United States Court of Appeals for the Federal Circuit 

2008-3048 

MATTHEW R. DRAKE, 

Petitioner, 

v. 

AGENCY FOR INTERNATIONAL DEVELOPMENT, 

Respondent. 

 Nicholas Woodfield, The Employment Law Group, P.C., of Washington, DC, 

argued for petitioner. With him on the brief was R. Scott Oswald. 

Todd M. Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondent. With 

him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. 

Davidson, Director; and David D’Alessandris, Trial Attorney. 

Appealed from: Merit Systems Protection Board
______________________ 

 * Honorable Liam O’Grady, District Judge, United States District Court for the 

Eastern District of Virginia, sitting by designation. 

United States Court of Appeals for the Federal Circuit 

 

2008-3048 

MATTHEW R. DRAKE, 

Petitioner, 

v. 

AGENCY FOR INTERNATIONAL DEVELOPMENT, 

Respondent. 

Petition for review of the Merit Systems Protection Board in DC1221060128-B-1. 

 ___________________________ 

 DECIDED: October 7, 2008 

 ___________________________ 

Before MICHEL, Chief Judge, MOORE, Circuit Judge, and O’GRADY, District Judge.* 

MOORE, Circuit Judge. 

 Mathew R. Drake appeals a final decision of the Merit Systems Protection Board 

(MSPB or Board) finalizing an initial decision denying his request for corrective action. 

Drake v. Agency for Int’l Dev., 107 M.S.P.R. 251 (2007). Because the administrative 

judge (AJ) erred in concluding that Mr. Drake had not made a protected disclosure 

under 5 U.S.C. § 2302(b)(8), we reverse and remand. 

BACKGROUND 

Mr. Drake, a Foreign Service investigator with USAID (agency), was assigned to the 

Regional Inspector General’s Office in Budapest, Hungary. On May 24, 2004, Mr. 
Drake was charged with “[i]ntoxication caused by the use of alcohol while on official 

duty,” based on his conduct while on temporary duty in Tbilisi, Georgia. In response to 

the charge, the agency proposed a five day suspension, which was later withdrawn.

During July and August 2004, Mr. Drake attended two parties at the U.S. 

Embassy in Budapest. On August 10, after attending the second party, Mr. Drake sent 

an e-mail, including pictures, to the agency’s Acting Assistant Inspector General for 

Management stating that Mr. Drake “witnessed large amounts of alcoholic beverages 

being served, extensive toasting, and intoxication of USAID and Dept. of State 

Personnel while on duty, including the Deputy Chief of Mission, Mission Director, 

Regional Legal Advisor, Regional Inspector General, and other representatives of the 

U.S. government.” Mr. Drake sent copies of the e-mail to his immediate supervisors 

and to the Acting Inspector General. 

In response to Mr. Drake’s e-mail, the USAID/OIG Special Investigations Division 

conducted an investigation which terminated in early September 2004. While the 

investigation found that alcohol had in fact been consumed by various high-level agency 

personnel during working hours, it concluded, based on a dictionary definition of 

intoxication, that “the investigation did not determine that RIG employees were legally 

intoxicated while on duty.” Intoxication on duty is identified as an offense subject to 

disciplinary action in the “list of disciplinary offenses and penalties” contained in the 

Department of State’s Foreign Affairs Manual. See 3 FAM 4542. 

On September 8, 2004, less than one month after Mr. Drake sent the e-mail, his 

supervisor, Special Agent in Charge Donna Dinkler, wrote a memorandum that 

indicated Mr. Drake should be transferred to Washington, D.C. effective September 11, 

2008-3048 2
2004, because “Mr. Drake’s services are no longer needed in Budapest, Hungary.” 

Upon being informed that he was being reassigned, Mr. Drake promptly filed a 

complaint with the Office of Special Counsel (OSC) alleging that his reassignment was 

in retaliation to his whistleblowing activity, i.e., his e-mail. Following the issuance of a 

final closure letter informing Mr. Drake that OSC would take no further action regarding 

his complaint, Mr. Drake filed an Individual Right of Action (IRA) appeal requesting a 

hearing with the Board. On February 14, 2006, without conducting a hearing, the AJ 

found that Mr. Drake had “not made a nonfrivolous allegation that he engaged in 

whistleblowing activity,” and accordingly dismissed the IRA appeal for lack of 

jurisdiction. 

In response to Mr. Drake’s petition for review of this first initial decision, the 

Board held that Mr. Drake had made nonfrivolous allegations and granted his petition, 

reversing the initial decision and remanding the appeal for further adjudication. Drake v. 

Agency for Int’l Dev., 103 M.S.P.R. 524, 527-30 (2006). 

On January 18, 2007, following a hearing, the AJ found that while Mr. Drake had 

proven: (1) that his disclosure was a contributing factor in his reassignment and (2) that 

the agency had not shown that it would have taken the reassignment action in the 

absence of the disclosure, his disclosure was not a protected disclosure pursuant to 5 

U.S.C. § 2302(b)(8). Consequently, the AJ denied Mr. Drake’s request for corrective 

action. 

Mr. Drake filed a petition for review of the second initial decision on February 21, 

2007, which was denied on October 18, 2007. Mr. Drake timely filed this appeal. 

2008-3048 3
DISCUSSION 

This court has jurisdiction over petitions for review of MSPB decisions under 28 

U.S.C. § 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. Accordingly, we 

must set aside Board decisions we find “(1) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law; (2) obtained without procedures required by 

law, rule, or regulation having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 

(Fed. Cir. 1986). 

To establish a violation of the Whistleblower’s Protection Act (WPA), we require 

proof of four elements: 

(1) the acting official has the authority to take, recommend, or approve any 

personnel action; (2) the aggrieved employee made a disclosure protected 

under [5 U.S.C.] 2302(b)(8); (3) the acting official used his authority to 

take, or refuse to take, a personnel action against the aggrieved 

employee; (4) the acting official took, or failed to take, the personnel action 

against the aggrieved employee because of the protected disclosure. 

Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999) (citations omitted). The AJ 

concluded that Mr. Drake satisfied elements 1, 3, and 4. See Drake v. Agency for Int’l 

Dev., No. DC-1221-06-0128-B-1, 2007 MSPB LEXIS 4612, at *15 (M.S.P.B. Jan. 18, 

2007) (Initial Decision) (“if the appellant’s disclosure is found to be protected, he would 

be entitled to corrective action”). Therefore, the only issue before us is whether the AJ 

erred in concluding that Mr. Drake had not made a protected disclosure. 

A protected disclosure under § 2302(b)(8) is defined in relevant part as: 

(A) any disclosure of information by an employee or applicant which the 

employee or applicant reasonably believes evidences -- 

 (i) a 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. . . . 

2008-3048 4
5 U.S.C. § 2302(b)(8). The AJ determined that Mr. Drake’s disclosure was not a 

protected disclosure under three separate theories: (1) that 3 FAM 4542 is not a law, 

rule, or regulation; (2) that, even if 3 FAM 4542 was a law, rule, or regulation, the 

violation was of “such a trivial nature” that Mr. Drake could not reasonably believe he 

was reporting a genuine violation; and (3) that, even if 3 FAM 4542 was a law, rule or 

regulation, a disinterested observer could not have concluded that Mr. Drake’s 

disclosure evidenced a violation. We conclude that the AJ legally erred on all three. 

First, the agency concedes that 3 FAM 4542 is a law, rule, or regulation under 

the WPA. Appellee Br. at 15 (“We concede that the administrative judge made an error 

of law in concluding that 3 FAM 4542 was not a law, rule or regulation pursuant to the 

[WPA].”). 

Second, the AJ misinterpreted our holdings in Langer v. Department of the

Treasury, 265 F.3d 1259 (Fed. Cir. 2001) and Herman v. Department of Justice, 193 

F.3d 1375 (Fed. Cir. 1999) in finding that Mr. Drake’s e-mail was “a disclosure of a trivial 

violation [that] does not constitute a protected disclosure.” 

In Herman, prison officials copied the telephone logs of Dr. Herman, the former 

chief clinical psychologist for a federal prison camp, while investigating his alleged 

unauthorized telephone use. Dr. Herman asserted that this copying of his telephone 

logs may have compromised the confidentiality of employees who had called him as 

part of an Employee Assistance Program (EAP) and was therefore a violation of the 

prison’s EAP directive. Dr. Herman further asserted that a memorandum he wrote 

complaining about the copying of his telephone logs amounted to a protected 

disclosure. This court, emphasizing that the telephone logs were not identified as 

2008-3048 5
potentially confidential by being kept in a security-approved container as mandated by 

the EAP directive and that Dr. Herman could not show that any confidential information 

was actually copied, determined that the “copying of confidential information, if any, 

would have been inadvertent.” Herman, 193 F.3d at 1381. Accordingly, we held that 

“the action by the agency was of such a trivial nature that Dr. Herman could not have 

reasonably believed that the agency was violating a law, rule, or regulation.” Id. The 

court then held that Mr. Herman’s disclosure was not protected because: “The WPA 

was enacted to protect employees who report genuine infractions of law, not to 

encourage employees to report arguably minor and inadvertent miscues occurring in the 

conscientious carrying out of one’s assigned duties.” Id. (quoting Frederick v. Dep’t of 

Justice, 73 F.3d 349, 353 (Fed. Cir. 1996)). 

In Langer, Mr. Langer complained that the IRS was allowing secretaries to open 

pink envelopes that might contain confidential information. Relying on Herman, we held 

that the relevant disclosures “evidence[d] disagreements Langer had with his 

supervisors regarding the formal policy for handling of the pink envelopes that might 

contain confidential grand jury information,” and that “any actual viewing of grand jury 

material by a secretary would at most have been inadvertent.” Langer, 265 F.3d at 

1267. Furthermore, the court held that “the alleged violation concerned a rule not 

adopted by the agency, but rather a procedure personally established by Langer as an 

exception to general agency procedures.” Id. Once again, as in Herman, we held that 

the disclosures were not protected because they did not report violations of any laws, 

rules or regulations, but rather reported “minor and inadvertent miscues occurring in the 

conscientious carrying out of a federal employee’s assigned duties.” Id. 

2008-3048 6
We held in Herman that: “The determination of whether an employee has a 

reasonable belief that a law, rule, or regulation was violated turns on the facts of the 

particular case.” Herman, 193 F.3d at 1382. Based on the facts of Herman and 

Langer, we further held that the relevant disclosures were not protected because they 

disclosed, at most, minor and inadvertent miscues occurring in the conscientious 

carrying out of one’s assigned duties, not violations of laws, rules, or regulations. This 

is not such a case. Here, the facts do not show, nor has the agency asserted, that the 

alleged violations were inadvertent or that they occurred in the conscientious carrying 

out of assigned duties. The alleged intoxication of agency personnel reported by Mr. 

Drake was instead the result of deliberate and intentional consumption of alcohol during 

working hours and would result in a violation of a law, rule or regulation. Therefore, the 

AJ’s reliance on Herman and Langer and their discussion of a trivial or de minimis 

exception is not appropriate in this case.1

 Unlike Herman and Langer, Mr. Drake 

reported intoxication which he could reasonably believe constituted a genuine violation 

of a law, rule, or regulation. 

Third, the AJ erred with regard to the standard set forth in Lachance v. White,

174 F.3d 1378, 1381 (Fed. Cir. 1999). The AJ articulated the correct test that “in order 

to show that he reasonably believed 3 FAM 4542 had been violated, the appellant 

 1

 The trivial or de minimis idea comes from the statute itself. In 5 U.S.C. 

§ 2302(b)(8)(A)(ii), the statute refers to “gross mismanagement, a gross waste of funds, 

an abuse of authority, or a substantial and specific danger to public health or safety. . . 

.” (emphasis added). Moreover, the legislative history indicates that the statute 

protects, for example, a “pentagon employee who discloses billions of dollars in cost 

overruns, the GSA employee who discloses widespread fraud, and the nuclear engineer 

who questions the safety of certain nuclear plants.” Herman, 193 F.3d at 1379 (quoting 

S. Rep. No. 969, 95th Cong., 3d Sess. 8 (1978)). 

2008-3048 7
would be required to show that a disinterested observer with knowledge of the essential 

facts known to and readily ascertainable by him reasonably could conclude that 

employees were intoxicated.” In application, however, the AJ required Mr. Drake to 

show that intoxication was the cause of the behavior he observed and reported. In 

analyzing Mr. Drake’s disclosure, the AJ conceded that the reported activities were “all 

behaviors that an intoxicated individual might engage in,” but then found that they were 

also “behaviors that an enthusiastic partygoer who was not intoxicated might engage 

in.” Relying on the possibility that the agency personnel might not have been 

intoxicated, the AJ noted that Mr. Drake failed to prove that “the behaviors he observed 

were caused by alcohol intoxication,” and therefore held that “a disinterested observer 

could not reasonably conclude that [Mr. Drake’s] disclosure evidenced a violation of 3 

FAM 4542.” Initial Decision, at *10 (emphasis added). 

By requiring Mr. Drake to prove that the agency personnel were intoxicated, the 

AJ erroneously required Mr. Drake to prove that an actual violation occurred. This is in 

direct conflict with the standard set forth in Lachance. See also Huffman v. Office of 

Pers. Mgmt., 92 M.S.P.R. 429, 433 (2002)(“To establish that he held such a reasonable 

belief, an appellant need not prove that the condition disclosed actually established one 

or more of the listed categories of wrongdoing, but he must show that the matter 

disclosed was one which a reasonable person in his position would believe evidenced 

one of the situations specified in 5 U.S.C. § 2302(b)(8).”). The AJ erred by requiring Mr. 

Drake to prove that the behavior he observed was in fact caused by intoxication. The 

test is not whether Mr. Drake was able to prove intoxication, but rather could a 

disinterested observer with knowledge of the essential facts known to and readily 

2008-3048 8
2008-3048 9

ascertainable by Mr. Drake reasonably conclude that agency personnel were 

intoxicated and that a violation did occur. Applying the proper legal test, the undisputed 

findings of the AJ lead to but one conclusion – Mr. Drake made a protected disclosure. 

CONCLUSION 

Because the AJ erred by finding that that Mr. Drake had not made a protected 

disclosure under 5 U.S.C. § 2302(b)(8), we reverse and remand for the Board to 

determine the appropriate corrective action to which Mr. Drake is entitled consistent with 

this opinion. 

REVERSED and REMANDED