Tao v. Merit Sys. Prot. Bd., 2020-1834

Decision Date07 May 2021
Docket Number2020-1834
PartiesDEBRA TAO, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
CourtU.S. Court of Appeals — Federal Circuit

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. SF-1221-19-0147-W-1.

JAMES SOLOMON, Solomon, Maharaj & Kasimati, P.A., Tampa, FL, for petitioner.

CALVIN M. MORROW, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L. LEAVITT, KATHERINE MICHELLE SMITH.

SHERYL GOLKOW, United States Office of Special Counsel, Washington, DC, for amicus curiae Office of Special Counsel. Also represented by ELISABETH REBECCA BROWN,

EMILEE COLLIER, HENRY J. KERNER, LOUIS LOPEZ, SOPHIA WOLMAN.

Before DYK, MAYER, and HUGHES, Circuit Judges.

PER CURIAM.

Dr. Debra Tao petitions for review of a decision by the Merit Systems Protection Board ("Board") that dismissed an individual right of action appeal for lack of jurisdiction. On review, the Board and the Office of Special Counsel agree that the administrative judge ("AJ") erred in multiple respects. We reverse in part, vacate in part, and remand.

BACKGROUND
I

The Whistleblower Protection Act provides a federal employee an individual right of action to seek corrective action from the Board for any personnel action, as defined in the Act, that the employee reasonably believes was taken in retaliation for any act of whistleblowing. Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328 (Fed. Cir. 2020); see also 5 U.S.C. § 1221. The statute provides that, subject to exhausting administrative remedies with the Office of Special Counsel (or "OSC"), see 5 U.S.C. § 1214(a)(3), "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 section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the [Board]," 5 U.S.C. § 1221(a).

We have described § 2302(b)(8) as covering "reprisal based on disclosure of information" and § 2302(b)(9) as covering "reprisal based upon exercising a right to complain." Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1575 (Fed. Cir. 1996) (quoting Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 690 (Fed. Cir. 1992) (specifically discussing § 2302(b)(9)(A)). Reprisals are any "personnel action," as defined in 5 U.S.C. § 2302(a)(2), taken "because of . . . any disclosure" protected under § 2302(b)(8) or "because of" activities protected under § 2302(b)(9). 5 U.S.C. § 2302(a)(2), (b)(8)-(9); see also Spruill, 978 F.2d at 681 n.2 (Fed. Cir. 1992) (discussing § 2302's terminology).

Under § 2302(b)(8), a protected disclosure is one which the employee "reasonably believes evidences (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020) (quoting § 2302(b)(8)).

As relevant to this case, under § 2302(b)(9), the following are protected activities:

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of paragraph (8) . . . ;
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law . . . .

5 U.S.C. § 2302(b)(9).

II

At the time of the relevant events of this case, Dr. Tao had been employed as a pharmacist (Pharmacy Program Manager) at the Department of Veterans Affairs Greater Los Angeles Health Care System Pharmacy Service for thirty years. On February 20, 2018, Dr. Tao filed a complaint alleging prohibited personal practices with OSC. The retaliatory personnel actions Dr. Tao alleged with OSC were a three-day suspension imposed on her on June 17, 2017, her detail to a staff pharmacist position at a different location beginning July 24, 2017, a proposed removal letter issued on February 16, 2018, and the failure to provide a performance rating. OSC informed Dr. Tao on October 11, 2018, that OSC was closing its inquiry into her case and advised her that she "may have a right to seek corrective action from the [Board]" by filing an individual right of action appeal. J.A. 318-19. Dr. Tao filed a timely individual right of action appeal with the Board, making largely the same allegations that she had raised in her OSC complaint and supplemental disclosures to OSC while her case was pending.

Before the Board, Dr. Tao raised sixteen actions that she contended were protected under § 2302(b)(8), (9), or both. The AJ appears to have addressed seven of these, and the AJ dismissed Dr. Tao's appeal for lack of jurisdiction because she had not sufficiently alleged making protected disclosures under § 2302(b)(8). The AJ's decision became the final decision of the Board on March 17, 2020. Dr. Tao petitions for review. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).

On review, of the sixteen total items, the Board admits that the AJ's ruling was erroneous with respect to five of them, admits that the AJ erroneously failed to consider two items, and takes no position as to the remainder. OSC has filed a brief as amicus curiae and argues that the AJ committed reversible error with respect to five of the actions raised by Dr. Tao. OSC did not address the remaining eleven.

DISCUSSION
I

We first describe Dr. Tao's sixteen allegations, and as to each, the AJ's ruling, and the position on review of the Board and OSC. Generally, Tao's allegations concerned the conduct of Dr. Yusef Dawoodbhai, the acting Chief of Pharmacy that Tao reported to, and the conduct of the Chief of Staff, Scotte Hartronft. We describe our disposition as to each of these items in Part II of this section.

(1) Dr. Tao alleges that on June 20, 2017, she advised Hartronft and human resources officials over email of potential abuses of authority by "'concur[ring]' with Administrative Officer Elizabeth Luevano's June 20, 2017 email," which "convey[ed] that acting Chief of Pharmacy Yusef Dawoodbhai abused his authority by engaging in unspecified 'inappropriate abusive treatment.'" J.A. 2 (citation omitted).1 Dr. Tao also alleges that she disclosed to OSC that "Dawoodbhai yelled at her, pointed his fingers, threatened discipline, and improperly called her a senior manager." Id. (citation omitted).

Dr. Tao contends that this item is protected under § 2302(b)(8) and does not assert that it is protected under § 2302(b)(9). The AJ determined that there was no jurisdiction under § 2302(b)(8). Id. at 6. On review, the Board takes no position on the merits of the AJ's determination, nor does OSC.

(2) Dr. Tao alleges that on June 26, 2017, she "wrote a letter to a U.S. Senator [Dianne Feinstein] complainingthat Dawoodbhai, Hartronft, and HR officials were acting improperly towards her, improperly detailing Dawoodbhai without competition, [and] improperly detailing Dawoodbhai's spouse to a supervisory HR position creating an 'improper alliance between the two services' as set forth in the record." Id. at 2 (citation omitted). The AJ determined that these disclosures did not establish jurisdiction under § 2302(b)(8). Id. at 6-7. On review, the Board concedes that the AJ's ruling with respect to the letter to Senator Feinstein was erroneous, as discussed further in item (8) below. OSC takes no position.

(3) Dr. Tao alleges that on July 13, 2017, she informed the agency's Office of Accountability and Whistleblower Protection (or "OAWP") "that Dawoodbhai and Hartronft were improperly disciplining and otherwise taking action against employees that management had not previously addressed." Id. at 2. Dr. Tao contends that this action was protected under § 2302(b)(9)(C). The AJ determined that this action did not establish jurisdiction under § 2302(b)(8). The Board appears to concede that the AJ's ruling was erroneous because Dr. Tao "provided information to the agency's OAWP investigatory unit" and that such activity "is likely covered under [§] 2302(b)(9)(A)." Resp't Br. 16. OSC contends that "fil[ing] with [the agency's] OAWP" "ha[s] long been held to be protected under [§] 2302(b)(9)." OSC Br. 11.

(4) Dr. Tao alleges that on August 15, 2017, "she disclosed to the Federal Labor Relations Authority . . . , through a claim of unfair labor practice . . . , that the agency improperly 'stated that [she] was a manager' . . . even though she ha[d] been detailed to a staff pharmacist position, away from her manager position," and, as a result, Dr. Tao was ineligible for union representation. J.A. 2-3 (citation omitted). Dr. Tao asserts that this action was protected under both § 2302(b)(8) and (b)(9)(A)(i). The AJ determined that this item did not establish jurisdiction under § 2302(b)(8). The Board takes no position on the merits of the AJ's determination with respect to this disclosure. OSC takes the view that Dr. Tao's act of "filing a claim of an unfair labor practice with the Federal Labor Relations Authority" is "protected under [§] 2302(b)(9)." OSC Br. 3.

(5) Dr. Tao alleges that on November 13, 2017, she "informed the OSC Disclosure Unit that Dawoodbhai was improperly disciplining employees." J.A. 3 (citation omitted). Dr. Tao contends this action is protected under § 2302(b)(9)(C). The AJ concluded that this item did not establish jurisdiction under § 2302(b)(8). The Board concedes that the AJ's ruling was erroneous because Dr. Tao's act of "fil[ing] disclosures with OSC's Disclosure Unit" "is explicitly protected under section 2302(b)(9)(C)." Resp't Br. 15. OSC takes the same view.

(6) Dr. Tao...

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