Maloney v. Exec. Office of the President

• Citation: 2022 MSPB 26
• Decision Date: 03 August 2022
• Docket Number: DC-1221-19-0677-W-1
• Parties: Peggy A. Maloney, Appellant, v. Executive Office of the President, Office of Administration, Agency.
• Court: Merit Systems Protection Board

1

2022 MSPB 26

Peggy A. Maloney, Appellant, v. Executive Office of the President, Office of Administration, Agency.

No. DC-1221-19-0677-W-1

United States of America Merit Systems Protection Board

August 3, 2022

Peggy A. Maloney, Alexandria, Virginia, pro se.

Raheemah Abdulaleem, Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant petitions for review of the initial decision that dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the following reasons, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal for further adjudication consistent with this Opinion and Order.

BACKGROUND

¶2 The appellant, a GS-11 Management Analyst with the Office of Administration (OA), an entity within the Executive Office of the President (EOP), filed this IRA appeal alleging that, in reprisal for whistleblowing disclosures, the agency took numerous actions against her, including placing her on administrative leave issuing a letter of reprimand, placing her on a work improvement plan, denying her a within-grade increase (WIGI) and proposing her suspension.^[1] Initial Appeal File (IAF), Tab 1 at 1, 6-19, Tabs 5-6, Tab 11 at 19. The agency moved to dismiss the appeal for lack of jurisdiction asserting, among other things, that it was not an "agency" under 5 U.S.C. §§ 1221(a), 2302(a)(2)(A), (b)(8), over which the Board has jurisdiction in an IRA appeal. IAF, Tab 8 at 14-21. The appellant filed a response to the agency's motion to dismiss, in which she addressed this issue. IAF, Tab 14 at 14-17.

¶3 Based on the written record, the administrative judge dismissed the appeal, finding that the Board lacks jurisdiction over IRA appeals filed by OA employees in EOP.^[2] IAF, Tab 19, Initial Decision (ID) at 1, 5-8. She reasoned that, under the applicable statute, only employees in a covered position in an "agency" may seek corrective action from the Board, and that EOP was not an "agency." Id. The administrative judge also noted that, although the appellant asserted that the agency denied her a WIGI, "there is no record that the appellant filed an appeal of that action." ID at 4 n.2.

¶4 The appellant has filed a petition for review of the initial decision, and the agency has filed a response thereto. Petition for Review (PFR) File, Tabs 1-2, 4, 13.^[3] The appellant has filed a reply to the agency's response to her petition for review. PFR File, Tab 14.^[4]

ANALYSIS

Our focus in this case is primarily on whether OA, rather than EOP as a whole, is subject to the Board's IRA jurisdiction.

¶5 It is not clear whether the administrative judge based her jurisdictional determination on a finding that OA was not an "agency," or on a determination that the entire EOP was not an "agency." Compare ID at 5 ("The Board lacks jurisdiction over IRA appeals from employees in the Office of Administration in the Executive Office of the President."), 8 ("There is no evidence or argument to establish that OA, EOP is covered under the definition of an 'executive agency.'"), with ID at 5-6 (finding that EOP was not an executive department or a Government corporation, and stating that "[t]his case turns on whether EOP is an 'independent establishment' in the executive branch"). Because of the unique nature of EOP as a collection of "offices and entities that directly support the work of the President of the United States courts have routinely examined whether individual components within the EOP qualify as 'independent establishments' or as 'agencies,' rather than examining the EOP's status as a whole." Argus Secure Technology, LLC, B-419422, B-419422.2, 2021 WL 694804, *6 (Comp. Gen. Feb. 22, 2021) (citing Kissinger v. Reporters Commission for Freedom of the Press, 445 U.S. 136, 156 (1980) (determining that "the President's immediate personal staff or units in the [EOP] whose sole function is to advise and assist the President" are not agencies subject to the Freedom of Information Act (FOIA), even though EOP is expressly included in the definition of an "agency" under FOIA (citations omitted))); Citizens for Responsibility & Ethics in Washington v. Office of Administration, 566 F.3d 219, 223-24 (D.C. Cir. 2009) (CREW) (reviewing which units within EOP the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) had found were, and which it had found were not, agencies subject to FOIA); United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998) (recognizing that the D.C. Circuit has declined to consider EOP as a whole to be an agency under FOIA); Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, 266 F.Supp.3d 297, 315-18 (D.D.C. 2017) (declining to deem EOP as a whole a "parent agency" subject to the Administrative Procedures Act; instead, examining the functions of the EOP entity at issue, the Director of White House Information Technology, and concluding it was not an agency).^[5] Thus, our review focuses on the specific EOP organization that took the actions at issue here, which was OA.

The central issue in this appeal is whether OA is an independent establishment within the meaning of 5 U.S.C. § 104(1).

¶6 An "employee . . . may, with respect to any personnel action taken, or proposed to be taken, against such employee . . . as a result of a prohibited personnel practice described in [5 U.S.C. § 2302(b)(8), 2302(b)(9)(A)(i), (B), (C), or (D)], seek corrective action from the [Board]" by filing an IRA appeal. 5 U.S.C. § 1221(a). A "personnel action," in turn, means one of a number of listed employment actions "with respect to an employee in . . . a covered position in an agency." 5 U.S.C. § 2302(a)(2)(A). Therefore, the Board's jurisdiction in an IRA appeal is dependent, in part, on whether an "agency" took the alleged personnel action or actions.^[6] See O'Brien v. Office of Independent Counsel, 74 M.S.P.R. 192, 199 (1997).

¶7 An "agency" for purposes of an IRA appeal is defined as an "Executive agency" and the Government Publishing Office, but does not include certain intelligence and counterintelligence entities and the Government Accountability Office (GAO). 5 U.S.C. § 2302(a)(2)(C). Section 2302 does not define "Executive agency." In defining that term in IRA appeals, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board have generally relied on 5 U.S.C. § 105. See, e.g., Booker v. Merit Systems Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992); Wilcox v. International Boundary & Water Commission, 103 M.S.P.R. 73, ¶ 8 (2006); O'Brien, 74 M.S.P.R. at 199; Pessa v. Smithsonian Institution, 60 M.S.P.R. 421, 425 (1994). The appellant states in her petition for review that the administrative judge "denies section 105 of title 5 is applicable in this case." PFR File, Tab 2 at 13. She is mistaken. The administrative judge properly cited to, and relied on, 5 U.S.C. § 105. ID at 5-6 & n.3.

¶8 Section 105 of title 5 defines an "Executive agency" as "an Executive department, a Government corporation, and an independent establishment." Sections 101 through 105 of title 5 were enacted together. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 378-79 (codified as amended, in pertinent part, at 5 U.S.C. §§ 101-105). Therefore, we read them together as part of a harmonious whole. 2A Shambie Singer & Norman Singer, Sutherland Statutes & Statutory Construction § 46:5 (7th ed. 2021). The Executive departments are listed in 5 U.S.C. § 101. A Government corporation, according to 5 U.S.C. § 103, "means a corporation owned or controlled by the Government of the United States." An "independent establishment," as relevant here, is defined as "an establishment in the executive branch . . . which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment."^[7] 5 U.S.C. § 104(1).

¶9 The administrative judge determined that OA is neither an Executive department, nor a Government corporation. ID at 5-6. The parties do not challenge this determination, and we discern no basis to disturb it. As the administrative judge correctly observed, OA is not included in the list of Executive departments set forth at 5 U.S.C. § 101. ID at 5. Moreover, there is no indication that OA is a corporation owned or controlled by the Government of the United States. ID at 5-6; cf. Snead v. Pension Benefit Guaranty Corporation, 74 M.S.P.R. 501, 503 (1997) (finding that Congress explicitly classified the Pension Benefit Guaranty Corporation as a wholly owned Government corporation). Therefore, to be an Executive agency within the jurisdiction of the Board in this IRA appeal, OA must meet the definition of "independent establishment."

OA is an "independent establishment."

¶10 There are no Board or Federal court cases directly addressing whether OA is an "independent establishment" within the meaning of 5 U.S.C. § 104. Therefore, the administrative judge looked to other statutes relating to OA and decisions that interpreted the terms "agency" or "independent establishment" as used in other statutes. ID at 6-8. The appellant disputes the applicability of these statutes and cases to this IRA appeal. PFR File, Tab 1 at 10-11. In order to address her arguments, we look first to the language of section 104.

The meaning of "independent establishment."

¶11 The interpretation of a statute begins with the language of the statute itself. Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016). As set forth above, an "independent establishment" is defined as "an establishment in the executive branch . which is not an Executive department, military...