Ashe v. Hhs
18-1390
| Fed. Cir. | Aug 9, 2018Background
- Keith Alexander Ashe worked as an Industrial Engineer and Safety Engineering Activity Program Manager at NIH (HHS) from 2007 until his termination in Feb 2017; he served as contracting officer representative on a biosafety labs contract.
- Ashe alleges supervisors pressured him to falsify an engineering verification report in April 2013 (differential pressure/safety testing); he refused and reported the matter up the chain.
- Ashe also reported alleged contract fraud in early 2015 and earlier alleged improper use of ARRA funds in Feb–Mar 2012.
- Ashe claimed HHS retaliated (psychiatric evaluation order, discipline, negative reviews, reassignments, scrutiny of time/attendance); he filed an OSC complaint and then Board appeals: an IRA/WPA corrective-action claim and a removal appeal.
- The MSPB ALJ denied Ashe’s WPA corrective-action claim (Feb 2018) and sustained his removal (Mar 2018), finding his disclosures were not protected or did not contribute to the removal; Ashe appealed to the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ashe made protected whistleblower disclosures under the WPA | Ashe: disclosures about report fabrication and contract fraud evidenced violations of regulation and thus were protected | HHS: ALJ findings show no violation or that Ashe’s belief was unreasonable; disputes were differences in technical judgment or remote concerns | Held: Disclosure of report fabrication and contract fraud not protected; Board’s findings supported by substantial evidence |
| Whether a specific regulation (9 C.F.R. § 121.9(a)(6)) was implicated by the report dispute | Ashe: he identified that regulation and claimed a violation | HHS: evidence showed testing and protocols used were acceptable and administrative steps could mitigate any risk; ALJ credited that view | Held: Court reads Board’s analysis as finding no actual violation or no reasonable belief in a violation; affirmed |
| Whether Ashe’s 2012 disclosures (alleged misuse of ARRA funds) contributed to his 2017 removal | Ashe: those earlier disclosures were protected and motivated adverse action | HHS: the disclosures were remote in time and not causally connected | Held: Five-year gap too remote; Board reasonably found no contribution to removal |
| Whether HHS proved charges supporting removal and that penalty was reasonable | Ashe: argued safety concerns and other defenses; claimed retaliation | HHS: established failure to follow work-location and sign-in directives, poor responsiveness, and considered mitigation; removal appropriate | Held: Board correctly found agency met burden; removal sustained |
Key Cases Cited
- Briley v. National Archives & Records Administration, 236 F.3d 1373 (Fed. Cir. 2001) (elements for WPA prima facie case)
- Reid v. Merit Systems Protection Board, 508 F.3d 674 (Fed. Cir. 2007) (mere discussion or speculative concern is not a protected disclosure)
- Malloy v. U.S. Postal Service, 578 F.3d 1351 (Fed. Cir. 2009) (agency burden in adverse action: prove charged conduct, nexus to efficiency, and penalty reasonableness)
- Baker v. Department of Health & Human Services, 912 F.2d 1448 (Fed. Cir. 1990) (MSPB’s discretion over sanctions reviewed for clear, harmful abuse)