McCarthy v. Merit Sys. Prot. Bd.

• Decision Date: 14 January 2016
• Docket Number: No. 2015–3072.,2015–3072.
• Citation: 809 F.3d 1365
• Parties: Robert J. McCARTHY, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

809 F.3d 1365

Robert J. McCARTHY, Petitioner

v.MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 2015–3072.

United States Court of Appeals, Federal Circuit.

Jan. 14, 2016.

Paula Naomi Dinerstein, Public Employees for Environmental Responsibility, Washington, DC, argued for petitioner.

Michael Anton Carney, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Bryan G. Polisuk.

Before PROST, Chief Judge, LOURIE and WALLACH, Circuit Judges.

PROST, Chief Judge.

Robert McCarthy, who was formerly employed as a supervisory attorney for the United States International Boundary and Water Commission (the "Commission" or the "USIBWC"), appeals from a denial by the Merit Systems Protection Board ("Board") of his motion to reopen his appeal. For the reasons discussed below, this court affirms.

BACKGROUND

A

The circumstances giving rise to this appeal are summarized in part in our decision McCarthy v. International Boundary and Water Commission: U.S. and Mexico, 497 Fed.Appx. 4 (Fed.Cir.2012) (unpublished). We provide facts relevant to the issues here below.

USIBWC Commissioner Bill Ruth hired McCarthy as a full-time, supervisory attorney for the Commission beginning January 18, 2009. Between June and July, 2009, McCarthy prepared four legal memoranda (two on June 19, one on July 14, and one on July 20) challenging certain activities at the Commission as "gross mismanagement" and contrary to existing law. McCarthy's memoranda also attacked certain officers as lacking "core competencies."

On July 28, 2009, McCarthy submitted a report titled "Disclosures of Alleged Fraud, Waste and Abuse" to the State Department Office of Inspector General ("OIG"), as well as other federal agencies. The report stated, "I have previously made the Commissioner aware of the matters disclosed herein, and I have provided legal advice with respect thereto." J.A. 171. It specifically identified both June 19 memoranda, but did not identify the July memoranda. That same day, McCarthy sent an email to the USIBWC's Commissioner Ruth informing him that he had "report[ed] allegations of fraud, waste and abuse (and suspected criminal activity)." J.A. 182.

On July 31, 2009, Commissioner Ruth terminated McCarthy's employment. In support of his decision, Commissioner Ruth cited McCarthy's

continued failure to support me or other members of the executive staff in a constructive and collegial manner as evidenced in [his] memoranda of June 19, 2009, ‘Legal Requirements for Information Management’, June 19, 2009, ‘Legal Requirements for Separation of Budget and Finance Responsibilities', July 14, 2009, ‘Opinion on the Draft Internal Audit Program Directive and Manual’, and July 20, 2009, ‘Comments on Proposed Directive Management System’....

J.A. 183.

B

On August 1, 2009, McCarthy filed a complaint with the Office of Special Counsel ("OSC"), alleging whistleblower retaliation. His complaint identified his report to OIG, but not the legal memoranda, as protected activity. At the time, this was consistent with existing precedent, which held that reports made in the course of an employee's normal duties and reports made to a supervisor about a supervisor's conduct were not protected under the Whistleblower Protection Act of 1989, Pub.L. No. 101–12, 103 Stat. 16 (codified at various sections of 5 U.S.C.) ("WPA"). See Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1344 (Fed.Cir.2001). On August 21, McCarthy submitted an additional "Statement in Support of Complaint for Reprisal, Appeal and Stay Request" to the OSC which discussed his whistleblowing complaint in more detail. This statement did not explicitly identify the legal memoranda, but discussed similar topics. Compare J.A. 209–23 (August 21 statement), with J.A. 152–81 (legal memoranda).

The administrative judge issued an initial decision on April 9, 2010, concluding that McCarthy had not been retaliated against. The Board affirmed the administrative judge's initial decision on August 5, 2011, and we affirmed on October 15, 2012. McCarthy, 497 Fed.Appx. at 16.

McCarthy petitioned for rehearing on November 29, 2012. Petition for Panel Rehearing, Rehearing En Banc, McCarthy, 497 Fed.Appx. 4 (No. 11–3239), ECF No. 2. While McCarthy's petition was still pending, Congress enacted the Whistleblower Protection Enhancement Act of 2012 ("WPEA"), which became effective December 27, 2012. Pub.L. No. 112–199, 126 Stat. 1465 –76 (codified as amended in scattered sections of 5 U.S.C., 6 U.S.C. § 133, 31 U.S.C. § 1116, 50 U.S.C. § 401a ). Both parties recognize that, under the WPEA, McCarthy's four legal memoranda could be protected disclosures. Compare Opening Br. 31–32, with Responsive Br. 31; see 5 U.S.C. § 2302(f). On June 26, 2013, the Board decided Day v. Department of Homeland Security, 119 M.S.P.R. 589 (M.S.P.B.2013), which held that § 101 of the WPEA could be applied retroactively to pending cases. The parties do not dispute that the WPEA could be applied retroactively here. Compare Opening Br. 14, 24–25, with Responsive Br. 28. McCarthy did not raise the WPEA's change in law while his petition for rehearing was pending.¹

We denied McCarthy's petition for rehearing on February 13, 2013. McCarthy v. Int'l Boundary & Water Comm'n: U.S. & Mex., No. 11–3239 (Fed.Cir. Feb. 13, 2013). McCarthy petitioned for certiorari to the Supreme Court on May 13, 2013, which was denied on October 7, 2013. McCarthy v. Int'l Boundary & Water Comm'n: U.S. & Mex., ––– U.S. ––––, 134 S.Ct. 386, 187 L.Ed.2d 34 (2013).

On October 25, 2013, McCarthy filed a motion to reopen his appeal with the Board, seeking reinstatement and "other appropriate relief." J.A. 132. After the Board did not respond, on December 1, 2014, McCarthy petitioned this court for a writ of mandamus directing the Board to issue a decision. Petition for Writ of Mandamus, In re McCarthy, No.2015–118 (Fed.Cir. Dec. 1, 2014), ECF No. 1. While McCarthy's mandamus petition was pending, on January 8, 2015, the Clerk of the Board sent McCarthy a letter informing him that the Board would not reopen his case. We denied McCarthy's mandamus petition on January 29, 2015, electing to instead construe his petition as a timely petition for review, which is the appeal now before us.

DISCUSSION

A

This court's review of decisions by the Board is limited. Under 28 U.S.C. § 1295(a)(9), we may only hear "an appeal from a final order or final decision of the" Board. 28 U.S.C. § 1295(a)(9) (2012). A threshold question, then, is whether the Clerk's January 8 letter constitutes a "final order or final decision" that may be reviewed by us.

Section 1201.113 of 5 C.F.R., titled "Finality of decision," provides in relevant part:

The initial decision of the judge will become the Board's final decision 35 days after issuance. Initial decisions are not precedential.

(a) Exceptions. The initial decision will not become the Board's final decision if within the time limit for filing specified in 1201.114 of this part, any party files a petition for review or, if no petition for review is filed, files a request that the initial decision be vacated for the purpose of accepting a settlement agreement into the record.

(b) Petition for review denied. If the Board denies all petitions for review, the initial decision will become final when the Board issues its last decision denying a petition for review.

(c) Petition for review granted or case reopened. If the Board grants a petition for review or a cross petition for review, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.

The reviewability of Clerk letters from the Board is not an entirely new question to us. In Haines v. Merit Systems Protection Board, 44 F.3d 998, 1000 (Fed.Cir.1995), we found that a pro forma letter from the Clerk denying repetitive motions to reopen was not a "final order or final decision" under 5 C.F.R. § 1201.113, and thus not reviewable. We reasoned that "the letter was merely an administrative response by the Clerk to Haines's third informal letter request that the Board reopen her appeal and reconsider its final decision on its own motion. The Clerk had been delegated the authority to make such responses by the Board and was performing only a ministerial function in this regard." Id.

While we need not decide the reviewability of Clerk letters generally, we conclude that, at least in the circumstances of this case, where a Clerk letter denies a first motion to reopen, Haines does not apply. As we previously noted, Haines appears to have involved repetitive motions to reopen. In re McCarthy, No. 15–118, slip op. at 2 (Fed.Cir. Jan. 29, 2015). Because of this, the situation only required an "administrative response" which could be dispensed by a "ministerial function." Haines, 44 F.3d at 1000. By contrast, McCarthy's motion to reopen had not been previously considered by the Board as it involved an intervening change in law. In effect, then, the Clerk letter announcing the Board's denial of his motion announced a substantive decision which had a real impact on McCarthy's interests. The nature of this decision is akin to a "final order or final decision," not an "administrative response," and should be construed as such. This court's jurisdiction should not turn on the manner in which the Board chooses to announce its decision, and it would elevate form over substance to hold otherwise.

The Board's arguments to the contrary are unavailing. While it is true that existing statutes and regulations do not specifically state that a Clerk letter is a "final order or final decision," see, e.g., 5 U.S.C. § 7701(e)(1)(B), 5 C.F.R. §§ 1201.113, 1201.117(c), they also do not prohibit it from being so. Indeed, they are silent as to the form these documents may or may not take. Id. Thus, characterizing a Clerk letter as a "final order or decision" does not conflict with existing law.

Accordingly, we are not deprived of jurisdiction simply because the...