El v. Merit Systems Protection Board
663 F. App'x 921
Fed. Cir.2016Background
- Aubrey J. El was hired as a General Vessel Assistant on Sept. 9, 2013, subject to a one-year trial period; NOAA terminated him effective Dec. 13, 2013 for alleged travel-card misuse.
- El complained to Commerce’s Office of Civil Rights (Jan. 27, 2014) about repeated, month-long delays in reimbursing his travel claims and alleged supervisory/training failures; he sought reinstatement and back pay.
- After termination, El sent a letter to the Office of Special Counsel (OSC) on Jan. 7, 2015 asserting his complaints were “protected disclosures” under the WPA/WPEA because NOAA violated travel regulations requiring reimbursement within 30 days.
- OSC closed its inquiry and notified El of his right to file an IRA appeal; El filed an IRA appeal with the Merit Systems Protection Board on May 14, 2015 alleging retaliatory termination and failure to reinstate.
- The Administrative Judge and the Board found the pre-termination communications (including the Jan. 27, 2014 letter) were vague complaints that did not nonfrivolously allege violations of law, rule, or regulation; the Board found the Jan. 7, 2015 letter could be a protected disclosure but it postdated the personnel actions and therefore could not have contributed to them.
- The Board dismissed for lack of jurisdiction; the Federal Circuit affirmed, holding that earlier complaints were not protected disclosures and the later protected disclosure could not have contributed to already-completed personnel actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-termination communications alleged a protected disclosure under 5 U.S.C. § 2302(b)(8) | El: his repeated complaints about >30-day travel reimbursements reasonably evidenced a violation of NOAA travel regulations and gross mismanagement | NOAA/Board: pre-termination statements were vague, personal complaints that did not identify a law, rule, or regulation or show gross mismanagement | Held: Pre-termination communications were not nonfrivolous protected disclosures (dismissed) |
| Whether a post-termination OSC letter (Jan. 7, 2015) was a protected disclosure | El: the Jan. 7, 2015 letter summarized prior complaints and asserted they were protected under the WPA | Board: Jan. 7, 2015 letter could be a protected disclosure because it cited the 30-day reimbursement requirement | Held: The Jan. 7, 2015 letter could be protected, but it postdated the personnel actions and therefore could not be a contributing factor |
| Whether any protected disclosure was a contributing factor in NOAA’s personnel actions | El: prior complaints and the Jan. 7 letter contributed to termination and failure to reinstate | NOAA/Board: the personnel actions occurred before the Jan. 7 letter; prior complaints were not protected, so no contributing factor shown | Held: No contributing factor established; Board lacked jurisdiction |
| Whether the Board’s jurisdictional dismissal was supported by substantial evidence and law | El: Board erred in evaluating the substance and timing of disclosures | Government: Board’s factual findings were supported by substantial evidence and legal standards were correctly applied | Held: Affirmed — Board’s dismissal was supported by substantial evidence and correct legal analysis |
Key Cases Cited
- Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318 (describing standard of appellate review of Board decisions)
- Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363 (defining substantial-evidence review)
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (jurisdiction as a question of law reviewed de novo)
- Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367 (elements for Board jurisdiction over IRA appeals)
- Drake v. Agency for Int’l Dev., 543 F.3d 1377 (distinguishing protected disclosures from trivial or minor miscues)
- Herman v. Dep’t of Justice, 193 F.3d 1375 (reasonable-belief inquiry for protected disclosures)
- Langer v. Dep’t of Treasury, 265 F.3d 1259 (trivial violations are not protected disclosures)
- Horton v. Dep’t of Navy, 66 F.3d 279 (post-discipline protected disclosure cannot have contributed to already-initiated personnel action)