Shoaf v. Department Of Agr.

• Decision Date: 07 August 2001
• Docket Number: No. 00-34148.,00-34148.
• Citation: 260 F.3d 1336
• Parties: William R. SHOAF, Petitioner, v. DEPARTMENT OF AGRICULTURE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

260 F.3d 1336

William R. SHOAF, Petitioner, v. DEPARTMENT OF AGRICULTURE, Respondent.

No. 00-34148.

United States Court of Appeals, Federal Circuit.

Decided August 7, 2001.

Corrie J. Yackulic, Schroeter, Goldmark & Bender, of Seattle, Washington, argued for petitioner.

Geoffrey J.L. Brown, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David M. Cohen, Director; and Bryant G. Snee, Assistant Director.

Before RADER, GAJARSA, and LINN, Circuit Judges.

Opinion for the court filed by Circuit Judge GAJARSA. Concurring Opinion filed by Circuit Judge RADER.

DECISION

GAJARSA, Circuit Judge.

William R. Shoaf appeals a final order of the Merit Systems Protection Board ("MSPB" or "Board"), Shoaf v. Dep't of Agric., 84 M.S.P.R. 524 (1999), which denied his petition for review of the Board's initial decision, Shoaf v. Dep't of Agric., No. SE-0752-96-0462-I-2 (M.S.P.B. Sept. 11, 1998). In the initial decision, considering only activities occurring subsequent to Shoaf's September 1993 position transfer, an administrative judge on the MSPB determined that Shoaf's resignation was not involuntary. Because the administrative judge failed to consider events that transpired from April 1990 through Shoaf's September 1993 transfer, we vacate and remand.

BACKGROUND

Shoaf began his career with the United States Forest Service (the "agency"), which is a part of the Department of Agriculture, in 1978 as a seasonal GS-3 Forest Technician in Idaho. Later that year, Shoaf commenced full-time employment with the agency as a GS-5 Timber Sale Officer. He was promoted to a GS-7 position and then to a GS-9 position as a Presale Forester by 1981, which he maintained until 1987. In 1987, Shoaf was promoted to a GS-11 position as a Forestry Systems Analyst in the agency's national headquarters in Washington, D.C. He was again promoted to a GS-12 position the following year. From 1978 through 1990, all of Shoaf's performance ratings were either "fully successful" or "outstanding." The agency also awarded Shoaf merit certificates in 1983, 1987, and 1990.

In April 1990, Shoaf transferred from agency headquarters to the Ketchikan, Alaska area of the Tongass National Forest ("the Tongass"). By the time Shoaf went to the Tongass, he was well versed with federal statutes and regulations relating to timber sales.

Shoaf was placed "on the Tongass" to head interdisciplinary teams ("IDTs") responsible for preparing large timber sales in southeast Alaska. In this position, Shoaf headed the IDT responsible for preparing the Central Prince of Wales ("CPOW") sale of old-growth forest. The CPOW sale was extremely controversial; it garnered significant governmental and media attention and fostered a substantial amount of litigation concerning its legality.

In his first year on the Tongass, Shoaf carried out his duties well and again received "fully successful" and "outstanding" performance ratings. After Shoaf's first year on the Tongass, he recognized several agency activities pertaining to the CPOW sale that he believed violated statutory strictures binding the agency.

Between July 1991 and July 1993, Shoaf made several whistleblowing-type disclosures concerning timber management practices on the Tongass. In July 1991, Shoaf and his CPOW team produced and released a "falldown" report, which highlighted proposed logging activity outside of established project boundaries. Shoaf also advised David Rittenhouse, the Forest Supervisor who was Shoaf's second-level superior, that the 1991 "Notice of Intent" —which disclosed proposed agency action and possible alternatives to the public—contained disparities in the location and acreage of the CPOW sale. On December 13, 1992, Shoaf wrote a public comment letter in his capacity as a public citizen pertaining to the draft environmental impact statement ("DEIS") covering the CPOW project issued by the agency. In this letter, which was disseminated to the public, Shoaf stated that the proposal outlined in the DEIS would lead to an "unacceptable" reduction of sustained timber development in the project area. Shoaf's public comment letter attracted national attention. United States Congressman George Miller, then Chairman of the House Natural Resources Committee, obtained a copy of Shoaf's letter and drafted a letter to Michael Espy, then Secretary-Designate of Agriculture, which pointed out Shoaf's concerns over the harvest rate in the Tongass region and requested an investigation of activity on the Tongass. Shoaf's public comment letter also attracted media attention. Further, in April 1993, Shoaf released another report he co-authored indicating that the agency's proposed "alternatives" contained "clearcut units" that exceeded the allowable limits. Additionally, prior to release of the CPOW environmental impact statement ("EIS"), Shoaf submitted a memorandum to the agency indicating that its decision to disregard the "multi-entry layout plan" in the EIS was undesirable. In several of the aforementioned disclosures, Shoaf alleged that the agency was violating statutory provisions, for example, directives of the National Energy Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (1994) and the National Forest Management Act of 1976, 16 U.S.C. §§ 1600 et seq. (1994).

Just after Shoaf began to call attention to activities he considered violative of governing statutes, the agency took numerous actions detrimental to Shoaf's career. For example, on August 1, 1991, two weeks after release of the "falldown" report, Rittenhouse orally reprimanded Shoaf at a meeting in front of agency managers and his IDT. During 1992, David Arrasmith, Shoaf's immediate supervisor at the time, twice indicated that he was considering and being urged by agency management to remove Shoaf from his position. Shortly after Shoaf's public comment letter regarding the DEIS was publicized, Arrasmith prohibited Shoaf and other IDT leaders from speaking directly to the media, which had previously been a responsibility of IDT leaders. In early 1993, Shoaf was stripped of his responsibility for coordinating public comments on the CPOW DEIS, even though the other IDT leaders on the Tongass retained such responsibility for their respective projects. In March 1993, the agency assigned a "co-IDT leader" to work with Shoaf on the CPOW project. In spring 1993, the agency removed Shoaf's responsibility for leading the preparation and recommendation of the "preferred alternative" for the final EIS. On April 1, 1993, Arrasmith, with approval from Rittenhouse, gave Shoaf his first "not fully successful" performance rating in fifteen years. On May 5, 1993, the agency eliminated Shoaf's involvement in a project concerning "clearcut size" in the CPOW project area. Also in 1993, Arrasmith informed Shoaf that he could not meet with governmental auditors investigating possible violations of the Tongass Timber Reform Act, Pub.L. No. 101-626, 104 Stat. 4426 (1990). Shoaf was also prevented from meeting with the Director of Timber Management from the agency's headquarters in May 1993, and he was not asked to attend a national forestry conference in August 1993, which was attended by the Assistant Secretary of Agriculture, even though the other two IDT leaders on the Tongass attended these gatherings.

Pursuant to a reorganization effort in September 1993, the agency eliminated Shoaf's position. Shoaf voluntarily accepted a position as a "Special Projects Forester" with the timber staff in Ketchikan, Alaska under the supervision of Mr. Gene Eide. The agency created this non-supervisory position specifically for Shoaf; it did not exist prior to Shoaf's tenure and was abolished when he left that position. During portions of 1994, the agency provided him with absolutely no viable or meaningful assignments. Indeed, as of February 7, 1995, Shoaf indicated by letter to the Regional Forester, Mr. Phil Janek, that his last assignment had been given on November 2, 1994 and it lasted for a day and a half. Shoaf contends the agency deliberately "idled" him in an effort to persuade him to resign.

On February 28, 1995, Shoaf applied for retirement in conjunction with a separation incentive program under the provisions of the Federal Workforce Restructuring Act of 1994, Pub.L. No. 103-226, 108 Stat. 111 (1994). His resignation under that program became effective on March 31, 1995. On July 6, 1995, Shoaf filed a complaint with the Office of Special Counsel ("OSC"), alleging that retaliatory actions had been taken against him for making disclosures protected under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (1994). On May 8, 1996, the OSC issued a notice of termination of its inquiry into Shoaf's complaint. On October 31, 1996, Shoaf appealed to the MSPB, alleging that his resignation was involuntary and based on constructive discharge due to his whistleblowing activity.

In the initial decision, to determine whether Shoaf's resignation was involuntary, the administrative judge only considered activities transpiring after Shoaf transferred to the timber staff in September 1993.¹ Based on that evidence, the administrative judge determined the agency's alleged efforts to "idle" Shoaf failed to constitute circumstances under which a reasonable person would be "forced" to resign. Therefore, the administrative judge concluded that Shoaf failed to show his separation was either a constructive removal action taken by the agency or that it was a "personnel action" under the Whistleblower Protection Act, 5 U.S.C. § 2302(a)(2)(A), and consequently held that the MSPB lacked jurisdiction over Shoaf's appeal. The administrative judge then indicated that Shoaf's request for corrective action based on events occurring prior to his September 1993 transfer was moot, because he failed to establish that he should be reinstated on the grounds that his resignation was involuntary....