Johnston v. Merit Systems Protection Bd.

• Decision Date: 03 March 2008
• Docket Number: No. 2007-3167.,2007-3167.
• Citation: 518 F.3d 905
• Parties: Julie K. JOHNSTON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

518 F.3d 905

Julie K. JOHNSTON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 2007-3167.

United States Court of Appeals, Federal Circuit.

March 3, 2008.

Jacob A. Kramer, Bryan Cave LLP, of Washington, DC, argued for petitioner. With him on the brief was Daniel C. Schwartz.

Michael A. Carney, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.

Before NEWMAN, MAYER and GAJARSA, Circuit Judges.

MAYER, Circuit Judge.

Julie K. Johnston seeks review of a final decision of the Merit Systems Protection Board dismissing her appeal for lack of jurisdiction. Johnston v. Dep't of Energy, AT-1221-06-0983-W-1 (M.S.P.B. Nov. 2, 2006). Because we conclude Johnston's allegations of reprisal for disclosures protected under the Whistleblower Protection Act of 1989 ("WPA"), 5 U.S.C. § 2302(b)(8), were sufficient to establish board jurisdiction, we reverse and remand.

Background

Johnston is employed as a Safety and Occupational Health Manager ("SOHM") in the Office of Secure Transportation of the National Nuclear Security Administration in the Department of Energy (the "agency"). The agency's mission is to safely transport nuclear weapons and other nuclear materials. Agency employees are heavily armed and trained to safeguard nuclear weapons from attack by terrorists and other criminals.

As a SOHM, Johnston has extensive safety training and experience. In January 2006, she became aware that her supervisors planned to implement Policy 7.04a, which would take safety management responsibilities away from SOHMs and delegate them to other agency employees, known as Command Safety Representatives ("CSRs"). Johnston alleges that in January and February 2006, she "continually voiced to her supervisor, Dean Triebel, her concerns that under [proposed Policy 7.04a] responsibility for safety management would be delegated to personnel who lacked appropriate education and experience in safety management." On January 28, 2006, Triebel sent an email asking Johnston and other employees to review proposed Policy 7.04a. In response, on February 21, 2006, Johnston sent an email to Triebel and several others, some of whom worked outside her branch of the agency, expressing her dissatisfaction that under the proposed policy her job description and job responsibilities would be changed. She also "question[ed] the legality and the ethics" of the proposed policy.

On February 24, 2006, Johnston had a meeting with Triebel and another supervisor, Joseph Vigil. Johnston alleges that in this meeting she informed her supervisors she intended to communicate her criticisms of the proposed policy to the Department of Energy's Office of Inspector General ("OIG"). Johnston further alleges that her supervisors orally reprimanded her for voicing her concerns about proposed Policy 7.04a, and told her that she had "damaged [her] reputation beyond repair" by sending the February 21, 2006 email to persons outside her chain of command.

Soon thereafter, Johnston contacted the OIG, which summarized her disclosures as follows:

Reliance on untrained safety personnel to review training lesson plans could put [agency personnel] and personnel from other agencies at risk for serious injury. [The agency] regularly conducts training exercises with rigorous physical activities and often with live fire and explosives. Training is conducted during periods of extreme heat and humidity, or exceptional cold weather. Fog, dust, sleet, high winds, snowfall, or rainfall can impair a trainee's vision, footing, and ability to manipulate a weapon, creating a potential safety hazard to both the trainee and those nearby. Additionally, [agency employees] routinely conduct joint testing exercises with other agencies, which add[s] to the complexity and safety hazards of the training exercise. The serious injury that occurred in 2002 underlines the risk that can arise from using untrained personnel to perform safety reviews.

Memorandum from Christine Shafik, Department of Energy Office of Inspections and Special Inquiries (March 13, 2006) [hereinafter OIG Memorandum].

On March 1, 2006, Triebel issued a "counseling memorandum" to Johnston, stating that she had "demonstrated inappropriate conduct by sending out an email [regarding proposed Policy 7.04a] to members of [the agency] who were not associated with the issues." On March 15, 2006, Johnston received a revised performance plan. She alleges that this revised plan substantially reduced her training and safety management responsibilities and caused her to be "effectively demoted."

Johnston subsequently filed a formal letter of complaint with the OIG, further articulating her concerns regarding the dangers of the proposed policy. See Letter of Complaint from Julie Johnston to the OIG (March 17, 2006) [hereinafter Letter of Complaint]. In this letter, Johnston stated that "safety is not a popular sport. . . . [I]t is not about being on the right team. . . . [I]t is about doing the right thing, even when it is not the popular choice." Id. at 2. She explained that she felt it was her "obligation . . . as a safety professional" to move forward with her complaints about the agency's plan to delegate safety management responsibilities to personnel whom she believed lacked adequate training and experience. Id.

Soon thereafter, Johnston filed a complaint with the United States Office of Special Counsel, in which she alleged that accidents had occurred in training exercises in November 2002, January 2003 and November 2004 because of "flaws in the risk assessment procedures." See Letter from Matthew C. Glover, U.S. Office of Special Counsel (June 20, 2006) [hereinafter Special Counsel Letter]. After exhausting her administrative remedies at the Office of Special Counsel, see 5 U.S.C. § 1214(a)(3), Johnston appealed to the Merit Systems Protection Board, alleging that the agency had retaliated against her for engaging in protected whistle-blowing activity. The administrative judge dismissed her appeal for lack of jurisdiction, concluding that her disclosures were not protected by the WPA because they did not identify a substantial and specific threat to public safety. The administrative judge's initial decision became the final decision of the board on February 9, 2007. Johnston timely appealed to this court; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

Discussion

The board's jurisdiction is not plenary, but is limited to those matters over which it has been granted jurisdiction by law, rule or regulation. Herman v. Dep't of Justice, 193 F.3d 1375, 1378 (Fed. Cir.1999). Whether the board has jurisdiction over an appeal is a question of law that this court reviews de novo. Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998); Fields v. Dep't of Justice, 452 F.3d 1297, 1301 (Fed.Cir.2006).

Johnston argues that the board erred in dismissing her appeal; she contends she established board jurisdiction by non-frivolous allegations that she suffered reprisal for expressing her opinion that the agency's implementation of Policy 7.04a would put agency personnel and others at risk for serious injury. We agree.

There is a fundamental distinction between the requirements necessary to prevail on the merits of a WPA claim and those sufficient to establish board jurisdiction. To prevail on the merits, an employee must establish, by a preponderance of the evidence, that a protected disclosure was a contributing factor in an adverse personnel action. See Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed.Cir.1993). At the jurisdictional threshold, however, the employee's burden is significantly lower: for individual right of action appeals "the Board's jurisdiction is established by nonfrivolous allegations that the [employee] made a protected disclosure that was a contributing factor to the personnel action taken or proposed." Stoyanov v. Dep't of the Navy, 474 F.3d 1377, 1382 (Fed.Cir. 2007) (citing Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1325 (Fed.Cir.2006) (en banc)). Thus, Johnston could establish a jurisdictional predicate for her claims by making non-frivolous allegations that: (1) her disclosures were within the purview of the WPA, and (2) she suffered reprisal in the wake of these disclosures.

I. Protected Disclosures

The WPA protects several types of communications, one being a disclosure regarding what an employee "reasonably believes" to be a "substantial and specific danger to public health or safety."¹ 5 U.S.C. § 2302(b)(8); Herman, 193 F.3d at 1378-79. Johnston alleges she made such a disclosure; we deem her allegations non-frivolous.

The disclosures made by Johnston were precise and unambiguous: she asserted that using inadequately trained personnel to review agency training exercises would increase the danger of serious injury to those conducting the exercises as well as others in the vicinity. Training exercises are designed to simulate attacks on nuclear weapons by terrorists and other criminals, and Johnston explained that they routinely involve the use of live fire and explosives. She further explained that training activities frequently take place under extreme weather conditions where "[f]og, dust, sleet, high winds, snowfall, or rainfall can impair a trainee's vision, footing, and ability to manipulate a weapon, creating a potential safety hazard to both the trainee and those nearby." OIG Memorandum at 2. In addition, Johnston noted that agency employees "routinely conduct joint testing exercises with other agencies, which add[s] to the complexity and safety hazards of the training." Id. She buttressed her claims regarding the dangers inherent in training activities by referring to a series of accidents, some of them serious, which had occurred during such activities in the past. Id.; Special Counsel Letter at...