2022 MSPB 4
MSPB2022Background
- Appellant Smith’s husband, an Army EOD sergeant, was killed in Iraq; Dover Air Force Base mortuary affairs personnel cremated and ultimately disposed of portions of his remains in a Virginia landfill, which Smith discovered and publicized.
- Smith informed a Congressman and the press; multiple news stories (Dec 2011, Sept 2012) identified her and generated negative DOD publicity; Congressman Holt referenced her in congressional remarks opposing the NDAA.
- Smith worked at Army’s Picatinny Arsenal as a GS-08 Management Support Assistant, applied for an EA (GS-09) vacancy in Sept/Oct 2012, and was not selected after a second announcement.
- Smith filed an OSC complaint (Jan 2013); OSC closed its inquiry (Aug 2015) and she timely appealed to the MSPB under the IRA provisions; an AJ held a hearing and issued an initial decision granting corrective action.
- The AJ found Smith made protected disclosures (reasonable belief of wrongdoing), that disclosures were a contributing factor under the knowledge/timing test, and the agency failed to prove by clear and convincing evidence that it would have nonselected her absent the disclosures.
- The Board denied the agency’s petition for review (which alleged evidentiary and bias errors) and ordered the agency to appoint Smith to the GS-09 EA position and pay back pay/benefits.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (Army) | Held |
|---|---|---|---|
| Whether Smith made a protected disclosure under 5 U.S.C. §2302(b)(8) | Smith reasonably believed Dover MAO’s landfill disposal violated DOD Directive 1300.22 and/or law/policy | Agency argued the Directive is vague and did not clearly prohibit the conduct; thus no protected disclosure | Held: Disclosure protected; a reasonable disinterested observer could conclude the conduct evidenced wrongdoing (DOD directive and reasonable-belief standard applied) |
| Whether the disclosure was a contributing factor in nonselection | Smith: Agency officials knew of disclosures and nonselection closely followed media coverage, satisfying knowledge/timing test | Army disputed that knowledge meant the disclosure was a contributing factor, urging a higher ‘‘reasonable person’’ causation standard | Held: Knowledge/timing test satisfied (management knew of disclosures; timing proximate); Smith proved contributing factor by preponderant evidence |
| Whether the agency proved by clear and convincing evidence it would have nonselected Smith absent disclosures | Smith: Agency’s asserted reasons (poor coworker relations, leave misuse, telework demands) lacked support and contradicted her performance appraisal | Army: Assertions about fit for GS-09 and testimony of officials justified nonselection irrespective of disclosures | Held: Agency failed to meet clear-and-convincing burden—reasons lacked credibility, motive to retaliate existed, and agency produced no comparator evidence (Carr factors evaluated) |
| Evidentiary and bias challenges to AJ’s process and rulings | Smith: Procedure and evidence were proper; record supports findings | Army: Challenged admission/hearsay, denial of rebuttal expert, alleged AJ bias/outspoken language | Held: Board rejected these challenges—administrative proceedings allow hearsay; AJ did not err in evidentiary rulings or exhibit disqualifying bias |
Key Cases Cited
- Gonzales v. Dep’t of the Navy, 101 M.S.P.R. 248 (MSPB 2006) (clear-and-convincing standard for nondisciplinary IRA cases)
- Carr v. Soc. Sec. Admin., 185 F.3d 1318 (Fed. Cir. 1999) (three-factor framework for assessing agency proof in whistleblower reprisal cases)
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (aggregate-evidence standard and cautions re: retaliatory motive analysis)
- Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999) (reasonable-belief standard for protected disclosures)
- Scoggins v. Dep’t of the Army, 123 M.S.P.R. 592 (MSPB 2016) (knowledge/timing test for contributing-factor proof)
- Robinson v. Dep’t of Veterans Affairs, 923 F.3d 1004 (Fed. Cir. 2019) (recognizing ‘‘professional retaliatory motive’’ even when decisionmakers are not directly implicated by disclosures)
- Kerr v. Nat’l Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984) (remedy: Board may order agency to appoint prevailing appellant)