UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

R. SCOTT STEVENS, Appellant,

v

. DEPARTMENT OF TRANSPORTATION, Agency

. DOCKET NUMBER AT

- 1221

- 15

- 0481

- W

- 1

DATE: July 1, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bobby Devadoss , Esquire, and Elizabeth Morse
, Esquire, Dallas, Texas, for the appellant

. Parisa Naraghi

- Arani , Esq uire, Washington, D.C., for the agency

.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for lack of Board jurisdiction

. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decis ion is based

1 A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Boar d and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’ s case law. See 5 C.F.R. § 1201.117 (c).2

on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligenc e, was not available when the reco rd
closed. See title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following points and authorities, we conclude that the petitioner has not

esta blished any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We AFFIRM the initi al decision
, except as expressly MODIFIED to supplement the administrative judge’s jurisdictional analysis

.

BACKGROUND ¶2 The appellant is a Supervisory Computer Specialist, FV

- 0334

- 15, within the agency’s Office of Information and Technology (AIT), Federal Aviation Administration (FAA), in Atlanta, Georgia. Initial Appeal File (IAF), Tab 1 at 1. The agency underwent reorganization between 2011 and 2013 to create a shared services organization, the Office of Finance and Ma nagement (AFN). IAF,
Tab 14 at 23

- 24. AIT is the unit within AFN that houses the agency’s information technology functions. Id. The agency assessed its information technology e mployees and, in or around July 2013, notified them of their new assignments within AIT. Id. As a result of t he reorganization, the appellant became Manager, Infrastructure Applications, in the Infrastructure and Operations
Service Division. 2 Id. at 38; IAF, Tab 15 at 5

.

2 During the course of this appeal, however, the appellant has been detail ed to the Department of Energy. His de tail was set to end in Dece mber 2015. Pet ition for Review File, Tab 6 at 6; IAF, Tab 15 at 7

- 8.3

¶3 In late 2013, the appellant raised concerns to his third

- level supervisor regarding the process by which AIT employees had been placed in their new positions. IAF, Tab 14 at 25. The appellant a sserts that, on or about
November 21, 2013, he filed a complaint with the Office of Special Counsel (OSC). IAF, Tab 11 at 1. The record includes a printout of an e

- filing For m OSC

- 11 last saved on November 19, 2013

. I d. at 4

- 10

. The form does not indicate the OSC case number assigned to it. Id. at 4. It also does not include alleg ations of retaliation ; instead, the appellant simply a ssert ed that AIT employees were improperly assigned to new positions using noncompetitive

processes during the reorganization. 3 Id. at 4

- 10

. ¶4 On November 22, 2013, the appellant contacted his fifth

- level supervisor to complain about the noncompetitive placement of em ployees during the reorganization , informing the supervisor that he was already in the process of making disclos ures regarding the reassignments

. Id. at 1, 15, 21

- 22. In late
November 2013, he filed a complaint with the agency Administrator’s Hotline concerning the reassignments

. Id. at 38; IAF, Tab 14 at 28

- 29. The agency responded to the H otline complaint on February 6, 2014. IAF, Tab 14 at 28. He
also filed related Inspector General (IG) complaint s in November 2013 and February 2014. IAF, Tab 1 1 at 38; Petition for Review ( PFR ) File, Tab 2 at 4

- 7. 4 ¶5 During June 2014, t he appellant applied for the position of D eputy D irector
, Enterprise Program Management Service

. IAF, Tab 11 at 15, 17

- 19 , 25

- 28 , 39

.

3 The appellant’s jurisdictional response includes a chronology summarizing various complaints he has filed. IAF, Tab 11 at 38

- 41. The chronology states that OSC assigned File No. MA

- 14

- 0509 and closed it “due to lack of jurisdiction over FAA (with the exception of [w]histle [b]lower [r]etaliation).” Id. at 38. No further information is included in the record

. 4 The report of investigation for the appellant’s IG complaint most clearly articulates the precise nature of his alleged protected disclosures. The appellant disclosed that agency officials selected managers for the newly created AIT “without competition and without using [the agency’s] Job Analysis Tool

. . . to establish criteria for selection” and “pre

- selected certain applicants for Senior Executive Service and L

- band positions that were competed.” PFR, Tab 2 at 6.4

He was interviewed once, but was not granted a second interview

. Id. at 17. However, he asserted in his OSC complaint 5 that he wa s significantly more qualified than the selectee. Id. at 18

- 19 , 39

. ¶6 On September 5, 2014, the appellant filed a complaint with OSC. Id. at 1,
11

- 20. In th e complaint, he alleged that he suffered adverse personnel actions, including nonselection for various promotion positions, because he disclosed in
Hotline and IG complaints that four senior agency executives “placed” approximately 700 information technolog y employees in positions “without completing the necessary and proper job documentation, and without open and fair competition” during the reorganization. Id. at 41 . OSC assigned the complaint File No. MA

- 14

- 4904. Id. On April 7, 2015, OSC informed the appellant that it had investigated his complaint and “[t]erminated its inquiry into [his] allegations.” Id. at 41

- 42 . OSC’s letter also informed him of his right to
seek corrective action from the Board. Id. at 41. He filed this appeal. IAF,
Tab 1

. ¶7 T he administrative judge gave the appellant an opportunity to file a jurisdictional response, and he did so. 6 IAF, Tabs 3, 11. The agency al so filed a response. IAF, Tabs 14

- 16. The administrative judge decided the appeal based

o n the written record. IAF, Tab 17, Initia l Decision (ID) at 1. He found that the appellant exhausted his administrative remedies for File No. MA

- 14

- 4904, and timely filed his IRA appeal with the Board. ID at 2 & n.1, 4

- 5. He nevertheless
found that the appellant’s jurisdictional response failed to specify the type of protected disclosure he alleged to have made. ID at 6. The administrative judge examined the alleged protected disclosure with respect to the statutory definition

5 The OSC complaint does not clear ly state when the selection was made, but the vacancy announcement for the position was open between June 12 and June 20, 2014. Compare IAF, Tab 11 at 18

- 19, with id. at 25.

6 The appellant, however, di d not avail himself of the opportunity to file a su pplemental jurisdictional pleading. IAF, Tab 10 at 2

.5

and found the appellant’s allegations to be too vague and conclusory to bring the complaint within the protection of the Whist leblower Protection Enhancement
Act (WPEA)

. ID at 6

- 9; see 5 U.S.C. § 2302 (b)(8). Accordingly, h e dismi ssed the appeal for lack of jurisdiction. ID at 9

- 10

. ¶8 On review, the appellant argues that the administrative judge erroneously found that he did not reasonably believe that agency senior management engaged in prohibited personnel practices when , as he claimed, they noncompetitively filled positions during the reorganization. PFR File, Tab 1 at 6

- 8; see ID at 6

- 9. He explains that correspondence he recently received regarding his IG complaints establishes the reasonableness of his belief that agency ma nagers committed prohibited personnel practices. PFR File, Tab 1 at 8 ; see IAF, Tab 11 at 3 8 . The correspondence, he explains, includes a report o f investigation (ROI) dated May 15, 2015, which confirms that the IG conducted a year

- long investigation
bas ed upon his complaint s

. 7 PFR File, Tab 1 at 8, Tab 2 at 6

- 7

.

ANALYSIS ¶9 The ROI, which is newly submitted on review, postdates the close of the record below, and thus meets the Board’s definition of new evidence. 8

Avansino v. U.S. Postal Service
, 3 M.S.P.R. 211 , 214 (1980) (explaining that new
evidence is evidence submitted for the first time with the petition for review that

was unavailable before the record was closed despite the party’s due diligence). To be considered, however, n ew evidence must be of sufficient weight to warrant

7 The ROI conclude d that the agency’s “authority and rationale” to noncompetitively assign employees to managerial positions “appear [ed] sufficient
, ” and that the IG found no information to suggest t hat any selectee for a position filled through a
non competitive reassignment failed to meet the minimum qualifications for th at position. PFR File, Tab 2 at 6

- 7.

8 The agency transmitted the ROI to the appellant a bout 1 week after the initial decision was issued. Compare PFR File, Tab 2 at 4 , with ID at 1 . The letter accompanying the ROI indicates that the appellant sought release of the ROI while the record was open. Compare PFR File, Tab 2 at 4, with IAF, Tab 10 at 2

.6

an outcome different from that of the initial decision. Russo v. Veterans
Administration
, 3 M.S.P.R. 345 , 349 (1980). The appellant has not shown that
the ROI is of sufficien t weight to warrant a different outcome

. ¶10 The administrative judge determined that the appellant failed to nonfrivolously allege that he made a protected disclosure. 9 We agree. In his OSC complaint, t he appellant alleged he disclosed that four senior agency executives “placed” approximately 700 information technology employees in positions “without completing the necessary and proper job documentation, and without open and fair competition.” IAF, Tab 11 at 14

- 15. As the administrative judge c orrectly explained, the appellant’s allegation does not contain information
that he reasonably believed evidenced gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. ID at 5

- 9; s ee 5 U.S.C. § 2302 (b)(8). As for whether the appellant alleged a violation of law, rule, or regulation, a protected disclosure must be specific and detailed, and not a vague allegation of w rongdoing. Salerno v. Department of the Interior
, 123 M.S.P.R. 230 , ¶ 6 (2016) . The appellant did not and still does not allege any specific violation of a law, rule, or regulation

. Instead
, he continues to allege generally that the agency’s noncompetitive reassignment of personnel during the reorganization violated merit systems principles. PFR File, Tab 1 at 6

- 8; IAF , Tab 1 at 5; see 5 U.S.C. § 2301 (b) ; cf.
Salerno
, 123 M.S.P.R. 230 , ¶ 9

. ¶11 Moreover, a nonfrivolous allegation of a protected whistleblowing
disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidences one of the categori es of wrongdoing specified in 5 U.S.C. § 2302 (b)(8).

9 The administrative judge addressed only the appellant’s H otline complaint. ID at 2. The appellant ’s IG disclosures also were exhausted in his OSC complaint

. IAF, Tab 11 at 14

- 15, 38

. T he appellant’s November 2013 OSC complaint reports the same allegations as well, and the appellant listed it a s a disclosure in his September 2014 OSC complaint. I d. at 4

- 10, 14

- 15, 38.7

Salerno
, 123 M.S.P.R. 230 , ¶ 6. An appellant need not establish an actual violation of one of the categories of wrongdoing listed in section 2302(b)(8) to demonstrate that he had a reasonable belief that he made a protected disclosure.
See Stiles v. Department of Homeland Security
, 116 M.S.P.R. 263 , ¶ 17 (2011). Rather, he need prove only that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by him could reaso nably conclude the agency’s actions evidenced one of the categories of wrongdoing
listed therein. See 5 U.S.C. § 2302 (b)(13); Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221 , ¶ 22 (2014). When we consider the essential facts known to and readily ascertainable by the appellant, however, we note that he i s a supervisory employee wi th managerial aspirations
, he has 32 years of supervisory
and tech nical leadership experience, 24 years in the U.S. Navy, and is certified as

a project managemen t professional. IAF, Tab 11 at 18

- 19, 23. His Government

sector experience suggests at least some familiarity with agency reorganization
and sources of authority for the reassignment of employees in

some circumstances. Thus, the appellant could not have had a reasonable belief

to speculate, as he seems to do here, that a noncompetitive reassignment is by its very nature suspect. See Phillip v. Merit Systems Protection
Board
, No. 2016

- 1002 , 2016 WL 929856 , at *2 (Fed. Cir. Mar. 11, 2016) (holding that a claim that “possible unscrupulous practices” were occurring at the workplace did not constitute a nonfrivolous allegation of a protected disclosure) 10 ; Barela v. Merit Systems Protection Board
, 388 F. App’x 965 , 967 (Fed. Cir. 2010); Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014)

. ¶12 In addition, the appellant’s assertion that the IG ’s lengthy investigation
establishes the reasonableness of his belief , PFR File, Tab 1 at 8 , does not provide a basis for disturbing the initial decision , as many factors could delay or

10 The Board has held that it may rely on unpublished decisions of the Federal Circuit if , as it does here, it finds the reasoni ng persuasive. Graves v. Department of Veterans Affairs , 114 M.S.P.R. 245 , ¶ 11 n.2 (2010).8

exte nd an investigation. We further note that the IG found n o violation of policy or merit system principles and that the agency’s authority and rationale to reassign employees noncompetitively appeared sufficient on its face

. PFR File,
Tab 2 at 6. At most, notwithstanding the IG investigation and report, the appellant’s disclosure constitutes a general philosophical or policy disagreement with the agency regarding the reorganization, which does not otherwise constitute a protected disclosure under the WPEA. Webb v. Department of the
Interior , 122 M.S.P.R. 248 , ¶ 8 (2015) (citing 5 U.S.C. § 2302 (a)(2)(D));
Luecht v. Department of the Navy
, 87 M.S.P.R. 297 , ¶ 12 (2000) (concluding that the appellant’s statement that he met with the agency IG to report “ongoing fraud in [Resourc e Sharing] contracts” lacked the detail necessary to constitute a nonfrivolous allegation of a violation of law, rule or regulation, gross mismanagement, gross waste of funds, abuse of authority, or danger to public health or safety). After extensively re view ing the appellant’s written submissions, we conclude that he failed to allege nonfrivolously any of the type s of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8)
, and he did not make a protecte d disclosure

. ¶13 Because t he initial decision does not address whether the appellant nonfrivolously alleged that his disclosure was a co ntributing factor in the agency’ s decision to take or fail to take a personnel action
, we do so here

. See 5 U.S.C. § 1214 (a)(3); Yunus v. Department of Veterans Affairs , 242 F.3d
1367 , 1371 (Fed. Cir. 2001)

. The appellant met his jurisdictional burden for only
one of several personnel actions he alleged

— his nonselection as D eputy D irector of the Enterprise Program Management Service. His allegations regarding this
nonselection are relatively specific
, and he has provided some other evidence in

suppor t of this claim. IAF, Tab 11 at 1 5, 18

- 19, 25

- 28, 39. He also alleged that
he was passed over “numerous times” for promotion, removed from a “high

- level” internal detail, blamed for hi s supervisor’s failure to complete certain tasks, offered a position in a lower

- pay band
, and “harassed” and9

“threatened” at various times. Id. at 17

. Except for a listing from his USAJobs

account showing the positions for which he apparently applied, he offered no
evidence or specific detail s about these alleged personnel actions. See id.

at 29

- 30

. ¶14 As for attempting to prove contributing factor, the appellant made a
minimal nonfrivolous allegation that the protected disclosure was one facto r that affected the agency’s nonselection. See Salerno
, 123 M.S.P.R. 230 , ¶ 13. His
nonselection followed his disclosures by only a few months , and he nonfrivolously alleged that his fifth

- level supervisor informed her senior staff, including persons involved in the selection process, about her conversation with
him . IAF, Tab 11 at 15, 18, 21

- 22. A lthough the appellant satisfied his jurisdictional burden for this el ement, he nevertheless failed to es tablish the
Board’s jurisdiction because he fell short of nonfrivolously alleging that he made

a protected disclosure

. ¶15 Finally, t he appellant raise s additional issue s on review to which we now
turn. He questions the ad ministrative judge’s observation in the initial decision that he may have made disclosures in an effort to secure a better position for himself during the reorganization. PFR File, Tab 1 at 8

- 9; ID at 9. While the appellant correctly state s that an emplo yee’s motivati on for making a disclosure
does not render that disclosure unprotected, see 5 U.S.C. § 2302 (f)(1)(C), the administrative judge’s comment appears to have been made as an aside rather
than as an element of jurisdictional analysis . The administrative judge did not state that the appellant’s alleged disclosure s were unprotected because of his

purpo rted motive for making them

. T he appellant also has neither alleged nor proven judicial bias. See Bieber v. Department of the Army
, 287 F.3d 1 358 , 1362

- 63 (Fed. Cir. 2002) (holding t hat an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep

- seated favoritism or antagonism that w ould make fair judgment impossible”) ( quoting Liteky v.10

United States , 510 U.S. 540 , 555 (1994)); Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980) (finding that in making a claim
of bias or prejudice against an administrative j udge, a party must

overcome the presumption of honesty and integrity that a ccompanies
administrative adjudicators)

. ¶16 Similarly, the appellant takes issue with the administrative judge’s finding that he failed to support his claim that his managers abused their supervisory authority by threatening his career. PFR File, Tab 1 at 10

- 11; see ID at 7

- 8. He cites an April 18, 2014 email message from the Information Technology Infrastructure Director which instructed him “to focus your attention on the personnel, programs and projects for which you have responsibility and for which your performance wil l be evaluated.” PFR File, Tab 1 at 11; IAF, Ta b 11 at 34. The matter discussed in this series of email messages

— the lifecycle cost of an agency information system

— is unrelated to the appellant’s alleged protected disclosures reported to OSC in File No. MA

- 14

- 4904. IAF, Tab 11 at 11

- 20,
34

- 36. Further, the language in the email to which the appellant objects is in the nature of managerial direction and not on its face threatening or retaliatory , as he

argues

. Accordingly, we affirm the initial decision as modified

. 11

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline

11 The only OSC complaint cited in the petition for review is the form dated No vember 19, 2013. PFR File, Tab 1 at 6

- 7; IAF, Tab 11 at 4

- 10. The September 5, 2014 OSC complaint is the basis for this appeal.11

and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management
, 931 F.2d 1544 (Fed. Cir. 1991). If you want to request review of the Board’s decision concerning your claims of prohibited personnel practices u nder 5 U.S.C. § 2302 (b)(8), (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s disposition of any other claims of prohibited personnel practices, you may request review of this final decision by the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703 (b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. You may choose to request review of the Board’s decision in the U.S. Court of App eals for the Federal Circuit or any other court of appeals of competent jurisdiction, but not both. Once you choose to seek review in one court of appeals, you may be precluded from seeking review in any
other court. If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you this right. It is found in title 5 of the U.S. Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the U.S. Code, at our website, http://www.mspb.gov/appeals/uscode/htm

. Additional information about the U.S. Court of Appeals for t he Federal Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice , and Forms 5, 6, and 11. Additiona l information about other courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx

. If you are interested in securing pro bono representation for your appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website12

at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will acce pt representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board