UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

Daniel P. Meyer, Esquire, Washington, D.C., for the appellant.

Albert T. Berry, Esquire, Washington, D.C., for the agency.

Sandra J. Fortson, Esquire, Washington, D.C., for the U.S. Agency for International Development (U.S. AID).¹

BEFORE

Neil A. G. McPhie, Acting Chairman
Susanne T. Marshall, Member

OPINION AND ORDER

¶1          The appellant has filed a petition for review (PFR) of the initial decision (ID) that dismissed his individual-right-of-action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT his petition, REVERSE the ID, and REMAND the appeal for adjudication on the merits.

BACKGROUND

¶2          On March 12, 2000, the agency appointed the appellant to a Schedule B excepted-service position as a GS-14 Environmental Policy Analyst. Initial Appeal File (IAF), Tab 22, subtabs 4aa – 4cc. The appointment was a term position not-to-exceed (NTE) April 11, 2001. Id., subtabs 4aa - 4cc. The position was administratively assigned to the agency but was located in, and worked directly with, the U.S. AID’s Bureau for Policy and Program Coordination (PPC). Id., subtabs 4dd - 4ff. The agency subsequently extended the appointment NTE April 11, 2003. Id., subtabs 4p - 4s, 4w. On May 23, 2002, however, the agency notified the appellant that his position would be terminated because of a reorganization at the U.S. AID. Id., subtab 4f. The appellant’s position was terminated effective September 30, 2002. Id., subtabs 4a, 4b, 4d.

¶3          On February 20, 2003, the appellant filed an IRA appeal, alleging that he was terminated because of protected whistleblowing. IAF, Tab 1. The administrative judge (AJ) ordered the appellant to establish Board jurisdiction over his appeal. IAF, Tabs 3, 14. Both the appellant and the agency responded to the order. IAF, Tabs 11, 19, 22.

¶4          The AJ dismissed the appellant’s IRA appeal for lack of jurisdiction without granting his requested hearing. She found that the appellant had exhausted his administrative remedies before the Office of Special Counsel (OSC) and that his termination was a personnel action within the meaning of 5 U.S.C. § 2302(a)(2)(A). ID at 2-4, 21 n.1. She further found, however, that the appellant did not show that his disclosures were protected or that they were a contributing factor in his termination. ID at 8-21. She concluded that the appellant had failed to present non-frivolous allegations of fact which, if true, would establish the Board’s jurisdiction. ID at 21.

¶5          The appellant has filed a PFR. PFR File, Tab 1. The agency has filed a response opposing the PFR. PFR File, Tab 3.²

ANALYSIS

¶6          The appellant asserts, inter alia, that the AJ erred in analyzing whether he made a non‑frivolous allegation of jurisdiction under the test set forth in Geyer v. Department of Justice, 63 M.S.P.R. 13 (1994), because the Board overruled Geyer in Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002). PFR Form, ¶ 5; PFR at 1-2. Consequently, he claims, the AJ erred in denying him a hearing. PFR Form, ¶ 2.

¶7          In Geyer, 63 M.S.P.R. at 16-17, the Board held that, to establish the Board’s jurisdiction over an IRA appeal, “an appellant must prove by preponderant evidence that: (1) he engaged in whistleblower activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8); (2) the agency took or failed to take a personnel action as defined in 5 U.S.C. §  2302(a)(2); and (3) he raised the whistleblower issue before OSC and proceedings before OSC have been exhausted.” That is the test the AJ set out in her show-cause order and ID. IAF, Tab 3; ID at 3-4.

¶8          In Rusin, the Board held that to establish jurisdiction over an IRA appeal, the appellant must only show that he “has exhausted his OSC remedies and make non-frivolous allegations that that he made a disclosure protected under section 2302(b)(8), and the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).” Rusin, 92 M.S.P.R. 298, ¶ 12 (emphasis added). The Board restated in Greenspan v. Department of Veterans Affairs, 94 M.S.P.R. 247 (2003), that it has jurisdiction over an IRA appeal if the appellant makes a non-frivolous allegation that he made at least one protected disclosure that was a contributing factor in at least one personnel action. Id. ¶ 14. If an appellant establishes Board jurisdiction over an IRA appeal by exhausting his administrative remedies before OSC and making the requisite non-frivolous allegations, he has a right to a hearing on the merits of his claim. Id.

¶ 9          The appellant sought corrective action from, and exhausted proceedings before OSC. IAF, Tab 1. He alleged, and the evidence shows, that the agency terminated his appointment. Id., Tab 22, subtab 4a. As the AJ found, the termination was a “personnel action” under 5 U.S.C. § 2302(a)(2)(A). ID at 4; see, e.g., O’Brien v. Office of Independent Counsel, 79 M.S.P.R. 406, 410-11 (1998); Special Counsel v. Department of the Interior, 68 M.S.P.R. 19, 23 (1995). Thus, the only issue is whether the appellant made non-frivolous allegations that he made a protected disclosure and that the disclosure was a contributing factor in the agency’s decision to terminate his appointment.

¶10          In that regard, the AJ summarily concluded that the appellant had failed to present non-frivolous allegations. ID at 21. A review of the ID as a whole, however, reveals that the AJ actually required the appellant to prove his allegations by preponderant evidence. She specifically stated that the appellant must “show, by preponderant evidence,” that he disclosed information which he reasonably believed evidenced 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. She also specifically stated that he must “show” that such a protected disclosure was a contributing factor in the personnel action at issue. ID at 4. As explained above, the standard for establishing jurisdiction and the right to a hearing in an IRA appeal is a non‑frivolous allegation that at least one protected disclosure was a contributing factor in the agency taking or failing to take at least one personnel action.

¶11          We find that the appellant made a non-frivolous allegation of a protected disclosure. The AJ found to the contrary apparently because the appellant, in his response to her show-cause order did not reiterate, with regard to every separately identified disclosure, the specific law he alleged had been violated. At the beginning of his response, however, the appellant identified the laws violated as, most notably, “Title XIII of the International Financial Institutions Act, 22 U.S.C. Section 262m, including among others, the Pelosi Amendment, 22 U.S.C. Section 262m-7, as amended.” IAF, Tab 19 at 1-2. He also alleged that the violations of law rose to the level of gross waste and mismanagement and resulted in serious and unnecessary risks to public health and safety, and that his disclosures evidenced an abuse of authority. Id. at 2.

¶12          The appellant contended that he described many of these violations in his November 7, 2000 draft report to Congress. IAF, Tab 1, Appellant’s Ex. C.2 (OSC Complaint at 6-11). He also contended that, at the Department of the Treasury’s request, material from the draft report raising violations of the Pelosi Amendment and concerns regarding gross waste and mismanagement were withheld from Congress in the final report dated September 2001 and sent to Congress by AID in January 2002. IAF, Tab 1, Appellant’s Ex. C.1 (OSC Complaint at 5), Appellant’s Ex. C.2 (OSC Complaint at 11).

¶13          The appellant submitted his complaint to OSC, in which he had alleged violations of 22 U.S.C. § 262m-7. IAF, Tab 11, subtab 7 at 10. He also submitted his draft report to Congress. Id., subtab 2. He explained the alleged violations of law, abuses of authority, gross mismanagement and waste, and dangers to public health and safety detailed in the draft report. Id., subtab 10 at 9-18. He alleged that he had made similar disclosures to other governmental agencies and to non-governmental organizations (NGOs). Id., subtab 7 at 10-11; subtab 10 at 18-19.

¶14          As argued by the appellant, PFR at 4-7, Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), does not preclude the Board from finding that he made a non-frivolous allegation. The AJ relied significantly on Huffman and the appellant’s position description in finding that the appellant’s disclosures were not protected because they were made in the normal performance of his duties. ID at 5-10, 12, 14-15, 18. As the AJ acknowledged, however, the appellant alleged that he reported wrongdoing outside of the normal channels and that such reporting was not part of his normal duties. ID at 9-10, 15. For example, the appellant submitted a September 10, 2001 letter from the Department of the Treasury’s Deputy Assistant Secretary William Schuerch to AID’s PPC Assistant Administrator Patrick Cronin. The letter stated, inter alia, that the appellant’s draft report to Congress –

(1) goes well beyond the reporting requirement, which calls upon AID to report on the implementation of its early warning system; (2) advances positions on sensitive issues that delve into areas well beyond AID’s purview; and (3) makes unilateral policy recommendations, some of which could be quite controversial, that should not be presented in a public document without full U.S. Government approval and clearance by the new Administration.

IAF, Tab 11, subtab 4 at 5. The appellant submitted evidence that he had provided a copy of the draft report to NGOs. IAF, Tab 11, subtab 3; Tab 19 at 4. Under Huffman, disclosures outside of normal channels and duties may constitute protected disclosures. Huffman, 263 F.3d at 1354; see also Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 11 n.6 (2003).

¶15          Similarly, the appellant argues that the AJ misinterpreted Huffman in finding that his disclosures to NGOs were not protected because the NGOs were not in a position to remedy the problem. PFR at 7. As the appellant asserts, Huffman states that the court’s previous decisions do not require that, to be protected disclosures, reports must be made to a person with actual authority to correct the wrong. Huffman, 263 F.3d at 1351.

¶16          Any doubt or ambiguity as to whether the appellant has made a
non-frivolous allegation of a reasonable belief should be resolved in favor of affording the appellant a hearing. Ivey v. Department of the Treasury, 94 M.S.P.R. 224, ¶ 13 (2003). We find that the appellant’s submissions are sufficient to show that he made disclosures that he reasonably believed identified violations under 5 U.S.C. § 2302(b)(8), and, thus, he has made a non-frivolous allegation that he engaged in protected activity. See, e.g., Iyer v. Department of the Treasury, 95 M.S.P.R. 239, ¶ 5 (2003); see also Berkowitz v. Department of the Treasury, 94 M.S.P.R. 658, ¶ 10 (2003) (stating that the claim that an agency may be misleading Congress is a disclosure of a violation of law).

¶17          We also find that the appellant made a non-frivolous allegation that the disclosures were a contributing factor in the agency's decision to terminate his appointment. The AJ apparently found that the appellant failed to make that showing because he did not establish that the official taking the personnel action knew of the disclosures or that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosures were a contributing factor. ID at 9-21.

¶18          The appellant asserts that the AJ erred in finding that he failed to establish that someone with knowledge of his disclosures influenced the termination of his appointment. He contends that the record shows that Schuerch knew the content of the appellant’s draft report to Congress and that Schuerch and the Department of the Treasury’s Deputy Secretary for International Affairs John Taylor persuaded U.S. AID Administrator Andrew Natsios and Cronin to make sure that the material was removed from the final report to Congress. He further contends that this led Cronin and U.S. AID’s PPC Deputy Assistant Administrator Barbara Turner to arrange his termination. He also claims that NGOs used information from his reports in contacting the agency, which established that the agency officials had constructive knowledge of the disclosures. PFR at 8.

¶19          In addition, the appellant contends that the AJ erred in relying on the lag between the disclosures and the decision to terminate him in finding that his disclosures were not a contributing factor. He argues that the AJ erred in using his actual termination date of September 30, 2002, in calculating the time, because the decision to terminate him was made in May 2002, that is, four months earlier. He further argues that she ignored the continuing nature of his disclosures, ongoing from November 2000 until the decision to terminate his appointment. He contends that the decision to terminate him stemmed from the September 10, 2001 meeting at which Schuerch and Taylor persuaded Natsios to act on his draft report; that action was delayed because of the September 11, 2001 terrorist attacks and the war in Afghanistan; and, that, thus, his termination occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor. PFR at 8-9.

¶20          The appellant’s allegation that some officials involved in his termination process had knowledge of his whistleblowing activity supports a finding that he made a non-frivolous allegation of contributing factor. See, e.g., Iyer, 95 M.S.P.R. 239, ¶ 5. The record shows that Howard Anderson, the agency’s Director, Development Resources Division, notified the appellant that his position was being terminated. IAF, Tab 22, subtabs 4d, 4f. The appellant asserted below that Anderson was prompted by Natsios, Cronin, Turner, and U.S. AID’s Deputy Assistant Administrator Emmy Simmons, at the behest of Schuerch and Taylor. IAF, Tab 11, subtab 8 at 2. The appellant also asserted that he was verbally informed that his termination was due in large part to pressure from Scheurch. IAF, Tab 1, Appellant’s Ex. C.1 (OSC Complaint at 8). He presented some evidence to support his allegation by submitting Schuerch’s September 10, 2001 letter to Cronin. IAF, Tab 11, subtab 4 at 5; see also IAF, Tab 1, Appellant’s Ex. C.1 (OSC Complaint at 7-8). See, e.g., Johns v. Department of Veterans Affairs, 95 M.S.P.R. 106, ¶ 14 (2003) citing Marano v. Department of Justice, 2 F.3d 1137, 1143 (Fed. Cir. 1993) (stating that an appellant needs to demonstrate only that the fact of, or content of, his protected disclosure was one factor that tended to affect, in any way, the personnel action).

¶21          Moreover, the amount of time between the appellant’s disclosures and his termination was sufficiently close to support a finding that he made a
non-frivolous allegation of contributing factor. Admittedly, we agree with the AJ’s finding that the appellant’s alleged May 2002 disclosure to Representative Dennis Kucinich’s staff, concerning the plan to eliminate his position, could not constitute a protected disclosure to the extent that it occurred after the agency had decided to terminate his position. ID at 20; see, e.g., Rusin, 92 M.S.P.R. 298, ¶ 10 n.2 citing Horton v. Department of the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995). But even discounting that disclosure, the AJ found that the appellant’s disclosures continued until January 2002. I.D. at 17-18.

¶22          Further, considering the ongoing nature of the appellant’s disclosures, we find that even the length of time between Schuerch’s September 10, 2001 letter and the May 2002 notification that the appellant’s position was being terminated does not preclude a finding that the appellant made a non-frivolous allegation of contributing factor. See, e.g., Berkowitz, 94 M.S.P.R. 658, ¶ 12 (finding that a 5-month period between the appellant’s protected disclosure and reassignment established a non-frivolous claim that the disclosure was a contributing factor in the decision to reassign); Sutton, 94 M.S.P.R. 4, ¶ 15 (finding that the appellant’s alleged whistleblowing disclosure, initially made in June 1997 and repeated later in September 1997, October 1998, and March 1999, to various individuals, was a contributing factor in the agency’s September 1998 letter of reprimand, August 1999 notice of proposed removal, and January 2000 decision to remove); Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001) (finding that where, inter alia, the proposed suspension was issued 18 months after the appellant’s initial disclosures to the Office of Inspector General and slightly more than a year after her disclosure to an agency employee, and the removal decision notice was issued 3 ½ months thereafter, the appellant showed that her protected disclosures were a contributing factor in the personnel actions), review dismissed, 32 Fed. Appx. 543 (Fed. Cir. 2002).

¶23          Accordingly, because the appellant has established jurisdiction and requested a hearing, he is entitled to a hearing on the merits of his appeal. See, e.g., Berkowitz, 94 M.S.P.R. 658, ¶ 13. On remand, the AJ may adjudicate the merits of this appeal in the order she deems most efficient.³ Our conclusion that the appellant has presented non-frivolous allegations regarding the existence of a protected disclosure and causation in no way disposes of the merits of those issues. Id.

ORDER

¶24          We REMAND this case to the Washington Regional Office for a hearing and decision on the merits of the appellant’s IRA appeal.