Ellison v. Merit Systems Protection Bd., No. 92-3057

Decision Date26 October 1993
Docket NumberNo. 92-3057
Citation7 F.3d 1031
PartiesDonald B. ELLISON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Julia Ryan Sullivan, of Parma, Ohio, argued, for petitioner. With her on the brief, was Robert S. Belovich.

Anita Marshall, Atty., Merit Systems Protection Bd., of Washington, DC, argued, for respondent. With her on the brief, were Mary L. Jennings, Deputy Gen. Counsel and Martha B. Schneider, Asst. Gen. Counsel.

Before PLAGER, LOURIE, and RADER, Circuit Judges.

LOURIE, Circuit Judge.

Donald B. Ellison petitions for review of the final decision of the Merit Systems Protection Board, Docket No. CH122191W0513, dismissing his Individual Right of Action (IRA) appeal under 5 U.S.C. § 1221(a) (Supp. III 1991) for lack of jurisdiction. Because Ellison's claim of reprisal for whistleblowing was based on a disclosure not protected under the Whistleblower Protection Act of 1989 (WPA), Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of Title 5, United States Code), we affirm.

BACKGROUND

On March 22, 1989, Ellison, who was serving as a contract specialist, GM-12, at the Naval Weapons Support Center (the agency) in Crane, Indiana, applied for one of three announced vacancies for a position entitled "Supervisory Contract Specialist," GM-13. Of the ten eligible applicants considered, Ellison was ranked third in the "recommended order of selection" by the agency selection panel. Ellison, however, was not selected for a position.

Ellison filed an administrative grievance on April 26, 1989, challenging his nonselection on the ground that the agency did not afford him "fair and equitable treatment." The agency agreed to conduct a thorough review of the selection process and ultimately concluded that nonmerit factors were improperly used in evaluating Ellison's application. Accordingly, the agency declared the prior selection invalid and instituted a new selection process. Although the new selection process purportedly excluded consideration of all nonmerit evaluation factors, Ellison was again not selected for a position. Ellison subsequently requested a final administrative review of his grievance and that request was denied.

On January 25, 1990, Ellison sought corrective action from the Office of Special Counsel (OSC) under 5 U.S.C. § 1214 (Supp. III 1991), claiming that he was a victim of reprisal for disclosures made to the agency regarding the selection process. The OSC terminated its investigation without taking action and Ellison filed an appeal to the Board through the IRA provisions of the WPA, 5 U.S.C. §§ 1214(a)(3) and 1221 (Supp. III 1991). The Board, however, dismissed his appeal for lack of jurisdiction. Docket No. CH122190W0557. Ellison petitioned for judicial review and this court affirmed the Board's decision. Ellison v. Department of the Navy, 954 F.2d 733 (Fed.Cir.1992).

On September 11, 1990, the agency announced that one of the positions for which Ellison had unsuccessfully applied in 1989 had been vacated. Ellison reapplied for the position but again was not selected. By letter dated November 29, 1990, Ellison sought corrective action from the OSC, alleging that his nonselection was the result of a "continuing reprisal" directed against him by his supervisors "because of [a] protest he made ... in 1989 concerning an earlier competitive announcement for this same position." The OSC construed Ellison's complaint as one alleging reprisal for a nonwhistleblowing disclosure made during the course of the agency grievance process. The OSC terminated its investigation upon finding insufficient evidence of the existence of any prohibited personnel practice in violation of Ellison's rights under the WPA.

Ellison sought corrective action from the Board by filing an IRA appeal on May 14, 1991. However, in view of the OSC's finding that Ellison had sought relief based on a disclosure not afforded protection under the WPA, the Administrative Judge (AJ) ordered Ellison to show that the Board had jurisdiction over his appeal. Ellison responded by claiming that his third nonselection was in reprisal for whistleblowing disclosures, including those made in meetings with officials from the office of the Inspector General (IG), Naval Sea Systems Command, and the staff of U.S. Senators Lugar and Coats, at which he reported violations of regulations, gross mismanagement, and abuse of authority on the part of his supervisors at the agency regarding the contested selection process.

The AJ determined, however, that the only disclosure upon which Ellison premised his latest claim for corrective action was that

                which was made in the agency grievance proceeding in April 1989.   Relying on the Board's decision in Fisher v. Department of Defense, 47 M.S.P.R. 585 (1991), the AJ thus concluded that the Board lacked jurisdiction over Ellison's IRA appeal, the filing of a grievance not being a protected disclosure covered by 5 U.S.C. § 2302(b)(8) (Supp.  III 1991).   The AJ determined that Ellison's grievance constituted a nonwhistleblowing disclosure under 5 U.S.C. § 2302(b)(9) (Supp.  III 1991).   Additionally, because Ellison did not timely seek corrective action from the OSC respecting his alleged protected disclosures to the agency IG or to Congress, the AJ determined that he could not raise them on appeal to the Board.   Accordingly, the AJ dismissed Ellison's IRA appeal for lack of jurisdiction.   The AJ's decision became the final decision of the Board when it denied review on October 15, 1991
                
DISCUSSION

The issue before us concerns the correctness of the Board's decision to dismiss Ellison's IRA appeal for lack of jurisdiction on the ground that his November 29, 1990 complaint to the OSC was not based on a prohibited personnel action covered by 5 U.S.C. § 2302(b)(8), a jurisdictional prerequisite under section 1221(a). On appeal, that decision cannot be disturbed unless it is found to have been (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). The Board's statutory interpretations are reviewed for correctness as a matter of law. See Marano v. Department of Justice, 2 F.3d 1137, 1141 (Fed.Cir.1993).

Although no law, rule, or regulation authorizes a direct appeal to the Board respecting a nonselection for promotion, the WPA provides a federal employee with the right to seek corrective action from the Board when the employee asserts the existence of a prohibited personnel practice as described in section 2302(b)(8). 5 U.S.C. § 1221(a). Accordingly, by means of an "individual right of action" an employee may obtain Board review of any personnel action enumerated in 5 U.S.C. § 2302(a) (Supp. III 1991) if he or she alleges that such action was taken or failed to be taken because of

(A) any disclosure of information by an employee ... 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 ...; or

(B) any disclosure to the ... Inspector General of an agency ... 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. § 2302(b)(8).

Thus, to establish a case of reprisal for whistleblowing under the WPA, an employee must demonstrate by a preponderance of the evidence that his disclosure is covered by section 2302(b)(8) and that it was a contributing factor in the personnel action. See 5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.7 (1993). If an employee fails to demonstrate that the aggrieved personnel action was the result of a prohibited personnel practice as described in section 2302(b)(8), he is not entitled to corrective action under the WPA.

In Spruill v. Merit Sys. Protection Bd., 978 F.2d 679 (Fed.Cir.1992), we confirmed that in the absence of a protected disclosure, the Board is without jurisdiction to entertain an IRA appeal under the WPA. There we held that the filing of a complaint with the Equal Employment Opportunity Commission (EEOC), in which an employee alleges discriminatory treatment by an employer in violation of Title VII of the Civil Rights Act of 1964, does not constitute a whistleblowing disclosure within the terms of section 2302(b)(8), but instead, is a nonwhistleblowing disclosure under section 2302(b)(9).

In so holding, the court rejected the employee's argument that, although the filing of an EEOC complaint was covered by section 2302(b)(9), it was nevertheless protected by the WPA to the extent that such a complaint could also be viewed as alleging a violation of law, rule, or regulation under section 2302(b)(8). The court concluded that such an argument ignored the deliberate and substantive distinction established by Congress between reprisals based on "whistleblowing" disclosures of government illegality, waste, and corruption, protectable under the WPA, and reprisals based on exercising one's right to complain, protectable in the case of EEOC complaints under 42 U.S.C. § 2000e-3(a) (1988).

Spruill, however, did not address the situation in which an employee makes a number of related disclosures based upon the same operative facts, some of which are argued to come under section 2302(b)(8) and others under section 2302(b)(9). Such is the situation in the instant case. Ellison claims that he made two separate and distinct disclosures, one to the agency IG and the other to agency supervisors through the grievance process. Ellison contends that the former falls within the scope of section 2302(b)(8)...

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