Spruill v. Merit Systems Protection Bd.
| Citation | 978 F.2d 679 |
| Decision Date | 22 October 1992 |
| Docket Number | No. 91-3245,91-3245 |
| Parties | Roland SPRUILL, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Charles A. Hobbie, Deputy Gen. Counsel, American Federation of Government Employees, AFL-CIO, Washington, D.C., argued, for petitioner. With him on the brief, was Mark D. Roth, Gen. Counsel. Also on the brief, was Daniel Minahan, Minahan & Shapiro, P.C., Lakewood, Colo. Of counsel was Alexia McCashill.
David C. Kane, Asst. Gen. Counsel, Merit Systems Protection Bd., Washington, D.C., argued, for respondent. With him on the brief, were Mary L. Jennings, Acting Gen. Counsel and Rita S. Arendal, Atty. Deborah Bynum, Dept. of Justice, Washington, D.C., for respondent. Of counsel were Martha H. DeGraff and David M. Cohen, Dept. of Justice, Washington, D.C.
Before PLAGER, Circuit Judge, SMITH, Senior Circuit Judge, and RADER, Circuit Judge.
Roland Spruill (Spruill), an employee of the Department of Veterans Affairs (DVA), was given a three-day suspension by the agency. He petitioned the Merit Systems Protection Board (MSPB or Board) for review of his suspension, which he alleged was taken by the agency in retaliation for his filing of a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). The Administrative Judge (AJ) dismissed Spruill's petition for lack of jurisdiction, holding that the filing of such an EEOC complaint was not within the ambit of 5 U.S.C. Section 2302(b)(8) describes certain activities which have come to be known as 'whistleblowing,' and prohibits adverse personnel actions against federal government employees in reprisal 2 for such activities. Should an employee believe such a prohibited reprisal action has been taken, Congress has provided a direct appeal route to the MSPB, called the Individual Right of Action (IRA), under § 1221. Absent the benefit of that special provision for whistleblowers, Spruill would have no right to MSPB review of this particular agency sanction. Spruill appeals the MSPB's determination that he does not have the benefit of the IRA.
§ 2302(b)(8). 1 (Docket No. DE122191W0104, January 30, 1991). Since Spruill did not file a petition for review with the MSPB, the initial decision of the AJ became the final decision of the MSPB. 5 C.F.R. § 1201.113 (1991)
During the course of this appeal, the DVA, Spruill's employing agency, filed a motion requesting that the caption in this case should be reformed to designate the DVA, rather than the MSPB, as the party respondent. This motion has consequences considerably beyond the proper titling of the court papers.
Spruill's appeal thus raises two questions of some significance, questions not previously addressed by this court. For the reasons given, we affirm the Board's decision regarding jurisdiction, and deny the motion of the DVA.
Spruill is employed by the Veterans Affairs Medical Center in Phoenix, Arizona. On November 7, 1989, he filed a complaint with the EEOC alleging discriminatory treatment, based on his supervisor's decision to shift Spruill's starting and quitting times back one half hour. Spruill alleged in his complaint that this seemingly innocuous alteration was discrimination based upon his handicapping condition because it would interfere with his physical therapy--he is a disabled veteran. Furthermore, Spruill alleged discriminatory intent based upon his race--he is black. The merits of these allegations are not at issue here.
Almost a year after the EEOC complaint was filed, the DVA on August 28, 1990, proposed a five-day suspension, and on September 18, 1990, suspended Spruill for three days without pay. The DVA stated that the sanction was for Spruill's abuse of sick leave. Spruill, alleging that the suspension was in reprisal for his filing of the EEOC complaint, sought help from the Office of Special Counsel (OSC) pursuant to § 1214.
The OSC is the office specifically charged with investigating allegations of prohibited personnel practices within the Federal Government. That office in a letter to Spruill declined to consider his case, however, referring him instead to the EEOC process:
Your allegation of discrimination and reprisal for filing an EEOC complaint is of a prohibited personnel practice within the investigative jurisdiction of the Office of Special Counsel. 5 U.S.C. §§ 2302(b)(1) and (b)(9). However, it was not intended that this office duplicate or bypass the procedures established in the agencies Spruill then petitioned the MSPB for review of his three-day suspension pursuant to the provisions of § 1221, the Individual Right of Action (IRA) provision. Ordinarily a three-day suspension would not be appealable to the MSPB. Section 7503. Under the IRA, however, such a personnel action, if taken against an employee "as a result of a prohibited personnel practice described in section 2302(b)(8)," entitles the employee to seek corrective action from the MSPB. 5 U.S.C. § 1221.
and the Equal Employment Opportunity Commission for resolving such discrimination complaints. Therefore it is the general policy of the Special Counsel not to take action on such allegations of discrimination; they are more appropriately resolved through the EEOC process. 5 C.F.R. § 1810.1. (Emphasis added)
Spruill argued before the MSPB that filing an EEOC complaint constituted protected whistleblowing activity under § 2302(b)(8), citing Williams v. Department of Defense (Williams I), 45 M.S.P.R. 146 (1990), which had so held, and that the MSPB thus had jurisdiction under the IRA to hear and decide his appeal from the agency's sanction. However, while Spruill's appeal was still before the Administrative Judge (AJ), the MSPB reversed its position in Williams I, and adopted the contrary position. Williams v. Department of Defense (Williams II), 46 M.S.P.R. 549 (1991). The AJ accordingly dismissed Spruill's appeal on January 30, 1991, citing Williams II.
The CSRA, enacted in 1978, set up an extensive framework of merit principles and personnel procedures, designed in large part to "give agencies greater ability and flexibility to remove or to discipline employees who engage in misconduct ... or whose work performance is unacceptable." Lisiecki v. Merit Systems Protection Bd., 769 F.2d 1558, 1563 (Fed.Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1514, 89 L.Ed.2d 913 (1986). At the same time, the Act detailed a host of "prohibited personnel practices," actions which are prohibited to be taken against an employee. These are spelled out in a number of paragraphs in subsection 2302(b). See 5 U.S.C. § 2302(b)(1)-(11). Paragraph (b)(8) provides protection against agency reprisal for what is known as whistleblowing. 3
In 1989, after extensive hearings regarding the effectiveness of the CSRA provisions for protection of whistleblowers, 4 Congress enacted the Whistleblower Protection Act of 1989 (WPA). The WPA substantially changed the role of the OSC, revised the substantive provisions of the whistleblower defense, and created a new route in whistleblowing cases for employees to take in appealing agency discipline--the Individual Right of Action (IRA). Through the IRA, employees previously excluded from MSPB review gained access both to the MSPB and the augmented enforcement powers provided through the IRA. 5
But the benefits of the IRA are only available to Spruill if the prohibited act is one described in § 2302(b)(8). Thus, if Spruill is to have MSPB review of his three-day suspension, he must demonstrate, contrary to the MSPB position in Williams II, that the activity which triggered the alleged reprisal falls within the statutory definition of the prohibited acts described in § 2302(b)(8).
Central to the dispute are two different provisions of Title 5, each of which purports to authorize judicial review of MSPB actions. One of these provisions is found in the original CSRA. Section 7703 is entitled "Judicial review of decisions of the Merit Systems Protection Board." Subsection 7703(a)(1) states the employee's general right of judicial review:
Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision. 6
The next subsection, 7703(a)(2), then indicates the proper respondent for the appeal pursuant to § 7703(a)(1). Prior to its amendment in 1989, 7703(a)(2) read:
The Board shall be named as respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent.
(The reference to section 7701 is to the general provision for MSPB review of agency personnel actions.)
While seemingly straightforward, the application of this language to particular cases was subject over the years to some dispute. Prior to 1988, § 7703(a)(2) had been understood to mean that the proper respondent ...
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