Ahuruonye v. Dep't of the Interior, 2017-1503
| Decision Date | 08 June 2017 |
| Docket Number | 2017-1503 |
| Parties | BARRY AHURUONYE, Petitioner v. DEPARTMENT OF THE INTERIOR, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Petitions for review of the Merit Systems Protection Board in Nos. DC-1221-15-0295-W-1, DC-1221-16-0398-W-1, DC-1221-16-0474-W-1, DC-1221-16-0501-W-1, DC-1221-16-0838-W-1.
BARRY AHURUONYE, Hyattsville, MD, pro se.
RUSSELL JAMES UPTON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.
Before PROST, Chief Judge, TARANTO and HUGHES, Circuit Judges.
From December 2011 through April 2015, Barry Ahuruonye worked as a Grants Management Specialist at the U.S. Fish and Wildlife Service in the Department of the Interior (Department). Between December 2014 and August 2016, Mr. Ahuruonye filed at least five separate appeals with the Merit Systems Protection Board, alleging that various actions by the Department constituted whistleblower retaliation. In a consolidated decision, the Board's administrative judge denied Mr. Ahuruonye's appeal seeking corrective action for a Department-proposed five-day suspension and dismissed four of his other appeals for lack of jurisdiction. Initial Decision, Ahuruonye v. Dep't of Interior, Nos. DC-1221-16-0501-W-1, DC-1221-15-0295-W-1, DC-1221-16-0398-W-1, DC-1221-16-0474-W-1, DC-1221-16-0838-W-1 (M.S.P.B. Nov. 17, 2016) (Decision). For the reasons discussed below, we affirm in part, vacate in part, and remand in part.
In November 2012, less than a year after starting in his Grants Management Specialist position, Mr. Ahuruonye filed one of many complaints with the Department's Office of the Inspector General. The complaint alleged that his first-line supervisor, Penny Bartnicki, had made illegal grant awards. Ms. Bartnicki became aware of the allegation in January 2013.
On June 24, 2013, Mr. Ahuruonye received a bill for $343.64 from David Yeo in the Department's Debt Management Branch. The bill sought repayment of health benefits that the Department had erroneously paid to Mr. Ahuruonye, or on his behalf, from April 7, 2013, to June 1, 2013. Mr. Ahuruonye's wages were subsequently garnished to recoup the overpayment.
On April 29, 2014, Mr. Ahuruonye made a new accusation of wrongdoing by Ms. Bartnicki—illegal approval of funds related to a Mississippi River Delta Management Strategic Planning Grant. He made that allegation to his second-line supervisor, Tom Busiahn. According to the papers before us, Ms. Bartnicki learned of the charge on April 30, 2014.
On July 11, 2014, Mr. Ahuruonye copied Ms. Bartnicki on an email he sent to Kristin Smith, his coworker. In the email, he said that there was no point in working with the Mississippi Department of Marine Resources to evaluate its request for increased funding because the grant had been illegally awarded in the first place. Three days later, Ms. Bartnicki replied, disputing Mr. Ahuruonye's factual assertions and instructing him to work with Ms. Smith on the grant. On August 11, 2014, Mr. Ahuruonye sent an email to Ms. Smith, copying Ms. Bartnicki and, it appears, Mr. Busiahn and the Office of the Inspector General. The email states: "Per DOI/OIG determination this project is ineligible for funding if Penny [Bartnicki] wants to fund it that's on her as far as I know funding this project is unlawful and illegal."
On September 17, 2014, Mr. Ahuruonye made additional allegations against Ms. Bartnicki to Mr. Busiahn. He asserted that Ms. Bartnicki had violated the law with respect to another grant and expressed his concern that Ms. Bartnicki was asking him to sign off on Endangered Species Act certification forms without making site visits to ensure that the projects were in compliance. Two days later, Ms. Bartnicki changed the standard operating procedures so that Grants Management Specialists (like Mr. Ahuruonye) no longer had to sign off on those certifications.
On September 25, 2014, Ms. Bartnicki proposed to suspend Mr. Ahuruonye for five days, specifying four instances of "[f]ailure to follow supervisory instructions" and one instance of "[d]eliberately making known false unfounded statements about your supervisor and other Government officials." Resp't's App. 35-40. Mr. Ahuruonye challenged the proposed suspension, hiring counsel to represent him before the agency's deciding official, Charles David Goad. Five days before Mr. Ahuruonye was set to meet with Mr. Goad to respond to the charges, Mr. Goad unexpectedly died. It appears that another deciding official was assigned, but a decision was never reached and the suspension never took effect. See Pet'r's Br. 12.
On March 3, 2015, Mr. Ahuruonye received a bill from Matthew Neyer in the Debt Management Branch of the Department's payroll office. The bill sought recoupment of $1,790.44 in wages and benefits paid to Mr. Ahuruonye for hours he did not work. This money appears to have been subsequently garnished from some wages owed to Mr. Ahuruonye.
On March 26, 2015, the Department issued to Mr. Ahuruonye a notice proposing to remove him from his position. His timesheets are coded "absent without leave" on March 27, 2015, and "administrative leave" from March 29, 2015, through April 24, 2015.
The Department removed Mr. Ahuruonye on April 14, 24, or 26, 2015,1 and that removal was sustained in adecision not at issue here. Ahuruonye v. Dep't of Interior, No. DC-0432-15-0649-I-2, 2016 WL 3386637 (M.S.P.B. June 15, 2016) (initial decision). Mr. Ahuruonye alleges to us that he was issued a leave-and-earnings statement dated April 28, 2015, which paid him $1,505.40, and that he was actually due $1,711.04. The agency seems to disagree, the Board made no factual findings on the issue, and no April 28, 2015 statement has been provided to this court.
On October 29, 2015, Mr. Ahuruonye received a collection notice from the Department for $91.03. A statement titled "Transferred Bill Information," dated October 22, 2015, explained that the $91.03 debt "was the result of a time sheet correction submitted by your agency for pay period(s) 201510." Resp't's App. 131. It is not clear whether or when Mr. Ahuruonye paid this bill.
In five separate appeals, Mr. Ahuruonye challenged (1) the September 2015 proposed five-day suspension, DC-1221-15-0295-W-1 (M.S.P.B. filed Dec. 28, 2014); (2) the October 2015 $91.03 bill, DC-1221-16-0398-W-1 (M.S.P.B. filed Mar. 1, 2016); (3) the March 2015 bill and subsequent wage garnishment, DC-1221-16-0474-W-1 (M.S.P.B. filed Apr. 5, 2016); (4) the time-sheet records for March 27, 2015, through April 26, 2015, DC-1221-16-0501-W-1 (M.S.P.B. filed Apr. 14, 2016); and (5) the June 2013 bill and subsequent garnishment, DC-1221-16-0838-W-1 (M.S.P.B. filed Aug. 28, 2016).
In the earliest appeal, DC-1221-15-0295-W-1, the administrative judge found Board jurisdiction on October 26, 2015, and also reassigned the appeal to another administrative judge who was already handling other appeals involving the same parties. Mr. Ahuruonye sought no hearing in that appeal, and the parties submitted their close-of-record statements on March 18, 2016.
On April 13, 2016, that appeal, i.e., DC-1221-15-0295-W-1 (proposed suspension), was joined with DC-1221-16-0398-W-1 ($91.03 debt) and DC-1221-16-0474-W-1 (March 2015 bill and garnishment). On April 26, 2016, DC-1221-16-0501-W-1 (time-sheet records) was joined to the previous three cases, and the final appeal, DC-1221-16-0838-W-1 (June 2013 bill and garnishment), was joined on September 2, 2016.
The administrative judge, now handling all five appeals, issued an initial decision on November 17, 2016. For the proposed-suspension appeal, which (like the others) rested on a charge of whistleblower retaliation, DC-1221-15-0295-W-1, the initial decision concludes that, while Mr. Ahuruonye established by a preponderance of the evidence that his protected disclosures contributed to Ms. Bartnicki's decision to propose his suspension, the Department established by clear and convincing evidence that it would have proposed Mr. Ahuruonye's suspension anyway. Decision at 7-11. As to all of the other appeals, the initial decision finds a lack of Board jurisdiction. Id. at 11-15. Mr. Ahuruonye did not seek review by the full Board, and the initial decision became the Board's final decision on December 22, 2016. For that reason, we hereafter refer to the administrative judge as the Board.
Mr. Ahuruonye timely sought review in this court. We have jurisdiction. 28 U.S.C. § 1295(a)(9).
Each of the appeals filed by Mr. Ahuruonye invokes 5 U.S.C. § 1221(a), which provides an individual right of action to seek Board relief in certain reprisal cases. In each appeal, Mr. Ahuruonye alleges that the Department took actions in retaliation for his disclosures of information he reasonably believed (a) violated a law, rule, or regulation or (b) evidenced gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. See 5 U.S.C. § 2302(b)(8).
In order to establish Board jurisdiction over his appeals, Mr. Ahuruonye had to show that he "exhausted his administrative remedies before the [Office of Special Counsel] and ma[de] 'non-frivolous allegations' that (1) he engaged in whistleblowing 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). "'[A] non-frivolous allegation' of an element required for Board jurisdiction" is "one that, 'if proven, can establish the Board's jurisdiction' insofar as that element is concerned." Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016) (quoting Garcia v. Dep't of Homeland...
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