Huffman v. OPM, 00-3184

• Decision Date: 15 August 2001
• Docket Number: No. 00-3184,00-3184
• Citation: 263 F.3d 1341
• Parties: (Fed. Cir. 2001) KENNETH D. HUFFMAN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

Page 1341

263 F.3d 1341 (Fed. Cir. 2001)

KENNETH D. HUFFMAN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 00-3184

United States Court of Appeals for the Federal Circuit

AUGUST 15, 2001

Appealed from: Merit Systems Protection Board

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[Copyrighted Material Omitted]

James M. Eisenmann, Passman & Kaplan, P.C., of Washington, DC, argued for petitioner.

James C. Caine, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David M. Cohen, Director; and Kathryn A. Bleecker, Assistant Director.

Before MAYER, Chief Judge, BRYSON, and DYK, Circuit Judges.

DYK, Circuit Judge.

This case presents three issues: 1) whether complaints to a supervisor about the supervisor's wrongful conduct constitute disclosures under the Whistle blower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered sections of 5 U.S.C.) ("WPA" or "Act"); 2) whether complaints to a supervisor about the wrongful conduct of other agency employees or other misconduct constitute disclosures under the WPA; and 3) whether reports made as part of an employee's normal work duties constitute disclosures under the WPA. We hold that complaints to a supervisor about the supervisor's own conduct are not disclosures covered by the WPA, but that complaints to a supervisor about other employees' conduct or other misconduct may be disclosures covered by the WPA. We also hold that reports made as part of an employee's assigned normal job responsibilities are not covered by the WPA when made through normal channels. Accordingly, we affirm in part, vacate in part, and remand the decision of the Merit Systems Protection Board ("Board") dismissing the appeal for lack of jurisdiction.

BACKGROUND

On July 17, 1998, Kenneth D. Huffman ("petitioner") filed a complaint with the Office of Special Counsel ("OSC") alleging that he had been removed from his position as Assistant Inspector General by his employer, the Office of the Inspector General ("OIG") for the Office of Personnel Management ("agency"), for making disclosures protected by the WPA. Petitioner alleged that he made "protected disclosures" to his supervisor -- Patrick McFarland, the Inspector General of the agency -- on a number of occasions.

Petitioner alleged that he made these protected disclosures in four memoranda addressed to McFarland. First, petitioner alleged that he made a protected disclosure in a July 22, 1997, memorandum to McFarland which included allegations that McFarland improperly preselected an agency employee for a senior executive service ("SES") position. Petitioner further asserted that the July 22, 1997, memorandum made other protected disclosures when he reminded McFarland "that he had confronted [McFarland] in the past concerning instances of abuse of authority and gross mismanagement by various OIG managers."

Petitioner alleged that he made a second protected disclosure in a May 22, 1998, memorandum to McFarland in which petitioner urged that the OIG "had circumvented merit system principles when it hired certain auditors . . . as 'program analysts' under direct hire authority, without competition." Petitioner alleged that hiring these people without competition was "a violation of law, rule, or regulation."

Petitioner also claimed that he "again raised allegations which he reasonably believed constituted a gross waste of funds and gross mismanagement" by McFarland in a May 29, 1998, memorandum to McFarland. In this memorandum, petitioner expressed his disagreement with a services contract between the OIG and an organization known as All-Star Personnel, to perform an organizational study, urging "that it would be a gross waste of taxpayer money to continue to pay All-Star Personnel for their contracting services to provide an organizational assessment of the OIG."

Finally, petitioner claimed that he had "advanced numerous instances of conduct which he reasonably believed constituted a violation of law, rule, or regulation, gross mismanagement and abuse of authority" in a June 18, 1998, memorandum to McFarland regarding the workplace behavior of other OIG employees. Among other things, petitioner alleged that the Deputy Assistant Inspector General for Audits directed three auditors who were hired under the special hiring authority of the agency's Outstanding Scholar Program to falsify their government employment applications (SF-171s).

On October 16, 1998, the OSC closed its inquiry, finding that petitioner did not make any disclosures protected under the WPA, and informed petitioner of his right to seek corrective action from the Board.

On December 21, 1998, petitioner filed an Individual Right of Action ("IRA") appeal with the Board. The administrative judge of the Board issued an initial decision on March 25, 1999, holding that the Board did not have jurisdiction because petitioner's alleged disclosures were not the type of disclosures protected by the WPA. Huffman v. Office of Pers. Mgmt., No. DC-1221-99-0178-W-1 (M.S.P.B. Mar. 25, 1999) (initial decision). Relying on Willis v. Department of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 1998), and Horton v. Department of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995), the administrative judge held that petitioner's "reports to McFarland, his supervisor, are not disclosures of the type the WPA was designed to encourage and protect." Huffman, slip op. at 5. The administrative judge reasoned:

In complaining to McFarland, the [petitioner] merely was expressing disagreement with McFarland's responses (or lack thereof) to the [petitioner's] suggestions and advice and McFarland's interpretation and implementation of certain OIG policies and procedures. The [petitioner] took no action to bring an issue to the attention of authorities in a position to correct fraudulent or illegal activity. See Willis, 141 F.3d at 1143. Further, there is no evidence that the [petitioner] made disclosures that would lead McFarland to rationally believe that he might be subjected to discipline.

Id., slip op. at 6. The administrative judge therefore held that because petitioner's alleged disclosures were not made to persons in a position to correct the alleged wrongs, the memoranda were not protected disclosures under the WPA, citing Willis. Id. The administrative judge did not distinguish between the complaints made to McFarland about other employees, and those made to McFarland about McFarland himself.

The administrative judge further noted that even if the memoranda had been given to someone in authority (besides his supervisor, McFarland), "none of those disclosures involved alleged instances of gross mismanagement, gross waste of funds, or abuse of authority" as required by the WPA. Id. Finally, the administrative judge found that in relating his views on various matters to his supervisor, petitioner "did no more than carry out his required everyday job responsibilities," and held that under Willis, a disclosure cannot be protected by the WPA if an employee is merely performing his required duties. Id., slip op. at 7. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction.

Petitioner petitioned for review to the full Board, but the Board denied his petition. Huffman v. Office of Pers. Mgmt., 84 M.S.P.R. 569, 570 (Dec. 14, 1999) (final order). Then-Vice Chair Slavet issued a concurring opinion in which she recognized that the Board is required to follow this court's precedent in Willis and Horton that disclosures are not protected if made to the alleged wrongdoer himself, but opined that those cases were wrongly decided because the WPA protects reports of wrongdoing to the alleged wrongdoer. Id. at 571-74 (Slavet, then-Vice Chair, concurring). Moreover, then-Vice Chair Slavet urged that nothing in the legislative history of the WPA indicated that Congress intended to require an employee to go over his supervisor's head or outside his organization for the disclosure to be protected. Id. at 576-77. She noted that she would affirm on the ground that petitioner's alleged disclosures did not disclose gross mismanagement or violation of law, rule, or regulation, but were mere disagreements with his supervisor's decisions. Id. at 578-80. The timely petition for review to this court followed.

DISCUSSION

I

Decisions of the Board must be sustained unless they are arbitrary, capricious, an abuse of discretion, not in accordance with law, obtained without procedures required by rule, law, or regulation, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

To maintain an IRA under the WPA, a petitioner must establish Board jurisdiction by exhausting administrative remedies before the OSC and making non-frivolous allegations that "(1) he engaged in whistle blowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) 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)." Yunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

In the absence of a protected disclosure, the Board is without jurisdiction to entertain an IRA appeal under the WPA. Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1992). Whether the Board possessed jurisdiction is a question of law which we review without deference. Herman v. Dep't of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999).

II

This case presents important questions under the WPA. The issue is whether the Board erred in dismissing petitioner's appeal on the ground that his reports were not protected disclosures pursuant to 5 U.S.C. § 2302(b)(8), as required for Board jurisdiction under 5 U.S.C. § 1221(a).

At the outset, this case requires us to interpret the WPA in two separate contexts: first, where complaints...