Daniels v. Merit Systems Protection Board
832 F.3d 1049
9th Cir.2016Background
- Thomas Daniels, an SSA Hearing Office Director, was suspended for 14 days after ALJ William King found he bypassed procedures, told a Payment Center manager an ALJ decision was wrong, and lacked candor in the investigation.
- Daniels filed an IRA with the MSPB claiming WPA protection for five disclosures: two about an ALJ’s allegedly erroneous benefits decision (Disclosures #1–2) and three about procurement procedure for interpreter services (Disclosures #3–5).
- OSC investigated and initially intended to seek corrective action, but Daniels filed an IRA before OSC pursued it and OSC closed its file.
- The MSPB dismissed Daniels’s IRA for lack of jurisdiction, finding he had not made non-frivolous allegations that his disclosures were protected or that they were a contributing factor to personnel action.
- The Ninth Circuit reviews de novo whether the Board had jurisdiction and affirms dismissal because Daniels did not make non-frivolous protected-disclosure allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daniels alleged a non-frivolous protected disclosure about an ALJ’s adjudicatory decision (Disclosures #1–2) | Daniels: his communications challenging ALJ Kays’s decision were protected whistleblower disclosures evidencing legal error or wrongdoing. | MSPB/SSA: An erroneous adjudicatory decision is not a violation or wrongdoing under §2302(b)(8); mere disagreement with an adjudication is not protected. | Held: Not protected; agency adjudications, even if erroneous, are not WPA-protected disclosures absent allegations of adjudicator malfeasance. |
| Whether Daniels alleged a non-frivolous protected disclosure about procurement policy for interpreters (Disclosures #3–5) | Daniels: he reported that the Office’s directive to stop using OF-347 violated FAR and agency policy. | MSPB/SSA: Communications about policy decisions are excluded from WPA protection unless they reasonably evidence violations or gross management; record lacks such reasonable belief. | Held: Not protected; policy communications excluded and no reasonable belief shown that directive violated law. |
| Whether Daniels established causation (personnel action taken because of disclosures) | Daniels: suspension resulted from retaliation tied to his disclosures. | MSPB/SSA: Suspension was due to his response to the congressional inquiry (Disclosures #1–2); no evidence links Disclosures #3–5 to personnel action. | Held: Daniels failed to show a personnel action was taken (or threatened) because of the protected disclosures alleged. |
| Whether Daniels made non-frivolous allegations sufficient to invoke MSPB jurisdiction under the WPA | Daniels: contends his allegations were non-frivolous and sufficient to proceed. | MSPB/SSA: Allegations were conclusory or implausible; did not meet the regulation’s non-frivolous standard (more than conclusory, plausible, material). | Held: Daniels’ allegations were not non-frivolous under 5 C.F.R. §1201.4(s); Board’s jurisdiction properly dismissed. |
Key Cases Cited
- Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367 (Fed. Cir.) (non-frivolous allegation requirement for MSPB IRA jurisdiction)
- Meuwissen v. Dep’t of Interior, 234 F.3d 9 (Fed. Cir.) (disclosure of an administrative judge’s erroneous decision is not WPA-protected)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (plausibility standard for pleadings)