UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

2007 MSPB 167

Docket No. SF-1221-06-0855-W-1

Cynthia M. Greenup, Appellant,

v. Department of Agriculture,

Agency. June 28, 2007

Cynthia M. Greenup, Lexington, Oregon, pro se.

Charlene R. White, Kansas City, Missouri, for the agency.

BEFORE

Neil A. G. McPhie, Chairman Mary M. Rose, Vice Chairman

Barbara J. Sapin, Member

OPINION AND ORDER

1 The appellant has filed a timely petition for review of an initial decision

that dismissed her 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,

REVERSE the initial decision, and REMAND the appeal for further adjudication

consistent with this Opinion and Order.

2

BACKGROUND 2 Effective May 15, 2004, the appellant resigned from her Program

Technician, CO-1101-07, position with the Morrow County Office of the Farm

Service Agency (FSA), a component of the U.S. Department of Agriculture

(USDA or agency). Initial Appeal File (IAF), Tab 10, Subtab 4a. She filed a

complaint under the Whistleblower Protection Act (WPA) with the Office of

Special Counsel (OSC), alleging that her County Office supervisor and the USDA

retaliated against her for making disclosures protected under 5 U.S.C.

2302(b)(8). IAF, Tab 1. After OSC notified her that it was terminating its

investigation into her allegations, she filed this appeal, requesting a hearing. Id.

The administrative judge issued a detailed jurisdictional show-cause order

explaining the appellants burden of proof in an IRA appeal. IAF, Tab 3. After

the USDA moved to dismiss the appeal for lack of jurisdiction because the

appellant was not an employee under 5 U.S.C. 2105, the administrative judge

issued another show-cause order directing her to address that issue. IAF, Tab 8.

Both the appellant and the USDA responded with evidence and argument

regarding the Boards jurisdiction over the appeal. IAF, Tabs 9, 10, 13, 14. The

administrative judge issued a third order reiterating the appellants burden of

proof in an IRA appeal. IAF, Tab 15. The appellant and the USDA responded.

IAF, Tabs 16, 17. Without affording her the hearing that she requested, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. IAF, Tab 18.

3 On petition for review, the appellant argues, as she did below, that she is

an employee with a right to appeal to the Board. Petition For Review File

(PFRF), Tab 1. The USDA has timely responded in opposition to the petition for

review. PFRF, Tab 3.

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ANALYSIS 4 The Board's jurisdiction is not plenary; it is limited to those matters over

which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Individuals who meet

the definition of employee at 5 U.S.C. 2105(a) and 7511(a) may appeal to

the Board pursuant to various statutes and regulations providing the Board with

jurisdiction, including 5 U.S.C. 7512. Under section 7512, the Board has

jurisdiction to hear an employees appeal of certain listed agency actions, such

as a removal. The Board has long held that an involuntary resignation is

tantamount to a removal. Spiegel v. Department of the Army, 2 M.S.P.R. 140,

141 (1980). Thus, if the appellant meets the definition of employee at 5 U.S.C.

2105(a) and 7511(a), she may appeal a constructive removal to the Board.

5 Under 5 U.S.C. 2105(a),

For the purpose of this title, employee, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is

(1) appointed in the civil service by [a Federal official] acting in an official capacity; (2) engaged in the performance of a Federal function under authority of law or an executive act; and (3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

Simmons v. Department of Agriculture, 80 M.S.P.R. 380, 6 (1998). The record

evidence shows, and the appellant does not dispute, that she was appointed to a

Program Technician position with the County Agricultural Stabilization and

Conservation Committee in May 1990, and the nature of her appointment did not

change in the ensuing years. Documents also show that her initial appointment

was approved by County Executive Director (CED) Ronald Matthews, although

they are not definitive evidence that Matthews was the appointing official. IAF,

Tab 16. According to the affidavit of Assistant to the Deputy Administrator for

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Field Operations, USDA, FSA John Chott, she was supervised by Matthews, who

was not a Federal employee but had been hired by the County Committee

comprised of local farmers and producers. IAF, Tab 17. The appellant has not

refuted this statement. Thus, the appellant does not meet the definition of

employee at 5 U.S.C. 2105(a) because she was not supervised by someone

who meets the definition of employee at section 2105(a). She has not alleged,

and we see no indication, that she falls within any of the exceptions to this

general definition of employee enumerated at subsections (b)-(e). Therefore,

the appellant has no right to appeal her alleged involuntary resignation as an

adverse action under 5 U.S.C. 7512.

6 The Board also has jurisdiction over IRA appeals filed pursuant to 5 U.S.C.

1221(a), which provides that

an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8), seek corrective action from [the Board].

The plain language of this statute extends the Boards IRA jurisdiction beyond

individuals who meet the definition of employee at 5 U.S.C. 2105(a), to

include applicants for employment. Nevertheless, the administrative judge

correctly found that the Board lacks jurisdiction over the appellants IRA appeal

in regard to her allegations that Matthews took personnel actions against her

while she was employed by the County Committee because of any disclosure

protected under 5 U.S.C. 2302(b)(8). At the time that these alleged retaliatory

personnel actions took place, the appellant was a Program Technician for the

County Committee and was not an employee, former employee, or applicant for

employment.

7 We further find that the appellants argument that individuals such as

herself may appeal to the Board by operation of the No Fear Act and the 1994

amendments to the WPA is unavailing. PFRF, Tab 1. The Notification and

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Federal Employee Antidiscrimination and Retaliation Act of 2002, Pub. L. No.

107-174, (5 U.S.C. 2301 (note)) (No Fear Act), imposes a duty to notify

employees of the protections afforded by various statutes, but it does not provide

any right of appeal for violations of those statutes. See Schott v. Department of

Homeland Security, 97 M.S.P.R. 35, 27 (2004), overruled on other grounds by

Walker v. Department of the Army, 104 M.S.P.R. 96 (2006). The 1994

amendments to the WPA, Pub. L. No 103-424, extended the coverage of Title 5 to

Federal employees in the excepted service, but the appellant, as an employee of

the County Committee, is not a Federal employee.

8 Nevertheless, the administrative judge erred in dismissing this IRA appeal

for lack of jurisdiction. In addition to allegations that she suffered retaliation

while employed by the County Committee, the appellant also alleged that the

USDA did not select her for a secretarial position in the Office of General

Counsel for which she applied, after she resigned from her County Committee

Program Technician position. IAF, Tab 9. As stated above, the protections of

5 U.S.C. 2302(b)(8) and 5 U.S.C. 1221 cover applicants for employment in

addition to employees. Thus, the fact that she was not a Federal employee while

she worked for the County Committee does not bar an IRA appeal based on her

status as an applicant for employment. The administrative judge found that the

appellants disclosures of alleged wrongdoing by her County Committee

supervisor Matthews were not protected because she . . . was not entitled to

WPA protections. Initial Decision at 10. We do not read the WPA so narrowly.

The statute proscribes retaliation for

any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences [] a violation of any 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.

5 U.S.C. 2302(b)(8). The statute does not specify that the disclosure must have

been made when the individual seeking protection was either an employee or an

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applicant for employment. In the case of applicants for employment who were

not Federal employees at any time prior to their application, such a limitation

would severely restrict any recourse they might otherwise have, since the

disclosure would necessarily have to be made while their application was

pending. We do not believe that Congress intended to grant such a limited right

of review, when it determined to protect applicants for employment. See, e.g.,

Fishbein v. Department of Health & Human Services, 102 M.S.P.R. 4, 8 (2006)

(because the WPA is remedial legislation, the Board will construe its provisions

liberally to embrace all cases fairly within its scope, so as to effectuate the

purpose of the Act). Thus, we find that the appellant may file an IRA appeal

regarding the agencys failure to select her for the secretarial position in its

Office of General Counsel, if she otherwise satisfies the jurisdictional burden set

forth in Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.

2001).1

9 The Board has jurisdiction over an IRA appeal, if the appellant has

exhausted his or her administrative remedies before OSC and makes nonfrivolous

allegations that: (1) He engaged in whistleblowing activity by making a

protected disclosure, and (2) the disclosure was a contributing factor in the

agency's decision to take or fail to take a personnel action. Id. Here, the

appellant has shown that she exhausted her remedy with OSC in regard to the

1 In a non-precedential decision, the Boards reviewing court held that an individual must be either an applicant or an employee when a disclosure is made in order to qualify for whistleblower protection. Amarille v. Office of Personnel Management, 28 Fed. Appx. 931 (Fed. Cir. 2001). We do not find the courts short rationale for its holding to be persuasive, and accordingly, we do not follow Amarille. See Worley v. Office of Personnel Management, 86 M.S.P.R. 237, 8 (2000) (the Board is not bound by non-precedential decisions of the Federal Circuit, and will follow them to the extent it finds them to be persuasive). There is no precedent from either the Federal Circuit or the Board on the question of whether a disclosure made by an individual who is neither an applicant nor an employee can later be found to have been protected whistleblowing under 5 U.S.C. 2302(b)(8).

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failure to select her, which is a personnel action. 5 U.S.C. 2302(a)(2)(A)(i);

IAF, Tab 10, Subtab 3i. We further find that she made nonfrivolous allegations

that she made a protected disclosure. In a January 17, 2003 letter to OSC, she

stated that she believed that the CED of Morrow County had not followed policy

and procedure regarding a particular producers payment eligibility requirements

and that vital facts had been concealed in an appeal from this producer. She cited

several provisions of what appear to be regulations that she believed the CED had

violated. IAF, Tab 10, Subtab 3p. She also submitted the first page of her

November 12, 2003 letter to the Office of the Inspector General in which she

alleged generally that Matthews engaged in

possible illegal acts, his management is not consistent with the USDA/FSA rules, regulations and policy, his decision making is often questionable and at times programs under his control or under his instructions to his staff, are not managed with integrity and are not in compliance with applicable rules, regulations, and policy.

Id., Subtab 3n. Other documents also support a finding that the appellant has

made a nonfrivolous allegation that she made protected disclosures. Id., Subtabs

3h, 3k.

10 We make clear, however, that we are not finding, based on the existing

record, that the appellant made disclosures that she reasonably believes evidence

the kind of wrongdoing set forth at 5 U.S.C. 2302(b)(8). The proper test for

determining whether an individual had a reasonable belief that his disclosures

revealed misconduct described by 5 U.S.C. 2302(b)(8) is whether a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the individual could reasonably conclude that the actions

disclosed were such misconduct. Drake v. Agency for International

Development, 103 M.S.P.R. 524, 11 (2006). On remand, as part of her burden

of proof on the merits of her claim, the appellant must establish that she made

disclosures which a reasonable person in her circumstances would believe

evidence a violation of law, rule, or regulation, gross mismanagement, a gross

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waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety.

11 Likewise, we find that she has made sufficient allegations to satisfy the

jurisdictional standard set forth in Yunus that her alleged disclosures were a

contributing factor in the determination not to select her for the Office of General

Counsel position. She states that the agency selected her for the secretarial

position, contingent on receiving a reference from her County Committee

employer. Upon learning from Matthews that she had received an unsatisfactory

performance evaluation, the selecting official, William Perrelli, withdrew the

tentative offer of employment. The appellant alleges that Matthews lowered her

performance evaluation in reprisal for her disclosures, in addition to taking other

retaliatory actions. IAF, Tab 10 at 3-4.2 She has not specifically alleged that

Perrelli knew of her protected activity when he withdrew the offer. However, the

Board has held that an appellant can show that a disclosure described under 5

U.S.C. 2302(b)(8) was a contributing factor in a personnel action by proving

that the official taking the action had constructive knowledge of the protected

disclosure. Marchese v. Department of the Navy, 65 M.S.P.R. 104, 108 (1994).

An appellant may establish constructive knowledge by demonstrating that an

individual with actual knowledge of the disclosure influenced the official accused

of taking the retaliatory action. Id. Here, the appellant has alleged that Matthews

had actual knowledge of her disclosures and that Matthews influenced Perrelli to

withdraw the offer by providing a negative reference including the allegedly

retaliatory performance evaluation. IAF, Tab 10 at 3-4; Subtab 1e. On remand,

the appellant will have an opportunity to present evidence and argument to show

that Perrelli had either actual knowledge or constructive knowledge, and that her

2 The appellant argued that Matthews had made a negative suitability determination about her. IAF, Tab 10 at 3-4. The administrative judge advised her to file a separate appeal if she wished to pursue this claim. IAF, Tab 15. The Boards records contain no indication that she has done so.

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disclosures were a contributing factor in the agencys decision to withdraw the

offer of employment.

12 If the appellant establishes the elements of her claim, the Board will order

corrective action, unless the agency demonstrates by clear and convincing

evidence that it would have taken the same personnel action absent the

disclosure. Conrad v. Department of Justice, 99 M.S.P.R. 636, 18 (2005). The

agency will have an opportunity to make that showing on remand.

13 Accordingly, we REVERSE the initial decision and find that the Board has

jurisdiction over this IRA appeal in regard to the appellants claim that the

agency failed to select her for the Office of General Counsel position in

retaliation for making disclosures protected under 5 U.S.C. 2302(b)(8).

ORDER 14 We REMAND this IRA appeal to the administrative judge for further

adjudication, including a hearing, consistent with this Opinion and Order.

FOR THE BOARD:

______________________________ Matthew D. Shannon Acting Clerk of the Board Washington, D.C.