Marano v. Department of Justice, 92-3132

• Citation: 2 F.3d 1137
• Decision Date: 04 August 1993
• Docket Number: No. 92-3132,92-3132
• Parties: Frederick R. MARANO, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1137

2 F.3d 1137

8 Indiv.Empl.Rts.Cas. 1368

Frederick R. MARANO, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.

No. 92-3132.

United States Court of Appeals, Federal Circuit.

Aug. 4, 1993.

Lawrence A. Berger, Mahon & Berger, Garden City, NY, argued, for petitioner.

Reginald T. Blades, Jr., Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for respondent. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Of counsel was Thomas W. Petersen.

Before NIES, Chief Judge, BENNETT, Senior Circuit Judge, and CLEVENGER, Circuit Judge.

CLEVENGER, Circuit Judge.

Frederick R. Marano petitions for review of the final decision of the Merit Systems Protection Board (MSPB or Board), Docket No. NY122191W0213, concluding that Marano had failed to prove by preponderant evidence that his whistleblowing activity was a contributing factor to his reassignment from the Albany Office of the Drug Enforcement Administration, Department of Justice (DEA) to the New York City Office. 51 M.S.P.R. 19. We reverse and remand.

I

Marano was first employed by the DEA in 1973 and was assigned to the Albany, New York Resident Office in 1984, where he attained the position of Criminal Investigator. On January 29, 1990, Marano and five of the six other agents based in Albany submitted a signed memorandum to the incoming Special Agent-in-Charge of DEA's New York Field Division. This writing alleged specific misconduct and mismanagement by the Albany Office's supervisory agents, Resident Agent-In-Charge John McCarthy and Assistant Special Agent-In-Charge William Logay.

The memorandum provoked a prompt investigation of the situation in the Albany Office by Special Agent Inspector McVane of the DEA. McVane's investigation report confirmed the contents of the memorandum. The report also noted that in the absence of leadership from the two faulty supervisors, Marano had been considered the "boss" of the Albany Office, and had assumed the role of de facto manager. As a result of the investigation, McVane recommended a major overhaul of the Albany Office to correct the extremely poor management situation, including transferring both faulty supervisors and Marano.

The investigation report and recommendations were given to Acting Deputy Administrator Burke (ADA), the DEA official ultimately responsible for personnel assignments. The ADA proposed that both supervisors, Logay and McCarthy, be transferred to DEA's New York City Office; that Marano also be transferred to the New York City Office; that the sixth agent who had not signed the memorandum be transferred elsewhere; and that a new supervisor be installed from outside the Albany Office. The five agents who signed the disclosure with Marano were not transferred.

Marano filed a complaint with the Office of Special Counsel (OSC) regarding his reassignment, alleging that it amounted to a prohibited personnel action taken in response to his shielded disclosures under the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (codified at various sections of 5 U.S.C.) (WPA). Unsuccessful in receiving corrective action from OSC, Marano filed an individual right of action (IRA) with the Board.

In her June 7, 1991 initial decision, the Administrative Judge (AJ) ruled that Marano's memorandum revealing mismanagement in the Albany Office was a protected disclosure under 5 U.S.C. Sec. 2302(b)(8) (Supp. III 1991). ¹ The government on appeal does not challenge this portion of her decision. The AJ concluded, however, that the ADA's decision to transfer Marano was not due to the fact that Marano made a protected disclosure, but instead stemmed from the investigation into the Albany Office management situation: "[Marano's] transfer was the result of the situation that existed in the Albany Office, not the disclosures of information that he made." The AJ credited the ADA's testimony that correction of the situation in Albany would require reassigning Marano in order to affect a "clean sweep" of office leadership and avoid any potential obstacles for the incoming supervisor. The AJ therefore determined that Marano had not established as a legal matter that his disclosure constituted a contributing factor to the subsequent personnel action under 5 U.S.C. Sec. 1221(e)(1).

This initial decision was rendered final under 5 C.F.R. Sec. 1201.113(b) (1993) by the full Board's November 6, 1991 denial of Marano's petition for review of the AJ's decision. Marano timely appealed to this court.

II

While a personnel transfer or reassignment is not an adverse action over which the Board would otherwise normally have jurisdiction, such a personnel action ² is reviewable by the MSPB when a petitioner asserts the existence of a prohibited personnel practice in violation of his rights under the WPA. See 5 U.S.C. Secs. 1221(e)(1) & 2302(b)(8); Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 682 n. 5 (Fed.Cir.1992); Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 625 (Fed.Cir.1992).

Through its definition of prohibited personnel practice, the WPA proscribes

(8) tak[ing] or fail[ing] to take ... a personnel action with respect to any employee ... because of--

(A) any disclosure of information ... which the employee ... 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....

5 U.S.C. Sec. 2302(b)(8). 5 U.S.C. Sec. 1221(a) creates the right of an individual to seek corrective action from the Board with respect to "any personnel action taken ... as a result of a prohibited personnel practice." The WPA, however, provides that, unless the personnel action is otherwise directly appealable to the Board, 5 U.S.C. Secs. 1214(a)(3) & 1221(b), an employee affected by such action shall first seek corrective action from OSC. 5 U.S.C. Sec. 1214(a)(3). If the employee is unsuccessful before OSC, he may then file an IRA seeking corrective action from the Board. 5 U.S.C. Sec. 1221(a); see Ward v.

Merit Sys. Protection Bd., 981 F.2d 521, 523 (Fed.Cir.1992). The Board then

shall order such corrective action as the Board considers appropriate if the employee ... has demonstrated that a disclosure described under section 2302(b)(8) was a contributing factor in the personnel action which was taken ... against such employee....

5 U.S.C. Sec. 1221(e)(1).

Before enactment of the WPA, Congress defined a prohibited personnel practice as "tak[ing] or fail[ing] to take a personnel action ... as a reprisal for " a protected disclosure of information. Civil Service Reform Act of 1978, Pub.L. No. 95-454, Sec. 101(a), 92 Stat. 1111, 1114 (CSRA), 5 U.S.C. Sec. 2302(b)(8) (1988) (emphasis added). The courts interpreted this language as requiring the whistleblower to carry a considerable burden of proof in order to establish his case. The whistleblower was required to establish, inter alia, that the disclosure constituted a "significant" or "motivating" factor ³ in the agency's decision to take the personnel action. See Clark v. Department of Army, 997 F.2d 1466, 1469-70 (Fed.Cir.1993).

Congress later recognized this "excessively heavy burden imposed on the employee" in effect had gutted the CSRA's protection of whistleblowers. 135 Cong.Rec. 5033 (1989) (Explanatory Statement on S. 20, 101st Cong., 1st Sess.1989); see 135 Cong.Rec. 564 (1989) (remarks of Sen. Levin) (surveys reveal the dismal effectiveness of CSRA's encouragement and protection of whistleblowers). Thus, in 1989 Congress amended the CSRA's statutory scheme with the WPA, thereby substantially reducing a whistleblower's burden to establish his case, and "send[ing] a strong, clear signal to whistleblowers that Congress intends that they be protected from any retaliation related to their whistleblowing." 135 Cong.Rec. 5033 (1989) (Explanatory Statement on S. 20). Rather than being required to prove that the whistleblowing disclosure was a "significant" or "motivating" factor, the whistleblower under the WPA, 5 U.S.C. Sec. 1221(e)(1), must evidence only that his protected disclosure played a role in, or was "a contributing factor" to, the personnel action taken:

The words "a contributing factor" ... mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a "significant", "motivating", "substantial", or "predominant" factor in a personnel action in order to overturn that action.

135 Cong.Rec. 5033 (1989) (Explanatory Statement on S. 20) (emphasis added); see also 135 Cong.Rec. 5032, 5033 (Explanatory Statement on S. 20 should be read in conjunction with the exhaustive legislative history of S. 508, 100th Cong., 2d Sess. (1988)); 135 Cong.Rec. 4513 (1989) (Joint Explanatory Statement on S. 508); 5 U.S.C. Secs. 1214(b)(4)(B)(i) & 1221(e)(1). This substantial reduction of the whistleblower's burden evidences that a personnel action, taken "because of" a protected disclosure, or "as a result of" a prohibited personnel practice, and therefore encompassed by sections 2302(b)(8) and 1221(a), may be taken "because of" or "as a result of" many different factors, only one of which must be a protected disclosure and a contributing factor to the personnel action in order for the WPA's protection to take effect. Indeed, the legislative history of the WPA emphasizes that "any" weight given to the protected disclosure, either alone or even in combination with other factors, can satisfy the "contributing factor" test.

It is thus evident in light of the WPA's modifications to the CSRA that though evidence of a retaliatory motive would still suffice to establish a violation of his rights under the WPA, cf. Hathaway v. Merit Sys. Protection...