Petition for Writ of Certiorari — Laberge v. Department of the Navy

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03 %3y NW 20203

' In the

Supreme Court of the United States

NORMAND LABERGE,

Petitioner,

DEPARTMENT OF THE NAVY,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Daniel P, Meyer

Counsel of Record

PUBLIC EMPLOYEES

FOR ENVIRONMENTAL

RESPONSIBILITY

2001 S Street, N.W.

Suite 570

Washington, DC 20009

(202) 265-7337

Attorney for Petitioner

CURRY & TAYLOR @ WASH D.C. @ (202) 223-2160 @ USSCINFO.COM

TI pp

QUESTIONS PRESENTED

. Whether the Federal Circuit erred in issuing a

Rule 36 decision in this case, Laberge v. Department of

the Navy, given that Merit Systems Protection Board

(MSPB) Member Slavet’s concurrence in Laberge v.

Department of the Navy raised a significant question

regarding the Federal Circuit precedence.

2. Whether the Federal Circuit decision is directly

contrary to Congress’ legislative mandate in the

Whistleblower Protection Act of 1989.

3. Whether the Federal Circuit decision is directly

contrary to the U.S. Supreme Court’s Interpretation of

Congress’ legislative mandate in the Whistleblower

Protection Act of 1989.

4, Whether -- irrespective of the confusion caused

by Huffman -- Petitioner’s disclosure is protected

under Huffman, Marano, Watson, and Willis.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings before the United States

Court of Appeals for the Federal Circuit were:

Eh et ti RGN A 5 a aM IOS et IEE

(1) Petitioner Normand Laberge;

- and —

(2) Respondent Department of the Navy.

TABLE OF CONTENTS

pages

QUESTIONS PRESENTED.......sssssssssssssssssssesscesnsenseencsenneensesnes i

PARTIES TO THE PROCEEDINGG.......csccssssssscssseeseeseessseneeees li

TABLE OF AUTHORITIEG.........csscscssesressesseesscsseseesereees seseeeee V

OPINIONS BELOW ........scscssssssssssssscsseccereecensessassessensseassnnconss 1

JURISDICTION .....ccsscsscssssssseccesccccoocsecesccsccnssesssessensesccssossnsees 1

RELEVANT PROVISIONS .........ssssscsccecsccscccceccecceeeceseessccscseess 1

STATEMENT.......sccscsccscsccsscesessssssosecenssssassssensersonscessessoes icant 3

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

1. Whether the Federal Circuit erred in

issuing a Rule 36 decision in this case,

Laberge v. Department of the Navy, given

that Merit Systems Protection Board

(MSPB) Member Slavet’s concurrence in

Laberge v. Department of the Navy raised

a significant question regarding the

Federal Circuit precedence ..........scssssesseeseeserserees 7

2. Whether the Panel opinion is directly

contrary to Congress’ legislative mandate

in the Whistleblower Protection Act of

3. Whether the Panel opinion is directly

contrary to the U.S. Supreme Court’s

Interpretation of Congress’ legislative

mandate in the Whistleblower Protection

Ba GE Te tcininccniensesressitnitannieiamiaiieniiliapaiainanieiniatianin 13

4. Whether, irrespective of the confusion

caused by Huffman, Petitioner’s

disclosure is protected under Huffman,

Marano, Watson, and WAULI18 ...........:csscceseeeeseeees 17

CONCLUSION ERR HA RNA i 23

APPENDIX

COURT OF APPEALS DECISION ........scsscsssssssescescessesees la

COURT OF APPEALS ORDER eae 2a

MERIT SYSTEM PROTECTION BOARD OPINION

pL. 5 Re ee men ae ne En) coeieS sisi 3a

MERIT SYSTEM PROTECTION BOARD INITIAL

a ic lll 3la

TABLE OF AUTHORITIES

pages

CASES

BRANTI V. FINKEL, 445 U.S. 507 (1980) ........scsssssseseeeseees 15

CIVIL SERVICE CoMm'N V. LETTER CARRIERS,

A183 U.S. 548 (1978)......cccccssscsccsscscsssssrsencensenssesseesseeereneeees 14

COHEN V. CALIFORNIA, 408 U.S. 15 (1971)......scsssseesesees 14

CoMITO V. DEP'T OF THE ARMY, 90 M.S.P.R. 58,

PP10-11 (2001) .......e.csccscssssssccessessscececescensnssecsesssseessenssnens 19

GANSKI V. DEP'T OF THE INTERIOR, 83 M.S.P.R.

BOL (1999) .....scecessccsssssssrcessssesesencerensaseesesessseseesenenenes 12,15

HUFFMAN V. OFFICE OF PERS. MGMT., 263 F.3D

1341 (FED. CIR. 2001)..........sccscsssecersereeeenesseeeeeneenes passim

JOHNSON V. HEALTH AND HUMAN SERVS., 2002

MSPB LEXIS 1136, 11 ............essessessesscnssessecsnsscnserenees 20

LABERGE V. DEPT'T OF THE NAVY, 91 M.S.P.R.

SIE, ......-<esvcsveossstesseesnseonspsenemsenieonssniensionessinneesseeeeelanantnnne™ 8

MARANO V. DEP'T OF JUSTICE, 2 F.3D 1137 (FED.

CIR. 1998).....ccccccssscssceccsccsccessssssrscceccescrsnssecsesessensnsenseaes 4,7

PRICE V. NASA, 83 M.S.P.R. 661(1999) .....-ssccsesseseseseseeees 21

RANKIN V. MCPHERSON, 483 U.S. 378, 388 (1987)......3, 16

tie

SABLE COMMUNICATIONS OF CAL., INC. v. FCC,

MBE U.S. 155 CRIB) esse rsereessserersnstnnvesniansannrneiniennnninaananinn 16

SUTTON V. DEP'T OF JUSTICE, 94 M.S.P.R. 4.0... eecceeees 19

TEXAS V. JOHNSON, 491 U.S. 397 (1989) ........scssessseseeerees 16

WATERS V. CHURCHILL, 511 U.S. 661 (1994).......... passim

WATSON V. DEP'T OF JUSTICE, 64 F.8D 1524 ........ eee 4,7

WILLIS V. DEP'T OF AGRICULTURE, 141 F.3D 1139

CP DD; COTE, BI) scicerenssicensecisainbiiieneinaioraniaiananmiainaan 7,18

Statutes

B UF BAC. 3 TRB L sevccrersenssvarsonsonesienentnviniessnniaiiotstaniintanmaninnininties 9

B UC. § EDAD) vincececcesssseisesntsaneanrinsenatbinneahivinttinastenanen 2

BUT FEA. BI wcesvecesscresceseossorovesencennennnnanetinnmannientinenlchabeiannnnaa 9

5 U.S... § BRI wicrcisnreseennniinenianans 2,10, 11

& U.S.C. 5 FCI OID ovccererecesecssnrssenesensimoreininnaninnines 11

Other Authorities

TS Arm. Fut, Bd Beaten 8 GG cencscensersvsnisscinvcnsimmnenninninn 9

134 Cong. Rec. 19,961 (1GBB)..rcsscossoesccsssssseinvesesovonsesseensves 9

140 Cong. Rec. ELIAS (2006) ......covscsesessrensvssoresnvsnnnsetocen 1]

Bed, Cir, BR. BG .....cncorscerscrvcsseserevsensesncnseosnessosnssonensunnsatensanasten 1

S. Rep. No. 100-413 (1988) ......sccsssssrsssserererersesenenenenenenenns 9

Patricia M. Wald, Some Observations on the Use

of Legislative History in the 1981 Supreme

Court Term, 68 Iowa L. Rev. 195, 201 (1988)... 9

OPINIONS BELOW

The opinion of the Court of Appeals in Laberge v.

Dep't of the Navy is reported at 2003 U.S. App. LEXIS

18874. The original decision of the Court of Appeals in

this case is reported at 66 Fed. App. 204 (2003). The

decision of the U.S. Merit Systems Protection Board in

this case is reported at 91 M.S.P.R. 585 (2003).

JURISDICTION

The Court of Appeals judgment in Laberge v.

Dep’t of the Navy was entered on June 6, 2003. A

timely petition for rehearing en banc was denied on

August 22, 2008. The ninety (90) day period in which

the Petitioner must file his Petition for Writ of

Certiorari with the honorable Court expires on

November 20, 2003. The jurisdiction of the Court is

invoked under 28 U.S.C. 1254(1).

RELEVANT PROVISIONS

Federal Circuit Rule 36, Entry of Judgment -

Judgment of Affirmance Without Opinion, states that

“The court may enter a judgment of affirmance without

opinion, citing this rule, when it determines that any of

the following conditions exist and an opinion would

have no precedential value... the decision of an

administrative agency warrants affirmance under the

standard of review in that statute authorizing the

petition for review.” Fed. Cir. R. 36.

The Whistleblower Protection Act of 1989 states

that it is a violation of federal law to take or fail to take,

or threaten to take or fail to take, a personnel action

with respect to any employee or applicant for

employment because of:

(A) any disclosure of information by an

employee or applicant which _ the

employee or applicant reasonably 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,

OMT RT RON Ge

5 U.S.C. § 2302(b)(8).

‘Whistleblowing’ is defined as:

. the disclosure of information by an

employee, former employee, or applicant

that the individual reasonably believes

evidences a violation of law, rule, or

regulation, gross mismanagement, gross

waste of funds, abuse of authority, or

substantial and specific danger to public

health or safety. It does not include a

disclosure that is specifically prohibited

by law or required by Executive order to

be kept secret in the interest of national

defense or foreign affairs, unless such

information is disclosed to the Special

Counsel, the Inspector General of an

agency, or an employee designated by the

head of the agency to receive it.

5 U.S.C. § 1209.4 (b) [Emphasis supplied].

STATEMENT

Laberge v. Dep’t of the Navy presents decisions

by the U.S. Court of Appeals for the Federal Circuit

which directly oppose the Federal Circuit’s case law,

run contrary to Congress’s legislative mandate in the

Whistleblower Protection Act of 1989, and stand

against the U.S. Supreme Court’s interpretation of

Congress’s legislative mandate in the Whistleblower

Protection Act of 1989.

A member of the Merit Systems Protection

Board has already stated with regard to Petitioner

Normand Laberge’s case, “I believe that applving the

clear statutory language in light of the WPA’s purpose

should lead to the conclusion that the appellant engaged

in statutorily-protected whistleblowing.” 91 M.S.P.R.

585 at 600. (Slavet, Board Member, concurring).

Indeed, this Court has already addressed the

purpose of the Whistleblower Protection Act when it

noted:

a government employee, like any citizen,

may have a strong, legitimate interest in

speaking out on public matters. In many

such situations the government may have

to make a substantial showing that the

speech is, in fact, likely to be disruptive

before it may be punished. See eg.,

Rankin v. McPherson, 483 U.S. 378, 388,

97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); ...

Pickering, supra, 391 U.S. at 569-571.

Moreover, the government may certainly

choose to give additional protections to its

employees beyond what is mandated by

the First Amendment, out of respect for

the values underlying the First

Amendment, values central to our social

order as well as our legal system. See e.g.,

Whistleblower Protection Act of 1989,

supra.

Waters, 511 U.S. at 673-674. Communications within

the chain of command, then, like those made by

Petitioner, are exactly the opposite of the type of

communications the court distinguished as not being of

concern. Laberge’s communications thus ought to

receive protection under the Whistleblower Protection

Act of 1989, in light of the high Court’s definition of

protected government employee speech.

In taking up this case, the honorable Court may

be able to bring resolution to the conflicting precedent

of the Federal Circuit rulings on the definition of

protected disclosures. While Congress has clarified

that any disclosure, not just some disclosures, ought to

receive protection, and the honorable Court has made

statements indicating that disclosures within an

employee’s chain of command should receive protection,

Federal Circuit jurisprudence clashes with these

interpretations of the law. Failing to incorporate

Marano v. Dep’t of Justice, 2 F.2d 1137, and Watson v.

Dep't of Justice, 64 F.3d 1524, into the Federal Circuit’s

interpretation of Huffman v. Office of Pers. Mgmt., 263

F.3d 1341, denies the efficacy of high Court precedence

and stands in direct contradiction to Waters.

A. Factual Background

Respondent Department of the N avy operates

Naval Computer and Telecommunications Station

(NCTS) Cutler on an environmentally sensitive

peninsula in East Machias, Maine overlooking intertidal

clam flats and fishing grounds. NCTS has taken on a

project to strip and repaint. Very Low Frequency

(VLF) radio towers and other associated structures at

the East Machias site. The Department of the N avy is

legally bound to follow federal environmental laws and

their whistleblower clauses.

Petitioner Normand Laberge is a GS-12

Environmental Engineer at NCTS Cutler. Laberge is

responsible “to ensure Cutler’s compliance with all

Navy, Environmental Protection Agency (EPA), and

Maine Department of Environmental Protection (DEP)

laws and regulations.” Laberge uses contacts to bring

NCTS Cutler into compliance with all environmental

laws and regulations and “to conduct surveys,

investigations, gather data with which to base decisions

and actions in the resolution of specific problems.”

Laberge also uses contacts “to inform higher authority,

command and NCTS officials.”

For the VLF project, Laberge was responsible

for preparing documentation needed to comply with the

National Environmental Policy Act (NEPA). Laberge

made disclosures within and apart from his chain of

command at NCTS Cutler concerning NEPA and the

Maine DEP regulations on soil levels of polychlorinated

biphenyls (PCBs). NEPA and the Maine DEP

regulations required the Navy to issue Environmental

Assessments and Environmental Impact Statements if

the VLF project released certain levels of PCBs into

the soil. The VLF project was releasing PCBs in

excess of that level.

Lieutenant Commander (LCDR) Roger

Wakeman, Laberge’s second-line supervisor, restricted

Laberge’s access to the VLF site after Laberge

disclosed the compliance problems. Laberge refused to

comply with that restriction. On June 17, 1999, LCDR

Wakeman issued Laberge a letter of reprimand for

whistleblowing and for violating the restriction.

Petitioner Laberge filed a timely request for

review with the Merit Systems Protection Board

(MSPB). The MSPB concluded that Laberge’s

disclosures were not protected by the Whistleblower’s

Protection Act (WPA). The Court of Appeals for the

Federal Circuit affirmed the MSPB’s decision.

B. The Merit Systems Protection Board’s Decision

The Merit System Protection Board concluded

that the WPA did not protect Laberge’s disclosures

because they occurred during his normal job duties and

through normal channels. The agency used Huffman v.

Office of Personnel Mgmt., 263 F.3d 1341, to show that

such disclosures do not receive protection under the

WPA.

C. The Court of Appeals’ Decision

The Court of Appeals issued a R. 36 affirmance

without opinion of the Merit Systems Protection

Board’s decision.

REASONS FOR GRANTING THE WRIT

# Whether the Federal Circuit erred in issuing a

Rule 36 decision in this case, Laberge v. Department of

the Navy, given that Merit Systems Protection Board

(MSPB) Member Slavet’s concurrence in Laberge v.

Department of the Navy raised a significant question

regarding the Federal Circwit precedence.

Laberge maintains that Huffman must be read

in line with Marano (1993) and Watson (1995), which

although pre-dating either Willis or Huffman,

recognize that a protected disclosure can be made as

part of one’s official duties. Huffman, 263 F.3d at 1341,

Meuwissen v. Dep’t of Interior, 234 F.3d 9 (2000), and

the gloss imparted to Huffman case law by the

remaining rules in Willis v. Dep't of Agriculture, 141

F.3d 1139 (Fed. Cir. 1998); Marano v. Dep't of Justice, 2

F.3d 1137, 1142 (Fed. Cir. 1993); and Watson v. Dep't of

Justice, 64 F.3d 1524, 1526 (Fed. Cir. 1995).

In Marano, the court found that “the WPA ...

applies to the situation where a government employee

discloses information that is closely related to the

employee’s day-to-day responsibilities.” Marano, 2 F.3d

at 1142. Likewise, in Watson, the court held that,

although the agency required disclosure of misconduct

and the disclosure occurred through normal channels,

the disclosure still received WPA protection.

Huffman, by contrast, established three

categories of “normal duties” which establish the

baseline for determination of whether a disclosure is

protected: (1) disclosures an employee makes as part of

his/her normal duties through normal channels

(unprotected); (2) disclosures an employee makes as

part of his/her normal assigned duties but outside of

normal channels (protected); (8) disclosures an

employee makes that are not part of the employee’s

assigned duties (protected). Huffman, 263 F.3d at 1352-

1355. Exempting the first category from protection

conflicts with the rules established by Marano and

Watson. In error, the court reconciled the cases by

describing the prior “normal duties” rulings in Marano

and Watson as dicta. See, Laberge, 91 M.S.P.R. at P5

(Slavet, concurring). However, if the Huffman rule

were applied to either Marano or Watson, these cases

would have held Marano’s and Watson’s disclosures

unprotected. As such, the finding that WPA protection

extended to one’s official duties is not mere dicta, but

rather provides essential support to both the Marano

and Watson holdings.

Member Slavet’s concurrence explains that it is

questionable whether these cases can be reconciled and

that the controlling Federal Circuit precedent remains

unclear. See, Laberge, 91 M.S.P.R. 585 (Slavet,

concurring). The Federal Circuit in its affirmance

failed to clarify Federal precedent. The Honorable

Court in taking this case can bring closure to the

chaotic state of precedent related to whistleblower

protection under the WPA.

2. Whether the Panel opinions are directly

contrary to Congress’s legislative mandate in the

Whistleblower Protection Act of 1989.

It is entirely proper to consider subsequent

legislative action, or the interpretation which the

legislature subsequently places on a statute, to

CCCs

determine a statute’s meaning. 73 Am. Jur. 2d Statutes

§ 94. “These legislative interpretations are in fact

entitled to great weight in resolving ambiguities and

doubt.” Jd. Lawmakers have repeatedly expressed

frustration over the courts’ refusal to strictly enforce

the WPA. Congress expressed its intent to change the

courts’ behaviors when it amended the Civil Service

Reform Act (CSRA) of 1978, 5 U.S.C. § 2302, and the

WPA in 1989 and 1994. In addition, Subcommittee

Chairman Frank McCloskey’s statements at the floor

debate, carry som: weight, as McCloskey sponsored the

bill. Patricia M. Wald, Some Observations on the Use of

Legislative History in the 1981 Supreme Court Term,

68 Iowa L. Rev. 195, 201 (1983).

The CSRA, 5 U.S.C. 2302, and the major

amendment to that law, the Whistleblower Protection

Act (“WPA”) of 1989, 5 U.S.C. § 1221, are Congress’s

mandates to protect employee whistleblowers. The

panel decision by the Federal Circuit runs directly

contrary to this mandate as evidenced by legislative

history.

The WPA modified the CSRA in several

significant ways. First, it gave employees expanded

personal and subject matter jurisdiction for MSPB

hearings. Whistleblowers could now defend themselves

' By the late 1980s, Congress recognized that the CSRA’s “well-

intentioned efforts to protect whistleblowers ha[d] thus far had

little effect,” S. Rep. No. 100-413, at 5 (1988). Senator Levin, in

response to the MSPB’s finding that the fear of reprisal for

whistleblowing had doubled since the CSRA, stated, “These

statistics are a clear sign that the system has not worked as

intended and needs to be improved.” 134 Cong. Rec. 19,981 (1988).

without having to depend on the Special Counsel’s

willingness to litigate, as they had to under the CSRA.

Also, under the WPA, any listed personnel action in §

2302(b)(8) is subject to a board hearing, not just the

more severe disciplinary actions that fell under the old

law. The WPA thus gave employees full due process

rights against “lesser” forms of harassment such as

reprimands and removal of duties.

The WPA also expanded the scope of protected

disclosures. Under the CSRA, only disclosures of an

illegality or a specified misconduct were protected. The

OSC, the MSPB, and the Federal Circuit all had

interpreted the CSRA to protect only significant

whistleblowing disclosures and to protect them only on

a discretionary basis. The WPA amended 5 U.S.C. §

2302(b)(8) by substituting “any disclosure” (emphasis

added) for “a disclosure.” The Senate Committee on

Governmental Affairs cautioned the MSPB and the

courts to avoid the bureaucratic tendency to over-

define the nature of a disclosure and thereby exclude

communications that Congress intended to protect.? '

2S. Rep. No. 100-413, at 13 (noting that “[t]he Committee intends

that disclosures should be encouraged. The OSC, the Board and

the courts should not erect barriers to disclosures which will limit

the necessary flow of information from employees who have

knowledge of government wrongdoing. For example, it is

inappropriate for disclosures to be protected only if they are made

for certain purposes or. to certain employees or only if the

employee is the first to raise the issue. [The Senate bill]

emphasizes this point by changing the phrase ‘a disclosure’ to ‘any

disclosure’ in the statutory definition.”)

The WPA amendments in 1989 tried to ensure a

process that would encourage federal employees to

disclose evidence of waste, fraud, and abuse of

authority. Yet Congress had to make further

amendments in 1994 because “the WPA hald] created

new reprisal victims at a far greater pace than it [had]

protected them.” H.R. Rep. No. 103-769, at 12 (1994).3

The legislative history rejected numerous MSPB and

Federal Circuit decisions as illegal under the WPA

because they “represented a steady attack on achieving

the legislative mandate for effective whistleblowing

protection.” H.R. Rep. No. 103-769, at 17.4

Congress expressed frustration that it could not

clarify or expand the scope of protected disclosures any

further than it already had. It stated, “Perhaps the

most troubling precedents involve the [MSPB’s]

inability to understand that ‘any’ means ‘any.’ The

WPA protects ‘any’ disclosure evidencing a reasonable

belief of specified misconduct, a cornerstone to which

the MSPB remains blind.” Jd. at 18. Soa “protected

disclosure may be made as part of an employee’s job

duties, may concern policy or individual misconduct,

and may be oral or written and to any audience inside

® See 5 U.S.C. § 2802(a)(2)(A)(xi)(1994) (increasing subject matter

jurisdiction for whistleblowers by adding a catchall clause the

effectively banned discrimination through “any other significant

change in duties, responsibilities, or working conditions.”); 140

Cong. Rec. H11419 (1994) statement of Rep. McCloskey, (noting

that“[t}his personnel action [was] intended to include any

harassment or discrimination that could have a chilling effect on

whistleblowing.”)

* See Id, (noting that since FY 1991 whistleblowers had only won 5

percent (5%) of decisions on the merits.)

or outside the agency, without restriction on time,

place, motive or context.” 140 Cong. Rec. H11419

(statement of Rep. McCloskey).

Congress’s expansion of the Act to include any

disclosure allows the WPA to embrace Petitioner’s

disclosures. Disclosures within the chain of command

receive protection under the legislation’s classification

of “any” disclosures as protected. 103 Stat. 16. MSPB

Member Slavet agreed that the legislative language

and intent require “any” disclosure to include those

within the chain of command, within the scope of

normal duties.® Although Member Slavet agreed with

the majority that Huffman required the Court to

define Laberge’s disclosures as unprotected, the Judge

enunciated her objection to a conclusion necessitated

only by prior precedent when that precedent conflicts

with the letter and intent of the statute itself. In

Ganski, the majority of the MSPB ruled that a Park

Superintendent did not engage in protected disclosure

when the complainant complained to a second-line

supervisor of gross mismanagement within the

National Park Service. Ganski v. Dep't of the Interior,

83 M.S.P.R. 301 (1999). Slavet dissented, interpreting

the legislative history of the WPA to indicate that “the

plain language of ... [the WPA] ... leaves no room for

the majority’s holding that some disclosures of

violations of law, rule, or regulation are not protected.”

Id. at 7. Although Slavet concurred with the

® Laberge v. Dep’t of the Navy, 91 M.S.P.B., p. 5 (Board Member

Slavet, concurring) (noting that “[a]pplying the clear statutory

language in light of the WPA’s purpose should lead to the

conclusion that the appellant engaged in statutorily-protected

whistleblowing.”)

judgment in Huffman, then, her dissent in Ganski

indicates support for protection of Laberge’s disclosure.

Any reasonable reading of the WPA’s legislative

history will reveal Congress’s intent to expand

protection and to make that protection meaningful. The

amendments made since the original passage of the

CSRA in 1978 have expanded personal and subject

matter jurisdiction for employees, lessened the burden

of proof on whistleblowers, and increased the scope of

activities that are afforded whistleblower protection.

These changes, which further encourage

whistleblowing and afford it increased protections, are

evidence that our lawmakers deem whistleblowing a

necessity and a beneficial element of our society.

The WPA has many ambiguities and its meaning

has been tortured in the courts. Thus, the Court should

consider the legislative history before it newly

interprets the Act.

3. Whether the Panel opinions are directly

contrary to the U.S. Supreme Court’s interpretation of

Congress’s legislative mandate in the Whistleblower

Protection Act of 1989.

Since 1982, the United States Supreme Court

has granted only twenty-one (21) petitions for writ of

certiorari filed on cases before the U.S. Court of

Appeals for the Federal Circuit. The high Court has

never issued an opinion on a case involving the

Whistleblower Protection Act of 1989, as that act has

been interpreted by the Federal Circuit. Nonetheless,

the high Court has detailed the exact relationship

between the federal employee, the WPA, and the First

Amendment’s protection of employee speech. Unless

the Federal Circuit’s case law includes Marano and

Watson, as that law could be read through Huffman,

the Federal Circuit directly contradicts high Court

precedence in Waters v. Churchill. °

When fashioning a restriction on speech — such

as the Huffman opinion — the federal Government may

craft restrictions broader than those permitted in the

private work place. In crafting such restrictions,

however, the high Court underscores the external

direction of these regulations — as in dealing with the

public — or the internal necessity, as in maintaining

discipline. What the high Court does not anticipate is

the Federal Circuit’s use of restrictions on the

Whistleblower Protection Act of 1989 to curtail the free

speech of federal employees, acting pursuant to their

duties, and revealing failures in the assessment,

inspection and compliance activities of the USS.

Government. Yet the Federal Circuit promotes a

6 Waters v. Churchill, 511 U.S. 661, 671-672 (1994), stating that

“...the government as employer indeed has far broader powers

than does the government as sovereign See Pickering, 391 U.S. at

598; Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 564, 93

S. Ct. 2880, 37 L. Ed. 2d 796 (1973)...even many of the most

fundamental maxims of our First Amendment jurisprudence

cannot reasonably be applied to speech by government employees.

The First Amendment demands a tolerance of ‘verbal tumult,

discord, and even offensive utterance,’ as ‘necessary side effects of

... the process of open debate.’ Cohen v. California, 403 U.S. 15,

24-25, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971). But we have never

expressed doubt that a government employer may bar its

employees from using Mr. Cohen’s offensive utterance to members

of the public or to the people with whom they work.”

regime of just such restrictions in what the Federal

Circuit has encouraged through its precedent in

Huffman.

Here, in the high Court’s precedence, is case law

affirming that discipline and action within one’s chain of

command are the hallmarks of the federal concern with

speech in its own operations. The ill-guided informing

of individuals outside the chain of command, though

promoted by Huffman absent the gloss of Marano and

Watson, goes against the aims endorsed by High Court

precedent. Employees like Laberge, who are part and

parcel of an inspection process, are the type _of

employees the high Court encourages.

Communications within the chain of command

are exactly the opposite of the type of communications

the court distinguished as unprotected. Employees

who abide by the traditional hierarchy of federal

service are precisely the ones who ought to be

encouraged. By contrast, the disruptive employee —

one acting now under Huffman as it is not informed by

Watson and Marano - fit the profile of the allowable

restriction in Waters.’

Waters provides the juridical linkage between

the First Amendment concerns, supra, and the

" Waters, 511 U.S. at 672, noting that “though a private person is

perfectly free to uninhibitedly and robustly criticize a state

governor’s legislative program, we have never suggested that the

Constitution bars the governor from firing a high-ranking deputy

for doing the same thing. Cf. Branti v. Finkel, 445 U.S. 507, 518,

63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980).”

Whistleblower Protection Act of 1989.2 The WPA is

suppcesed to provide the balance between employee

speech rights and the tolerable level of ‘disruption’

permitted under Pickering. By excluding Marano and

Watson from the gloss informing Huffman, the Federal

Circuit is denying the efficacy of high Court precedence

and directly contradicts Waters.°

*Id. at 673-674, noting that “we have consistently given greater

deference to government predictions of harm used to justify

restriction of employee speech than to predictions of harm used to

justify restrictions on the speech of the public at large. Few of the

examples we have discussed involve tangible, present interference

with the agency’s operation ... One could make a respectaLte

argument ... that high officials should allow more public dissent by

their subordinates, see ... Whistleblower Protection Act of 1989,

103 Stat. 16, ... But we have given substantial weight to |

government employees’ reasonable predictions of disruption, even

-when the speech involved is on a matter of public concern, and

even though when the government is acting as sovereign our

review of legislative predictions of harm is considerably less

deferential. Compare, Letter Carriers, supra, at 566-567, with

Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129, 106

L. Ed. 2d 93, 109 S. Ct. 2829 (1989); Texas v. Johnson, 491 U.S. 397,

409, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).”

* Waters, 511 U.S. at 674, noting that “[g]overnment employees are

often in the best position to know what ails the agencies for which

they work; public debate may gain much from their informed

opinions. Pickering, supra, 391 U.S. at 572. And a government

employee, like any citizen, may have a strong, legitimate interest

in speaking out on public matters. In many such situations the

government may have to make a substantial showing that the

speech is, in fact, likely to be disruptive before it may be punished.

See e.g., Rankin v. McPherson, 483 U.S. 378, 388, 97 L. Ed. 2d 315,

107 S. Ct. 2891 (1987); ... Pickering, supra, 391 U.S. at 569-571.

Moreover, the government may certainly choose to give additional

protections to its employees beyond what is mandated by the First

Amendment, out of respect for the values underlying the First

As the opinion in Waters finishes the relevant

discussion: “The key to First Amendment analysis of

government employment decisions, then, is this: The

government’s interest is in achieving its goals as

effectively and efficiently as possible is elevated from a

relatively subordinate interest when it acts as a

sovereign to a significant one when it acts as employer.

The government cannot restrict the speech of the

public at large just in the name of efficiency. But where

the government is employing someone for the very

purpose of effectively achieving its goals, such

restrictions may well be appropriate.” Huffman does

not guide the conduct of disclosures under the

Whistleblower Protection Act of 1989 in this manner.

Huffman contradicts Waters.

4. Whether -- irrespective of the confusion caused

by Huffman -- Petitioner’s disclosure is protected

under Huffman, Marano, Watson and Willis.

Irrespective of the confusion created by

Huffman, Laberge’s disclosures still qualify as

protected under the non-contradictory guidance

proffered by the Federal Circuit in Marano, Watson,

Willis, and Huffman. Taken as a whole, disclosures are

protected if they (1) are made outside of normal duties

or normal channels; (2) are issued to persons in a

position to correct the alleged wrongdoings; (3) are

done so at risk to one’s job security for the

advancement of the public good. In Willis, Appellant

Willis failed because he did not show an intent to raise

Amendment, values central to our social order as well as our legal

system. See e.g., Whistleblower Protection Act of 1989, supra.

the issue to persons in a position to correct the alleged

wrongdoings nor did he risk his job security for the

advancement of the public good by disclosing abuses by

government personnel. See, Willis, 141 F.3d 1148, 1444.

By contrast, Laberge’s disclosures meet each of these

criteria even where Willis’ disclosures failed.

First, Laberge’s disclosures were made outside

of his normal duties. Laberge’s job is to provide

“guidance” and not to provide for the enforcement of

environmental rules, laws, and/or regulations.

Laberge’s Position Description does not describe his

duty in _terms of making enforcement decisions

pursuant to the National Environmental Policy Act of

1969 or hazardous waste management _ oversight,

enforcement or compliance. His duties are to draft

Environmental Assessments and _ Environmental

Impact Statements when he determines they are

required. If the base commander at NTCS Cutler

decides to superimpose his reading of the

environmental laws on Laberge’s, then the ‘duty’ in

question is transferred to the primary jurisdiction of

the Council for Environmental Quality (“CEQ”) or U.S.

Environmental Protection Agency, Region 1, (“EPA”)

in making the final and authoritative determination of

when an Environmental Assessment or Environment

Impact Statement is required. By placing himself in

the shoes of the CEQ -- which also has primary

jurisdiction over the National Environmental Policy

Act of 1969 - Laberge was performing duties not

anticipated by his position description and outside his

delegated job authority.

Huffman cannot be construed to _ restrict

disclosures merely because individuals are involved

EEE Eo

with activities related to the disclosure as part of their

normal duties; to do so would invalidate any disclosure,

especially by employees in a managerial professional

Staff position exposed to many levels of activity,

because, in order to become aware of a transgression,

one must be exposed to the transgression through

his/her job activities, Professionals are in positions of

unique awareness. The fact that Laberge became

aware of the transgressions as a result of his job duties

does not preclude protection. Instead; unprotected

disclosures under Huffman occur only when the specific

disclosures themselves are a part employee’s normal

work assignment. See, Comito v. Dep't of the Army, 90

M.S.P.R. 58, PP10-11 (2001), Sutton v. Dep't of Justice,

94 M.S.P.R. 4, P11.

Once Laberge’s supervisor redistributed to the

CEQ or the EPA the duty to make a final and

authoritative determination whether an Environmental

Assessment or Environment Impact Statement was

needed, the disclosures themselves were no longer a

part of Labarge’s normal work assignment. After the

transfer of duty, the subsequent disclosures moved

from the realm of exemptions to that of protection

under WPA outlined in Huffman. See, Huffman, 263

. F.3d at 1352.

Laberge’s disclosures were also protected

because Laberge made his disclosures outside of normal

channels. By disclosing to five separate parties,

particularly to Robert Ostermuller of the NAVFAC

Environmental Planning team, Laberge indicated a

desire to disclose to others beyond his direct

supervisor, who, as in Huffman, was the individual

directly committing the wrongdoing. See, Id. at 1344.

Laberge’s situation is similar to that of Complainant

Eugene Johnson in Johnson v. Health and Human

Servs., where Johnson’s duties as a_ professional

required him “to report suspected contract

irregularities to agency authorities.” Johnson v. Health

and Human Servs., 2002 MSPB LEXIS 1136, 11. In

Johnson, the Court applied Huffman to define as

protected under the WPA disclosures employees make

outside their chains of command when they feel that

individuals within the chain of command have failed to

respond.” Jd. Similarly, Laberge, recognizing that his

direct supervisors were unresponsive to his initial

disclosures repeatedly contacted Ostermuller, an

individual outside of normal channels affording his

disclosures protection under the WPA as interpreted

by Johnson and Huffman.

The need for the Honorable court to clarify what

constitutes protected disclosures through “normal

channels” is especially evident within the context of

this case, in which the Petitioner is an employee of the

Department of Defense (“DOD”). Surely, Huffman

should not be construed as forbidding any disclosure

within an individual’s chain of command. To do so

would forbid any disclosure by a DOD employee other

than those made through highly public media. Given

As an example of a disclosure "clearly" protected by the WPA,

the court described a law enforcement officer responsible for

investigating crime by government employees who, "feeling that

the normal chain of command is unresponsive, reports wrongdoing

outside of normal channels." Jd. In this regard, the court did not

state or suggest that there was any requirement of an objective

showing that a reasonable person would have believed it was

necessary to proceed in such a fashion. Johnson v. Health and

Human Servs, 2002 MSPB LEXIS 1136 at 11.

the sensitive nature of DOD information, this

consequence - frustrating employee reliance on the

chain of command structure fundamental to DOD

operations — is undesirable. To avoid such a debacle,

this court should seize the opportunity to clarify

Huffman by bringing it more in line with the

precedents of Marano, Watson, and Willis, protecting

disclosures to individuals not directly responsible for

the wrongdoing or individuals in a position able to

rectify the wrongdoing.

Finally, Laberge’s disclosures fulfill the two

litmus tests established in Willis. Laberge’s various

disclosures were intended to correct wrongdoings, as

Laberge believed that even his disclosures to the

wrongdoers themselves were directed toward those in

the best situation to remedy the wrongdoing.

Laberge’s disclosures were not made merely to one

first-line supervisor as in Huffman, but to a series of

officials in a position to correct the violation of rule, law

or regulation: Commander John Mikell, LCDR Roger

Wakeman, Captain Glidden, Mr. Robert Leclerc, and

Mr. Robert Ostermueller. Further, Laberge’s

disclosures are more closely analogous to those made in

Price v. NASA, where the court determined that

- disclosures by appellant to his supervisor were

protected under the WPA, than to those in Huffman. "

"' Price v. NASA, 83 M.S.P.R. 661, P8 (1999). “The appellant’s

disclosure was not to a person without authority to remedy the

alleged wrongdoing. It is undisputed that the practice that the

appellant alleged was dishonest and illegal was embedded in the

agency’s accounting practices, and there is no evidence that the

appellant’s supervisor had responsibility for those accounting

practices. It was, therefore, appropriate for the appellant to first

make his disclosure to his supervisor. She was in a position to

Similarly, Laberge made disclosures to Robert

Ostermuller of the NAVFAC Environmental Planning

team, someone not responsible for the wrongdoing

being disclosed, requesting that NAVFAC perform an

Environmental Assessment, a concise public document.

Laberge was therefore reasonable in making his

disclosure to NAVFAC given that NAVFAC was

capable of remedying the wrongdoing by conducting an

Environmental Assessment and exposing the wrong

doing using a public medium.

Laberge met the second component of the Willis

standard because he disclosed at the risk to his job, in

order to further the public good. Laberge’s Letter of

Reprimand outlining his “misconduct” not only

provides evidence of his disclosures being outside his

normal job duties, but, it provides credence to the claim

that his action placed his job in peril.

The Honorable court can therefore rectify the

erroneous lower court application of the rules

established in Marano, Watson, Willis, and Huffman in

this case.

forward his concerns to higher authorities who were in a position to

act to remedy the alleged wrongdoing.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Daniel P. Meyer, Esq.

General Counsel

Public Employees for

Environmental Responsibility

2001 S Street NW — Suite 570

Washington, DC 20009

(202) 265-7337

Attorney for Petitioners

(Any footnotes trail the end of each document)

02-3352

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

NORMAND LABERGE,

Petitioner,

DEPARTMENT OF THE NAVY,

Respondent.

June 6, 2003, Decided

June 6, 2003, Filed

JUDGES: LOURIE, RADER, and DYK, Circuit

Judges.

OPINION: JUDGMENT

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

- PER CURIAM:

AFFIRMED. See Fed. Cir. R. 36.

02-3352

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

NORMAND LABERGE,

Petitioner,

DEPARTMENT OF THE NAVY,

Respondent.

August 22, 2003, Decided

August 22, 2003, Filed

OPINION:

ORDER

A petition for rehearing en banc having been filed by

the petitioner, and the matter having first been

referred as a petition for rehearing to the panel that

heard the appeal, and thereafter the petition for

rehearing en banc having been referred to the circuit

judges who are in regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED and it is further

ORDERED that the petition for rehearing en banc be,

and the same hereby is, DENIED.

The mandate of the court will issue on August 29, 2003.

DOCKET NUMBER BN-1221-00-0122-W-1

MERIT SYSTEMS PROTECTION BOARD

NORMAND LABERGE,

Appellant,

DEPARTMENT OF THE NAVY,

Agency.

June 14, 2002

OPINIONBY: ROBERTS, JR.

OPINION: BEFORE

Susanne T. Marshall, Acting Chairman

Beth S. Slavet, Member

Member Slavet issues a separate concurring opinion.

OPINION AND ORDER

. The appellant has filed a timely petition for review of

the initial decision that. dismissed his individual-right-

of-action (IRA) appeal for lack of jurisdiction. For the

reasons discussed below, we find that the petition does

not meet the 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. § 1201.118,

however, and AFFIRM the initial decision as

MODIFIED by this Opinion and Order, still

DISMISSING the appeal for lack of jurisdiction.

BACKGROUND

The appellant is a GS-12 Environmental Engineer at

the Naval Computer and Telecommunications Station

Cutler, East Machias, Maine (Cutler). Initial Appeal

File (IAF), Tab 5, subtab 4A. He filed an IRA appeal

alleging that Public Works Officer LT Roger Wakeman

issued him a June 17, 1999 letter of reprimand in

reprisal for whistleblowing. IAF, Tab 1. The

administrative judge conducted a hearing after finding

that the appellant had made a nonfrivolous allegation of

Board jurisdiction. But he ultimately dismissed the

appeal for lack of jurisdiction. Specifically, he found

that the appellant failed to prove that he made a

protected disclosure because he did not show that a

reasonable person in his position would believe that the

matters he reported evidenced a violation of

environmental laws and regulations or a gross waste of

funds. Initial Decision (I.D.) at 1-18.

The appellant has filed a petition for review, to which

the agency has not responded.

ANALYSIS

Under Geyer v. Department of Justice, 63 M.S.P.R. 13,

16-17 (1994), the Board has jurisdiction over an IRA

appeal if the appellant shows by preponderant evidence

that: (1) he engaged in whistleblowing activity by

making a disclosure protected under 5 U.S.C. §

2302(b)(8); (2) the agency took or failed to take, or

threatened to take or fail to take, a "personnel action" as

defined in 5 U.S.C. § 2302(a)(2); and (8) he raised the

issue before the Office of Special Counsel (OSC), and

proceedings before the OSC were exhausted. In Yunus

v. Department of Veterans Affairs, 242 F.3d 1367, 1371-

72 (Fed. Cir. 2001), the U.S. Court of Appeals for the

Federal Circuit set forth different jurisdictional criteria

for IRA appeals than that set forth in Geyer. The court

stated that "the Board has jurisdiction over an IRA

appeal if the appellant has exhausted his administrative

remedies before the OSC and makes '‘non-frivolous

allegations' that (1) he engaged in whistleblowing

activity by making a protected disclosure under 5

U.S.C. § 2802(b)(8), and (2) the disclosure was a

contributing factor in t’.e agency's decision to take or

fail to take a personnel action as defined by 5 U.S.C. §

2302(a)." Id. at 1871. We need not decide whether to

follow the Geyer or the Yunus standard here because

we find that the appellant failed to satisfy either

standard. Cf. Shriver v. Department of Veterans

Affairs, 89 M.S.P.R. 239, P5 (2001) (finding that the

Board need not decide whether to follow the Geyer or

the Yunus standard because the appellant satisfied the

jurisdictional criteria under both standards).

The June 17, 1999 letter of reprimand was a personnel

action under 5 U.S.C. § 2302(a)(2)(A)(iii). See, e.g., Mc

Vay v. Arkansas National Guard, 80 M.S.P.R. 120, 123

(1998). In addition, the record shows that the appellant

. raised the issue and exhausted his administrative

remedies before the OSC. IAF, Tab 1, Att. 1. The

administrative judge made those findings in his August

4 and 30, 2000 orders. IAF, Tabs 10 at 2, 18 at 3. We

find, though, that the appellant did not engage in

whistleblowing by making protected disclosures.

Essentially, the appellant alleged that his protected

disclosures involved communications with the

Command at Cutler regarding environmental

compliance issues related to a project to strip and re-

paint radio towers. Specifically, he alleged that his

disclosures included the following: (1) informing the

Command that it should have notified the Maine

Department of Environmental Protection that it had

discovered polychlorinated biphenyls (PCBs) in the soil

surrounding the project site at which paint had been

stripped from radio towers; (2) informing the Command

that it should conduct further Environmental

Assessments on the project's impact, after it discovered

that the contractor performing the project could not

fully contain the PCBs; and (3) suggesting that the

Northern Division, Naval Facilities Engineering

Command (NAVFAC) _ should’ conduct’ an

Environmental Assessment of the project. I.D. at 12-13.

Reports made as part of an employee's assigned normal

job responsibilities, when made through normal

channels, are not covered by the Whistleblower

Protection Act. Huffman v. Office of Personnel

Management, 263 F.3d 1341, 1351-55 (Fed. Cir. 2001).

Here, although the appellant may have reasonably

believed that he was disclosing violations of

environmental laws or regulations, his actions were

within the duties described in his position description.

IAF, Tab 11, Subtab 1. The appellant's position

description stated, "The incumbent serves as the

environmental and natural resources program manager

to ensure NCTS Cutler's compliance with all Navy,

Environmental Protection Agency, and Maine

Department of Environmental Protection laws and

regulations." Id. The appellant's major duties and

responsibilities included providing ‘authoritative

guidance to the NCTS Cutler commanding officer,

departments and remote activities on .. the

interpretation of environmental laws, regulations,

standards, policies and directive concerning same." Id.

Under Factors 6 and 7 in his position description, the

appellant's contacts included "other environmental

engineers/specialists, | government environmental

officials, procurement personnel, subject matter

experts, officials, activity commanding officers, [and]

officials in the [Environmental Protection Agency] and

high command authority." The purpose of those

contacts was to explain the function of Cutler's

environmental protection program "so as to- be in

compliance with all respective federal, state, local and

inter-agency regulations, codes and permits. ..." Id.

Admittedly, the Board has found protected a

Supervisory Financial Administrator's disclosures of

cost overruns in an agency program and unauthorized

billing practices, even though the Administrator

became aware of the problems while performing her

responsibilities. Comito v. Department of the Army, 90

M.S.P.R. 58, PP3, 10 (2001). But in that case, reporting

the problems was not part of her normal duties. Id.,

P10. Unlike the record in Comito, the record here

shows that reporting the type of problems that the

appellant brought to the agency's attention was part of

- his normal, assigned duties. Thus, by advising the

Command and NAVFAC of his concerns regarding the

agency's compliance with federal and __ state

environmental statutes and _ regulations’ in

implementing the project to re-paint the radio towers,

the appellant was merely performing his normal duties.

That is, he was investigating and reporting wrongdoing

as part of his normal duties through normal channels.

See, e.g., Huffman, 263 F.3d at 1352; Willis v.

Department of Agriculture, 141 F.3d 1139, 1144 (Fed.

Cir. 1998).

For the above reasons, we conclude that the appellant

failed to prove that he made a disclosure covered by the

Whistleblower Protection Act. Accordingly, we dismiss

his IRA appeal for lack of jurisdiction.

ORDER

This is the final decision of the Merit Systems

Protection Board in this appeal. Title 5 of the Code of

Federal Regulations, section 1201.113(c) (6 C.F.R. §

1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court

of Appeals for the Federal Circuit to review this final

decision. 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 60 calendar days after your receipt of this order. If

you have a representative in this case, and your

representative receives this order before you do, then

you must file with the court no later than 60 calendar

days after receipt by your representative. If you choose

to file, be very careful to file on time. The court has held

Se eee

that normally it does not have the authority to waive

this statutory deadline and that filings that do not

comply with the deadline must be dismissed. See Pinat

v. Office of Personnel Management, 931 F.2d 1544 (Fed.

Cir. 1991).

If you need further information about your right to

appeal this decision to court, you should refer to the

federal law that gives you this right. It is found in Title

5 of the United States Code, section 7703 (5 U.S.C. §

7703). You may read this law as well as review other

related material at our web site, http://www.mspb.gov.

FOR THE BOARD:

Bentley M. Roberts, Jr.

Clerk of the Board

Washington, D.C.

CONCURBY: SLAVET

CONCUR: |

CONCURRING OPINION OF BETH 8S. SLAVET

in Normand Laberge v. Department of the Navy

MSPB Docket No. BN-1221-00-0122-W-1

I concur in the Board decision to deny the appellant's

request for corrective action under the Whistleblower

Protection Act of 1989 (WPA) because I agree that the

evidence established that the appellant made his

disclosures through normal channels as part of his

normal assigned duties, and the Federal Circuit has

interpreted the WPA to deny protection to such

10a

disclosures. However, for the reasons set forth below, I

believe the WPA should be interpreted as providing

protection to the disclosures the appellant made in this

case.

From my perspective, the rule governing this case is

found in Huffman v. Office of Personnel Management,

263 F.3d 1341 (Fed. Cir. 2001). In Huffman, as I read it,

the court revisited the discussion of "normal duties"

disclosures it originally addressed in Willis v.

Department of Agriculture, 141 F.3d 11389 (Fed. Cir.

1998). Willis involved a District Conservationist who, as

part of his normal assigned duties, reported various

farms out of compliance with Department of

Agriculture soil conservation plans. In concluding that

Willis' reports did not constitute disclosures protected

by the WPA, the Federal Circuit stated that the WPA

"is intended to protect government employees who risk

their own personal job security for the advancement of

the public good by disclosing abuses by government

personnel," and it found that Willis' compliance reports

did not place him "at personal risk for the benefit of the

public good." Willis, 141 F.3d at 1144. However, in

reaching this conclusion, the court differentiated Willis'

case from Marano v. Department of Justice, 2 F.3d

1137, 1142 (Fed. Cir. 1993) in which the court stated

that the WPA "applies to a situation where a

government employee discloses information that is

closely related to the employee's day- to-day

responsibilities."

Likewise, in Watson v. Department of Justice, 64 F.3d

1524, 1526 (Fed. Cir. 1995), the court addressed the case

of a border patrol agent who was removed for, inter

alia, his reporting the wrongdoing of another agent in

lla

an untimely manner in violation of agency policy.

Despite the fact that Watson's reporting of another

agent's misconduct was required under agency policy,

the final Board order found that the appellant had made

protected disclosures that contributed to his removal,

but it also found that the agency had carried its burden

of proving that it would have taken the same action in

the absence of the appellant's protected whistleblowing.

Id. at 1527. In affirming the Board decision, the court

stated, "The fact that a protected disclosure may be

made as part of an employee's duties, but that an

employee may nevertheless be disciplined for violating

agency policy if his disclosure is untimely, strikes a

balance between the intent of the WPA and the

agency's interest in prompt disclosure of. wrongdoing."

Id. at 1530. Thus, prior to the issuance of Huffman,

Willis could have been read as merely creating an

exception to the more general rule, addressed in

Marano and Watson, that disclosures made as part of an

employee's assigned duties are protected by the WPA.

In Huffman, however, the court further refined the

parameters of the "normal duties" rule by setting forth

the following three categories: (1) disclosures an

employee makes as part of his normal duties through

normal channels; (2) disclosures an employee makes as

‘part of his normal assigned duties but outside of normal

channels; and (8) disclosures an employee makes that

are not part of the employee's assigned duties.

Huffman, 263 F.3d at 1352, 1354. With respect to

disclosures that fall within the first category, the court

concluded that such disclosures are not protected by

the WPA and stated, "While the language of the Act is

ambiguous as to whether normal duties reports are

covered, the core purposes of the WPA are simply not

implicated by such reporting." Huffman, 263 F.3d at

12a

1352. Thus, the Huffman panel appeared to expand the

limited Willis exception for disclosures that do not put

an employee's personal job security at risk for the

public good to deny protection to all disclosures an

employee may make through normal charnels as part of

his normal assigned duties.

In my mind, to find that the appellant was protected

under both Willis and Huffman would require me to

find that those cases are irreconcilable. And while I

could then choose to follow Willis pursuant to the rule

that when there is a conflict between decisions of the

Federal Circuit, the precedential decision is the first

decision that was issued, see Bosley v. Merit Systems

Protection Board, 162 F.3d 665, 672 (Fed. Cir. 1998), the

panel in Huffman described the prior "normal duties"

rulings in Marano, Watson, and Willis as dicta.

Therefore, I am bound by controlling Federal Circuit

precedent to find that the appellant's disclosures made

through normal channels as part of his normal assigned

duties were not protected by the WPA. Yet, as

discussed below, I believe that applying the clear

statutory language in light of the WPA's purpose

should lead to the conclusion that the appellant engaged

in statutorily-protected whistleblowing.

The facts of this case revolve around the appellant's

actions with respect to an agency project to strip and

repaint Very Low Frequency (VLF) radio towers and

other associated structures located on an

environmentally sensitive peninsula in Kast Machias,

Maine overlooking intertidal clam flats and fishing

grounds. As stated in the Board's opinion, the appellant

served as an environmental engineer who was

responsible "to ensure NCTS [(Naval Computer and

18a

Telecommunications Station)] Cutler's compliance with

all Navy, Environmental Protection Agency, and Maine

Department of Environmental Protection laws and

regulations." Initial Appeal File (IAF), Tab 11, Subtab

1. In addition to the appellant's responsibility to ensure

compliance with environmental laws and regulations,

his position description also stated, "The failure of any

station department or remote activities to comply with

environmental laws and regulations could result in

heavy fines and/or imprisonment for NCTS Cutler's

commanding officer and/or other responsible

personnel." Id. In identifying the scope and effect of the

appellant's position, the position description stated:

The purpose of this position is to implement and

administer a [sic] environmental and natural resources

program on NCTS Cutler and all of its associated

facilities remote from the station. Results of this work

affect the working and living environments of

installation occupants; the public within a reasonable

distance surrounding the installation; and future

generations. In addition, decisions and

recommendations directly impact NCTS Cutler's

mission and in some cases may affect national public

relations.

Id. With respect to personal contacts, the position

description indicated that such contacts would include

other environmental engineers, government

environmental officials, procurement personnel, subject

matter experts, activity commanding officers, officials

in the Environmental Protection Agency (EPA) and

high command authority, architect-engineer firms,

contractors, officials from local community government,

and officials from federal, state, and local agencies

14a

having regulatory and _ enforcement authority

concerning installation activities that affect on and off

base resources, air, land, water and the environment.

Id. The position description identified the purpose of

these contacts as follows:

Contacts are to explain the purpose and function of

NCTS Cutler's environmental protection program so as

to be in compliance with all respective federal, state,

local, and inter-agency regulations, codes and permits

and also, to conduct surveys, investigations, gather

data with which to base decisions and actions in the

resolution of specific problems. Contacts are used to

inform higher authority, command and NCTS officials,

as well as to keep abreast of current state-of-the-art; to

represent and support NCTS Cutler policies and

positions, to persuade, convince and _ encourage

voluntary compliance for activities and labor, to elicit

cooperation and support of professional, industrial, and

labor and private groups and associations to enhance

success of command programs; and to provide technical

guidance and direction as required.

Id.

For construction projects such as the VLF tower

project, the appellant was responsible for preparing

documentation needed to comply with the National

Environmental Policy Act (NEPA). nl Based on a

report in which a consultant assigned to the VLF tower

project stated that the project would be completed

under 100% containment of the paint chips, the

appellant concluded that a Categorical Exclusion (CE)

memorandum should be prepared. n2 The appellant

apparently completed a CE form, but it was not signed

15a

by the Commanding Officer. IAF, Tab 11, Subtab 3 at

17.

As the circumstances below indicate, the stripping

project did not proceed as originally contemplated. In

October and November, 1996, after the agency

commenced stripping paint from a structure known as

the South Helix House, polychlorinated biphenyls

(PCBs), a hazardous substance contained in the paint

that was to be removed during the VLF tower project,

was discovered in soil samples taken around South

Helix House at levels ranging from 1100 to 4500 parts

per million (ppm). The Maine Department of

Environmental Protection (DEP) regulations required

reporting of the release of PCBs at a level of 1600 ppm,

and the appellant notified the NCTS Cutler

Commanding Officer, Captain Glidden, n3 and

recommended that the agency either take additional

samples to better quantify the extent of the

contamination or immediately report the release to the

Maine DEP. The agency did not take additional samples

nor report the contamination to the Maine DEP;

however, the painting contract was modified to include

protective measures for PCB control and management

and the project continued throughout the Spring and

Summer of 1997.

In November, 1997, the appellant again reviewed the

VLF tower project and submitted a report to the

Northern Division, Naval Facilities Engineering

Command (NAVFAC), n4 in which he recommended

that "due to the inability to attain full containment, an

environmental assessment [(EA)] study [nd] is

advisable in order to outline potential impacts

associated with the creation of more mobile

16a

contaminants." IAF, Tab 1, Attachment 2 at 65. In

December, 1997, NCTS Cutler notified the Maine DEP

- about the presence of PCBs in the soil around the South

Helix House and the VLF towers that had been water-

blasted to remove paint in 1997. Maine DEP requested

clean-up action and the immediate termination of

discharges from the structures. Around the same time,

the Environmental Protection Agency (EPA) indicated

that NCTS Cutler required an Alternate Method of

Disposal Approval (AMDA) permit and that paint

removal operations could not continue until the facility

was in compliance with the Toxic Substances Control

Act (TSCA) standards. n6 IAF, Tab 11, Subtab 3.

In September, 1998, EPA, the Maine DEP, NCTS

Cutler, NAVFAC, and the VLF tower project

contractor began to develop a work pian to complete

the project and to address TSCA and Maine DEP

regulations. In April, 1999, the appellant reviewed the

work plan and recommended that an EA be performed.

In an e-mail dated April 16, 1999, the appellant's

second-line supervisor, Lieutenant Commander

(LCDR) Wakeman, asked the appellant if he had

contacted NAVFAC regarding the requirement to

prepare additional NEPA _ documentation for

completion of an existing project. IAF, Tab 5, Subtab

E. In his response, the appellant explained that his

original recommendation that an EA was not required

was based on the fact that the original project

specifications called for full containment, but he stated

"the specifications should be different to indicate that

full containment is no longer a requisite for the project

and that past history indicates an added level of

environmental oversight by regulatory agencies." Id.

17a

The appellant subsequently contacted Robert

Ostermuller of the NAVFAC Environmental Planning

team and provided him with information concerning the

VLF tower project. After reviewing this information,

Ostermuller sent the appellant an e-mail in which he

informed the appellant that, in his opinion, the project,

even if containment had worked, did not fall within a

categorical exclusion, that an EA should have been

prepared, and that a work plan could be incorporated

into an EA but would not eliminate the need to prepare

an EA. IAF, Tab 1, Attachment 2, OSC Submission at

45. In his response to Ostermuller, the appellant agreed

that the project did not fall within a categorical

exclusion and acknowledged that "the fact than an EA

or EIS has never been completed ... violates Navy

policy under NEPA." Id. at 47-48. On May 28, 1999, the

appellant sent an e-mail to the new Commanding

Officer of NCTS Cutler, Commander Mikell, which

contained the following:

Mr. Ostermuller agrees with my conclusion that an EA

(or EIS) was and is necessary for the project... Please

note that Mr. Ostermuller still believes that an EA or

EIS is still required even with the approval of a work

plan by EPA and Maine DEP on PCB issues. In my

opinion, an EA or EIS should be performed before

allowing {the contractor] to continue with the project.

This measure should ensure that the proper U.S. Navy

protocol has been followed for the review of

environmental impacts associated with the project.

Id. at 47. On June 1, 1999, the appellant sent

Ostermuller an e-mail in which he indicated that certain

individuals at NCTS Cutler "would like to have our CO

or your CQ make a decision that would allow the

18a

present contractor ... [to] continue the work this year

without the benefit of an EA or EIS." Id. at 50. On June

7, 1999, the appellant sent another e-mail to

Commander Mikell n7 in which he described his

"problems with the VLF project," including:

the lack of appropriate response to the detection of

PCBs in the waste from south Helix House in October

1996 and to the fact that the contractor was unable to

provide full containment during May 1997. If the

command had provided notification to Maine DEP in

November or December 1996 on the detection of PCBs

around the South Helix house, the project would have

received a greater level of environmental oversight by

regulators. This notification might have led to a

revision of paint removal plans before the initiation of

work in May 1997.

Id. at 58-59.

After setting forth these facts, the administrative judge

concluded that the appellant failed to establish that he

made a protected disclosure because the appellant

failed to show that a disinterested observer with the

knowledge available to the appellant at the time of his

alleged disclosures could reasonably conclude that his

disclosures evidenced any of the wrongdoing described

in 5 U.S.C. § 2302(b)(8). Initial Decision (ID) at 16 - 18;

see LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir.

1999) (test for determining whether disclosure is

protected by 5 U.S.C. § 2302(b)(8) is whether "a

disinterested observer ... [could] reasonably conclude

that the actions of the government evidence" a kind of

wrongdoing covered in that provision), cert. denied, 120

S. Ct. 1157 (2000). However, based on the evidence of

19a

record, I would find that, at a minimum, the appellant

established that a disinterested observer could

reasonably conclude that his disclosures concerning the

agency's failure to prepare an EA or an EIS after

discovering that full containment was not possible and

that the water-blasting operations to strip paint from

the VLF towers resulted in the release of PCBs into

the environment violated the CEQ and the Department

of the Navy NEPA regulations.

Even if the appellant's original assessment that the

VLF tower project fell within a categorical exclusion

was correct based on the information he had available

at the time, a disinterested observer in the appellant's

position could have reasonably concluded that the

discovery of PCBs at the work site required further

NEPA analysis and documentation. According to the

EPA, PCBs have significant deleterious ecological and

human health effects. n8 The Department of the Navy

regulations provide, "Even though a proposal generally

fits the description set out below for categorical

exclusions, the categorical exclusion should not be used

if the proposed action: (1) Would affect pubiic health or

safety; ... or; (5) Threatens a violation of federal, state

or local law or requirements imposed for protection of

the environment." 32 C.F.R. § 775.6(e). Given the fact

that the VLF towers were located on a peninsula in

close proximity to clam flats and fishing grounds, ID at

3, and the fact that the soil samples included PCB

measurements in excess of the Maine DEP regulations

concerning reportable quantities, IAF, Tab 1,

Attachment 4B at 64, a disinterested observer in the

appellant's position could have reasonably concluded

that a categorical exclusion was inappropriate under

NEPA because the release of PCBs into the

20a

environment during the project could affect public

health or safety and threaten a violation of state or

federal law. n9 Therefore, by advising the NCTS Cutler

command and NAVFAC that the VLF tower project

went forward without adequate NEPA documentation,

the appellant disclosed information that he reasonably

believed evidenced a violation of NEPA regulations

issued by the CEQ and the Department of the Navy.

See 5 U.S.C. § 2302(b)(8).

PCBs have significant ecological and human health

effects, including carcinogenicity (probable human

cancer-causing or cancer-promoting agent),

neurotoxicity, reproductive and developmental toxicity,

immune system suppression, liver damage, skin

irritation, and endocrine disruption. These toxic effects

have been observed from both acute and chronic

exposures to PCB mixtures with varying chlorine

content. PCBs do not break down readily in the

environment, and are taken into the food chain by

microorganisms. PCBs _ are then biologically

accumulated and concentrated at levels much higher

than found in the surrounding environment, thus posing

a greater risk of injury to human health and the

environment than might be imagined.

See http://es.epa.gov/oeca/ag/Isca.html#Polychlorinated

Biphenyls (PCBs.)

The term "continuing activities" which may necessitate

the preparation of a NEPA document will be applied by

the Department of Navy to include activities which are

presently being carried out in fulfillment of the Navy

mission and function, including existing training

functions, where: ... (2) There is a discovery that the

2la

environmental effects of an ongoing activity are

significantly and qualitatively different or more severe

than predicted in a NEPA document prepared in

connection with the commencement of the activity.

32 C.F.R. § 775.6(c).

Indeed, the agency did not dispute the fact that the

appellant's belief that NCTS Cutler had violated

environmental laws was reasonable. The administrative

judge essentially found as much in an August 30, 2000

order and during a September 27, 2000 prehearing

conference. IAF, Tabs 138, 22. Likewise, in its

posthearing brief, the agency itself cited Commander

Mikell's testimony that the agency agreed with the

appellant's recommendations in 1999 and delayed work

of the VLF tower project to conduct further NEPA

analysis because it was the "right thing to do." IAF, Tab

26 at 2. Thus, the agency's reaction to the appellant's

disclosures helped to establish the reasonableness of his

beliefs. See, e.g., Arauz v. Department of Justice, 89

M.S.P.R. 529, P7 (2001) (citing the agency's failure to

challenge the administrative judge's finding that the

practice in question was a violation of law).

The appellant also submitted sufficient evidence to

establish that his disclosures were a contributing factor

in the personnel action at issue in this appeal, a June 17,

1999 letter of reprimand the appellant received from

LCDR Wakeman for "Repeated Instances of

Misconduct." IAF, Tab 5, Subtab 4F. n10 In this case,

the appellant made his disclosures in several e-mail

messages he sent to Commander Mikell, LCDR

Wakeman, and Assistant Public Works Officer Leclerc

in late-May through early-June, 1999. These messages

22a

concerned the agency's failure to comply with NEPA

when it was discovered that PCBs were present at the

VLF tower project work site. Thus, there is no

question that LCDR Wakeman knew of the appellant's

disclosures. This fact, along with the fact that LCDR

Wakeman issued the letter of reprimand within a few

weeks of the appellant's disclosures, provides a

sufficient basis for finding that the appellant

established on the merits that his disclosures were a

contributing factor in his reprimand. See Arauz, 89

M.S.P.R. 529, P11.

Generally, when the Board finds that a protected

disclosure was a contributing factor in a personnel

action, it will order corrective action unless the agency

presents clear and convincing evidence that it would

have taken the action absent the disclosure. 5 U.S.C. §

1221(e)(1), (2). In this case, however, because the

administrative judge concluded that the appellant did

not establish that he reasonably believed that the

information he disclosed evidenced any of the

categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8),

the administrative judge did not address whether the

agency carried its burden of proving that it would have

issued the letter of reprimand in the absence of the

appellant's disclosures. However, as stated above, I

would find under such circumstances that the appellant

established that his disclosures evidenced a violation of

the CEQ and Department of the Navy NEPA

regulations and remand the appeal to the

administrative judge for the issuance of a new initial

decision and a determination as to whether the agency

carried its burden of proof. See Arauz, 89 M.S.P.R. 529,

P12.

23a

Nevertheless, I find a remand in this case is

unnecessary, because, despite the fact that the

appellant established that he reasonably believed that

the information he disclosed evidenced a violation of

CEQ and Navy regulations, the appellant still failed to

establish that his disclosures were protected under 5

U.S.C. § 2302(b)(8). The appellant's assigned job

responsibilities included advising the command at

NCTS Cutler, as well as procurement personnel such as

NAVFAC, regarding compliance with environmental

laws and regulations. Thus, the appellant's disclosures

fell within the first category of disclosures identified by

the Federal Circuit's decision in Huffman, and the

appellant therefore failed to establish that he engaged

in whistleblowing by making disclosures protected by

the WPA.

In Coons v. Department of the Treasury, 85 M.S.P.R.

631 (2000) (Vice Chair Slavet, concurring) and in

Huffman v. Office of Personnel Management, 84

M.S.P.R. 569 (1999) (Vice Chair Slavet, concurring), I

wrote separately to express my view that, to the extent

that the Federal Circuit decision in Huffman interprets

the WPA to deny protection to the disclosures here, it

is inconsistent with the protections Congress afforded

employees in the WPA and its amendments. While the

appellant's disclosures in this case fall within the first

Huffman category, excluding them from WPA

coverage, finding that these disclosures are protected

by the WPA would serve the core purposes of that

statute which the court identified in Willis. The

appellant's assigned job responsibilities included

identifying issues and advising the agency regarding its

compliance with federal and state environmental laws

and regulations. If the appellant failed to properly

— ee

24a

identify issues and advise the agency, it could be found

in noncompliance with the applicable laws and

regulations. If the appellant identified agency

noncompliance and advised the agency of necessary

compliance steps, as he did here, but the agency

ignored the situation, it could also be found to have

violated the law. On the other hand, if the agency

accepted the appellant's advice and implemented the

appellant's recommendations, agency projects could

have been subject to delays and/or required additional

expense to complete. The appellant here alleged that

his advice regarding the agency's need to comply with

NEPA by preparing an EA when it was discovered

that contractors who were stripping paint from the

VLF towers were releasing PCBs into the surrounding

soil should have resulted in the suspension of work and

could have required the payment of damages to the

contractor for the delay. IAF, Tab 1, Attachment 2B at

96-97.

Other evidence supports the view that with regard to

the contributing factor test, the agency acted as if it

perceived him a whistleblower. The appellant attached

various documents to his appeal in which he had

indicated that his position regarding the project was

"unpopular" and did not receive "suitable support" from

the command at NCTS Cutler. Id. at 106. Furthermore,

despite the fact that the appellant's position description

indicated that his personal contacts included

contractors and that he was responsible "to conduct

surveys, investigations, gather data with which to base

decisions and actions in the resolution of specific

[compliance] problems," IAF, Tab 11, Subtab 1, the

appellant submitted documents in which he had alleged

that LCDR Wakeman accused him of "spying" on the

25a

contractors who were performing the paint removal,

IAF, Tab 1, Attachment 2B at 106. The appellant also

submitted documentation which indicated that after he

disclosed compliance problems associated with the

paint removal process, LCDR Wakeman restricted the

appellant's access to the site where the work was being

performed. Id. at 92. In his grievance nll concerning

the letter of reprimand he received regarding his

failure to comply with this restriction and his conduct

during a meeting in which he discussed the paint

removal project with LCDR Wakeman and Mr. Leclerc,

the appellant stated that he "immediately made a link"

between the agency decision to stop the paint removal

project pending completion of the NEPA

documentation and the issuance of the letter of

reprimand. Id. at 112. Thus, to the extent that agency

compliance with environmental laws and regulations

benefits the public, nl2 the appellant presented

evidence to suggest that he put his job security at risk

for the benefit of the public when he disclosed what he

reasonably believed were agency violations of NEPA

regulations through normal channels as part of his

assigned job responsibilities.

Therefore, at least with respect to the situation

presented by this case, where the evidence suggests

that the agency retaliated against the appellant for

disclosures he made in the performance of his duties

which provided a benefit to the public by ensuring that

the agency complied with environmental laws and

regulations designed to protect the public, the core

purpose of the WPA that the court identified in Willis

would be served by extending protection to the

appellant's disclosures. Nevertheless, as mentioned

above, reading Willis as providing only a limited

26a

exception to Marano and Watson in cases in which the

appellant does not place his personal job security at risk

for the benefit of the public does not appear to be

supported by the court's decision in Huffman.

Therefore, despite the fact that the evidence suggests

that the appellant placed his personal job security at

risk for the benefit of the public, because the Federal

Circuit's decision in Huffman does not provide an

exception to the general rule that disclosures an

employee makes through normal channels as part of his

assigned job responsibilities are not protected by the

WPA, I am bound by Huffman to find that the appellant

did not engage in whistleblowing activity by making a

protected disclosure under 5 U.S.C. § 2302(b)(8).

Accordingly, I concur in the decision to dismiss the

appellant's individual-right-of-action (IRA) appeal.

Date June 14, 2002

Beth S. Slavet

Member

Footnotes

nl Essentially, NEPA requires federal agencies to

consider the environmental impacts of a proposed

action during the planning phase of the action, and, if

the action is one which would significantly affect the

quality of the human environment, to prepare an

environmental impact statement (EIS) statement

addressing the following: (1) the environmental impact

of the proposed action; (2) any adverse environmental

effects which could not be avoided if the proposal is

implemented; (3) alternatives to the proposed action; (4)

the relationship between local short-term use of man's

environment and the maintenance and enhancement of

27a

long-term productivity; and (5) any irreversible and ’

irretrievable commitments of resources which would be

involved in the proposed action should it be

implemented. 42 U.S.C. § 4832(2)(C); see 40 C.F.R. §

1508.11 (defining "Environmental impact statement" as

the "detailed written statement as required by section

102(2)(C) [(42 U.S.C. § 4832(2)(C))] of the Act.").

According to the Department of the Navy regulations,

an EIS is required if "the action is a major federal

action significantly affecting the human environment."

32 C.F.R. § 775.6(a).

n2 Pursuant to the Council on Environmental Quality

(CEQ) regulations implementing NEPA, a categorical

exclusion is "a category of actions which do not

individually or cumulatively have a significant effect on

the human environment and which have been found to

have no such effect in procedures adopted by a Federal

agency in implementation of these regulations and for

which, therefore, neither an environmental assessment

nor an environmental impact statement is required." 40

C.F.R. § 1508.4. The Department of the Navy

regulations provide, "Categorical exclusions are

applicable to those kinds of Navy actions which do not

significantly affect the quality of the human

environment, which do not result in any significant

change from existing conditions at the site of the

proposed action, and whose effect is primarily economic

or social." 32 C.F.R. § 775.6(e).

n3 Until February, 1998, the appellant's position was

located in the Office of the Commanding Officer. From

February 1, 1998 onward, the position was relocated to

the Public Works Department where the appellant's

immediate supervisor became Robert Leclerc,

28a

Assistant Public Works Officer. Beginning in

September, 1998, Lieutenant Commander (LCDR)

Roger Wakeman was assigned as Public Works Officer

and Commander John Mikell was assigned as

Commanding Officer.

n4 Although the exact relationship between NCTS

Cutler and NAVFAC is not readily apparent from the

record, it appears that NAVFAC may have been the

Navy component responsible for soliciting bids and

awarding and administering the contract(s) for the

VLF tower project.

nd5 According to the CEQ regulations, an EA "means a

concise public document for which a Federal agency is

responsible that serves to: (1) Briefly provide sufficient

evidence and analysis for determining whether to

prepare an environmental impact statement or a

finding of no significant impact. (2) Aid an agency's

compliance with the Act when no environmental impact

statement is necessary. (8) Facilitate preparation of a

statement when one is necessary." 40 C.F.R. § 1508.9.

The Department of the Navy regulations provide that

an EA is appropriate when the action is one for which

the impacts are not known or which may not be

significant. 32 C.F.R. § 775.6(a).

n6 The EPA regulates the manufacturing, processing,

distribution, and disposal of PCBs pursuant to its

authority under TSCA to regulate chemical substances

or mixtures that "present[] or will present an

unreasonable risk of injury to health or the

environment." 15 U.S.C. § 2605; see 40 C.F.R. Part 761.

29a

n7 The appellant also sent this e-mail message, as well

as the one he sent to Commander Mikell on May 28,

1999, to LCDR Wakeman and Assistant Public Works

Officer Robert Leclerc.

n8 An EPA website describes the effects of PCBs as

follows:

n9 Although the discovery of PCBs occurred after the

planning stage of the VLF tower project, CEQ

regulations define major Federal actions subject to

evaluation under NEPA to include "new and continuing

activities." 40 C.F.R. § 1508.18. The Navy regulations

provide:

nl10 A letter of reprimand is a personnel action under

the WPA. See, e.g., McVay v. Arkansas National

Guard, 80 M.S.P.R. 120, 123 (1998). An employee may

demonstrate that a disclosure was a contributing factor

in the personnel action through circumstantial

evidence, such as evidence that the official taking the

personnel action knew of the disclosure and the

_personnel action occurred within a period of time such

that a reasonable person could conclude that the

disclosure was a contributing factor in the personnel

action. 5 U.S.C. § 1221(e)(1).

nll Because the appellant filed his complaint with the

Office of Special Counsel prior to filing his grievance,

the appellant's grievance did not preclude the appellant

from seeking corrective action under the election of

remedies provision of 5 U.S.C. § 7121(g)(8).

nl2 The purposes of NEPA are:

30a

To declare a national policy which will encourage

productive and enjoyable harmony between man and

his environment; to promote efforts which will prevent

or eliminate damage to the environment and biosphere

and stimulate the health and welfare of man; to enrich

understanding of the ecological systems and natural

resources important to the Nation; and to establish a

Council on Environmental Quality.

42 U.S.C. § 4821.

3la

DOCKET NUMBER BN-1221-00-0122-W-1

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BOSTON FIELD OFFICE

NORMAND LABERGE,

Appellant,

DEPARTMENT OF THE NAVY,

Agency.

Filed February 23, 2001

Normand Laberge, Trescott, Maine, pro se.

Robert S. Knowles, Groton, Connecticut,

for the agency.

BEFORE John F. Markuns Administrative Judge

INITIAL DECISION

On April 24, 2000, the appellant, who occupies the

position of Environmental Engineer, GS-819-12, Naval

Computer and Telecommunications Station Cutler

(Cutler), East Machias, Maine, filed an individual right

of action (IRA) appeal with the Merit Systems

Protection Board ("MSPB" or “Board") alleging, inter

alia, that on June 17, 1999, the agency issued him a

letter of reprimand for "Repeated Instances of

Misconduct". in reprisal for whistleblowing.fnl

Following a determination that the appellant had

32a

presented a nonfrivolous allegation that the Board

had jurisdiction over the appeal, a hearing was

conducted at the appellant's request. Appeal File

(AF), 18. For the reasons below, the appellant's

request for corrective action is DISMISSED.

JURISDICTION

Background

The essential background facts are reflected in

undisputed documents contained in the record and

corroborating testimony. NAVCOMTELSTA

Cutler is a major communications facility, providing

radio signal transmissions to U.S. ships and

submarines. At the time of the events in question,

the appellant was employed as an Environmental

Engineer assigned to the Environmental Division,

Public Works Department. The Environmental

Engineer was’ required to serve as_ the

Environmental and Natural Resources Program

Manager to ensure Cutler's compliance with all

Navy, Environmental Protection Agency (EPA),

and Maine Department of Environmental

Protection (DEP) laws and regulations. AF, Tab 11,

Subtab 1.

With respect to construction contracts, the

Environmental Engineer was_ responsible for

preparing documentation of compliance with the

National Environmental Policy Act (NEPA). Where

a construction contract was to be awarded by

Northern Division, Naval Facilities Engineering

Command ("NAVFAC"' or "Northern Division"), the

Environmental Engineer was_ responsible for

33a

passing the proposed contract on to NAVFAC for

review by the Environmental Planning Team AF,

Tab 11, Subtab 4, June 2, 1999 e-mail from Robert

Ostermueller to appellant. The Environmental

Engineer also acted as advisor to the Command

during oil and hazardous substance management

and releases in the areas of initial response,

containment and cleanup. In _ addition, the

Environmental Engineer functioned as the Navy On-

Scene Commander (NOSCDR) in the event of a Navy

caused oil or hazardous material spill. As the

NOSCDR, the Environmental Engineer ensured that

clean up efforts were sufficient to meet regulator

requirements, prevent risk to health and safety of the

public, prevent further environmental contamination

and restore the environmental quality of the affected

area. AF, Tab 11, Subtab 1.

Until February 1995, the appellant's position of

Environmental Engineer was located in the Office of

the Commanding Officer. The Commanding Officer at

that time was Captain Glidden.fn2 From February 1,

1998 onward, the position was relocated to the Public

Works Department. The appellant's immediate

civilian supervisor became Robert Leclerc, Assistant

Public Works Officer. Beginning in September 1995,

LCDR Roger Wakeman was assigned as Public

Works Officer and Commander John Mikell was

assigned as Commanding Officer.

The current dispute stems from the appellant's role in

the coordinated review of a project to paint Cutier's

VLF (Very Low Frequency) Towers and the Helix

Houses. These facilities are located on an

environmentally sensitive peninsula in East Machias,

34a

Maine overlooking intertidal clam flats and fishing

grounds. The structures are configured in north and

south antenna arrays. The towers supporting the

arrays range in height from 799 to 875 feet and were

scheduled for painting and new lighting primarily to

promote aviation safety.

The first phase of the project involved paint removal

at the South Helix House. This phase was completed

in the summer of 1996. The next phase involving the

VLF Towers and the Northern Helix House was

scheduled to begin in the summer of 1997.

The 1996 NEPA Checklist

On September 26, 1995, a construction meeting took

place which was coordinated by Oak Point

Associates, a consultant assigned to the VLF Tower

project. The main environmental issues discussed

by the participants fn3 concerned lead abatement

and containment related to the removal of old paint,

and the need not to disturb Osprey nests until after

the young birds had left in late August or early

September. AF, Tab 1, Attachment 4, pp. 73-74 of

the appellant's submission to OSC entitled "Reasons

Why Whistleblower Actions Were Contributing

Factor to Letter of Reprimand" (hereinafter CSC

submission).

On March 1, 1996, the appellant, acting in his

capacity as Environmental Engineer, submitted a

detailed and critical review of Oak Point's design

analysis for painting and repairing the North and

South VLF Towers to Captain Glidden. In his first

substantive comment, the appellant noted the

35a

consultant's conclusion that "if containment is used,

an [E]nvironmental [A]ssessment [EA] will not be

needed." The appellant recommended that the

contractor be required to prepare a checklist to

document compliance with NEPA. The appellant

further noted that as "standard practice, we

perform a NEPA determination for any project

which is signed by the Commanding Officer as proof

of NEPA compliance." Id., p. 70.

The appellant subsequently prepared by hand a

NEPA "checklist" dated March 22, 1996. On the first

page of this checklist, under the section requiring a

"description of the environmental setting and

present land use of the proposed site," the appellant

wrote:

Sensitive environment characterized by

proximity to coastline and to commercial

shell harvesting areas. Please note that Oak

Point has stated that project would be

completed under 100% containment and

that an environmental assessment would

not be required. This checklist prepared

under assumption of 100% containment.

AF, Tab 11, Subtab 3. On the last page of the checklist,

under the section requiring a "discussion of

environmental analysis of potential impacts to include

proposed mitigation procedures," the appellant wrote:

"Addressed in report prepared by Oak Point Associates

(19 Jan 96). My comments were presented in memo

dated of Mar 96." The last section to be completed on

the checklist required that the appellant make a

determination as Environmental Officer whether, inter

36a

alia, a Categorical Exclusion memorandum based on

cited provisions of the applicable Naval Instruction

should be prepared. The appellant indicated that such a

memorandum should be completed and he signed the

checklist.

Attached to the checklist was a copy of the required

"Categorical Exclusion" form. The form was partially

completed by the appellant. He described the covered

action as "Paint VLF Towers." The specific type of

categorical exclusion was noted. The form contained a

signature block for the Commanding Officer's signature

and date. Next to this line were two arrows signifying

that a signature and date was needed. However, the

Commanding Officer's signature is not on _ the

document. Below this block were signature and date

lines for "Concurrence" by the _ "Installation

Environmental Officer/POC." The appellant had signed

and dated the concurrence. Id.

Discovery of PCB's Around South Helix House

Paint removal continued at the South Helix house

throughout 1996. As recounted by the appellant,fn4 soil

samples taken in October and November 1996 revealed

the presence of PCB's. Three samples that were taken

from South Helix House within a 20-foot radius and

indicated the presence of PCB with levels ranging from

1100 to 4500 parts per million (ppm). The appellant

further reported that "the contamination might be due

to a spill which occurred in the mid 1980's or as result of

a paint removal operation (water blasting) during 1996."

The appellant explained that at a contamination level of

1600 ppm, one fifty-five gallon drum of contaminated

soil would represent a quantity of PCB above the

37a

reportable quantity (RQ) of one pound. AF,

Attachment 4, OSC Submission, p. 64. On December

3, 1996, the appellant sent a summary of DEP

notification requirements to Captain Glidden "that

outlined the need to either take additional samples

to quantify [the] extent of contamination or to make

immediate notification to Maine DEP." ld., pp. 7-8.

There is no dispute that additional samples were

not taken and notification was not made to DEP.

The March 1997 Discovery of PCB's around the

VLF Towers, the Appellant's November 1997

Report to NAVFAC and the December 1997

Reporting of PCB's

In March 1997, the paint to be removed in the VLF

Tower project was tested and determined to

contain PCB's. The painting contract was

subsequently modified to include protective

measures for PCB control and management. The

next phase of the project subsequently began in the

Spring of 1997 and continued through the Summer.

Following a visit to Cutler by NAVFAC, the

appellant performed a review of the project to date

in November 1997, which he submitted to NAVF AC

for review. As part of his report, the appellant

offered the following recommendations:

Due to the inability to attain full

containment, an environmental assessment

study is advisable in order to outline

potential impacts associated with the

creation of more mobile contaminants.

Available data could be used to assess

38a

operational limitations and to perform

additional field measurements.

The assessment would allow regulatory

review of anticipated impacts and provided

a reference for additional paint removal

operations. The study would concentrate on

environmental concerns associated with

impacts on endangered species/ plants, air

quality, water quality and land resources.

The assessment would also analyze the

impacts of "no-action"; i.e., allowing paint

chips to fall and accumulate with time. As a

side note, during the preparation of NEPA

documentation for this project, I contacted

the Maine DEP to determine if a permit

under the Natural Resources Protection

Act (NRPA) was required based on project

specifications. At that time, a permit was

not required under the assumption that the

project would provide 100% containment.

The need for NRPA permitting whit allows

for public comment would be revisited

during a formal assessment process. An

environmental impact assessment would also

result in the analysis of soil samples at

various locations on and around the VLF

peninsula.

AF, Tab 1, Attachment 2, p. 65.

In December 1997, NAVCOMTESTA Cutler notified

Maine DEP on the presence of PCB's in the soils

around the VLF towers water blasted in 1997 and

around the South Helix House. Maine DEP in

39a

response to this notification requested clean-up

action and the immediate termination of discharges

from the structures. The EPA indicated that

NAVCOMTELSTA Cutler required an Alternate

Method of Disposal Approval (AMDA) permit and

that paint removal operations could not be initiated

until the facility was in compliance with the Toxic

Substances Control Act (TSCA) standards. AF, Tab

12, Subtab 3.

On January 16, 1995, Northern Division issued its

own report apparently in response to the appellant's

review. As reflected in a January 28, 1995 critique of

this report prepared by the appellant, Northern

Division did not directly respond to the appellant's

suggestion that an EA be performed. AF, Tab 1,

Attachment 2, pp. 60-62.

In September 199S, the Maine DEP and EPA in

cooperation with the NAVCOMTESTA Cutler,

NAVFAC and the contractor, Abne Svoboda,

began to develop a work plan that addressed TSCA

and State of Maine regulations. Id; Hearing Tapes 6

and 7.

The NEPA Documentation Controversy

In April 1999, the appellant prepared a new NEPA

documentation checklist based on the new

specifications that were developed to apply to the

final 14 VLF towers. This new checklist included a

recommendation that an EA be performed. AF, Tab

12, Subtab 3. By e-mail dated April 16, 1999, LCDR

Wakeman asked the appellant whether he had

contacted NAVFAC regarding requirement for

40a

additional NEPA documentation "since this was not

a new project requirement, but only phase two of an

existing project?" LCDR Wakeman further

explained that

[uJnder normal special project

documentation the NEPA _ compliance

documentation should have been prepared

for the original project, and it is worth

checking to see if additional documentation

is required, assuming it was done originally.

You may have already done this but I would

\ like to confirm.

AF, Tab 5, Subtab E.

In an April 19, 1999 response to this e-mail, the

appellant informed LCDR Wakeman that

during a review of the initial project in 1996

or 1997, a decision was made that an

Environmental Assessment was _ not

required since specifications required full

containment. We all know that full

containment is not a realistic objective and

Abne & Svoboda has submitted a work plan

for paint removal that reflects far less than

full containment. In 1996 and 1997, I

supported the decision at the facility level

to recommend against an EA under the

assumption that the contractor would

perform the work under full containment

conditions. I will check with Northern

Division to see if they have performed an

independent NEPA assessment. In my

4la

opinion, the Commanding Officer has to

maintain some documentation on NEPA

assessment. As I mentioned in my remarks,

I believe that the requirement for submittal

of a work plan to regulatory agencies will

protect the U.S. Navy against any charges

that it did not follow NEPA guidelines. I

agree that this is not a new project;

however, the specifications should be

different to indicate that full containment is

no longer a requisite for the project and

that past history indicates an added level of

environmental oversight by regulatory

agencies.

Id. Approximately a month later, on May 18, 1999,

the appellant reported in an e-mail to Commander

Mikell and LCDR Wakeman that he had "requested

guidance from [NAVFAC] on this issue." He

reported that he contacted Mr. Paul Burgio who in

turn passed on his request to Robert Ostermueller

of the NAVFAC Environmental Planning team. He

related a conversation with Mr. Ostermueller who

told him that a "categorical exclusion" was not

appropriate for the project, but that Mr.

Ostermueller would review’ the _ project

information before making a definite

conclusions.fn5 AF, Tab 1, Attachment 4, OSC

submission, pp. 28-29.

Mr. Ostermueller subsequently e-mailed the

appellant on May 26, 1999 as follows:

42a

Norman;

I have looked at the info you sent me

concerning the painting of the VLF

towers - frankly I do not agree with the

statement by the consultant (oak point)

that if containment is (was) used, that an

environmental assessment would not be

required.

There was no cat ex available then and

none exists now (new cat ex's are out) that

would allow this project to comply with

our OPNAVINST 5090. As a minimum, an

EA should have been prepared.

An EA (or EIS) is prepared for two

purposes: one, to assess the possible

environmental effects of the Navy's

PROPOSED action(s) AND two, to inform

the public.

A work plan for a specific action can be

incorporated into an EA but it does not

eliminate the need to prepare an EA.

As your info indicates, the containment

that was to eliminate the need for an EA

didn't work and there has (sic) been PCB's

released into the environment (albeit

small quantities). Even if the containment

did work, this action does not (did not) fall

under any cat ex that I am aware of.

43a

I am not sure what you are asking of me

now - this project has commenced without

being in compliance with OPNAVINST

5090. I do not know what is happening

now -is there more work planned?

I will be in my office Thursday 27 May. Pls

call me to discuss further.

AF, Tab 1, Attachment 2, OSC Submission, p. 45.

On May 27, 1999, the appellant responded to Mr.

Ostermueller by e-mail, agreeing with his

conclusion that an EA or EIS was needed

regardless of any agreement with the regulatory

agencies to have them approve a work plan. The

appellant agreed with Mr. Ostermueller's

conclusion that a Categorical Exclusion was not

appropriate for the project and acknowledged that

"the fact that an EA or EIS has never been

completed also violates Navy policy under NEPA."

Id., pp. 47-48.

On that same date, the appellant e-mailed

Commander Mikell. The appellant stated in

pertinent part:

I have provided this summary in order to

outline the procedures that I used to

receive opinions from Northern Division.

Mr. Ostermueller has been extremely

responsive on this issue. In briefing you on

the NEPA issue yesterday, Mr. Leclerc

might have overlooked some of the details

of my involvement in this process. Please

44a

note that I have made a determined effort

in receiving comments from Northern

Division; however, I also believe that I have

been supported in my conclusions. I believe

that my review has been documented and

has been consistent since October 1996

when PCBs were first detected from paint

chips from the South Helix House. It seems

that Mr. Ostermueller has been unable to

obtain copies of any NEPA documents

completed at Northern Division on this

topic. Please note that Mr. Ostermueller

agrees with my conclusion that an EA (or

EIS) was and is necessary for the project...

Id., pp. 46-47.

On June 1, 1999, the appellant again e-mailed Mr.

Ostermueller. The subject of the e-mail was "NEPA

verification." In this e-mail, the appellant explained

that

certain individuals at NAVCOMTELSTA

Cutler would like to have our CO or your

CO make a decision that would allow the

present contractor, Abne & Svoboda,

continue the work this year without the

benefit of an EA or EIS. I have seen a

number of errors made on this project both

in the filed and in the office and I don't

know who will make the final decision on

this issue. I certainly support your

position. Some of the questions that will be

raised included the following

45a

i. Did Northern Division complete NEPA

documentation for the 1996 and 1997

projects?

Id., p. 50.

Mr. Ostermueller replied to the appellant by e-mail

on June 3, 1999. In answer to the question, "Did

Northern Division complete NEPA documentation

for the 1996 and 1997 projects?" Mr. Ostermueller

wrote:

As far as I know, nothing (no EA/EIS) was

prepared by NORTHDIV for this action. As

head of the Environmental Planning Team

with NEPA responsibility, I can say I was

not even aware of this project until you

called. NEPA responsibility rests with the

action Proponent - in this case your activity.

NORTHDIV does not take on_ this

responsibility unless we are requested to

assist the activity where the action is

planned. If this construction contract was

awarded via our Contracts Division, there

SHOULD have been a review to determine

if NEPA was satisfied but it was never

passed to my team for review. (Emphasis in

original)

Id., p.54.

On June 7, 1999, the appellant sent to Commander

Mikell a memorandum captioned "NEPA Discussion

on VLF Painting Contract." The appellant concluded

this memorandum as follows:

———

46a

I did not prepare NEPA documentation for

the project in 1996 since Oak Point

associates had taken this responsibility. It

now seems that NAVFAC did not request a

NEPA analysis. In 1996, I assumed that the

project would be _ performed in _ full

containment and I[ did not know that the

paint contained PCBs.

Id., p. 58-59.

On June 8, 1999, the appellant e-mailed LCDR

Wakeman that he had found a copy of the 1996

NEPA documentation. The appellant wrote in

pertinent part:

I found a copy of the NEPA documentation

for the VLF tower project at home last

night; however, I forgot to bring it in today.

The checklist is dated 22 March 1996 and, in

the document, I revert to Oak Points

Associates' decision that an environmental

assessment was not needed if containment was

used for the project. Maybe Bileen can find the

CO's copy since 22 March 1996 was probably

the date that I sent the document over for the

CO's action. However, I doubt that any action

vas taken on this document just like all the

other NEPA checklists sent to the command.

Id., p. 77.

47a

Jurisdictional Requirements

To establish Board jurisdiction over an IRA appeal, an

Appellant must show by preponderant evidence that:

He engaged in whistleblower activity by making a

disclosure protected under 5 U.S.C. 8 2302(b)(8);

the agency took or failed to take, or threatened to take

or fail to take, a "personnel action" as defined in 5

U.S.C. § 2302(a)(2); and he raised the issue before the

OSC, and proceedings before the OSC were exhausted.

A disclosure protected by 5 U.S.C. § 2302(b)(8) is “any

disclosure of information by an employee ... which the

employee ... reasonably believes evidences a violation of

law, rule, or regulation, or gross mismanagement, a

gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or

safety..." To be entitled to protection, disclosures must

be specific and detailed, not vague allegations of

wrongdoing regarding broad imprecise matters.

Kraushaar v. Department of Agriculture, 87 M.S.P.R.

378, 381 (2000) (citations omitted).

The Appellant’s Claim for Whistleblower Protection

As set forth in his closing submissions,fn6 the appellant

maintained that he received a June 17, 1999 letter of

reprimand in retaliation for making three disclosures

protected under 5 U.S.C. § 2302(b)(8) relating to

the management of these contracts. The appellant

alleged that these disclosures were: (1) the

Command violated Maine Department of

Environmental Protection (DEP) regulations in

December 1996 by failing to notify DEP following

the discovery of PCB's in the soil surrounding the

South Helix House; (2) the Command violated the

48a

National Environmental Policy Act (NEPA) by

allowing water-blasting paintremoval activities to

continue in May 1997 when the contractor was

unable to perform the operation with full

containment and thus satisfy the assumptions of the

appellant's assessment of NEPA requirements in

March 1996; and, (3) personnel from NAVFAC

violated NEPA by not responding correctly to the

appellant's suggestion in November 1997 to conduct

an EA. The appellant further alleged that these

disclosures were made in a series of e-mails to

Commander Mikell, with copies to LCDR Wakeman

and Mr. Leclerc.

In its closing argument, the agency maintained,

inter alia, that the appellant failed to meeting his

jurisdictional burden of proving that he made a

protected disclosure. The agency argued that the

appellant's alleged disclosures at best amounted to

expressions of opinion based on _ debatable

interpretations of unspecified environmental laws,

rules and regulations.

The Appellant's Alleged Disclosures

The first e-mail cited by the appellant was sent on

March 22, 1999 accompanied by a "chronology" As

part of this chronology, the appellant wrote:

03 December 1996-- I sent a summary of

DEP notification requirements to Captain

Glidden that outlined the need to either

take additional samples to quantify the

extent of contamination or to make

immediate notification to Maine DEP.

49a

Additional samples were not taken and

notification was not made to Maine DEP. In

hindsight, notification in December 1996

would have increased regulatory scrutiny

for paint removal projects undertaken

during 1997. EPA involvement would have

undoubtedly raised the issue for the need

for an [Alternate Method of Disposal

Approval] permit and the need to adhere to

strict limits for the release of PCB

contaminated water.

See AF, Tab 1, Attachment 2, OSC Submission, pp.

6-11.

The next e-mail was sent to the same addressees on

May 28, 1999. The subject of the e-mail was "NEPA

verification." The appellant provided a chronological

summary of his contacts with Mr. Ostermueller in

April and May 1999 relating to the application of

NEPA. At the conclusion of this e-mail, the

appellant wrote in pertinent part: "Mistakes were

made in the past; however, to now disregard a

known regulation or protocol would cause a

different, and possibly more serious type of

problem." Id., pp. 31-32.

On June 3, 1999, the appellant forwarded another e-

mail. He wrote in pertinent part:

I have noted a number of occasions that

measures should have been taken as early

as May 1997 to question the

appropriateness of the paint removal

operation when full containment was not

50a

achievable by the contractor. I have also

expressed concerns with the lack of

timeliness on the PCB issue as early as

October or November 1996. It seems that

the completion of the project might have

had the priority over environmental and

possible, safety compliance issues since the

project was first conceived by _ the

proponent. I believe that I have been

consistent in my assessment of the paint

removal project. The distinct possibility

that someone will raise the EA/EIS issue

with the Abne & Svoboda work should be

considered in any deliberations. I also

believe that Northern Division has some

serious questions to answer both in terms of

The development of project plans and with

regards to contract oversight

responsibilities. The designer for the

project, Oak Points Associates, also

deserves some attention due to the

unrealistic expectations reflected in their

specifications.

AF, Tab 1, Attachment 3.

The last document cited by the appellant was his

June 7, 1999 memorandum to Commander Mikell.

The appellant cited the following passage as his

disclosure:

.. | have stated my problems with the VLF

project on a number of occasions. I

summarized these concerns in a document

titled, Chronology: Paint Removal and

5la

Painting of VLF Structures, that I sent you

within the past two months. In this

document that was prepared on my own

time, I summarized the lack of appropriate

response to the detection of PCBs in the

waste from South Helix House in October

1996 and to the fact that the contractor was

unable to provide full containment during

May 1997. If the command had provided

notification to Maine DEP in November or

December 1996 on the detection of PCBs

around the South Helix House, the project

would have received a greater level of

environmental oversight by regulators.

This notification might have led to a

revision of paint removal plans before the

initiation of work in May 1997.

AF, Tab 1, Attachment 2, OSC submission, pp. 58-

59.

The appellant failed to prove that he made a

protected disclosure.

To show that he made a disclosure protected under

5 U.S.C. § 2302(b)(8), the appellant must show that

the matter reported was one that a reasonable

person in his position would believe evidenced a

violation of law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to

public health and safety. He need not prove that the

condition disclosed actually established any of the

situations detailed under 5 U.S.C. 2302(b)(8);

rather, he must only show that the matter disclosed

52a

was one which a reasonable person in his position

would believe evidenced any of these situations.

The test for determining whether an employee's

belief with respect to such a matter is reasonable is

this: could a disinterested observer with knowledge

of the essential facts known to and readily

ascertainable by the employee reasonably conclude

that the actions of the government evidence the

wrongdoing in question. Johnson v. Department of

Defense, MSPB Docket No. DE-1221-00-12205-W-1,

slip op. at 2 (Dec. 28, 2000).

None of the appellant's three alleged disclosures

meets this test. With respect to the first alleged

disclosure, the appellant recounted that he

concurred with the opinion of Northern Division

Personnel that the presence of PCB's in the soil

"should" be reported to Maine DEP. He did not

assert that the Command was required to report

this discovery.

In the March 22, 1999 chronology, the appellant

stated that he had sent to Captain Glidden "a

summary of DEP notification requirements that

outlined the need to either take additional samples

to quantify the extent of contamination or to make

immediate notification to DEP." The appellant also

stated that "additional samples were not taken and

notification was not made to Maine DEP."

In the appellant's November 1997 report to

NAVFAC, he explained that three samples taken

from a 20-foot radius indicated the presence of

PCB's with levels ranging from 1100 to 4500 parts

per million adjacent to South Helix House. He

53a

further explained that at contamination levels of

1600 ppm, one 55 gallon drum of contaminated soil

would represent a quantity of PCB above the

reportable quantity (RQ), i.e. one pound.

Thus, the facts available to the appellant indicated

that the samples taken in December 1996 were

inconclusive, ranging both lower and higher than

the 1600 ppm standard, The available facts further

indicated that the Command did not have enough

information in December 1996 to determine

whether the PCB's present at South Helix House

were a reportable quantity. Accordingly, I find that

a disinterested observer could not reasonably

conclude with the knowledge available to the

appellant at the time of his alleged disclosure that

the Command violated any law or regulation by

failing to notify DEP in December 1996 that the

South Helix House paint removal project had

resulted in a reportable quantity of PCB's.

As to the second alleged disclosure, the appellant

made no showing that a disinterested observer

could conclude that continuation of the water-

blasting operations without full containment

violated NEPA. As noted by Mr. Ostermueller in

his May 26, 1999 e-mail to the appellant, no

Categorical Exclusion existed that permitted the

paint project to begin without at least performing

an EA. In response to this e-mail, the appellant

agreed that a Categorical Exclusion. was not

appropriate for this project and further agreed

"that the fact that an EA or EIS has never been

completed also violates Navy policy under NEPA."

Thus, the evidence indicates that appellant was

54a

aware that NEPA was violated not in 1997, but in

1996, when the project first went forward without

either an EA or an EIS. I therefore find that with

the knowledge available to the appellant at the time

of his alleged disclosure, a disinterested observer

could not reasonably conclude that Command

violated by NEPA by continuing water-blasting

activities. Whether the project continued or not,

the agency was already in violation of NEPA

because neither an EA nor an EIS had been

performed.

There is also no basis to conclude that NAVFAC

personnel violated NEPA by not "responding

correctly" to the appellant's suggestion in

November 1997 to conduct an EA. Whatever the

value of NAVFAC's January 16, 1995 report, there

is no dispute that paint was not removed in 1998.

Moreover, Mr. Ostermueller, the head of

NAVFAC's environmental planning team,

identified the NEPA violation occurring in 1996 and

recommended that this violation be cured by

completing an EA before paint removal activities

resumed. I thus find that with the knowledge

available to the appellant at the time of this

disclosure, a disinterested observer could not

reasonably conclude that NAVFAC's response to

the appellant's November 1997 memorandum

violated NEPA.

Finally, in his response to the agency's written

closing statement, the appellant characterized his

claimed disclosures not only as a alleged violations

of environmental laws and regulations but as a

"gross waste of funds." Disclosure of waste of funds

55a

is protected under § 2302(b)(8). A "gross waste of

funds" constitutes a more than debatable

expenditure that is significantly out of proportion

to the benefit reasonably expected to accrue to the

government. Gaugh v. Social Sec. Administration,

97 MSP.R. 245, 248 (2000); Van Ee sv.

Environmental Protection Agency, 64 M.S.P.R. 693,

698 (1994).

The appellant has made no showing that a

disinterested observer with knowledge of the

essential facts known to and readily ascertainable

by the appellant could reasonably conclude that

either the lack of notification to DEP in December

1996, the continuation of water-blasting activities in

May 1997 or the alleged delay by personnel from

NAVFAC resulted in any expenditure of funds -let

alone an expenditure that was more than debatable

and significantly out of proportion to the benefit

reasonably expected to accrue to the government.

In light all of the foregoing, I find that the

appellant has failed to prove that he made a

protected disclosure under 5 U.S.C. § 2302(b)(8).

Accordingly, the appellant's request for corrective

action must be dismissed for lack of jurisdiction.

DECISION

The appellant's request for corrective action is

DISMISSED.

FOR THE BOARD:

John F. Markuns Administrative J udge

56a

NOTICE TO PARTIES CONCERNING

SETTLEMENT

The date that this initial decision becomes final,

which is set forth below, is the last day that the

administrative judge may vacate the initial decision

in order to accept a settlement agreement into the

record. See 5 C.F.R. § 1201.1 12(a)(5).

NOTICE TO APPELLANT

This initial decision will become final on March 30,

2001, 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

usually the last day on which you can file a petition

for review with the Board. However, if this

initial decision is received by you more than 5 days

after the date of issuance, you may file a petition

for review within 30 days after the date you

actually receive the initial decision. The date on

which the initial decision becomes final also controls

when you can file a petition for review with the

Court of Appeals for the Federal Circuit. The

paragraphs that follow tell you how and when to file

with the Board or the federal court. These

instructions are important because if you 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

57a

petition, with supporting evidence and argument,

must be filed with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

If you file a petition for review, the Board will

obtain the record in your case from the

administrative judge and you should not submit

anything to the Board that is already part of the

record. Your petition must be postmarked, faxed, or

hand-delivered no later than the date this initial

decision becomes final, or if this initial decision is

received by you more than 5 days after the date of

issuance, 30 days after the date you actually receive

the initial decision. If you fail to provide a

statement with your petition that you have either

mailed, faxed, or hand delivered a copy of your

petition to the agency, your petition will be rejected

and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board's final

decision, you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before

this decision becomes final. To be timely, your

58a

petition must be received by the court no later than

60 calendar days after the date this initial decision

becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervener may file a petition for

review of this initial decision in accordance with the

Board's regulations.

CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent

by regular mail, unless otherwise indicated below, this

day to each of the following:

Appellant

Normand Laberge

RR 1, BOX 3190

Trescott, ME 04652

Agency's Representative(s)

Robert S. Knowles

U.S. Department of The Navy

Human Resources Office

Box 20, Building 138 -

Croton, CT 06349-5020

Other

Kenneth L. Bates

US. Office of Personnel Management

Employee Relations Division

1900 “E” Street, N.W., Room 7412

Washington, DC 20415

59a

(Date)

February 23, 2001

JOYCE REYNOLDS

PARALEGAL SPECIALIST

Footnotes

fnl In this same submission, the appellant also

requested corrective action to remedy several other

alleged retaliatory actions for whistleblowing

activities. This request was docketed as a separate

appeal. The appellant's request was subsequently

dismissed for lack of jurisdiction See Laberge v.

Department of the Navy, MSPB Docket No B.

N.1221-00-123-W-1 (Initial Dec., Aug. 4, 2000).

fn2 Captain Glidden's full name is not evident in the

record.

fn3 The participants included the appellant and

other agency personnel.

fn4 See AF, Tab 1, Attachment 4, OSC Submission, pp.

6-7.

fn5 One of the instances of alleged misconduct

cited in the letter of reprimand concerned an

alleged emotional outburst by the appellant

during a conversation on May 24, 1999 between

the appellant and Mr. Leclerc concerning the

status of the NEPA documentation. AF, Tab F.

fn6 On October 23, 2000, after the record closed, the

appellant filed a response to the agency's closing

60a

statement "to outline specific corrections to the record

as the result of [the agency's] most recent comments."

Insofar as the appellant's pro se response was limited to

addressing new agency arguments, I find good cause to

waive 5 C.F.R. § 1201 55 pertaining to the close of

record and hereby accept the appellant's response to

the agency's closing argument. See Taylor v.

Department of Health and Human Services, 32

M.S.P.R. 342, 344 (1987) (Administrative judges have

broad authority to waive regulation pertaining to close

of record).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.