Schmittling v. Dept. of the Army

• Decision Date: 13 July 2000
• Parties: (Fed. Cir. 2000) GREGORY A. SCHMITTLING, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent. 99-3228 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1332

219 F.3d 1332 (Fed. Cir. 2000)

GREGORY A. SCHMITTLING, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.

99-3228

United States Court of Appeals for the Federal Circuit

DECIDED: July 13, 2000

Appealed from: Merit Systems Protection Board

Kenneth W. Zatkoff, Dean & Fulkerson, P.C., of Troy, Michigan, argued for petitioner.

William K. Olivier, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief wasMichael J. Walby, Attorney, Army Tank Automotive and Armaments Command, United States Army, of Warren, Michigan.

Before PLAGER, CLEVENGER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Gregory A. Schmittling petitions for review of the final decision of the Merit Systems Protection Board ("Board") that denied his individual right of action ("IRA") appeal. The Board sustained the action of the Department of the Army ("Agency") abolishing Mr. Schmittling's GS-15 position of Chief, Automated Systems and Management Accounting Division (the "Accounting position"), with the Agency's Tank-Automotive and Armaments Command ("TACOM") in Warren, Michigan, and assigning him to the GS-15 position of Chief, Customer Management Division of TACOM (the "Customer position"), pursuant to a reduction-in-force ("RIF"). Schmittling v. Department of the Army, 81 M.S.P.R. 225 (1999) ("Schmittling II"). Mr. Schmittling alleged that the Agency intentionally blocked him from a RIF assignment to the position of Chief, Program and Budget Division of TACOM (the "Budget position"), due to his whistleblowing. Because the Board failed to address whether it had jurisdiction over Mr. Schmittling's IRA appeal, we vacate its denial of the appeal and remand the case for a determination of the jurisdictional issue.

BACKGROUND

I.

Mr. Schmittling was appointed to the Accounting position in May of 1994. While in the Accounting position and before the announcement in 1995 of the Agency's RIF, Mr. Schmittling undertook two "unilateral actions" relating to TACOM's financial processes. During the same period, Mr. Schmittling also made three disclosures concerning the matters that led to his two unilateral actions. ¹

Mr. Schmittling's first unilateral action occurred on September 27, 1994. At that time, Mr. Schmittling instructed the Defense Finance and Accounting Service ("DFAS") to not run the Base Operations Reimbursement ("BOR") process as of October 1, 1994, the beginning of a new fiscal year. ² Mr. Schmittling believed that running the BOR process was unauthorized and created a potential Anti-Deficiency Act ("ADA") ³ violation. Mr. Schmittling's then first and second-level supervisors, Robert Kaspari and Douglas Newberry, respectively, rescinded the instruction on September 28, 1994. Then, on March 8, 1995, Mr. Schmittling made his first protected disclosure--a complaint with TACOM's Commanding General regarding TACOM's BOR practices.

On March 21, 1995, Mr. Schmittling engaged in his second unilateral action. He did so when he instructed DFAS to terminate the processing of the Agency's Research, Development, Test and Evaluation ("RDTE") cost transfers. This instruction was countermanded on March 22, 1995 by Mr. Schmittling's then first-level supervisor, Silvio P. LaMarra. Mr. Schmittling made his second protected disclosure on May 2, 1995--a complaint with the Department of Defense ("DOD") Hotline concerning both the BOR and RDTE matters. Mr. Schmittling made his third protected disclosure on June 7, 1995, when he submitted a memorandum to Anthony Gianfermi, his then acting second-level supervisor, and Mr. LaMarra, claiming an ADA violation based on TACOM's practice of charging its customers for reimbursable costs incurred in the execution of customer orders.

II.

On August 1, 1995, the Agency announced plans to conduct a RIF. Shortly thereafter, Mr. Schmittling recommended that his position be abolished. On September 17, 1995, Mr. LaMarra, who had occupied the Customer position, was transferred to the Budget position. Eventually, Mr. Schmittling's Accounting position was abolished, and he was reassigned to the Customer position effective July 20, 1996, both actions being taken pursuant to the RIF.

The decision to reassign Mr. LaMarra was made by Mr. Kaspari, Mr. Newberry, Mr. Gianfermi, and Mr. LaMarra. The parties stipulated that one of the reasons the Agency reassigned Mr. LaMarra to the vacant Budget position prior to the RIF was to prevent Mr. Schmittling from being moved into the Budget position. See Schmittling II, 81 M.S.P.R. at 227-28. The Agency stated that this maneuver was taken due to its disagreement with Mr. Schmittling over the Agency's financial practices. See id. The parties also stipulated that Mr. Newberry, Mr. Gianfermi, and Mr. LaMarra all were aware of Mr. Schmittling's protected disclosures before Mr. LaMarra was reassigned. See id. at 228.

III.

Mr. Schmittling sought corrective action from the Office of Special Counsel ("OSC"), alleging that the Agency had reassigned Mr. LaMarra to the Budget position in order to block his reassignment to that position during the RIF because of Mr. Schmittling's three protected disclosures. On June 21, 1996, OSC closed its investigation in the matter, thereby clearing the way for Mr. Schmittling to file an IRA appeal with the Board.

Before the Board, the Agency moved to dismiss Mr. Schmittling's appeal for lack of jurisdiction. See Schmittling I, slip op. at 9. However, the administrative judge ("AJ") to whom the case was assigned determined that the Board had jurisdiction because, although "the [A]gency had a legitimate reason for effecting a RIF," Mr. Schmittling had made non-frivolous allegations that the Agency's actions surrounding the RIF made the "RIF's effect . . . personal to [Mr. Schmittling] and thus in the nature of an adverse action." Id. (citing Carter v. Department of the Army, 62 M.S.P.R. 393, 399 (1994), andMoran v. Department of the Air Force, 64 M.S.P.R. 77, 87 (1994)). The AJ then addressed the merits, concluding that the Agency had failed to prove by clear and convincing evidence that, in the circumstances of the RIF, it would have taken the actions it did absent Mr. Schmittling's protected disclosures. See Schmittling I, slip op. at 11-14. Therefore, the AJ ordered corrective action in favor of Mr. Schmittling, ordering the Agency to cancel Mr. LaMarra's reassignment, cancel Mr. Schmittling's reassignment, and allow Mr. Schmittling to select an appropriate, vacant GS-15 position. See id. at 14-15. The AJ also ordered the Agency to award Mr. Schmittling the appropriate amount of back pay. See id. at 15.

The Agency petitioned the Board for review, raising again its challenge to the Board's jurisdiction. See Schmittling II, 81 M.S.P.R. at 228. The Agency argued that the Board lacked jurisdiction because 5 U.S.C. § 1221(a), the statute that vests the Board with jurisdiction over IRA appeals, requires that the alleged retaliatory personnel action have been taken against the whistleblower, while Mr. Schmittling was appealing a personnel action that was taken with respect to Mr. LaMarra, not against Mr. Schmittling. See Schmittling II, 81 M.S.P.R. at 228. The Board, however, "assume[d] for purposes of argument that it [had] jurisdiction over [Mr. Schmittling's] IRA appeal in order to reject [his] claim on its merits." Id. After overturning the AJ's credibility determinations, see id. at 230-36, the Board found clear and convincing evidence that, because of Mr. Schmittling's two unilateral actions and his general disagreement with TACOM's budgetary policy, the Agency would have moved Mr. LaMarra in order to block Mr. Schmittling's RIF assignment to the Budget position absent Mr. Schmittling's protected disclosures, see id. at 236-39. Vice Chair Slavet dissented, stating that the Board should have addressed the jurisdictional issue because Mr. Schmittling's jurisdictional theory "present[ed] a question of first impression" that was not clearly supported by statute. Id. at 239-40 (Slavet, V.C., dissenting). Vice Chair Slavet also took the position that the case should be remanded to the AJ for explicit credibility determinations based on the factors laid out in Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987). See id. at 240-41.

Mr. Schmittling appeals the Board's final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

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. See 5 U.S.C. § 7703(c); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). Jurisdiction is a question of law; we thus review anew whether the Board had jurisdiction to decide a specific appeal. SeeHerman v. Department of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). The burden of establishing jurisdiction rests on the petitioner, see 5 C.F.R. § 1201.56(a)(2)(i), who must make a non-frivolous allegation of facts sufficient to establish jurisdiction, seeLourens v. Merit Sys. Protection Bd., 193 F.3d 1369, 1371 (Fed. Cir. 1999).

The jurisdiction of the Board is not plenary. See Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569, 1573 (Fed. Cir. 1996). Rather it is "limited to those matters specifically entrusted to it by statute or regulation." Id.; see also 5 U.S.C. § 7701(a)(1). IRA appeals are governed by 5 U.S.C. § 1221 which states in subpart (a) that "an employee . . . may, with respect to any personnel action taken, or proposed to be taken, against such employee . . . as a...