Opposition Brief — White v. Lachance

Supreme Court, U.S.

FILED

(2) jan 1-2 2000

No. 99-629

In the Supreme Court of the Gui

JOHN E. WHITE, PETITIONER

Vv.

JANICE R. LACHANCE, DIRECTOR,

OFFICE OF PERSONNEL MANAGEMENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

WILLIAM KANTER

HAROLD D. LESTER, JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly determined

that, in evaluating whether a putative whistleblower

had an objective “reasonable belief” that his prior dis-

closures evidenced misconduct prohibited by the

Whistleblower Protection Act of 1989, 5 U.S.C.

2302(b)(8), the Merit Systems Protection Board may

not limit the evidence that it considers to the subjective

beliefs of the putative whistleblower and other simi-

larly situated employees.

(1)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

Appendix

TABLE OF AUTHORITIES

Cases:

Alabama v. White, 496 U.S. 325 (1990)

Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (Fed. Cir.

1993)

Frederick v. Department of Justice, 73 F.3d 349 (Fed.

Cir. 1996)

Gonzales v. Defense Logistics Agency, 772 F.2d 887

(Fed. Cir. 1985)

Haley v. Department of the Treasury, 977 F.2d 558

(Fed. Cir. 1992)

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1998) .....s..0.0..

Herman v. Department of Justice, 193 F.3d 1375

(Fed. Cir. 1999)

Horton v. Department of the Navy, 66 F.3d 279 (Fed.

Cir. 1995), cert. denied, 516 U.S. 1176 (1996) .......cc..se.00-

Illinois v. Gates, 462 U.S. 218 (1983)

King v. Department of Health & Human Servs.,

133 F.3d 1450 (Fed. Cir. 1998) .........cccsssssssssessessseecsessverseeees

King v. Hillen, 21 F.3d 1572 (Fed. Cir. 1994) .....ccccsscessoee

Maryland v. Buie, 494 U.S. 825 (1990)

NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) oo...

Ohio v. Robinette, 519 U.S. 33 (1996)

Ornelas v. United States, 517 U.S. 690 (1996) ......e.cccscee0e-.

Phillips Plastics Corp. v. Kato Hatsujou Kabushiki

Kaisha, 57 F.3d 1051 (Fed. Cir. 1995)

(IIT)

© © 0 © 0 MO

IV

Cases—Continued:

Quality Mfg. Co., 195 N.L.R.B. 197 (1972)

Torncello v. United States, 681 F.2d 756 (Ct. Cl.

1982)

United States v. Chemical Found., Inc., 272 U.S.1

(1926)

United States v. Cortez, 449 U.S. 411 (1981) ..............c000

United States v. Gray, 137 F.3d 765 (4th Cir.), cert.

denied, 119 S. Ct. 157 (1998)

White v. Department of the Air Force, 63 M.S.P.R.

90 (1994)

Statutes and regulation:

Whistleblower Protection Act of 1989:

5 U.S.C. 1221

5 U.S.C. 2302(b)(8)

5 U.S.C. 2302(b)(8)(A)

5 U.S.C. 2302(b)(8)(A)G)

5 U.S.C. 2302(b)(8)(A)(ii)

5 U.S.C. 7701(d)(1) (1994)

5 C.F.R. 1201.114(g) (1994)

Miscellaneous:

Black’s Law Dictionary (6th ed. 1990) ...

Page

of®

10

In the Supreme Court of the Anited States

No. 99-629

JOHN E. WHITE, PETITIONER

Vv.

JANICE R. LACHANCE, DIRECTOR,

OFFICE OF PERSONNEL MANAGEMENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-9) is

reported at 174 F.3d 1378. The opinion and order of the

Merit Systems Protection Board is reported at 78

M.S.P.R. 38 (1998).’

JURISDICTION

The judgment of the court of appeals was entered on

May 14, 1999. A petition for rehearing was denied on

1 The opinion and order of the Merit System Protection Board

is reproduced in this brief at App., infra, la-8a.

(1)

2

July 16, 1999 (Pet. App. 10). The petition for a writ of

certiorari was filed on October 12, 1999. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, Mr. John E. White, was a GM-13

Supervisory Education Services Specialist (ESS) at

Nellis Air Force Base, Nevada. His duties included

negotiating memoranda of understanding with those

colleges and universities providing on-base education

services at Nellis. In 1992, the Air Force proposed to

implement the Bright Flag Quality Education System

(QES), which was intended to establish quality stan-

dards for schools contracting with Air Force bases for

educational services. Pet. App. 2.

On May 4, 1992, the Air Force conducted a meeting

attended by representatives of some of the schools and

the Tactical Air Command. During the meeting, peti-

tioner publicly criticized some of the standards that the

QES would require, claiming that they were too

burdensome and would seriously reduce the education

opportunities available on base. Petitioner repeated

these concerns in private meetings with Air Force

officials. Pet. App. 3.

On June 1, 1992, petitioner’s immediate supervisor

detailed petitioner for 120 days from his GS-13 ESS

position to a GS-12 Administrative Officer position,

with no reduction in pay, because his supervisor had

lost confidence in his ability to implement and support

the QES. Petitioner thereupon filed a complaint with

the Office of Special Counsel (OSC), claiming that his

complaints regarding the QES were protected by the

Whistleblower Protection Act of 1989 (WPA), 5 U.S.C.

2302(b)(8), and that the 120-day detail violated the

WPA. Pet. App. 3. The WPA defines a “prohibited

3

personnel practice” as the taking or failure to take a

personnel action with respect to an employee because of

(A) any disclosure of information by an employee or

applicant which the employee or applicant reason-

ably believes evidences —

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and

specific danger to public health or safety, if such

disclosure is not specifically prohibited by law

* * *

5 U.S.C. 2302(b)(8)(A). On July 28, 1992, OSC notified

petitioner that he had the right to seek corrective

action with the Merit Systems Protection Board

(MSPB) under 5 U.S.C. 1221, which he did. Pet. App. 3.

Before the MSPB, petitioner alleged that he had

made disclosures that he reasonably believed consti-

tuted gross mismanagement and that were therefore

protected under the WPA. In an initial decision dated

October 26, 1992, an MSPB administrative judge

dismissed petitioner’s claim, finding that his disclosures

at various meetings did not rise to the level of a “rea-

sonable belief” of gross mismanagement protected by

the WPA. Pet. App. 3. The full board reversed this

decision, finding that an objective “reasonable belief”

that agency conduct constitutes gross mismanagement

is conclusively established if the putative whistleblower

shows (1) that he is familiar with the conduct in ques-

tion and subjectively believes that it constitutes gross

mismanagement and (2) that other similarly situated

employees share his belief about the conduct. White v.

Department of the Air Force, 63 M.S.P.R. 90, 95 (1994);

Pet. App. 3. In finding that petitioner had established a

4

“reasonable belief” of gross mismanagement, the

MSPB did not rely upon any review or analysis of the

QES standards to which petitioner objected, and did

not identify the reasons that the proposed QES stand-

ards could objectively be deemed to evidence gross mis-

management.

On remand, the MSPB administrative judge, adopt-

ing the full board’s determination that petitioner’s

disclosures were protected by the WPA, found that the

Air Force had violated the WPA by detailing peti-

tioner, canceled petitioner’s detail, and ordered that he

be returned to his prior status. Pet. App. 3. The Air

Force appealed to the full board, and the Office of

Personnel Management (OPM) intervened as a matter

of right pursuant to 5 U.S.C. 7701(d)(1) and 5 C.F.R.

1201.114(g) (1994). After considering OPM’s argu-

ments, the MSPB affirmed its prior conclusion that

petitioner’s disclosures evidenced an objective “reason-

able belief” of gross mismanagement. Pet. App. 4.

2. The court of appeals reversed. Pet. App. 1-9. It

found that the MSPB’s per se test for establishing an

objective reasonable belief—“that [the employee] was

familiar with the alleged improper activities and that

his belief was shared by other similarly situated em-

ployees”—necessarily excluded consideration of other

potentially relevant factors, including independent and

objective review of the allegedly improper activities

themselves. Id. at 6-8. The court of appeals recognized

that “[a] purely subjective perspective of an employee

2 The Board initially denied OPM’s notice of intervention on the

ground that OPM had not sought to intervene as early as practica-

ble. Pet. App. 3-4. Ultimately, however, the Board conceded that

OPM’s intervention was timely, and er OPM’s arguments

on the merits. Id. at 4.

5

is not sufficient” to establish an objective reasonable

belief “even if shared by other employees.” Jd. at 7. It

determined, therefore, that a proper test for establish-

ing an objective reasonable belief “is this: could a

disinterested observer with knowledge of the essential

facts known to and readily ascertainable by the em-

ployee reasonably conclude that the actions of the

government evidence gross mismanagement?” Ibid.

The court of appeals then remanded this case to the

MSPB for reconsideration of the facts of this case in

light of all relevant evidence. Jd. at 9.

ARGUMENT

The decision of the court of appeals is both plainly

correct, and consistent with the decisions of this Court

and the court of appeals. Accordingly, further review is

not warranted (especially given the present interlocu-

tory posture of the case).

1. To maintain a claim under the WPA, a federal

employee must establish, among other things, that he

engaged in whistleblower activity by making a dis-

closure protected under the WPA—that is, one that he

“reasonably believes” evidences a violation of law, gross

mismanagement, gross waste of funds, abuse of author-

ity, or substantial and specific danger to public health

or safety.® 5 U.S.C. 2302(b)(8); see King v. Department

of Health & Human Servs., 133 F.3d 1450, 1452 (Fed.

Cir. 1998). None of the parties to this case disputes the

court of appeals’ holding that the test for determining

whether a putative whistleblower has a “reasonable

belief” that a disclosure evidences prohibited miscon-

8 The putative whistleblower must also establish that the

agency took, or threatened to take, a “personnel action” as defined

in the WPA, and that the whistleblower raised his whistleblower

reprisal claim with the Office of Special Counsel.

|

6

duct is an objective one. If the putative whistleblower’s

belief is not objectively reasonable, the disclosure is not

protected, precluding a claim under the WPA.

However, despite this ostensible recognition that the

determination of reasonable belief involves an objective

assessment, the MSPB set forth—and the petitioner

supports—a per se rule governing whether a putative

whistleblower has established a reasonable belief in the

occurrence of improper activity based on his, and other

similarly situated employees’, subjective beliefs. Pur-

suant to this standard, once a putative whistleblower

made a showing simply “that he was familiar with the

alleged improper activities and that his belief was

shared by other similarly situated employees,” Pet.

App. 6, the MSPB would have been precluded from

considering any evidence in the record regarding “rea-

sonable belief” beyond these two factual findings and

from evaluating the underlying basis of the alleged

belief independently to determine whether such belief |

was, in fact, objectively reasonable.

The court of appeals correctly recognized that, con-

trary to the language of the statute, the MSPB decision

below improperly substituted a “subjective perspec-

tive” standard for one of objective reasonableness.‘

4 Black’s Law Dictionary 1265 (6th ed. 1990) provides two defi-

nitions for the term “reasonable belief.” In the criminal context,

reasonable belief or probable cause sufficient to make an arrest

exists when an officer’s knowledge of the facts and circumstances

“are sufficient in themselves to justify a man of average caution in

belief that a felony has been or is being committed.” In the tort

context, the existence of a reasonable belief denotes both that the

actor actually believes in a fact or circumstance, and “that the cir-

cumstances which he knows, or should know, are such as to cause a

reasonable man so to believe.” The objective standard set forth in

7

Pet. App. 7. The court held that the two factors identi-

fied in the MSPB’s per se test “may be of some rele-

vance” in determining whether a putative whistle-

blower’s belief is objectively reasonable. Jd. at 8. It

further held, however, that the “board may not limit its

inquiry” to those two factors. Ibid. Specifically, the

court of appeals recognized that, in a case in which the

alleged impropriety involves written policy, the board

should review and consider the allegedly improper

policy itself in evaluating the objective reasonableness

of the putative whistleblower’s belief that prohibited

conduct exists. Jd. at 7-8. As the court of appeals prop-

erly determined, evidence of the putative whistle-

blower’s actual belief, and of the subjective beliefs of

other employees, cannot per se establish an objectively

“reasonable belief.”

2. Contrary to petitioner’s claim (Pet. 8), the court of

appeals has not “initiate[d] a new standard for the

reasonableness of an employee’s or applicant’s belief.”

The court has repeatedly held that a finding of rea-

sonable belief within the meaning of the WPA must be

supported by substantial evidence, and that courts

must consider the contradictory evidence in the record.

See, ¢.g., Frederick v. Department of Justice, 73 F.3d

349, 352-353 (Fed. Cir. 1996); Horton v. Department of

the Navy, 66 F.3d 279, 283 (Fed. Cir. 1995) (finding,

after examination of the entire record, that the whistle-

blower’s “reasonable belief of wrongdoing was not sup-

ported by substantial evidence”), cert. denied, 516 U.S.

1176 (1996). Pursuant to this inquiry, the court consid-

ers whether the record establishes “that a reasonable

person would conclude” that the disclosure revealed

the opinion of the court of appeals is consistent with both of these

formulations.

8

wrongdoing under the WPA. Herman v. Department

of Justice, 193 F.3d 1375, 1379-1380 (Fed. Cir.1999); see

also Frederick, 73 F.3d at 353 (“no reasonable fact-

finder could conclude” that the disclosure was protected

under the statute); Haley v. Department of the Treas-

ury, 977 F.2d 553, 557 (Fed. Cir. 1992) (holding, after

considering the background statutory scheme and

“{pletitioner’s extensive experience” in his job, that

petitioner’s belief that a violation of FIRREA and its

implementing regulations had occurred was not rea-

sonable).

Furthermore, in a host of other contexts, it is well

settled that subjective belief alone is not sufficient to

establish reasonableness under an objective standard,

and that application of a reasonableness standard re-

quires an independent evaluation of the totality of the

circumstances. For example, in the employment dis-

crimination context both this Court and the court of

appeals have held that, when determining whether an

“environment woulc reasonably be perceived” as hos-

tile or abusive, courts must look at “all the circum-

stances,” Harris v. Forklift Sys. Inc., 510 U.S. 17, 22-23

(1993) (Title VII); actual psychological harm constitutes

only one relevant factor that “may be taken into

account,” ibid.; accord King v. Hillen, 21 F.3d 1572,

1580 (Fed. Cir. 1994) (approving the Equal Employ-

ment Opportunity Commission Guidelines objective

reasonableness standard, which states that “[i]n deter-

mining whether alleged conduct constitutes sexual

harassment, the Commission will look at the record as a

whole and at the totality of the circumstances”). Simi-

larly, reasonableness requirements in the National

Labor Relations Act are measured “by objective stan-

dards, under all the circumstances of the case.” NLRB

v. J. Weingarten, Inc., 420 U.S. 251, 257 n.5 (1975)

9

(quoting Quality Mfg. Co., 195 N.L.R.B. 197, 198 n.3

(1972)). Likewise, under patent law, the “reasonable

apprehension of suit” test, applied in determining

whether an alleged infringer can bring declaratory

judgment action against the patentee, “requires more

than the nervous state of mind of a possible infringer; it

requires that the objective circumstances support such

an apprehension.” Phillips Plastics Corp. v. Kato

Hatsujou Kabushiki Kaisha, 57 F.3d 1051, 1053-1054

(Fed. Cir. 1995).

This Court has most frequently assessed reasonable-

ness in the Fourth Amendment context, considering

whether officers have “a reasonable belief based on

specific and articulable facts” that a certain intrusion is

warranted. Maryland v. Buie, 494 U.S. 325, 337 (1990)

(allowing protective sweep of a house during arrest

where the officers have “reasonable belief” that the

area harbors an individual posing a danger to those on

the arrest scene). In such cases, reasonableness “is

measured in objective terms by examining the totality

of the circumstances.” Ohio v. Robinette, 519 U.S. 33,

39 (1996) (internal quotation marks omitted); see also,

e.g., Alabama v. White, 496 U.S. 325, 328 (1990) (totality

of circumstances must be considered in determining

whether objectively reasonable suspicion existed). The

“totality of the circumstances” that the court must

evaluate in determining whether a suspicion was

reasonable refers to “the whole picture,” from which

the court must be able to identify a “particularized and

objective basis” for the reasonable suspicion. United

States v. Cortez, 449 U.S. 411, 417 (1981). And to sup-

port a magistrate’s warrant determination, “(sufficient

information must be presented” to “allow that official to

determine probable cause; his action cannot be a mere

10

ratification of the bare conclusions of others.” Illinois

v. Gates, 462 U.S. 213, 239 (1983).

The teaching of all of these cases—that reasonable-

ness requires an objective evaluation of the totality of

the circumstances—refutes petitioner’s attempt to

equate “an objective evaluation of the employee’s be-

liefs” with a mandatory acceptance, and reliance upon,

his and others’ subjective beliefs, to the exclusion of

any other evidence. It would be inappropriate for a

court to find probable cause to search based solely upon

the shared views of several police officers, without

discussing the basis for that belief. “Because probable

cause,” like the WPA “reasonable belief” standard, “is

an objective test, [the court must] examine the facts

within the knowledge of arresting officers to determine

whether they provide a probability on which reasonable

and prudent persons would act; [the court] do[es] not

examine the subjective beliefs of the arresting officers

to determine whether they thought that the facts

constituted probable cause.” United States v. Gray, 137

F.3d 765, 769 (4th Cir.) (citing Ornelas v. United States,

517 U.S. 690, 695-696 (1996)), cert. denied, 119 S. Ct. 157

(1998). Similarly, the court of appeals correctly found

that reasonable belief in gross mismanagement is not

established merely by the shared views of. several

employees, without an analysis of the basis for their

views.

Because the objective reasonableness standard set

forth by the court of appeals comports both with the

language of the statute, and with precedent from this

Court and the court of appeals, no further review is

warranted.

3. Petitioner suggests that the decision below fails

to provide federal employees with the protection Con-

gress intended for disclosing “governmental mis-

11

management and/or wrongdoing” (Pet. 12), but he is

mistaken. Disclosures made by federal employees are

protected by the WPA only if they are reasonably

believed to evidence either “a violation of any law, rule,

or regulation” (5 U.S.C. 2302(b)(8)(A)(i)), or “gross

mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public

health or safety” (5 U.S.C. 2302(b)(8)(A)(ii)). Conspicu-

ously excluded from statutory protection are state-

ments of disagreement with agency policy—as the

court of appeals recognized, “[t]he WPA is not a wea-

pon in arguments over policy or a shield for insubordi-

nate conduct.” Pet. App. 7. Also excluded from statu-

tory protection are allegations of mismanagement that

is not serious enough to constitute gross mismanage-

ment. Finally, allegations of gross mismanagement are

protected only if they are objectively reasonable.

These limitations, which appear on the face of the

statute, were not created by the decision below but by

Congress itself. It is petitioner’s proposed standard,

and not the decision below, that would undermine the

purpose of the WPA, by extending the protection of the

statute to any allegation of mismanagement believed by

the employee and others, whether or not their belief is

objectively reasonable.

4. Petitioner claims that the court below imposed an

insurmountable obstacle to claims under the WPA, by

requiring the employee to rebut with “irrefragable

proof” a mandatory presumption that public officers

perform their duties correctly, fairly, in good faith, and

according to law. Pet. i, 12. The court, however, im-

posed no such requirement. Instead, the court merely

noted that the presumption would govern the ultimate

determination whether gross mismanagement had

actually occurred, and therefore it was relevant to the

12

determination whether the employee could reasonably

believe that it had occurred. It made this observation

in the course of holding that the MSPB had erroneously

limited its consideration to the subjective beliefs of the

employees, and should instead have considered all

available evidence as to the reasonableness of those be-

liefs. Pet. App. 8. The presumption itself is well estab-

lished, see Alaska Airlines, Inc. v. Johnson, 8 F.3d 791,

795 (Fed. Cir. 1993); United States v. Chemical Found.,

Inc., 272 U.S. 1, 14-15 (1926), as is the principle that

“this presumption stands unless there is ‘irrefragable

proof to the contrary.” Alaska Airlines, 8 F.3d at

795 (quoting Torncello v. United States, 681 F.2d 756,

770 (Ct. Cl. 1982)); see Gonzales v. Defense Logistics

Agency, 772 F.2d 887, 892 (Fed. Cir. 1985). Petitioner

has provided no basis for seeking to overturn this long-

established precedent.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

WILLIAM KANTER

HAROLD D. LESTER, JR.

Attorneys

JANUARY 2000

APPENDIX

MERIT SYSTEMS PROTECTION BOARD

DE-1221-92-0491-M-I

JOHN E. WHITE, APPELLANT

Vv.

DEPARTMENT OF THE AIR FORCE, AGENCY

AND

OFFICE OF PERSONNEL MANAGEMENT, INTERVENOR

[Filed: Mar. 10, 1998]

OPINION AND ORDER

Before ERDREICH, Chairman, SLAVET, Vice Chair,

and MARSHALL, Member.

This appeal is before the Board tu consider the Office

of Personnel Management’s (OPM) arguments on

intervention, on behalf of the agency. For the reasons

set forth below, we AFFIRM our prior decisions and

conclusions in this appeal.

BACKGROUND

A complete discussion of the factual and procedural

history of this case may be found in White v. Depart-

ment of the Air Force, 71 M.S.P.R. 607 (1996) [herein-

after White II ], and White v. Department of the Air

Force, 63 M.S.P.R. 90 (1994) [hereinafter White I]. The

following discussion sets forth the relevant facts neces-

sary to address OPM’s arguments on intervention.

(la)

2a

On June 1, 1992, the agency detailed the appellant

from his Education Services Officer (ESO) position to

an Administrative Officer position without reducing his

pay. The agency ordered the detail because it lost

confidence in the appellant’s ability to support the

Bright Flag Quality Education System (QES). White J,

63 M.S.P.R. at 92-98. The QES contained various

quality standards that applied to colleges and universi-

ties contracting with Air Force bases throughout the

nation to provide on-base educational services ranging

from specific classes to degree-granting programs. Id.

at 93 n. 2.

The appellant alleged that the agency ordered his

detail in retaliation for his criticism of the agency’s

implementation of the QES, and of the standards

required under the QES, during meetings with agency

officials. The appellant first pursued this matter with

the Office of the Special Counsel, and then in an

individual right of action (IRA) appeal with the Board,

claiming that his disclosures evidenced gross mis-

management and abuse of authority, and were,

therefore, protected under the Whistleblower Protec-

tion Act (WPA). The administrative judge declined to

hold the hearing the appellant had requested, and

dismissed the appellant’s IRA appeal for lack of

jurisdiction, concluding that the appellant’s disclosures

were not protected under the WPA. Jd. at 92-94.

In White I, however, the Board found that the

appellant’s disclosures were protected under the WPA

because the appellant reasonably believed that he

disclosed information that evidenced gross misman-

agement. Jd. at 94. The Board based this conclusion on

the appellant’s description of his disclosures and on

3a

documentary evidence showing that there was wide-

spread sharing of his views. Jd. at 95-97. The Board,

therefore, remanded the appeal for the administrative

judge to determine whether the appellant’s whistle-

blowing was a contributing factor in the action taken

against him, and if so, whether the agency had shown

by clear and convincing evidence that it would have

taken the same action in the absence of the retaliatory

factor. Id. at 98-99.

On remand, the administrative judge found that the

agency had retaliated against the appellant because of

his whistleblowing activities and ordered the appellant

reinstated to his position. 71 M.S.P.R. at 610. The

agency filed a petition for review, the appellant filed a

cross petition for review, and OPM sought to intervene,

arguing on behalf of the agency that the Board had

erred in determining that the appellant’s disclosures

were protected by the WPA. In White II, the Board

denied the agency’s petition and the appellant’s cross

petition. Jd. at 611-16. The Board also found that OPM

did not meet the statutory requirements for interven-

tion because it did not seek to intervene as early in the

proceeding as practicable, as required under 5 U.S.C.

§ 7701(d)(1) and 5 C.F.R. § 1201.114(g)(1), and thus did

not address the merits of OPM’s arguments. Id. at 616-

18. The Board, therefore, affirmed the initial decision,

and ordered corrective action. Jd. at 618.

OPM then filed a petition for review of the Board’s

final decision with the U.S. Court of Appeals for the

Federal Circuit, arguing that the Board erred in finding

that it had not timely intervened. While this matter

was pending, the Board requested that the court

remand the case to it for the purpose of deeming OPM’s

4a

intervention timely, and considering its arguments on

the jurisdictional issue of whether the appellant’s

disclosures were protected whistleblowing. The court

has granted this motion, and we, therefore, now

address the merits of OPM’s assertions.

OPM contends that the Board used an incorrect legal

standard in White I, to conclude that the appellant’s

disclosures were protected under the WPA because he

reasonably believed that he disclosed information that

evidenced gross mismanagement. OPM asserts that,

although the Board correctly stated that the test for

whether a putative whistleblower has a reasonable

belief in the disclosure is an objective one, it improperly

applied a subjective test in concluding that the appel-

lant met the requirements of the statute. OPM argues

that the Board improperly made the appellant’s sub-

jective “fear” of a substantial loss of educational ser-

vices the “touchstone” of its analysis, and that the

emotion of “fear” cannot constitute a rational ground or

motive, or a logical defense for the appellant’s actions.

OPM also asserts that the Board improperly relied

upon the widespread sharing of the appellant’s belief by

educational institutions and other ESOs to support its

conclusion that the appellant reasonably believed he

was disclosing gross mismanagement. OPM argues

that a shared belief, by itself, is insufficient to deter-

mine reasonableness because the others’ beliefs may

also be unreasonable, and the proper analysis must,

therefore, examine whether there was a rational basis

for the shared belief.

5a

ANALYSIS

We disagree with OPM’s claim that we made the

subjective emotion of “fear” the “touchstone” of our

conclusion in White I that the appellant’s disclosures

were protected under the WPA, and we instead find

that OPM has taken out of context the isolated use of

the word “fear.” As OPM avers, our decision in White I

includes the statement that the “appellant’s ‘fears’ that

there might be a substantial loss of educational services

and that the standards might be unworkable” sup-

ported the conclusion that he reasonably believed he

was disclosing gross mismanagement. 63 M.S.P.R. at

96. We further recognize that the word “fear” gener-

ally means a distressing emotion aroused by impending

pain, danger or peril. Random House College Diction-

ary 482-83 (Revised ed.1975).

A fair reading of White I, however, reveals that the

Board’s use of the word “fear” was meant in the context

of the appellant’s “beliefs” and “concerns” and of the

underlying reasons for his opinion. Indeed that decision

is replete with references to the appellant’s “belief” and

“concern” that the QES would cause loss of educational

services on a nationwide basis. The Board stated that

the “record contains evidence of substantial support for

the appellant’s ‘concerns’ regarding the agency’s ac-

tions in implementing QES and its requirements that

colleges and universities adhere to what the appellant

‘believed’ were unworkable and untenable quality

education standards,” and noted that the appellant ex-

pressed his “concerns” in two meetings. 63 M.S.P.R. at

95-96. Indeed, the very paragraph mentioning the

appellant’s “fear,” also states that the appellant’s “con-

cerns” were shared by a wide variety of education

6a

institutions and other ESOs. Id. at 96. Thus, contrary

to OPM’s claim, a complete review of White I estab-

lishes that the Board’s conclusion was based upon the

appellant’s “belief,” which is an opinion or conviction,

and “concern,” which is a matter that engages a per-

son’s attention, interest, or care, and not upon the

subjective emotion of “fear.” Random House College

Dictionary 123, 278 (Revised ed. 1975). Moreover, to

the extent that our use of the word “fear” encompasses

the emotional context of that word, our decision makes

clear that the appellant’s “fear” was reasonable, as

required under the WPA, based upon his knowledge of

the QES, and the shared beliefs of other ESOs and

educational institutions. 63 M.S.P.R. at 95-96.

OPM’s argument that the objective test for deter-

mining whether an appellant has a reasonable belief

that his disclosure evidences a matter covered by the

WPA cannot be satisfied merely because others share

the belief, is also without merit. Since White J, the

Board has reiterated the manner in which an employee

may establish that his belief was reasonable. The

Board has stated that an appellant may meet this test

by showing that he was familiar with the alleged

improper activities and that his belief was shared by

other similarly situated employees. See Schlosser v.

Department of the Interior, 75 M.S.P.R. 15, 20-21

(1997); Scott v. Department of Justice, 69 M.S.P.R. 211,

237-38 (1995), aff'd 99 F.3d 1160 (Fed.Cir. 1996) (Table).

Again, a review of White I shows that the Board

properly applied this standard. There was no question

regarding the appellant’s familiarity with QES because

he was an ESO and the agency initiated the appellant’s

detail because it lost confidence in his ability to support

Ta

that program. 63 M.S.P.R. at 93. The Board also

recognized that other ESOs shared the appellant’s opin-

ion, and cited specific evidence supporting this conclu-

sion. Jd. at 96. Thus, the Board correctly based its

determination on the appellant’s description of his

disclosures, including his familiarity with QES, and on

documentary evidence showing that there was wide-

spread sharing of his views, including similar views by

similarly situated ESO employees. Id. at 95-96. We,

therefore, conclude that OPM’s arguments, including its

assertion that the Board failed to consider alleged bias

against the QES by colleges and universities, improp-

erly focus on isolated aspects of our decision while

overlooking the cumulative effect of the basis for our

decision. As such, OPM’s arguments do not provide a

basis for disturbing our prior decisions in this appeal.

ORDER

This is the final order of the Merit Systems Protec-

tion Board in this appeal. 5 C.F.R. § 1201.113(c).

NOTICE TO THE APPELLANT REGARDING

FURTHER REVIEW RIGHTS

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 appeal if the court has

jurisdiction. See 5 U.S.C. § 7708(a)(1). You must sub-

mit 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 204389

8a

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

§ 7703(b)(1).

For the Board:

ROBERT E. TAYLOR,

WASHINGTON, D.C.

el ae ee