McCarthy v. International Boundary and Water Commission
497 F. App'x 4
Fed. Cir.2012Background
- McCarthy was a permanent, full-time, supervisory attorney in the USIBWC excepted service beginning Jan 18, 2009.
- He circulated memos in May–June 2009 criticizing the Commission and its staff, including concerns about Ruth and the OIG recommendations.
- Ruth considered McCarthy's memoranda divisive and began contemplating termination; staff meetings in July 2009 preceded the firing.
- McCarthy disclosed allegations of fraud, waste, and abuse on July 28–30, 2009, claiming whistleblower protections.
- Ruth ultimately terminated McCarthy on or after July 30–31, 2009 for “failure to support [Ruth] or other members… in a constructive and collegial manner.”
- McCarthy filed whistleblower complaints with OSC; the Board and administrative judge made separate determinations, ultimately affirming that the WPA was not violated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McCarthy had a property interest requiring due process before termination | McCarthy (McCarthy) argues permanent status creates rights. | McCarthy lacks Chapter 75 eligibility; two years' service required. | No property interest requiring due process; termination did not violate due process. |
| Whether the Commission proved by clear and convincing evidence it would have terminated absent whistleblowing | Disclosures affected the termination decision; strong motive to retaliate. | Carr factors show no retaliation; pre-disclosure decision to terminate existed. | Substantial evidence supports that termination would have occurred without disclosures. |
| Whether Board/agency discovery and evidentiary rulings were abused | Motions to compel were improperly denied; evidence should have been excluded/compelled. | Rulings within the Board’s discretion; procedural compliance issues. | No abuse of discretion; no prejudice shown. |
| Whether the Board properly addressed joining the separate WPA appeals and due process arguments | Full joining necessary to resolve discovery and due process issues. | Joint handling appropriate; issues severable and resolved on the merits. | Board properly adjudicated; overall affirmance of WPA denial. |
Key Cases Cited
- Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) ( Carr factors do not require separate weighing of each factor)
- Kewley v. Department of Health & Human Services, 153 F.3d 1357 (Fed. Cir. 1998) (burden-shifting framework for WPA)
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (three Carr factors for clear and convincing standard)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (credibility based on witness demeanor; deferential review)
- Gibson v. Department of Veterans Affairs, 160 F.3d 722 (Fed. Cir. 1998) (review of credibility and evidence on appeal)
- Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999) (property interest and due process in federal employment)
- Forest v. Merit Systems Protection Board, 47 F.3d 409 (Fed. Cir. 1995) (definition of employee in excepted service and two-year requirement)
- Curtin v. Office of Personnel Management, 846 F.2d 1373 (Fed. Cir. 1988) (discovery/evidentiary discretion standard)
- King v. Department of Health & Human Services, 133 F.3d 1450 (Fed. Cir. 1998) (due process/property interest context)
- Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001) (constitutional due process standards in Board review)