## 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 Li tigation 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 S ystems Protection Board______________________ * Honorable Liam O’Grady, Distr ict 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]ntox ication 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 In response to the charge, the agency proposed a five day suspension, which was later withdrawn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 amount s of alcoholic beverages being served, extensive toasting, and into xication of USAID an d Dept. of State Personnel while on duty, including the Deput y Chief of Mission, Mission Director, Regional Legal Advisor, Regional Inspecto r General, and other repr esentatives 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 U SAID/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 concl uded, based on a dictionary definition of intoxication, that “the invest igation did not determine that RIG employees were legally intoxicated while on duty.” In toxication on duty is identified as an offense subject to disciplinary action in the “lis t of disciplinary offenses and penalties” contained in the Department of State’s Fore ign Affairs Manual. See 3 FAM 4542. On September 8, 2004, less than one month after Mr. Drak e sent the e-mail, his supervisor, Special Agent in Charge D onna Dinkler, wrote a memorandum that indicated Mr. Drake should be transferred to Washington, D.C. effective September 11,

2008-3048 22004, because “Mr. Drake’s services ar e no longer needed in Budapest, Hungary.” Upon being informed that he was being r eassigned, Mr. Drake promptly filed a complaint with the Office of Sp ecial 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 Indivi dual 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 revi ew of this first initial decision, the Board held that Mr. Drake had made nonfrivolous allegations and granted his petition, reversing the initial decisi on and remanding the appeal for furt her adjudication. Drake v. Agency for Int’l Dev. , 103 M.S.P.R. 524, 527-30 (2006). On January 18, 2007, followin g a hearing, the AJ found that while Mr. Drake had proven: (1) that his disclosure was a contributing factor in hi s 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). Conseq uently, the AJ denied Mr. Dr ake’s request for corrective action. Mr. Drake filed a petition for review of the second initial decis ion on February 21, 2007, which was denied on October 18, 2007. Mr. Drake timely filed this appeal.

2008-3048 3DISCUSSION 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) ar bitrary, capricious, an abuse of discretion, or otherwise not in accordanc e with law; (2) obt ained without procedures required by law, rule, or regulation having been follo wed; 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 em ployee 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) (c itations omitted). The AJ concluded that Mr. Drake satisf ied 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 t he appellant’s disclosure is foun d to be protected, he would be entitled to corrective action”). Therefore, the on ly 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 mismanagem ent, a gross waste of funds, an abuse of authority, or a substant ial and specific danger to public health or safety. . . .

2008-3048 45 U.S.C. § 2302(b)(8). The AJ determine d that Mr. Drake’s disclosure was not a protected disclosure under thr ee 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 triv ial nature” that Mr. Drake could not reasonably believe he was reporting a genuine vi olation; and (3) that, even if 3 FAM 4542 was a law, rule or regulation, a disinterested observer coul d not have concluded that Mr. Drake’s disclosure evidenced a violation. We concl ude 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 t hat 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 misinterpr eted our holdings in Lange r v. Department of the Treasury , 265 F.3d 1259 (Fed. Cir. 2001) and He rman v. Department of Justice , 193 F.3d 1375 (Fed. Cir. 1999) in finding that Mr. Drak e’s e-mail was “a disclosure of a trivial violation [that] does not constitu te a protected disclosure.” In Herman , prison officials copied the telep hone logs of Dr. Herman, the former chief clinical psychologist for a federal pr ison 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 Assistanc e Program (EAP) and was ther efore a violation of the prison’s EAP directive. Dr. Herman furt her asserted that a memorandum he wrote complaining about the copying of his telephone logs amounted to a protected disclosure. This court, emphasizing that t he telephone logs were not identified as

2008-3048 5potentially 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 conf idential 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 triv ial nature that Dr. Herman could not have reasonably believed that the ag ency was violating a law, ru le, or regulation.” Id. The court then held that Mr. Herman’s disclos ure 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 conf idential information. Relying on Herman , we held that the relevant disclos ures “evidence[d] disagree ments Langer had with his supervisors regarding the formal policy for handl ing of the pink envelopes that might contain confidential grand jury information,” and that “any actual vi ewing of grand jury material by a secretary would at most have been inadvertent.” Langer , 265 F.3d at 1267. Furthermore, the court held that “t he alleged violation c oncerned a rule not adopted by the agency, but rather a procedure personally established by Langer as an exception to general a gency procedures.” Id. Once again, as in Herman , we held that the disclosures were not protected because t hey did not report viol ations of any laws, rules or regulations, but rather reported “mi nor and inadvertent miscues occurring in the conscientious carrying out of a feder al employee’s assigned duties.” Id.

2008-3048 6We held in Herman that: “The determination of whether an employee has a reasonable belief that a law, rule, or regulat ion 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 occurri ng 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 inadver tent or that they occurred in the conscientious carrying out of assigned duties. The alleged intoxi cation of agency personnel reported by Mr. Drake was instead the result of deliberate and intent ional 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 reaso nably believe constitu ted 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 co mes from the statute it self. In 5 U.S.C. § 2302(b)(8)(A)(ii), the stat ute 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 indicate s that the statute protects, for example, a “pent agon 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 7would be required to show t hat a disinterested observer wit h knowledge of the essential facts known to and readily ascertainable by him reasonably could conclude that employees were intoxicated.” In application, however, t he 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 migh t engage in,” but then found that they were also “behaviors that an enthusiastic party goer who was not into xicated might engage in.” Relying on the possibility that the agency personnel might not have been intoxicated, the AJ noted that Mr. Drake fa iled 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 evid enced 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. Drak e to prove that an actual viol ation occurred. This is in direct conflict with the st andard set forth in Lachance . See also Huffman v. Office of Pers. Mgmt. , 92 M.S.P.R. 429, 433 (2002)(“To establ ish that he held such a reasonable belief, an appellant need not prov e that the condition disclosed actually established one or more of the listed categories of wr ongdoing, 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).”). T he AJ erred by requiring Mr. Drake to prove that the behavio r he observed was in fact c aused by intoxication. The test is not whether Mr. Drake was able to prove intoxication, but rather could a disinterested observer with kn owledge of the essential facts known to and readily

2008-3048 82008-3048 9 ascertainable by Mr. Drake reasonably conclude that age ncy personnel were intoxicated and that a violati on did occur. Applying the pr oper 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 wh ich Mr. Drake is entitled consistent with this opinion. REVERSED and REMANDED