2023 MSPB 25
MSPB2023Background
- Turner was Director of the National Finance Center (NFC), a nonappropriated‑fund (NAF) USDA business unit that bills other agencies under Interagency Agreements (IAs) and is funded by customer fees.
- In 2017 NFC estimated FMS administrative services would cost $10.2 million; FMS insisted it could only pay ~$5.9 million. Turner objected that signing an IA at $5.9M without cutting services would force NFC to subsidize FMS, potentially overcharging other (appropriated‑fund) customers and implicating legal limits on Federal expenditures.
- Turner raised his concerns to supervisors and to NFC officials, warned the arrangement was "unethical and illegal," and later executed a modified $6.3M IA in August 2017 with narrowed service terms.
- Turner alleged retaliatory personnel actions (revocation of signing authority, lowered ratings, counseling/reprimands, random drug test, administrative leave), filed an OSC complaint in 2020, then an IRA appeal to the MSPB; the administrative judge denied corrective action for failure to prove a protected disclosure.
- On review the Board (1) clarified that NAF employees of non‑military instrumentalities fall within 5 U.S.C. § 2105 and may bring IRA appeals, (2) found Turner did hold a reasonable belief that his IA disclosures evidenced a violation (e.g., Antideficiency Act concerns), and (3) vacated and remanded for findings on contributing‑factor causation and the agency’s clear‑and‑convincing defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: Can a NAF employee of a non‑military instrumentality file an IRA appeal? | Turner: As an NAF employee of a non‑military instrumentality, he meets 5 U.S.C. § 2105 and may file an IRA. | Agency: Did not dispute jurisdiction below; precedent limits NAF employees of military instrumentalities but not this situation. | Board: NAF employees of non‑military instrumentalities are covered by § 2105 and may bring IRA appeals. |
| Protected disclosure: Did Turner reasonably believe his IA disclosures evidenced a violation of law (e.g., Antideficiency Act)? | Turner: Signing an IA at $5.9M when services cost ~$10M would force cross‑subsidies and violate law; reasonable belief supported by testimony and agency practice. | Agency: IA amounts are estimates; charges can be changed; negotiation context meant no clear legal violation. | Board: A disinterested observer could reasonably conclude Turner’s disclosures evidenced a violation; his belief was reasonable and disclosures were protected. |
| Evidentiary/credibility findings: Did the judge err in evaluating witness testimony and record? | Turner: Three witnesses corroborated his belief; the AJ failed to consider their testimony adequately. | Agency: Implicitly disputed the weight but did not contest jurisdiction. | Board: Noted AJ is best positioned for credibility, but because protected‑disclosure finding changed outcome, remanded for AJ to address contributing factor and consider evidence. |
| Remedy / next steps: What remains to be decided on remand? | Turner: After establishing protected disclosure, must show disclosures were a contributing factor; then agency must prove by clear and convincing evidence it would have taken same actions. | Agency: Will have opportunity on remand to prove unconnected reasons for personnel actions. | Board: Vacated and remanded for AJ to determine contributing‑factor causation, assess whether contested actions are personnel actions (e.g., random drug test), and then apply agency’s clear‑and‑convincing burden. |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board jurisdiction is limited to matters Congress authorized)
- Clark v. Merit Systems Protection Board, 361 F.3d 647 (Fed. Cir. 2004) (NAF employees in military exchanges excluded from § 2105 employee definition for certain purposes)
- Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999) (corroborating employee belief by similarly situated employees may be relevant to reasonableness)
- Reid v. Merit Systems Protection Board, 508 F.3d 674 (Fed. Cir. 2007) (reasonableness inquiry balances preventing wrongdoing and ordinary managerial discussion of options)