Arthur Fisher v. Department of the Interior
2023 MSPB 11
MSPB2023Background
- Arthur E. Fisher was a Realty Officer at the Bureau of Indian Affairs’ Siletz Agency; the agency notified him on Sept. 29, 2015 that his position would be abolished and he would be separated in a RIF effective Dec. 4, 2015 due to closure/reorganization.
- Fisher appealed his RIF separation to the MSPB, asserting age discrimination and whistleblower reprisal defenses (including disclosures about the Grand Ronde Secretarial Election and refusals to follow orders).
- The administrative judge (AJ) upheld the RIF: agency established a legitimate reorganization and correctly applied RIF rules; AJ found Fisher did not make protected disclosures under 5 U.S.C. § 2302(b)(8).
- The AJ found Fisher had engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing complaints with OSC and OIG, but alternatively concluded (if needed) that the agency would have separated him notwithstanding protected activity.
- On review the Board: denied Fisher’s petition, agreed he did not make protected disclosures under § 2302(b)(8); ruled his OSC/OIG filings were protected under § 2302(b)(9)(C) but were not a contributing factor because the deciding official lacked knowledge; held the Follow the Rules Act (FTRA) amendment to § 2302(b)(9)(D) is not retroactive, so refusals to follow orders to violate regulations were not protected at the time.
Issues
| Issue | Fisher's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether Fisher made a protected disclosure under 5 U.S.C. § 2302(b)(8) | Fisher says his complaints about the Grand Ronde election evidenced wrongdoing and were protected disclosures | Agency says his statements did not reasonably show violation of law, gross mismanagement, waste, abuse, or danger | Held: Fisher failed to show a reasonable belief of wrongdoing under § 2302(b)(8); no protected disclosure established |
| Whether filing complaints with OSC/OIG is protected activity under 5 U.S.C. § 2302(b)(9)(C) | Fisher contends his OSC/OIG complaints are protected regardless of content when made to those offices | Agency does not dispute that OSC/OIG filings are covered only if made in accordance with law | Held: Filings to OSC and OIG qualify as protected activity under § 2302(b)(9)(C) (broad protection) |
| Whether Fisher’s protected activity was a contributing factor in his RIF | Fisher argues his OSC/OIG filings and other whistleblowing motivated the Regional Director’s decision to close Siletz Agency | Agency shows the Regional Director lacked actual/constructive knowledge of Fisher’s OSC/OIG complaints before deciding the RIF | Held: Fisher failed to prove by preponderance that the deciding official knew of the protected activity; not a contributing factor |
| Whether the FTRA amendment to § 2302(b)(9)(D) (adding “rule, or regulation”) applies retroactively so Fisher’s refusal-to-obey-regulation claim is protected | Fisher argues later amendment should apply to his pre-enactment refusal and thus protect him | Agency argues Rainey construes pre-FTRA § 2302(b)(9)(D) to cover only orders to violate statutes, and FTRA is not retroactive | Held: Under Landgraf presumption and Rainey, FTRA is not retroactive here; pre-FTRA § 2302(b)(9)(D) did not cover refusal to obey orders violating regulations, so claim fails |
Key Cases Cited
- White v. Department of the Air Force, 95 M.S.P.R. 1 (defining reasonable-belief test for protected disclosures under § 2302(b)(8))
- Lachance v. White, 174 F.3d 1378 (Fed. Cir.) (applying reasonable-observer test for whistleblower reasonable belief)
- Alarid v. Department of the Army, 122 M.S.P.R. 600 (explaining burdens in WPEA-era whistleblower affirmative defenses)
- Rainey v. Merit Systems Protection Board, 824 F.3d 1359 (Fed. Cir.) (holding pre-FTRA § 2302(b)(9)(D) covers orders to violate statutes, not regulations)
- Landgraf v. USI Film Prods., 511 U.S. 244 (establishing test and presumption against retroactive application of statutes)
- Day v. Department of Homeland Security, 119 M.S.P.R. 589 (discussing when statutory amendments are interpretive clarifications and may apply to pending cases)