 1991, the Office of

Special Counsel declined to take further

action, and notified the appellant of his

right to appeal to the Board. On August 9,

1991, the appellant filed an IRA appeal of

the proposed removal with the Board's St.

Louis Regional Office. On August 16, 1991,

he filed an IRA appeal of the proposed 30

day suspension. In these appeals, the

appellant requested monetary relief, and

discipline against agency officials, as

part of the sought after corrective action.

The administrative judge joined the

appeals for adjudication, and provided

the parties an opportunity to submit

and argument regarding the Board's

jurisdiction over these matters. Upon

considering the submissions, the

administrative judge dismissed the appeals,

finding as follows: (1) The IRA appeal of

the proposed removal was moot because the

agency completely rescinded that action;

(2) the appellant is not entitled to

compensatory damages in an IRA appeal; and

(3) the Board lacks jurisdiction over the

1

After the suspension was effected, the

appellant filed an appeal of that action as

well. This appeal was dismissed as settled

in Weber v. Department of the Army, MSPB

Docket No. SL0752910412I1 (Dec. 10, 1991)

(Initial Decision). This decision became

final on January 14, 1992.

4

centennial

~ewengnd ta

appellant's IRA appeal of his proposed

suspension because he did not previously

seek corrective action from the Special

Counsel, and the proposed suspension is not

otherwise appealable to the Board.

In his petition for review, the

appellant contends that his IRA appeal of

the proposed removal is not moot because

the cancellation of that proposed action

does not address his monetary and medical

problems caused by the agency's retaliation

for his whistleblowing activities, and

because the agency's suspension proposal

precludes such a mootness finding. The

appellant also asserts that the

administrative judge erred in dismissing

his IRA appeal of the proposed suspension -

2

The appellant has aiso filed a reply

to the agency's response to his petition for

review. We have not considered the

appellant's reply, however, because it was

submitted after the record closed and

without a showing that it is new and

material evidence that was not available

before the record closed. See 5 C.F.R.

1201.114 (i); Petition for Review File,

Tabs 6,7.

moot.

In dismissing the IRA appeal of the

proposed removal as moot, the

administrative judge relied upon the

Board's decisions in Mulherin v. Dept

of the Air Force, 45 M.S.P.R. 289 (1990),

and Godfrey v. Dept of the Air Force, 45

M.S.P.R. 298 (1990). In these cases, the

Board concluded that it would follow its

prior holdings in pre-Whistleblower

Protection Act (WPA) appellate jurisdiction

cases, that an agency's rescission of an

action divests the Board of jurisdiction

over the appeal. Mulherin, at 291; Godfrey

at 302. In doing so, the Board rejected the

appellants' assertions that rescission did

not provide them with a complete remedy

because they sought discipline for agency

officials who retaliated against then.

Mulherin, at 291-92; Godfrey, at 301-02.

q Under these cases, the administrative

| judge correctly concluded that the agency's

cancellation of the removal rendered the IRA

appeal of the proposal to remove moot.

Further, the appellant's assertion that he

has not received a complete remedy is

unavailing for the same reasons discussed

in Mulherin. There, the Board found that

neither the language of the WPA, nor its

legislative history, supports a finding

that the cancelled actions, absent more,

provide a sufficient basis for the Board

jurisdiction under the circumstances

presented in cases as the present one.

Here, as in Mulherin, we find that there

would be no further relief that we

could grant the appellant even if we

found his allegations of reprisal

substantiated.’ Mulherin at 291-92. We

therefore conclude that the administrative

judge correctly dismissed the IRA appeal of

the proposed removal as moot.

Further, contrary to the appellant's

view, we find that the agency's issuance of

the proposed suspension notice does not

preclude a finding that the proposed

removal is moot. As just discussed, the

appellant's proposed removal appeal is moot

because there is no further relief that we

could grant the appellant even if we found

his alieastiase of reprisal substantiated.

Moreover, an agency is not precluded from

3

This result is consistent with pre-WPA

corrective action cases where the Board has

not included the award of monetary damages

to be within the ambit of the corrective

action it may take upon a finding that an

agency has committed a prohibited personnel

practice. See In re Frazier, 1 M.S.P.R.

163, 197-98 (1979). We further note that

Roth v. United States, 952 F.2d 611 (lst

Cir. 1991), also supports the proposition

that an appellant is not entitled to

monetary awards under the Civil Service

Reform Act or the WPA.

4

;

4

rescinding a proposed action and

substituting another action in its place.

See Cabral v. Department of Health & Human

Services, 7 M.S.P.R. 372, 373-74 (1981);

Dejoy v. Department of Health & Human

Services, 2 M.S.P.R. 577, 580 (1980).

In dismissing the appellant's IRA

appeal of the proposed suspension, the

administrative judge found that the

appellant failed to show that he exhausted

his administrative remedies with the Office

of Special Counsel regarding this matter

prior to appealing it to the Board.

Initial Decision at 8-9. We need not

decide this issue, however, because, as we

stated earlier at 3 n.1, the appellant's

Chapter 75 appeal of the effected

suspension was dismissed as settled. Such

a dismissal moots the question of the

legitimacy of the proposal in that action.

See Young v. Department of Energy, 21

M.S.P.R. 541, 543 (1984) (where an

appealable action is rendered moot, the

Board no longer has jurisdiction over

related claims).

ORDER

This is the final order of the Merit

Systems Protection Board in this appeal.

5 C.F.R. 1201.113(c).

NOTICE TO APPELLANT

You have the right to request the

United States Court of Appeals for the

Federal Circuit to review the Board's final

decision in your appeals if the court has

jurisdiction. See 5 U.S.C. 7703(a)(1).

You must submit your request to the court

at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for

review no later than 30 calendar days after

receipt of this order by your

representative, if you have one, or

receipt by you personally, whichever

10

receipt occurs first. See 5 U.S.C.

7703(b)(1).

FOR THE BOARD: S/ Robert E. Taylor

Clerk of the Board

Washington, D.C.

11

CERTIFICATE OF SERVICE

I certify that this OPINION and ORDER

was sent today:

By certified mail to:

Calvin J. Weber

4620 Charter Drive

Arnold, MO 63010

By regular mail to:

Abby K. Horwitz, Esq.

Department of the Army

HQ, U.S. Army Aviation & Troop Command

Attn: AMSAT-C-JGA

4300 Goodfellow Boulevard

St. Louis, MO 63120-1798

i Ladd ai at alt Meo Sc sig al li tl

Marjorie Marks

Office of Personnel Management

Employee Relations Division

1900 E Street, N.W., Room 7412 ;

Washington, DC 20415

Merit Systems Protection Board

St. Louis Regional Office ;

911 Washington Avenue, Suite 410 ;

St. Louis, MO 63010-1203

fi Raphi Veiticabeg

By hand carry to:

Office of Special Counsel

1730 M Street, N.W., Suite 300

Washington, DC 20036-4505

Sep 23, 1993 S/ Robert E. Taylor

Clerk of the Board

Washington, D.C.

Ce a ee ee Se OM ee ee a Re Peer

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ST. LOUIS REGIONAL OFFICE

CALVIN J. WEBER

Appellant

DOCKET NUMBER

$L1221910388W1

Vv.

DATE:

DEPARTMENT OF THE ARMY November 13, 1991

Agency

ee eee eee ee

Mark B. Clevenger, Esquire, St. Louis, MO

for the appellant.

Abby Horwitz, Esquire, St. Louis, MO,

for the agency

BEFORE

T. Christopher Heavrin

Administrative Judge

INITIAL DECISION

On August 9, 1991, the appellant timely

sought corrective action from the Merit

Systems Protection Board the (the Board).

The appellant filed an Individual Right of

Action (IRA) appeal in order to challenge an

agency proposal to remove him from his

position dated February 23, 1990. The

appellant sought a remedy through the Board

under 5 U.8.c 9 1221(a) and 5 C.F.R.

§ 1209.5(a). The appellant maintained that

the foregoing personnel action was taken in

reprisal for his having made protection

disclosures as defined in 2 U.8.¢C.

§ 2302(b)(8).! For the following reasons,

I DISMISS the appellant's IRA appeal.

ANALYSIS AND FINDINGS

Background

The appellant occupied the position of

General Engineer with the Department of the

Army's Army Acquisition Executive Support

Agency, Office of the Program Executive

Officer, Aviation, Product Assurance and

Test Division (PATD), Aircraft

Survivability Equipment Project Manager's

Office (ASE PMO), in St. Louis, Missouri.

Appeal File (AF), Volume (Vol.) 1, Tab 1,

1

See Whistleblower Protection Act, Pub.

L. No. 101-12, 103 Stat 16, July 9, 1989.

Exhibit (Ex.) 6. On Mar 15, 1990, following

his receipt of the agency's notice of

proposed removal, the appellant sought

corrective action from the Office of

Special Counsel (OSC). Id. at Ex. l.

The appellant's security clearance was

suspended by his agency's security

organization effective March 27, 1990.

Accordingly, he was unable to continue

performing in the position he normally

occupied while the agency processed the

adverse action. Id. at Ex. 14. The

foregoing agency security measures,

hovever, may not be reviewed by the Board

in this case. See Department of the Navy

v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.

Ed.2d 918 (1988).

On May 14, 1990, the agency issued a

final decision to the appellant informing

him that his removal for various charges of

misconduct would be effective May 18, 1990.

Id. at Ex. 12. On May 18, 1990, the agency

issued the first series of notices to the

appellant advising him that the effective

date of his removal was postponed pending

the resolution of his complaint to OSC.

Id. at Ex. 13. The agency ultimately

never effected the appellant's removal. On

December 3, 1990, the appellant was

detailed into a General Engineer position,

at the same grade and pay level he formerly

held but with duties expressed in a newly

revised statement of functions. The

appellant was assigned to perform these

duties at the U.S. Army Aviation Systems

Command (AVSCOM), Engineering and Housing

Division, Charles Melvin Price Support

Center, Granite City, Illinois. Id. at Ex.

15.

On October 29, 1990, the OSC notified

the agency that it had completed its

investigation of the appellant's

whistleblower complaint and that it was

referring the results of its investigation

to the agency for possible corrective and

disciplinary actions. Id. at Ex. 2, OSC

File No. MA-90-657, submitted by the

appellant as an attachment to his appeal.

On April 18, 1991, Lieutenant General August

M. Cianciolo forwarded to the Office of

Program Executive Officer, Aviation, the

approved recommendation of the agency's

Office of the General Counsel that the

decision to remove the appellant was

influenced inappropriately because of the

appellant's protected disclosures. Id. at

Memorandum dated March 12, 1991 concerning

AR 15-6 Investigation, at page 15,

attachment to appellant's appeal. The

agency concluded that the appellant was

— subject to discipline but agreed that

the selection of the removal penalty was

tainted by reprisal for the appellant's

engaging in protected activity. Id.

On May 16, 1991, the agency's Project

Manager at ASE PMO in St. Louis signed a

memorandum in which he cancelled the

decision to remove the appellant which had

been pending since May 14, 1990. Id. at

Vol. 4, Tab 8, Subtab 4k. The appellant

was further advised that the case was still

under review and that due to the Suspension

of his security access, he was to continue

on his detail at the Price Support Center

Id.

On May 17, 1991, the agency proposed

the appellant's suspension for 30 days for

the same misconduct for which removal was

initially proposed. Id. at Subtab 4j. On

August 9, 1991, the appellant filed the

instant IRA appeal with this office. Id.

at Vol. 1, Tab 1. On August 16, 1991, the

appellant tendered another appeal to this

office concerning the notice of proposed

Suspension issued on May 17, 199i. Id. at

Vol. 4, Tab 3. On August 22, 1991, the

agency issued its decision to suspend the

appellant for 30 days effective September

3, 1991. Id. at Tab 8, Subtab 4b. On

September 19, 1991, this office received

appellant's appeal of the 30-day

Suspension. That appeal was docketed and

-

6

ee ee ae re ee

poe

wt in Sie Se nein tite

assigned case number $L0752910412I1. On

September 30, 1991, the appeal of the

appellant's 30-day suspension was

consolidated with the appellant's IRA

appeal of the proposed removal issued in

February 1990. Id. at Tab 17. On October

11, 1991, the agency moved that the

appellant's IRA appeal concerning the

proposed removal action be dismissed

because it had been rendered moot by the

agency's unilateral action of cancelling

the proposal to remove the appellant. The

agency also asked that the Board dismiss

the appellant's tendered appeal of the

proposed 30-day suspension arguing that

the appellant did not exhaust his

administrative remedy by first taking the

matter of the proposed 30-day suspension to

the OSC. Id. at Tab 18.

The agency totally rescinded the proposed

removal which was the subject of the

appellant's complaint to OSC,

The appellant was given the

Opportunity to respond to the agency's

motion that his IRA appeal should be

dismissed because the agency had returned

him to the status quo ante. The appellant

and his attorney both filed submissions in

which they argued that the appellant was not

returned to status quo ante. They contended

that this was so because the day after the

agency cancelled the removal] decision, it

Proposed his suspension for the same

wwe plies salsa) that th it

misconduct and the Suspension was then

effected on September 3, 1991. Id. at Tabs

20 and 22. The appellant further argued

that the circumstances of the controlling

Board case law, as cited by the agency in

its motion to dismiss, were distinguishable

from the facts Surrounding his IRA appeal.

The agency cited the Board's

decisions, Mulherin v. Department of the

Air Force, 45 M.S.P.R. 289 (1990), and

Godfrey v. Department of the Air Force, 45

M.S.P.R. 298 (1990), as Supportive of its

motion that the appellant's IRA should be

8

dismissed. In the Mulherin decision, 45

M.S.P.R. at 291, the Board held that it

lacked jurisdiction to consider the

employee's appeals of a written reprimand

and a 5-day suspension because once the

agency completely rescinded the actions,

the employee was returned to the status quo

ante and the Board was thereby Givested of

jurisdiction. By rescinding the appealed

actions, the Board stated, the agency in

Mulherin had afforded relief equivalent to

that which he could have received from the

Board if the matters were adjudicated. Id.

at 292. The Board rejected appellant |

Mulherin's claim that a complete remedy

would have been the suspension of five

managers and their transfer to another

location. Id. at 291-92.

In Godfrey v. Department of the Air

Porce, 45 M.S.P.R. at 298, 302, the Board

applied its Mulherin analysis to the

appeal of an employee who had received a

reprimand. The agency cancelled the

reprimand. The Board found that once the

agency rescinded the reprimand, the

appellant had received relief equivalent to

that which he could receive from the Board.

Thus, the Board held, the appeal of the

reprimand became moot as a result of the

cancellation of the appealed action.

The appellant in the Godfrey case,

like appellant Mulherin, argued that

disciplinary action should be taken against

his managers. The Board concluded,

however, as it did in the Mulherin

decision, that such a request was not

within the scope of the Board's authority

in an appeal under 5 U.S.c. § 1221. Id;

see also 5 U.S.c.9§ 1212(a) (2) (B) and

1215.

The appellant attempted to distinguish

the foregoing decisions from his

circumstances by arguing that the foregoing

appeals were not IRA appeals. AF, Vol. 4,

Tab 22. Thus, the Board's rulings were not

applicable to his IRA appeal. Although the

10

Board's decisions did not specifically

state that the Mulherin and Godfrey cases

were IRA appeals, a review of the appeals

as regards the appealed actions

demonstrates, unequivocally, that they

were IRA appeals like the appellant's

appeal of his proposed removal.

Neither the reprimands nor the 5-day

suspension, the three actions appealed to

the Board under the provisions of the

Whistleblower Protection Act of 1989 (WPA)

in the Mulherin and Godfrey appeals are

actions which are otherwise appealable to

the Board. See 5 C.F.R. § 1201.3.

Accordingly, it is only through an IRA

appeal that the two employees could have

sought to have their claims of reprisal for

whistleblowing adjudicated by the Board.

See 5 U.S.C. §§ 1214(a)(3) and 1221(a) and

1221(a) and (b); 5 C.F.R.§9 1209.2(b) (1)

and 1209.4. I therefore find that the

principles established in the Mulherin and

Godfrey decisions concerning IRA appeals

11

are applicable to the appellant's IRA

appeal as well.

Based on the foregoing, I reject the

appellant's claim that he was not returned

to the status quo ante because he did not

obtain the relief he sought. The

appellant, like the appellants in Mulherin

and Godfrey, wanted the Board to take

disciplinary action against his managers

who improperly selected removal as the

discipline to be imposed on him for his

alleged misconduct. As the Board

concluded, such action was not within its

authority in an IRA proceeding.

In addition, I do not find persuasive

the appellant's claim that the fact the

agency proposed and effected a 30-day

Suspension following its cancellation of

the removal decision shows that he was not

returned to the status quo ante. The

record shows that the agency completely

cancelled the removal decision. The

Proposed removal was likewise cancelled by

12

the foregoing agency action rescinding the

removal decision. The agency initiated a

totally new adverse action when it proposed

the appellant's 30-day suspension on May

17, 1991. It then issued a final decision

effecting the appellant's suspension and

the appellant appealed that action to this

office and it is currently pending before

this tribunal and will be given full

ceviaes* The appellant therefore has a

remedy for the adverse action which he has

subsequently received. I cannot find that

the proposed removal action for which he

sought corrective action from the OSC was

not completely rescinded.

2

In view of my decision that the IRA

appeal is not within the Board's appellate

jurisdiction, I hereby terminate the

consolidation involving the instant IRA

appeal and the appeal of the 30-day

suspension with Docket No. 8L0O75291041211.

The latter case will continue to be

processed and adjudicated in accordance

with appropriate Board procedures.

13

The appel is n j t

The appellant also argued that his IRA

appeal should not be dismissed because he

has not been compensated for the emotional

damage and physical illnesses he and his

wife have suffered allegedly due to the

reprisal taken against him for his

whistleblowing activities. He claimed that

monetary relief for these effects should be

part of the corrective action he is entitled

to receive in his successful IRA complaint

to the OSC.

First, I note that the appellant's

Claim for monetary compensation for

emotional damage and physical illnesses

allegedly due to the agency's reprisal

against him is not specifically authorized

by the WPA. In fact, the statute merely

states that the Board will order the

corrective action that the Board deems

appropriate if whistleblowing retaliation

te founds 8: 08:0. @ 132240343). ae to

what the Board considers appropriate

concerning requests for monetary relief in

situations where there has been an improper

personnel action, a review of several Board

decisions is enlightening.

In Kennedy v. United States Postal

Service, 42 M.S.P.R. 429, 431 (1989), the

Board held that the reimbursement of

consequential expenses or compensatory

damages incurred as a result of an improper

personnel action is not provided for by

"any authority." The Board had reached the

same conclusion in another earlier case.

See Kopp v.! Department of the Air Force, 37

M.S.P.R. 434, 437 (1988).

Concededly, the WPA does not apply to

the United States Postal Service, which was

the agency in the Kennedy case. See Mack v.

United States Postal Service, 48 M.S.P.R.

617, 621 (1991). Further, when the Board

issued the Kopp decision in 1988, the WPA

had not yet been enacted. The above

15

———— ee

decisions therefore are not directly

applicable to the appellant's case.

However, the basic principle in these

decisions, i.e., that there must be a

specific authority in a Statute for payment

of consequential expenses and compensatory

damages cannot be in doubt.

A review of the legislative history

for the WPA gives more insight into this

matter in its discussion of attorney fees

and other reasonable costa to be awarded to

a prevailing party concerning a issue of

reprisal for protected diclosures. See

Joint Explanatory Statement at 135 Cong.

Rec. H749 (daily ed. March 21 1989). Under

5 U.S.C. § 1221(g)(1), an agency which has

committed a prohibited personnel practice

under the WPA is liable for "reasonable

attorney's fees and any other reasonable

costs incurred." Congress has indicated

that the phrase "any other reasonable costs

incurred" is meant to include costs directly

related to litigation but it is not meant

16

to include “other extraneous costs such as

job retraining." Id.

I correlate the monetary damages sought

by the appellant in his IRA to the

"extraneous costs such as job retraining"

mentioned in the legislative history.

Accordingly, I find that the appellant's

request for compensatory damages and

consequential expenses is not obtainable

under the WPA.

My above finding is further bolstered

by the fact that at 5 U.S.C. 6. 1222;

Congress specifically provided that the WPA

was not intended to create a new cause of

action, but at the same time, the

individual whistleblower was not precluded

from seeking any right or remedy he may

have under any other statute. See 135

Cong. Rec. at 82784 (daily ed. March 16,

1989). Thus, the appellant could attempt

to seek compensatory damages under the

Federal Torts Claim Act if he believes that

he is the victim of tortious conduct. See

17

28 U.8.C.99 1346(b), 2671-2680. In

addition, he could seek any other remedy

which has been provided by any other

statute. Nevertheless, although the

appellant's claims for monetary relief from

the agency have not been provided, I find

that he has failed to show that he was not

returned to the status quo ante. Thus, I

find that his appeal has been rendered moot

by the agency's actions in this case.

In addition, I find that the

appellant's tendered apecst of the proposed

30-day Suspension cannot be reviewed by the

Board. The Board has no jurisdiction over

a proposed suspension unless the appellant

shows that he has sought corrective action

from the OSC and has exhausted OSC

proceedings. Shillinger v. Department of

Labor, 47 M.S.P.R. 145, 151 (1991). The

appellant did not present any evidence that

he exhausted his administrative remedy with

OSC. Accordingly, the proposed suspension

is not subject to review. It should be

18

noted again, however, that the appellant

does have an appeal of the 30-day

suspension currently pending before this

office.

DECISION

The appeal is DISMISSED.

FOR THE BOARD: S/T. Christopher Heavrin

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become

final on December 18, 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

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

19

because if you wish 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.

aceite ceases

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.

21

CERTIFICATE OF SERVICE

I certify that the attached

Document(s) was (were) sent by regular mail

this day to each of the following:

Appellant

Mr. Calvin J. Weber

4620 Charter Drive

Arnold, MO 63010

Appellant's Representative

Mr. Mark B. Clevenger

Attorney At Law

1620 S. Florissant Road

St. Louis, MO 63121

Agency's Representative

Ms. Abby Horwitz

Department of the Army

U.S. Army Aviation Systems Command

Attn: AMSAV-JR

4300 Goodfellow Boulevard

St. Louis, MO 63120-1798

Other

Ms. Marjorie Marks

U.S. Office of Personnel Management

Employee Relations Division

1900 "E" Street, NW., Room 7412

Washington, DC 20415

November 13, 1991

(date) S/ Pamela Ann Bryant

Legal Technician