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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0342%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 932

## Text

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 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0342%3A1. Public record. Not legal advice.