Walter Deleonecheverria v. Department of the Air Force
Background
- Appellant (police officer at Fort Sam Houston) filed an OSC complaint alleging retaliation for whistleblowing; OSC closed its investigation on Nov. 25, 2014 and notified him of IRA appeal rights.
- OSC identified protected disclosures: media/management disclosures about inadequate staffing (Sept. & Nov. 2013) and an April 2014 IG safety complaint.
- Alleged retaliatory actions: a Sept. 11, 2013 letter of reprimand, placement on administrative leave (Sept. 17, 2013), and suspension/withholding of his security clearance.
- Appellant filed an IRA appeal with the MSPB, later withdrawing his hearing request; the AJ found some disclosures protected but held appellant failed to prove they were contributing factors to the reprimand or leave.
- The AJ also ruled the security-clearance action nonreviewable and, alternatively, found the agency proved by clear and convincing evidence it would have taken the same actions absent the disclosures.
- The Board denied review of the security-clearance claim, affirmed the initial decision, but vacated the AJ's alternative clear-and-convincing finding because the prima facie (contributing-factor) threshold was not established before applying that test.
Issues
| Issue | Appellant's Argument | Agency's Argument | Held |
|---|---|---|---|
| Reviewability of security-clearance suspension | Board should review whether clearance was suspended in reprisal for disclosures | Withholding/suspension of clearance is not a "personnel action" reviewable in an IRA appeal | Denied review; security-clearance withholding/suspension not a reviewable personnel action under controlling precedent |
| Whether disclosures were protected | Disclosures to media/IG about staffing/safety were protected whistleblowing | Agency disputed some disclosures (e.g., June 2013) as not protected | Board found Sept./Nov. 2013 media disclosures and April 2014 IG complaint were protected; June 2013 disclosures were not |
| Contributing factor causation | Disclosures contributed to reprimand and placement on leave | Agency argued disclosures were not a contributing factor | Board/AJ found appellant failed to show disclosures were a contributing factor to reprimand or leave |
| Alternative clear-and-convincing defense | N/A (appellant opposed agency justification) | Even if disclosures were contributing factors, agency proved by clear and convincing evidence it would have taken same actions | Board vacated the AJ's alternative clear-and-convincing finding because the Board must first find a contributing factor before applying the WPEA clear-and-convincing test; AJ had applied it prematurely |
Key Cases Cited
- Hesse v. Department of State, 217 F.3d 1372 (Fed. Cir.) (withholding a security clearance is not a personnel action reviewable in an IRA appeal)
- Roach v. Department of the Army, 82 M.S.P.R. 464 (MSPB) (same principle that security-clearance withholding is not a personnel action)
- Doe v. Department of Justice, 121 M.S.P.R. 596 (MSPB) (confirming Hesse and Roach were not superseded by the WPEA)
- Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154 (MSPB) (Board must find a prima facie contributing factor before applying the WPEA clear-and-convincing defense)