2022 MSPB 42
MSPB2022Background
- Appellant (Motor Vehicle Operator Supervisor) emailed supervisors in Oct 2013 reporting unsecured fleet vehicle keys/cards, missing vehicles, and suspected fraudulent fleet-card use for the Community Care Program.
- Agency convened an AIB in Jan 2014 finding supervisory failures; appellant’s supervisor received a letter of counseling.
- From Mar 2014–Feb 2015, appellant experienced delayed training, revised performance standards (June 2014), placement on a PIP (Sept 2014), and removal effective Feb 4, 2015.
- Appellant filed an IRA appeal alleging these actions were retaliatory for his Oct 2013 disclosures.
- The administrative judge applied 5 U.S.C. § 2302(f)(2) (WPEA) and denied relief, finding no proof of retaliatory motive.
- The MSPB on review held § 2302(f)(2) (as amended by the 2018 NDAA) applies only to employees whose principal job is to regularly investigate and disclose wrongdoing; appellant’s duties did not fit that category, so his disclosures fall under § 2302(b)(8). The Board found he made protected disclosures, proved contributing factor under the knowledge/timing test, and remanded for the agency to prove by clear and convincing evidence it would have acted absent the disclosures.
Issues
| Issue | Salazar's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether §2302(f)(2) (disclosures made in normal course of duties) governs or §2302(b)(8) applies | §2302(f)(2) should not bar protection because his disclosures were legitimate reports of mismanagement | Agency (and AJ) treated disclosures under §2302(f)(2) requiring proof of improper motive | Board: §2302(f)(2) (as amended 2018) applies only to employees whose principal job is to regularly investigate/disclose wrongdoing; appellant did not meet that test, so §2302(b)(8) applies |
| Whether the 2018 NDAA amendment to §2302(f)(2) applies retroactively | Salazar: amendment can be applied to clear interpretive ambiguity | Agency did not contest retroactivity below; AJ applied pre-amendment standard | Board: amendment clarifies prior ambiguity and may be applied retroactively here |
| Whether appellant’s Oct 2013 reports were protected disclosures under §2302(b)(8) (reasonable belief of wrongdoing) | Appellant: his reports evidenced gross mismanagement affecting VA mission (fleet miscontrol, missing vehicles, suspected fraud) | Agency did not dispute below that reports could be protected under §2302(b)(8) | Board: a reasonable, disinterested observer could conclude the reports evidenced gross mismanagement; disclosures are protected |
| Whether disclosures were a contributing factor in personnel actions and the required next steps | Appellant: timing and supervisor knowledge show contributing factor; sought relief | Agency conceded knowledge; AJ found no actual retaliatory motive previously under wrong standard | Board: appellant proved contributing factor under knowledge/timing test; remanded for AJ to apply Carr factors and for agency to prove by clear and convincing evidence it would have acted absent disclosures |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (test for whether a statute applies retroactively)
- Willis v. Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998) (prior case limiting protection for disclosures made in normal course of duties)
- Carr v. Social Security Admin., 185 F.3d 1318 (Fed. Cir. 1999) (factors for assessing whether agency proved it would have taken action absent whistleblowing)
- Acha v. Department of Agriculture, 841 F.3d 878 (10th Cir. 2016) (court consideration of §2302(f)(2) application to non-investigative employees)
- Red Lion Broadcasting Co. v. Federal Communications Comm'n, 395 U.S. 367 (1969) (legislative-declaration weight in statutory interpretation)
- Levy v. Sterling Holding Co., 544 F.3d 493 (3d Cir. 2008) (factors for determining whether subsequent legislation clarifies prior law)