Fields v. Department of Justice, 05-3133.

Decision Date16 June 2006
Docket NumberNo. 05-3133.,05-3133.
Citation452 F.3d 1297
PartiesEdward H. FIELDS, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Thomas G. Roth, Law Offices of Thomas G. Roth, of West Orange, New Jersey, argued for petitioner.

Gregory T. Jaeger, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Todd M. Hughes, Assistant Director.

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and LINN, Circuit Judge.

LINN, Circuit Judge.

Edward H. Fields ("Fields") petitions for review of a final decision of the Merit Systems Protection Board ("Board") that dismissed, for lack of jurisdiction, his individual right of action ("IRA") appeal under the Whistleblower Protection Act of 1989 ("WPA"), Pub.L. No. 101-12, 1013 Stat. 16 (codified at 5 U.S.C. § 2302). Fields v. Dep't of Justice, No. AT-1221-04-0304-W-1, 98 M.S.P.R. 167 (M.S.P.B. Jan 27, 2005) ("Final Order"). Because the Board correctly dismissed Fields's appeal for lack of jurisdiction, we affirm.

BACKGROUND

Fields's allegations of retaliation by the Drug Enforcement Administration ("DEA" or "agency") stem from his participation as a witness in a Board penalty proceeding involving one of his subordinates, DEA Special Agent Todd Haebe, and his role in a DEA internal audit regarding the arrest of cooperating sources located in Bogota, Columbia. During the period of time relevant to this appeal, Fields was employed by the agency as a Supervisory Criminal Investigator in Key Largo, Florida.

While proceedings involving the removal of Haebe were pending before the Board, he secured a transfer from the agency's San Jose, California office to Key Largo, Florida, placing him under the supervision of Fields. While sustaining the charges against Haebe, the Board remanded Haebe's case to allow the agency to present the testimony of the deciding official with respect to the penalty imposed. On remand, the administrative judge heard not only the testimony of the deciding official, Joel Fries, but also the testimony of Fields. In addition, the administrative judge also considered an affidavit from Fields that outlined Haebe's duties and performance. On July 2, 1999, the administrative judge vacated the removal action and remanded the case back to the agency for reevaluation of the penalty. On August 30, 1999, the agency issued a new decision finding again that the penalty of removal was appropriate. The case was assigned to a new administrative judge who held a hearing in January 2000 and reversed the penalty determination for lack of due process, mitigating Haebe's penalty to a 120-day suspension. Specifically, the administrative judge found that Fries had ex parte communications with three individuals in connection with his decision to remove Haebe.

A few days after the January 2000 hearing, Fries determined that Fields's affidavit differed from statements made by two individuals, Sandalio Gonzalez and Mark Rubino, with whom Fries had ex parte communications. On May 11, 1999, Monica Pantos, Senior Attorney in the DEA's Office of Chief Counsel, referred misconduct allegations against Fields to the DEA's Office of Professional Responsibility.

In August 1999, the agency's Chief of Operations, Joseph Keefe, requested an internal audit into the arrest of DEA cooperating sources in Bogota, Colombia. On June 20, 2001, Fields and others were asked to provide a factual chronology of events leading up to these arrests. On June 25, 2001, Fields provided his version of events in a memorandum, which was prepared jointly by Fields and a fellow employee.

On October 19, 2001, the agency issued a notice to Fields proposing to demote him from his position, based upon a charge of "poor judgment." Fields responded to the charges and specifications. On June 28, 2002, the deciding official mitigated the penalty to a 14-day suspension. Subsequently, Fields filed an IRA appeal alleging that the agency retaliated against him for his whistleblowing activities.

The administrative judge assigned to Fields's IRA appeal directed Fields to list each communication that he believed played a part in his suspension. Fields identified four disclosures, none of which was found by the administrative judge to set a forth non-frivolous allegation supporting Board jurisdiction. See Fields v. Dep't of Justice, No. AT-1221-04-0304-W-1 (M.S.P.B. May 10, 2004) ("Initial Decision"). The first disclosure involved Fields's affidavit to the Board, outlining Haebe's duties and performance. The second disclosure related to Fields's testimony before the Board. Fields contended that these two disclosures were protected by the WPA, § 2302(b)(8). The administrative judge concluded that these disclosures were made as part of Fields's § 2302(b)(9) activities and that he had failed to show that he made a disclosure protected under § 2302(b)(8). Id., slip op. at 6.

The third disclosure concerned Fields's sworn testimony during an interview with inspectors of the agency's Office of Professional Responsibility. Fields alleged that Pantos wanted him to "slant" his testimony so that it would be more favorable to the agency. Finding that Pantos did not ask Fields to lie, commit a crime, or otherwise violate any law, rule, or regulation, the administrative judge concluded that Fields had failed to set forth a non-frivolous allegation of Board jurisdiction. Id., slip op. at 6-7.

The fourth disclosure involved Fields's June 25, 2001 memorandum, which set forth a chronology of events related to a smuggling organization in Colombia that was molding cocaine and heroin into various household items for distribution outside the country. According to Fields, this memorandum implied that DEA Bogota was aware that the informants would be boarding a flight to the United States in possession of cocaine. The administrative judge found that the memorandum was prepared in response to a request from Keefe for an internal audit of the arrest of the agency's cooperating sources in Bogota, was simply a chronology of events related to the investigation, and contained no allegation of wrongdoing on anyone's part. Thus, the administrative judge concluded, the disclosure was not a protected disclosure within the meaning of § 2302(b)(8). Id., slip op. at 7-8. Accordingly, the administrative judge dismissed Fields's appeal for lack of jurisdiction, based on the finding that Fields failed to raise a non-frivolous allegation that he made protected disclosures, or that his "disclosures" were a contributing factor with respect to his 14-day suspension and the elimination of his supervisory duties. Id., slip op. at 2.

The initial decision became the final decision of the Board after the Board denied Fields's petition for review for failure to meet the criteria set forth at 5 C.F.R. § 1201.115(d). Fields timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

ANALYSIS

Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Abell v. Dep't of the Navy, 343 F.3d 1378, 1382-83 (Fed.Cir. 2003). We review decisions of the Board regarding its own jurisdiction without deference. McCormick v. Dep't of the Air Force, 307 F.3d 1339, 1340 (Fed.Cir.2002) (citing King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996)). Before the Board, an appellant bears the burden of establishing Board jurisdiction. Id. (citing 5 C.F.R. § 1201.56(a)(2)(i); Clark v. United States Postal Serv., 989 F.2d 1164, 1167 (Fed.Cir. 1993)).

Board jurisdiction generally does not extend to suspension of 14 days or less. See 5 U.S.C. § 7512(2) (2000); Jennings v. Merit Sys. Prot. Bd., 59 F.3d 159, 160 (Fed.Cir.1995). Notwithstanding the limitations of § 7512(2), and to promote the elimination of wrongdoing and mismanagement in government, Congress has provided federal employees with the right to seek corrective action from the Board whenever a personnel action has been taken in retaliation for certain whistleblowing activities. 5 U.S.C. § 1221(a) (2000) ("Subject to provisions of subsection (b) of this section and subsection 1214(a)(3), an employee . . . may, with respect to any personnel action taken . . . as a result of prohibited personnel practice described in section 2302(b)(8), seek corrective action from the [Board]."). However, not all disclosures are protected. In setting up the WPA, Congress in section 2302(b)(8) of Title 5 specified the types of disclosures that implicate the safeguards of the act; namely, those disclosures:

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) (2000); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed.Cir.1993). This court has held that the Board has jurisdiction over whistleblower cases "if the appellant has exhausted administrative remedies before the OSC [Office of Special Counsel] and makes `non-frivolous allegations' that (1) he engaged in whistleblowing activities 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 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).

Here, the agency does not dispute that Fields exhausted his administrative remedies...

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