2023 MSPB 5
MSPB2023Background
- Appellant was a BIA Forester and, during her probationary supervisory year, was designated an AOTR for a 638 self‑determination contract with the Navajo Nation.
- In December 2013 she shut down ADOT tree‑removal activity along Highway 264, believing the land was covered by the 638 contract and that the Navajo Nation Forestry Department had violated BIA rules; her action exceeded AOTR authority and strained BIA–Navajo relations.
- The BIA later determined the trees were on ADOT right‑of‑way, not under the 638 contract; appellant was returned to her prior nonsupervisory position in March 2014.
- The agency proposed removal in November 2014 for alleged mishandling/removal of government records; removal was effected December 29, 2014. Appellant appealed and asserted whistleblower reprisal and other defenses.
- The administrative judge sustained the removal, found some disclosures unprotected, but found OIG/OSC complaints were protected and a contributing factor; the Board granted review, held the December 2013 disclosure was protected (September 2014 was not), found contributing‑factor established, and remanded for a new Carr factors (clear‑and‑convincing) analysis.
Issues
| Issue | Covington's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether disclosures about alleged Navajo Nation wrongdoing qualify as protected disclosures under 5 U.S.C. § 2302(b)(8) | Statute does not require the violator to be Federal; she reasonably believed disclosures evidenced violations of law/rules | Disclosures concerned a non‑Federal entity (Navajo Nation) and thus were not protected | Board: A disclosure of non‑Federal wrongdoing is protected when it implicates the Government’s interests/good name; December 2013 disclosure implicated the Government and was protected; September 2014 disclosure was not protected (no reasonable belief of imminent NEPA violation) |
| Whether the protected disclosures and OSC/OIG complaints were a contributing factor in her removal | Disclosures and complaints were known to proposing/deciding officials and timing supports contributing factor | Removal was for non‑retaliatory misconduct (record mishandling) | Board: Contributing‑factor proven (knowledge‑timing test met); appellant satisfied prima facie burden |
| Whether the agency proved by clear and convincing evidence it would have removed her absent protected activity (Carr factors) | AJ failed to consider appellant’s protected December 2013 disclosure and cumulative motive; Carr factors must be reweighed in light of all protected activity | Agency maintains removal justified by misconduct and officials lacked retaliatory motive | Board: Remand for a new Carr‑factor analysis considering all protected disclosures and cumulative motive; reevaluate comparator evidence |
| Alleged witness intimidation at hearing | Appellant felt intimidated by HR presence | Agency denies intimidation or any threats to witnesses | Board: No showing of witness intimidation; appellant produced no evidence of threats or coercion |
Key Cases Cited
- Miller v. Department of Homeland Security, 99 M.S.P.R. 175 (2005) (disclosure of non‑Federal wrongdoing protected when government’s interests/good name implicated)
- Arauz v. Department of Justice, 89 M.S.P.R. 529 (2001) (non‑Federal wrongdoing may be protected where agency oversees or performs functions with the entity)
- Aviles v. Merit Systems Protection Board, 799 F.3d 457 (5th Cir. 2015) (WPEA did not extend protection to purely private wrongdoing)
- United States v. Mitchell, 463 U.S. 206 (1983) (Federal control/fiduciary duties regarding Indian timber and reservation resources)
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (framework for determining whether agency proved by clear and convincing evidence it would have taken same action)
- Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (clear‑and‑convincing evidence must be evaluated in the aggregate)