U.S. Merit Systems Protection Board
Case Report for May 22, 2009

Note: These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority. Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant: Stanley J. Miller

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 75

Docket Number: DC-1221-08-0274-W-1

Issuance Date: May 4, 2009

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
– Protected Disclosure – Substantial and Specific Danger to Public Safety

The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal. As a Transportation Security Specialist with the Transportation Security Administration, the appellant is tasked with covert testing of baggage and passenger security systems at U.S. airports and with overseeing a team that conducts testing that involves attempts to pass simulated bombs and bags tainted with explosive contaminants through screening. He claimed that the agency proposed to suspend him for 14 days and removed some of his team leader duties in retaliation for making protected whistle blowing disclosures. Specifically, he alleged that these actions were taken because he criticized changes in standard operating procedures (SOPs) that he believed could have catastrophic results by making it easier for an explosive device to be placed on board an aircraft.
The administrative judge (AJ) determined that the appellant established jurisdiction by making non-frivolous allegations that he disclosed information that he reasonably believed evidenced a substantial and specific danger to public health or safety, and that the disclosures were a contributing factor in the personnel actions at issue.

The AJ further found, however, that the appellant did not prove by preponderant evidence that he made protected disclosures, because he did not show he had a reasonable belief that implementation
of the new SOPs would pose a substantial and specific danger to public health or safety.
The AJ found in this regard that the appellant did not have the education, training, or expertise to support his claims, and did not provide objective evidence or data that the proposed SOPs presented a danger to the public.
Holdings: The Board vacated the initial decision, finding that the appellant had made protected disclosures, and remanded the appeal for further adjudication:

1. The appellant proved by preponderant evidence that he disclosed information that he reasonably believed evidenced a substantial and specific danger to public health and safety.

a. Whether one has a reasonable belief is determined by an objective test: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the matters disclosed show one of the categories of wrongdoing set out in the statute.

b. Disclosures regarding danger to the public must be both substantial and specific to be protected. Factors to be considered include the likelihood of harm, when the alleged harm may occur, and the potential consequences of the harm.

c. Because the AJ’s findings were not based on the witnesses’ demeanor, with one exception that does not make a material difference, the Board may make its own factual judgments.

d. The AJ’s findings that the appellant’s claims were not credible because they were based on his work experience rather than particular education or training with explosives or related technology, and because of the lack of objective evidence supporting his assertions that Explosives Detection Test (EDT) machines have a 10% failure rate, are inconsistent with the applicable legal standard—that the reasonableness of an individual’s belief is based on facts known to or readily ascertainable by him. The appellant’s 4 years of experience in conducting tests using EDT machines, which was the basis for his conclusion about a 10% failure rate, is more than sufficient to support a reasonable belief in the fallibility of the machines.

e. It was also error to judge the reasonableness of the appellant’s beliefs by the opinion of a chemical engineer with extensive experience working with ETDs, because the appellant was not required to prove the truth of his assertion regarding a safety issue; he was only required to prove that a reasonable person in his position would believe there was such an issue.

f. It was also error to determine that the appellant’s belief was not reasonable simply because management officials involved in the review process did not agree with him. Although the appellant’s disclosures can be seen as a policy disagreement, a disclosure of information reasonably believed to evidence a danger to public safety may be protected even if the alleged danger was created by a policy decision.

g. The 3 factors identified by the Board’s reviewing court have been satisfied. The potential consequences—placement of an explosive device on a commercial airliner—obviously would be catastrophic. The extensive screening measures that have been put in place to prevent such an occurrence are a reflection of how likely and imminent the threat may be.
h. In holding that the appellant reasonably believed that the changes he identified in the agency’s SOPs constituted disclosure of substantial and specific dangers to the public safety, the Board is not required to, and expressly does not, make any finding as to whether the SOP changes actually resulted in any threat to public health or safety.
2. The case must be remanded for determinations on whether the appellant established that his protected disclosures were a contributing factor in the personnel actions at issue and, if so, whether the agency would have taken them in the absence of the disclosures.

Appellant: James R. Coats
Agency: United States Postal Service
Decision Number: 2009 MSPB 82
Docket Number: SF-3330-09-0007-I-1
Issuance Date: May 14, 2009
Appeal Type: Veterans Employment Opportunities Act
USERRA/VEOA/Veterans’ Rights
Defenses and Miscellaneous Claims
– Collateral Estoppel/Res Judicata
The appellant petitioned for review of an initial decision that dismissed his appeal. The appellant resigned from the agency in May 1996, and asked for reinstatement in December 1999. In his appeal, he alleged that the agency discriminated against his rights as a veteran by failing to reemploy him on the basis of a false allegation that he misused sick leave. In dismissing the appeal, the AJ noted that the appellant had filed two previous Board appeals, and found that the claims raised in the present appeal involve claims that had been adjudicated in the previous appeals and were therefore barred by res judicata.

Holdings: The Board vacated the initial decision, denied the appellant’s request for corrective action under VEOA on the merits, and forwarded the appellant’s involuntary resignation and USERRA claims to the regional office for docketing as separate appeals:

1. The appellant’s VEOA claims are not barred by res judicata or collateral estoppel.

a. Both of the appellant’s prior appeals were dismissed for lack of jurisdiction. Such a dismissal does not preclude a second action on the same claim under the doctrine of res judicata.

b. A dismissal for lack of jurisdiction would generally preclude relitigating the same jurisdictional issue in a second action in the same forum under the doctrine of collateral estoppel (issue preclusion). But the jurisdictional issue in the present appeal is not the same as the jurisdictional issue in the prior appeals.

2. The appellant has met jurisdiction requirements for establishing Board jurisdiction over his VEOA claims. He is preference eligible, the actions at issue took place after the effective date of VEOA, and he nonfrivolously alleged that the agency violated his rights under a statute or regulation relating to veterans’ preference.

3. The appellant’s request for corrective action under VEOA is denied on the merits. The agency Handbook that the appellant asserted was violated merely authorizes the agency to reinstate former employees who are entitled to veterans’ preference; it does not mandate that the agency do so. Further, the Handbook is not a statute, and the appellant has not show it to be a regulation.

4. The appellant’s assertion that his 1996 resignation was involuntary must be forwarded to the regional office for adjudication as a separate appeal. The appellant was not given explicit information on what is required to establish an appealable jurisdictional issue for such a claim.

5. Similarly, the appellant has raised a claim of discrimination on the basis of his uniformed service in violation of USERRA. This claim must also be adjudicated as a separate appeal.

GOING AFTER VETERANS
Appellant: David M. Baker
Agency: Department of Homeland Security
Decision Number: 2009 MSPB 83
Docket Number: PH-4324-08-0574-I-1
Issuance Date: May 18, 2009
Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)
USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that adjudicated his USERRA appeal. The appellant, a Special Agent with the United States Secret Service, asserted that the agency violated USERRA when it required him to transfer out of the Department of the Navy’s Selected or Ready Reserve as a condition of his July 2003 appointment. In his Board appeal, he stated that he had filed a complaint about the matter with OSC, which “was able to achieve corrective action in the nature of [his] return to his prior military reserve designation,” but that the agency refused to reimburse him for the damages he had suffered: loss of drill pay; loss of the ability to accrue additional military leave time, loss of accumulated military retirement points, and damages due to attempts by the agency to collect approximately $800 in connection with the Montgomery GI Bill.
In denying relief, the AJ found that the appellant’s removal from the Ready Reserves was not a denial of a benefit of employment under USERRA. The AJ similarly found that Montgomery GI Bill benefits are not a benefit of employment under USERRA. The AJ concluded as follows: “Based on the evidence, I find that the appellant’s request for relief is DENIED, and his appeal must be dismissed for failure to state a claim upon which relief can be granted.”

Holdings: The Board vacated the initial decision, found that the Board has jurisdiction over the appeal, and remanded the case for further processing:
1. It was unclear from the initial decision which of 3 dispositions the AJ intended: dismissal for lack of jurisdiction; failure to state a claim upon which relief can be granted; or denial of corrective action on the merits.
2. The appellant established jurisdiction under USERRA, which requires that the appellant show that: (1) He performed duty or had an obligation to perform duty in a uniformed service, (2) the agency denied him a benefit of employment, and (3) the denial was due to the performance of duty or obligation to perform.

a. The appellant met the first criterion, as he was a member of the Naval Reserve.

b. The Board disagreed with the AJ’s conclusion that the court’s decision in Thomsen v. Department of the Treasury, 169 F.3d 1378 (Fed. Cir. 1999), precluded the appellant from meeting the second and third criteria. The court did not find that Thomsen failed to establish jurisdiction, and the decision specifically stated that “it is not clear on the present record whether the Agency’s ‘key employee’ policy denied Mr. Thomsen a benefit of employment under USERRA.” Moreover, Thomsen was issued before the agency issued its 2005 memorandum that stated that the Secret Service may not advise applicants or employees to separate from the military reserves.
3. Under Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), an appellant who has established jurisdiction is entitled to a hearing on the merits. A remand is therefore necessary.