Cathy Covington, Appellant, v. Department of the Interior, Agency.
Docket No. DE-0752-15-0169-I-1
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
January 13, 2023
2023 MSPB 5
Cathy A. Harris, Vice Chairman; Raymond A. Limon, Member; Tristan L. Leavitt, Member
Member Limon recused himself and did not participate in the adjudication of this appeal.
Frank Lupo, Esquire, and Jared M. Slade, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that sustained her removal. For the reasons set forth below, we GRANT the appellant‘s petition, VACATE the initial decision, and REMAND this matter for further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The appellant was employed as a Forester in the agency‘s Bureau of Indian Affairs (BIA), Trust Services, Navajo Region, in Fort Defiance, Arizona. Initial
¶3 Consistent with the Federal Government‘s move toward greater autonomy for Indian tribes, the BIA‘s Navajo Region and the Navajo Nation have entered into what are commonly known as “638 contracts” concerning timber and other trust assets. HT at 116 (testimony of a BIA Tribal Operations Specialist), 156-57, 173-74, 209-10 (testimony of the appellant‘s first-level supervisor). Trust assets are assets that the Federal Government holds “in trust for Indian tribes and individual Indians.”
¶4 The Navajo Region has a 638 contract with the Navajo Nation Forestry Department. HT at 157 (testimony of the appellant‘s first-level supervisor). Pursuant to a self-determination agreement with the BIA, the Navajo Nation Forestry Department self-administers aspects of its forestry management operations, including issuing permits for harvesting and selling timber products on Navajo Nation lands. HT at 157, 169 (testimony of appellant‘s first-level supervisor); IAF, Tab 5 at 26-33. Nevertheless, the BIA‘s Navajo Region is responsible for reviewing and approving permits for harvesting timber. IAF, Tab 5 at 96-97;
¶5 In May 2013, while the appellant was serving a 1-year probationary period as a Supervisory Forester, the agency designated her as the AOTR for the BIA‘s 638 contract with the Navajo Nation Forestry Department. IAF, Tab 5 at 36, 51. On December 2, 2013, she received a telephone call from a Navajo Nation Forestry Department official. IAF, Tab 5 at 19. He expressed concern that “timber . . . was being harvested along right-of-way [for Arizona State Highway] 264 . . . [without a] timber sale contract.” Id. at 19; HT at 378-79 (testimony of the appellant). Highway 264 runs through the Navajo Nation. HT at 163 (testimony of the appellant‘s first-level supervisor).
¶6 Two days later, the appellant visited the identified location and observed the Arizona Department of Transportation (ADOT) cutting down trees along Highway 264 and loading them onto trailers. IAF, Tab 5 at 19-23, 34. She interviewed two individuals who advised her that the trees were “being hauled to the Navajo Nation Forestry Department to be processed and cut into rough cut lumber.”1 Id. at 20. She obtained a copy of a “Transportation Permit” issued by the Navajo Nation Forestry Department that allowed for removal of the timber at issue along the right-of-way. Id. at 19, 24.
¶7 The following day, the appellant wrote two memoranda notifying her first-level supervisor, the Regional Director, who was her second-level
¶8 In her December 5, 2013 memoranda, the appellant asserted that the Navajo Nation Forestry Department was not authorized to retain any revenues from the timber sale absent a tribal resolution to that effect and that it was a conflict of interest for the Navajo Nation Forestry Department to have obtained the timber sale permit for its own benefit because it distributed the permits. IAF, Tab 5 at 19-21, 51. It is undisputed that shutting down work was outside the scope of the appellant‘s authority as the AOTR. HT at 160-61, 166-67 (testimony of the appellant‘s first-level supervisor), 417-18 (testimony of the appellant); IAF, Tab 5 at 47-49, 52. By shutting down the Highway 264 project, she caused tensions between the BIA and the Navajo Nation. HT at 168, 172-73, 245 (testimony of the appellant‘s first-level supervisor).
¶9 The Navajo Region later determined that the land from which trees were being cut was not subject to a 638 contract. HT at 170-71 (testimony of the appellant‘s first-level supervisor). Instead, the agency, with the concurrence of the Navajo Nation, had provided ADOT with a right-of-way, giving it “rights and claims” within the area at issue along the highway, which apparently included the right to dispose of timber located along the right-of-way as they saw fit. HT at 170 (testimony of the appellant‘s first-level supervisor); IAF, Tab 5 at 34. The Regional Director determined that “[t]he [Navajo Nation] forestry department ha[d] partnered with ADOT to collect and remove all timber to be utilized for
¶10 By letter dated March 11, 2014, the Regional Director returned the appellant to her prior nonsupervisory position based on the appellant‘s actions in stopping ADOT‘s work along Highway 264. Id. at 36. She faulted the appellant for making a “premature decision” and demonstrating a “lack of expert guidance” by interfering in the arrangement between ADOT and the Navajo Nation Forestry Department. Id. According to the Regional Director, the appellant‘s action resulted in an “unnecessary delay of the project” and “forced [BIA] to enter into an unnecessary [memorandum of understanding] with [ADOT].” Id. The appellant returned to her prior position effective March 16, 2014.2 Id.
¶11 Between late December 2013 and early January 2014, as well as on or around June 18, 2014, the appellant reported additional alleged agency wrongdoing to the agency‘s Office of Inspector General (OIG). IAF, Tab 6 at 27-29, Tab 33 at 10. She also sent a September 11, 2014 email to the Navajo Nation Forest Manager raising concerns that certain Navajo Nation-proposed tree harvesting projects did not comply with the National Environmental Policy Act (NEPA) and other Federal laws. IAF, Tab 5 at 39. The awarding official and the appellant‘s first-level supervisor learned of this email to the Navajo Nation later that month. Id. at 43, 45.
¶12 On November 6, 2014, the appellant‘s first-level supervisor proposed her removal based on a charge of “Failure to Safeguard Government Records.” IAF, Tab 6 at 47-48. In its first specification, the agency asserted that on July 22, 2014, despite receiving instructions requiring her to complete an inventory of
¶13 The appellant filed a Board appeal of her removal. IAF, Tab 1. She raised affirmative defenses of reprisal for whistleblowing and equal employment opportunity (EEO) activity and alleged a violation of her right to due process. IAF, Tab 1 at 6-8, Tab 33 at 4-5, Tab 40 at 2-3, Tab 41 at 4-7, Tab 45 at 1-2. After a hearing, the administrative judge issued an initial decision affirming the removal. IAF, Tab 54, Initial Decision (ID) at 1, 36. He found that the agency proved both specifications of its charge, nexus, and the reasonableness of the penalty. ID at 7-13, 32-36. He also held that the appellant did not prove retaliation for EEO activity or a violation of her due process rights. ID at 24-32. As to the appellant‘s whistleblower reprisal claim, the administrative judge held that the appellant‘s December 5, 2013 and September 11, 2014 disclosures were not protected. ID at 15-17. He reasoned that she reported alleged
¶14 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 3. The agency has responded to the petition for review, and the appellant has replied. PFR File, Tabs 5-6.
ANALYSIS
A disclosure of wrongdoing committed by a non-Federal Government entity is protected only when the Government‘s interests and good name are implicated in the alleged wrongdoing.3
¶15 In order to prevail on her whistleblower retaliation affirmative defense, an appellant must prove by preponderant evidence that she made a whistleblowing disclosure as described under
¶16 The relevant statute provides that an agency may not remove an employee because of “any disclosure” that the employee reasonably believes evidences “any violation of any law, rule, or regulation.”
¶17 Relying on Arauz, 89 M.S.P.R. 529, ¶ 7, and Aviles v. Merit Systems Protection Board, 799 F.3d 457, 464-66 (5th Cir. 2015), the administrative judge found that the appellant‘s December 5, 2013 and September 11, 2014 disclosures were not protected because she alleged wrongdoing by the Navajo Nation, rather than agency personnel. ID at 16-17. The appellant argues that the administrative judge erred in relying on Arauz because that decision was issued before the enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA), which reversed some judicially created limitations on whistleblower protections. PFR File, Tab 3 at 13.
¶18 In Aviles, 799 F.3d at 464-66, which was decided after enactment of the WPEA, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) agreed with the Board and held that, when enacting the WPEA, “Congress did not intend to protect disclosures of purely private wrongdoing.” As the appellant notes, Aviles is not necessarily binding on the Board. PFR File, Tab 3 at 13. Prior to late
¶19 Yet the appellant has pointed to no other circuit which has held contrary to the Board‘s precedent in Arauz. The Federal Circuit recently had the opportunity to do so, but in a nonprecedential decision instead agreed that disclosures of purely private wrongdoing are not covered by
The appellant made disclosures regarding alleged wrongdoing by the Navajo Nation Forestry Department that implicated the Federal Government‘s interests and good name.
¶20 We now consider whether the Government‘s interests and good name were implicated in the alleged wrongdoing. In Arauz, 89 M.S.P.R. 529, ¶¶ 5-7, the Board found that the Government‘s interests and good name were implicated in a
¶21 With this guidance, we consider the appellant‘s December 2013 and September 2014 disclosures in turn. As explained below, we conclude that the appellant‘s disclosures concerned purported wrongdoing by the Navajo Nation that implicated the Federal Government‘s interests, reputation, and good name.
The appellant‘s December 5, 2013 disclosures implicated the Federal Government‘s interests and good name.
¶22 The administrative judge acknowledged that allegations of private wrongdoing may constitute protected whistleblowing, citing the Board‘s decision in Arauz and the Fifth Circuit‘s decision in Aviles, but determined that the December 5, 2013 memoranda regarding the Navajo Nation Forestry Department‘s securing of a timber harvesting permit were not protected because the appellant had not explained why she believed that agency personnel were violating rules or abusing authority, or made specific allegations of wrongdoing by agency officials. ID at 16-17. Instead, the administrative judge characterized the memoranda as expressing concerns about the Navajo Nation‘s conduct. ID
¶23 The appellant argues on review that she reasonably believed the project along Highway 264 was covered by a 638 contract, and thus subject to the statutes and regulations concerning such projects. PFR File, Tab 3 at 12-13. We find that the appellant‘s December 2013 disclosures are protected because they implicate the Government‘s good name.
¶24 In 1868, the United States and the Navajo Tribe entered into an agreement that established a reservation covering, as relevant here, the area around Fort Defiance that was the subject of the appellant‘s disclosures. Treaty Between the United States and the Navajo Tribe of Indians, ratified July 25, 1868, 15 Stat. 667 (the Treaty of 1868); see McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 173-75 (1973) (explaining that the Treaty of 1868 set aside a reservation for the Navajo “under general [F]ederal supervision“). The Federal Government, acting through the agency, generally manages and has pervasive control over Indian timber, land, and forests on reservation land. See United States v. Mitchell, 463 U.S. 206, 207-09, 219-23 (1983) (discussing this control in the context of the Government‘s 1861 treaty with the Quinault and Quileute Tribes, citing, among other authorities,
¶25 Although the appellant believed that the timber harvested along Highway 264 was subject to a 638 contract, she was mistaken. IAF, Tab 5 at 19-23. Instead, the area in question was subject to a right-of-way, which gave ADOT the right to remove the trees. Id. at 38; HT at 170-71 (testimony of the appellant‘s first-level supervisor). As discussed above, the agency has a fiduciary duty concerning the assets on the reservation land generally and the authority to award rights-of-way, such as the right-of-way that the agency provided to ADOT along Highway 264. HT at 151, 170 (testimony of the appellant‘s first-level supervisor); Mitchell, 463 U.S. at 223-26; e.g.,
The appellant‘s September 11, 2014 disclosure implicated the Government‘s interests and good name.
¶26 The administrative judge concluded that the appellant‘s September 11, 2014 email to a Navajo Nation Forest Manager raising concerns about the Navajo Nation‘s proposed tree harvesting project did not constitute whistleblowing. ID at 17. He reasoned that the appellant failed to show that agency personnel were violating, or were complicit in the alleged violations of, NEPA. ID at 17. We disagree.
¶27 By statute, the Federal Government has a trust responsibility for Indian forest lands.
¶28 Although not expressly stated in the record, it appears that the appellant‘s September 11, 2014 disclosure concerned activities on Indian forest land. HT at 116 (testimony of a BIA Navajo Region Tribal Operations Specialist), 151-52, 210 (testimony of the appellant‘s first-level supervisor). The BIA‘s Navajo Region is responsible for providing services related to the activities in question, including reviewing and approving permits for harvesting timber. IAF, Tab 5 at 96-97;
¶29 In her September 2014 email, which the appellant sent to a Navajo Nation Forest Manager pursuant to her role as the AOTR for a proposed tree harvesting project on Navajo Nation land in the Assayi Lake fire area, she expressed concerns that the project did not comply with environmental laws and regulations. IAF, Tab 5 at 39-40. She put the Forest Manager “on notice” that all harvesting activities were obligated to meet the requirements under NEPA and other Federal environmental laws. Id. The appellant also noted that during a previous meeting with the Forest Manager, he seemed “agitated” about the appellant‘s request for additional information to address her concerns about the project plans. Id.
¶30 In a September 15, 2014 response to the appellant‘s email, the awarding official informed the appellant that if there were any potential problems that “threaten the performance of the contract, the AOTR must immediately contact the [awarding official] so that remedial measures may be taken.” Id. at 45. By suggesting the BIA may need to take actions, the awarding official acknowledged
¶31 Based on the foregoing, we conclude that the administrative judge erred when he determined that the appellant‘s disclosures concerned only the Navajo Nation. ID at 16-17. Instead, we conclude that, given the BIA‘s fiduciary relationship with the Navajo Nation, as well as the oversight role and the significant amount of control it had over the Navajo Nation Forestry Department‘s functions, the appellant‘s disclosures implicated the Government‘s reputation and good name. Miller, 99 M.S.P.R. 175, ¶¶ 12-13; Johnson, 93 M.S.P.R. 38, ¶¶ 10-11; Arauz, 89 M.S.P.R. 529, ¶ 7.
The appellant reasonably believed that her December 5, 2013 disclosures evidenced wrongdoing under 5 U.S.C. § 2302(b)(8) .
¶32 Because the administrative judge found that the appellant‘s disclosures did not implicate the Federal Government, he did not address the reasonableness of her belief that her disclosures evidenced wrongdoing under
The appellant‘s December 5, 2013 disclosures were protected.
¶33 As to her December 2013 disclosures, the appellant argues on review that she reasonably believed the “timber harvesting” along Highway 264 violated the statutory and regulatory requirements concerning the administration of the agency‘s 638 contract with the Navajo Nation. PFR File, Tab 3 at 10-14, Tab 6 at 7-10. As previously discussed, the appellant‘s belief that improper harvesting was occurring rested on her faulty assumption that the land being harvested was subject to a 638 contract, when it was instead being harvested as a part of a right-of-way agreement with ADOT. Nevertheless, there is no dispute that at the time the appellant drafted the memoranda that made this disclosure, it was her
¶34 The appellant‘s first-level supervisor also appears to have initially believed that the land at issue may have been subject to a 638 contract, and only discovered that it was not after the appellant made her disclosure. In her testimony, the appellant‘s first-level supervisor acknowledged that, after the appellant issued the December 2013 memoranda, BIA staff in charge of 638 contracts and BIA managers “got together . . . to figure out what was going on” regarding the tree harvesting occurring on route 264. HT at 169. She indicated that BIA management was concerned with potential regulatory violations and also whether the Navajo Nation violated their 638 contract with the Federal Government by issuing a permit for the tree harvesting. HT at 169-70 (testimony of appellant‘s first-level supervisor). She further testified that only after the BIA reviewed the contract documents and additional documents provided by ADOT did it discover that the land was the subject of a right-of-way agreement with ADOT and not subject to a 638 contract between the BIA and the Navajo Nation. Id.
¶35 The test for assessing the reasonableness of an appellant‘s belief that her disclosure was protected is not based on after-acquired information; rather, under the statute, the test for a protected disclosure is whether the appellant had a reasonable belief that she was disclosing a violation of law, rule, or regulation at the time she made the disclosure, not in light of events or conversations occurring thereafter. Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 13 (2015) (citing
The appellant‘s September 11, 2014 disclosure was not protected.
¶37 The appellant also argues on review that she reasonably believed that her September 2014 disclosure evidenced a violation of NEPA. PFR File, Tab 3 at 13-14. As discussed above, NEPA compliance is required for timber harvesting on Indian forest lands. Thus, we find that the content of the appellant‘s disclosure could evidence a violation of law, rule, or regulation. See Bump v. Department of the Interior, 69 M.S.P.R. 354, 361-62 (1996) (finding that an appellant reasonably believed a proposed timber sale potentially violated Federal laws, including NEPA).
¶38 The appellant stated in her September 2014 email that “NEPA issues” existed with respect to the Navajo Nation Forestry Department‘s proposed timber harvesting activity on a portion of the reservation. IAF, Tab 5 at 39-40. The Board has found that an employee need not wait until an actual violation of law occurs for her disclosure to be protected under whistleblower reprisal statutes. Ward v. Department of the Army, 67 M.S.P.R. 482, 488 (1995). Such a requirement would mean losing an opportunity to avert wrongdoing and would have a chilling effect on whistleblowing. Id. When, as here, a disclosure concerns a potential violation of law, as opposed to an event that has already
¶39 We find, under the circumstances presented here, that the appellant has failed to prove that she reasonably believed any NEPA violation was real and imminent. Although she stated at one point in her September 2014 email that the Navajo Nation Forestry Department “may be harvesting trees,” it appears from the context of her email and other statements that she was only referencing a proposed tree harvesting project that was under consideration, rather than activity that was already taking place or imminently about to occur. IAF, Tab 5 at 39-40.
¶40 Further, the appellant‘s email reflects that over the course of August 2014, she had been discussing the potential harvesting with the Navajo Nation Forest Manager and others, and had requested maps of the affected area. Id. Her September 2014 email was a summary of those prior discussions and a follow up request for maps. Id. She did not state in her email that she believed harvesting had begun or would begin before NEPA compliance was assured, id., nor did she testify at the hearing regarding the situation leading to her September 2014 email. There is no evidence in the record supporting the conclusion that the harvesting was about to occur or that the appellant reasonably believed it was.
¶41 Moreover, within an hour of the appellant sending her September 2014 email to the Navajo Nation Forest Manager, he responded by providing a proposal for a portion of the harvesting. Id. at 39. He indicated that other activities were in “the planning stages and [were] currently being GPS‘d,” presumably in response to the appellant‘s request for maps. Id. His response supports the
The appellant established that her disclosures were a contributing factor in the agency‘s decision to remove her.
¶42 The administrative judge found that the appellant proved her OSC and OIG complaints were contributing factors in her removal. ID at 18-19. Because the administrative judge determined that the appellant‘s December 5, 2013 memoranda were not protected disclosures, he did not make any findings concerning whether the appellant met her burden to prove that they were a contributing factor in the agency‘s removal decision. ID at 16-17. We conclude that she did.
¶43 To prove that a disclosure was a contributing factor in a personnel action, the appellant need only demonstrate that the fact of, or the content of, the disclosure was one of the factors that tended to affect the personnel action in any way. Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003). The knowledge-timing test allows an appellant to demonstrate that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id., ¶ 11.
¶44 Here, the timing prong of the knowledge-timing test is met because the agency removed the appellant just over 1 year after she submitted the December 5, 2013 memoranda. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that occurs within 2 years of an appellant‘s disclosure satisfies the timing prong of the
Remand is necessary for the administrative judge to conduct a new Carr factors analysis.
¶45 Because the appellant met her prima facie burden of proving that she made a whistleblowing disclosure that was a contributing factor in the agency‘s decision to remove her, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant‘s whistleblowing.
¶46 The administrative judge found that the agency met its burden to prove that it would have removed the appellant absent her OIG and OSC complaints. ID at 19-22. As to the appellant‘s December 2013 and September 2014 disclosures, he separately stated that, even if protected, the agency had no motive to retaliate and the proposing and deciding officials credibly testified that they removed the appellant due to her misconduct. ID at 22. The appellant argues on review that
¶47 On remand, the administrative judge should conduct a new analysis of whether the agency met its burden to prove by clear and convincing evidence that it would have removed the appellant in the absence of her protected December 2013 disclosures and her protected activities. In conducting his analysis, the administrative judge should consider the agency‘s combined motive to retaliate based on all of the appellant‘s protected activities and disclosures, and reweigh all the Carr factors in light of the totality of the appellant‘s protected activities and disclosures. See Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (finding that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate“).6
The appellant has not shown that the agency engaged in witness intimidation during the hearing.
¶48 The appellant contends that she felt intimidated by the presence of a human resources employee at the hearing. PFR File, Tab 3 at 23-24. Although the appellant testified that she felt intimidated at the hearing, HT at 368-69
ORDER
¶49 We remand the appeal to the Denver Field Office for further adjudication of the appellant‘s whistleblower reprisal claim consistent with this Opinion and Order. To the extent appropriate, the administrative judge may adopt his prior findings regarding the appellant‘s removal and the remaining affirmative defenses in the remand initial decision.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.