Ward v. Merit Systems Protection Bd.

Citation981 F.2d 521
Decision Date04 December 1992
Docket NumberNo. 92-3154,92-3154
PartiesF. Prescott WARD, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Peter B. Broida, Cohen, Broida & Associates, Arlington, VA, argued, for petitioner.

Joyce G. Friedman, Attorney, Merit Systems Protection Board, Washington, DC, argued, for respondent. With her on the brief were Mary L. Jennings, Acting General Counsel and Martha B. Schneider, Asst. General Counsel. Of counsel were David M. Cohen and James M. Kinsella, Dept. of Justice, Washington, DC.

Before MICHEL, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The petitioner, Dr. F. Prescott Ward, filed an individual right of action appeal to the Merit Systems Protection Board (Board) pursuant to the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (1989), alleging that his agency's failure to appoint him to a higher grade position constituted a reprisal against him for his whistleblowing activities. On the government's motion, the Board dismissed the appeal for lack of jurisdiction, ruling that Dr. Ward's activities upon which he based his complaint did not constitute whistleblowing under the Act's definition of that term. We affirm.

I

A. The underlying facts out of which this controversy arose are not in dispute. At the time of these events, Dr. Ward was a biological scientist with the Army Chemical Research, Development and Engineering Center (Center). Dr. Daphne Kamely then was employed at the Environmental Protection Agency. Dr. Richardson, the Center's technical director, in 1987 requested Dr. Kamely's opinion on a pilot project to construct a plant to manufacture biotechnology products, with which Dr. Ward was involved. Dr. Ward informed Dr. Richardson that the information Dr. Kamely had furnished him was incorrect. Dr. Ward believed that the alleged misinformation could have resulted in the project's termination, and, consequently, the waste of hundreds of thousands of dollars.

Subsequently, Dr. Kamely joined the Center as Scientific Advisor for Biotechnology. In that capacity, she was involved with organizing scientific presentations in Portugal and made various trips there. On one occasion, she planned to attend a meeting in Portugal with three others, including Dr. Ward and another Center scientist, Dr. DeFrank. Upon learning that Dr. Kamely had scheduled both him and Dr. DeFrank to speak on the same topic, Dr. Ward informed Dr. Kamely, by memorandum dated May 1, 1989, that he intended to urge the commanding general of the Center not to allow Dr. DeFrank to attend the meeting, since making two presentations on the same topic would not be "essential to the Army's mission."

Dr. Kamely subsequently was appointed as the Center's Director for Research and Laboratory Management. Dr. Ward applied for the scientific advisor position she had vacated. The agency selected another person for that post.

B. Contending that Dr. Kamely had intervened in the selection process to block his appointment, in reprisal for his two prior complaints against her, Dr. Ward filed a complaint with the Office of Special Counsel, pursuant to the Whistleblower Protection Act of 1989. That Act prohibits government personnel actions taken because of an employee's "disclosure of information ... which the employee ... reasonably believes evidences ... gross mismanagement, [or] a gross waste of funds," 5 U.S.C. § 2302(b)(8)(A)(ii) (Supp. III 1991); permits an employee affected by such action to seek corrective action by the Special Counsel, 5 U.S.C. § 1214(a)(3) (Supp. III 1991); and gives the employee, after he has unsuccessfully sought such corrective action, an individual right of action seeking corrective action from the Board. 5 U.S.C. § 1221(a) (Supp. III 1991).

Dr. Ward's complaint filed with the Office of Special Counsel alleged, among other charges, that his nonselection was the result of the two whistleblowing actions he took with respect to Dr. Kamely. The detailed complaint Dr. Ward filed with that office, under the caption "WHISTLEBLOWING," stated:

(1) In addition to the circumstances which were essentially beyond my control, there were other instances where I felt duty-bound to report what I believed to be mismanagement and/or waste of funds by Dr. Kamely. On one occasion, the Commanding General cancelled orders for her and three others to travel to Portugal for a conference. In fact he and the Acting Technical Director later (2) Another time I requested a meeting with Dr. Kamely to explain that a pilot project to develop industrial manufacturing capabilities for antibodies had absolutely nothing to do with a "Kit" as she kept calling it (TAB M). The Technical Director, Dr. B. Richardson, was on the verge of cancelling the "Kit" because he had been completely confused about the true purpose of the project. I met with him and told him that Dr. Kamely apparently did not understand the actual nature of the project. He renewed his support.

                curtailed many of her proposed foreign trips.   Apparently, because she believed BG Hidalgo respected my opinion, Dr. Kamely asked me to intercede personally on her behalf which I did.   Later I learned of circumstances which strongly indicated to me that she misrepresented essential facts to me and BG Hidalgo, that some of the requested travel was not essential, and that for all four people to go to Portugal would constitute a waste of funds (TAB L).   I told the CG of my concerns, and later Dr. Kamely restructured conference responsibilities and input
                

Attached to the complaint as Tab L was Dr. Ward's May 1, 1989 memorandum to Dr. Kamely, which dealt with Dr. Ward's view that sending Dr. DeFrank in addition to himself to address the meeting in Portugal was inappropriate and unnecessary.

The Special Counsel rejected Dr. Ward's complaint because "we have found insufficient evidence of any prohibited personnel practices or other violations warranting further inquiry by this Office." The Special Counsel explained:

Your 1987 complaint, that an official created confusion with a pilot project because she misunderstood the nature of the project, does not constitute a protected disclosure as defined in 5 U.S.C. § 2302(b)(8)(A). There is also some question as to whether your 1989 disclosure, that an official was scheduling unnecessary travel to foreign countries, constituted a gross waste of funds as also indicated in the statute. However, in the event that the latter complaint is construed to be a protected disclosure of information, you presented no evidence to indicate a connection between your disclosure and your nonselection. Further, according to your personnel office and as indicated above, the official named in your disclosure had no involvement in the selection process of the Scientific Advisor position. Thus, since we found no evidence which indicated a connection between your disclosure and the agency's decision not to select you, since it appears that the individual named in your disclosure had no involvement in the selection process of the position, and since there is some question as to whether your complaint constituted a disclosure within the meaning of the statute, we would be unable to establish before the Merit Systems Protection Board that your whistleblowing activity was a contributing factor in the decision not to select you for the position of Scientific Advisor for Biotechnology. Consequently, we found no basis for further inquiry into this allegation as a possible violation of 5 U.S.C. § 2302(b)(8).

C. Dr. Ward appealed the Special Counsel's dismissal of his complaint to the Board. In response to the Army's motion to dismiss, the Board, acting through an administrative judge, dismissed the complaint for lack of jurisdiction.

The administrative judge ruled that Dr. Ward's allegations that Dr. Kamely ignored relevant travel procurement regulations and personally engaged in unnecessary travel could not be raised before him because Dr. Ward had not brought those allegations before the Special Counsel. As to the other issues before him, the administrative judge first rejected the complaint of Dr. Kamely's "gross mismanagement" because Dr. Ward had "not identified any managerial duties or responsibilities concerning this project that [Kamely] failed to carry out ... [and] the offering of an erroneous scientific recommendation or opinion is simply not ... mismanagement...." Second, the administrative judge rejected the complaint relating to unnecessary travel because even "[a]ssuming that DeFrank's

travel was not necessary and that [Dr. Ward's] memorandum therefore reasonably questioned the wisdom of sending both him and DeFrank to the conference in Europe, the travel costs for one individual do not evidence the gross waste of funds contemplated by § 2303(b)(8)."

II.

The Whistleblower Protection Act of 1989 prohibits the taking or failing to take a personnel action with respect to an employee because of

any disclosure of information by an employee ... which the employee ... reasonably believes evidences ... 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)(A)(ii) (Supp. III 1991).

In his complaint to the Office of Special Counsel, Dr. Ward contended that the Center's nonselection of him for the position of Scientific Advisor for Biotechnology violated this provision because it was done in retaliation for his disclosure of alleged gross mismanagement involving Dr. Kamely's advice regarding the pilot plant project and her alleged gross waste of funds relating to travel to Portugal. Dr. Ward argues that his allegations were sufficient to establish that the Board had jurisdiction over his complaint of whistleblowing, and that he was entitled to a hearing on those allegations before the Board could...

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