Wren v. Merit Systems Protection Bd.

• Decision Date: 22 June 1982
• Docket Number: No. 80-1667,80-1667
• Citation: 220 U.S.App.D.C. 352,681 F.2d 867
• Parties: Celia A. WREN, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 867

681 F.2d 867

220 U.S.App.D.C. 352

Celia A. WREN, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 80-1667.

United States Court of Appeals, District of Columbia Circuit.

Argued April 6, 1982.

Decided June 22, 1982.

Petition for Review of an Order of the Merit Systems protection board.

Richard A. Hannibal, Student Counsel, ^* with whom Steven H. Goldblatt, Philadelphia, Pa. (appointed by this Court) for petitioner.

Lynn S. Lichtenstein, Sp. Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed. Royce C. Lamberth, Kenneth M. Raisler, Michael J. Ryan and Whitney Adams, Asst. U. S. Attys., Washington, D. C., were on the brief, for respondent.

Before ROBINSON, Chief Judge, WALD, Circuit Judge, and LARSON, ^** United States Senior District Judge for the District of Minnesota.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This is a petition by a former probationary employee of the Department of the Army ("Army") seeking review of an order of the Merit Systems Protection Board ("MSPB" or "Board") dismissing her appeal from a job termination for lack of jurisdiction. Petitioner claims that her discharge was in retaliation for "whistleblowing" on official mismanagement, waste, abuse of authority and violation of regulations and was therefore a prohibited personnel practice under 5 U.S.C. § 2302(b)(8). She requests that the Board's order be vacated and the case remanded to the Board so that it can review the decision of the Office of Special Counsel of the Board ("OSC") refusing to investigate petitioner's allegation of reprisal for whistleblowing. The OSC's decision to terminate its investigation into the cause of petitioner's dismissal was rendered as a result of a separate petition filed by petitioner at the same time she sought MSPB review. After petitioner's appeal to the Board had been dismissed, the OSC refused to exercise 5 U.S.C. § 1206 authority to investigate petitioner's allegation, finding that it was more appropriately resolved "under an administrative appeals procedure or applicable grievance procedure." Petitioner's Appendix (P.A.) I-7. Although we agree that the OSC's failure to investigate the petition in this case was not justified by the reasons given, we cannot afford petitioner any relief in this appeal. If judicial relief from the OSC's inaction lies at all, it must be sought in a separate action. The only matter properly before this court is the Board's decision that it had no jurisdiction over Wren's appeal from the Army's adverse personnel action. We find that decision a correct one. Accordingly, we must affirm the decision of the Board.

I. BACKGROUND

The Army appointed petitioner, Celia A. Wren, Guidance Counselor, GS-1710, Grade 9 at the Wertheim Educational Center, West Germany on August 21, 1978, and dismissed her on March 9, 1979. The notice of termination stated that petitioner's job performance was unsatisfactory, that petitioner was uncooperative and that she failed to attend job performance seminars. Record (R.) 7-8. The notice also informed petitioner that she had no right to appeal the Army's decision unless she alleged that it was based upon discrimination. ¹ Nevertheless on March 7, 1979, petitioner appealed to the MSPB, claiming that her termination was a reprisal for whistleblowing regarding agency regulatory violations and mismanagement, and therefore a prohibited personnel practice under Title I, section 101(a) of the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 2302(b)(8). Simultaneously, petitioner requested the OSC to undertake an investigation into her allegation pursuant to 5 U.S.C. § 1206(a).

II. THE AGENCY DECISION

After examining the CSRA ² and regulations ³ promulgated thereto, the Presiding Official held that there was no "right of appeal to the MSPB for excepted service employees who are terminated during a trial period." Appeal of Celia A. Wren, MSPB Docket No. DC315H99007 (May 16, 1979), slip op. at 1, 3; P.A. III-2, 4. Consequently, he dismissed the petition for lack of jurisdiction.

On appeal, the Board affirmed the dismissal for the same reason. Wren v. Department of the Army, MSPB Docket No. DC315H99007 (April 17, 1980), slip op. at 1 (hereinafter Wren ); P.A. III-6. The Board also observed, however, "that procedures do exist whereby (Wren's) ... allegation may be investigated by the Special Counsel ..." Wren at 3 (emphasis added); P.A. III-8. Accordingly, the Board referred the petition to the Acting Special Counsel "for such action as she may find appropriate." Id.; see also P.A. I-1 (MSPB Docket Sheet). But by the time the Board referred the petition to the OSC, that office had, apparently, already determined not to conduct any investigation.

As previously noted, petitioner had sought an OSC investigation in March, 1979 at the same time she filed her MSPB appeal. P.A. I-3. On August 27, 1979, the Special Counsel requested further information regarding the complaint. Id. at 4. Documents were sent by petitioner's counsel from West Germany on October 22, 1979, but not received by the OSC until November 19, 1979, id. at 6, four days after the case had been closed for failure to submit the requested information. Id. at 7. It does not appear from the record that the case was reopened upon receipt of the documents, Respondent's Brief at 8, or even that petitioner was notified at that time that the case had been closed. Nor was the case later reopened after the Board referred it to the OSC in April, 1980. ⁴ On September 24, 1980, petitioner wrote to inquire about the status of the OSC investigation, and on October 15, 1980 was informed that her case had been closed almost a year earlier, shortly before the requested information had been received. P.A. I-7. In addition, the OSC informed petitioner that

(T)his Office is authorized to receive and investigate allegations of certain activities prohibited by civil service law, rule, or regulation (primarily the prohibited personnel practices set forth in 5 U.S.C 2302) and may recommend (but not order) corrective action when it is determined that a prohibited personnel practice has been or is being committed. This Office, however, is not authorized to deal with or seek redress for employee complaints or grievances which may be resolved more appropriately under established complaint, grievance, or appeals procedures unless it involves a prohibited personnel practice specified in 5 U.S.C. 2302. (5 U.S.C. 1206(a)(1) and (e) )

Upon review of the information you provided, we have determined that your allegations deal with matters that may be resolved more appropriately under an administrative appeals procedure or applicable grievance procedure. We, therefore, will not undertake an investigation in your case at this time. ⁵

Id. (emphasis added). Thus, so far as it appears on the record, the merits of petitioner's allegation that she had been fired in retaliation for whistleblowing, a prohibited personnel practice, were never investigated by the OSC. Instead, a year after closing the investigation, the OSC directed petitioner to pursue her grievance along a "more appropriate" route, although that route had, in fact, already been declared inaccessible to her (and all probationary employees) by the MSPB.

III. WREN'S PETITION

On June 16, 1980, Wren filed a timely petition in this court for review of the Board's decision dismissing her appeal for lack of jurisdiction. After filing this appeal, petitioner received notice from the OSC that it had closed her case one year earlier. Thus, although this appeal is from the Board's decision to dismiss, petitioner also argues that the case must be remanded to the Board so that it can direct the OSC to fulfill its statutory responsibility to investigate petitioner's prohibited personnel practice allegation, which had been referred to it by the Board. Petitioner stresses the irony of being denied relief by the MSPB which assumed that OSC relief was available and then being denied relief by the OSC which assumed that MSPB relief was available.

Petitioner concedes on appeal that as a non-tenured employee she is "not statutorily entitled, per se, to direct review of her termination by the MSPB." Petitioner's Brief at 7. The statute grants only "employees" the right to appeal to the MSPB from an adverse agency personnel action. 5 U.S.C. § 7701(a); see also Piskadlo v. Veterans' Administration, 668 F.2d 82 (5th Cir. 1982). An employee is defined as "an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less ...." 5 U.S.C. § 7511(a)(1) (A); see also 5 C.F.R. §§ 315.801-.802. At the time of her termination, petitioner had been employed for approximately nine months. However, petitioner reasons: the Board has jurisdiction over cases involving reprisals against whistleblowers brought to it by the OSC, 5 U.S.C. § 1206(c)(1)(A); and once such matters have been brought to the Board, it rather than the OSC has power to take "final agency action," 5 U.S.C. § 1205(a)(1); therefore the Board's jurisdiction over worthy whistleblower cases will be undermined if petitions to the OSC are not investigated sufficiently to determine whether they have merit. Thus, she argues, the Board has authority here at least to order the OSC to undertake a proper investigation of petitioner's allegation.

Unfortunately, we cannot accept petitioner's statutory construct. Although we agree that the OSC must, under the terms of the Act, investigate an alleged prohibited personnel practice involving reprisals against whistleblowing to the extent necessary to determine whether there is a reasonable probability that the allegation is meritorious, and that it must issue reasons for terminating an investigation, w...