Mathew R. Drake appeals a final decision of the Merit Systems Protection Board (MSPB or Board) finalizing an initial decision denying his request for corrective action.
Drake v. Agency for Int’l Dev.,
BACKGROUND
Mr. Drake, a Foreign Service investigator with USAID (agency), was assigned to the Regional Inspector General’s Office in Budapest, Hungary. On May 24, 2004, Mr. Drake was charged with “[intoxication caused by the use of alcohol while on official duty,” based on his conduct while on temporary duty in Tbilisi, Georgia. In response to the charge, the agency proposed a five day suspension, which was later withdrawn.
During July and August 2004, Mr. Drake attended two parties at the U.S. *1379 Embassy in Budapest. On August 10, after attending the second party, Mr. Drake sent an e-mail, including pictures, to the agency's Acting Assistant Inspector General for Management stating that Mr. Drake “witnessed large amounts of alcoholic beverages being served, extensive toasting, and intoxication of USAID and Dept, of State Personnel while on duty, including the Deputy Chief of Mission, Mission Director, Regional Legal Advisor, Regional Inspector General, and other representatives of the U.S. government.” Mr. Drake sent copies of the e-mail to his immediate supervisors and to the Acting Inspector General.
In response to Mr. Drake’s e-mail, the USAID/OIG Special Investigations Division conducted an investigation which terminated in early September 2004. While the investigation found that alcohol had in fact been consumed by various high-level agency personnel during working hours, it concluded, based on a dictionary definition of intoxication, that “the investigation did not determine that RIG employees were legally intoxicated while on duty.” Intoxication on duty is identified as an offense subject to disciplinary action in the “list of disciplinary offenses and penalties” contained in the Department of State’s Foreign Affairs Manual. See 3 FAM 4542.
On September 8, 2004, less than one month after Mr. Drake sent the e-mail, his supervisor, Special Agent in Charge Donna Dinkier, wrote a memorandum that indicated Mr. Drake should be transferred to Washington, D.C. effective September 11, 2004, because “Mr. Drake’s services aré no longer needed in Budapest, Hungary.” Upon being informed that he was being reassigned, Mr. Drake promptly filed a complaint with the Office of Special Counsel (OSC) alleging that his reassignment was in retaliation to his whistleblow-ing activity, i.e., his e-mail. Following the issuance of a final closure letter informing Mr. Drake that OSC would take no further action regarding his complaint, Mr. Drake filed an Individual Right of Action (IRA) appeal requesting a hearing with the Board. On February 14, 2006, without conducting a hearing, the AJ found that Mr. Drake had “not made a nonfrivolous allegation that he engaged in whistleblow-ing activity,” and accordingly dismissed the IRA appeal for lack of jurisdiction.
In response to Mr. Drake’s petition for review of this first initial decision, the Board held that Mr. Drake had made nonfrivolous allegations and granted his petition, reversing the initial decision and remanding the appeal for further adjudication.
Drake v. Agency for Int’l Dev.,
On January 18, 2007, following a hearing, the AJ found that while Mr. Drake had proven: (1) that his disclosure was a contributing factor in his reassignment and (2) that the agency had not shown that it would have taken the reassignment action in the absence of the disclosure, his disclosure was not a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8). Consequently, the AJ denied Mr. Drake’s request for corrective action.
Mr. Drake filed a petition for review of the second initial decision on February 21, 2007, which was denied on October 18, 2007. Mr. Drake timely filed this appeal.
DISCUSSION
This court has jurisdiction over petitions for review of MSPB decisions under 28 U.S.C. § 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. Accordingly, we must set aside Board decisions we find “(1)
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arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c);
Cheeseman v. Office of Pers. Mgmt.,
To establish a violation of the Whistleblower’s Protection Act (WPA), we require proof of four elements:
(1) the acting official has the authority to take, recommend, or approve any personnel action; (2) the aggrieved employee made a disclosure protected under [5 U.S.C.] 2302(b)(8); (3) the acting official used his authority to take, or refuse to take, a personnel action against the aggrieved employee; (4) the acting official took, or failed to take, the personnel action against the aggrieved employee because of the protected disclosure.
Lachance v. White,
A protected disclosure under § 2302(b)(8) is defined in relevant part as:
(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety....
5 U.S.C. § 2302(b)(8). The AJ determined that Mr. Drake’s disclosure was not a protected disclosure under three separate theories: (1) that 3 FAM 4542 is not a law, rule, or regulation; (2) that, even if 3 FAM 4542 was a law, rule, or regulation, the violation was of “such a trivial nature” that Mr. Drake could not reasonably believe he was reporting a genuine violation; and (3) that, even if 3 FAM 4542 was a law, rule or regulation, a disinterested observer could not have concluded that Mr. Drake’s disclosure evidenced a violation. We conclude that the AJ legally erred on all three.
First, the agency concedes that 3 FAM 4542 is a law, rule, or regulation under the WPA. Appellee Br. at 15 (“We concede that the administrative judge made an error of law in concluding that 3 FAM 4542 was not a law, rule or regulation pursuant to the [WPA].”).
Second, the AJ misinterpreted our holdings in
Langer v. Department of the Treasury,
In
Herman,
prison officials copied the telephone logs of Dr. Herman, the former chief clinical psychologist for a federal prison camp, while investigating his alleged unauthorized telephone use. Dr. Herman asserted that this copying of his telephone logs may have compromised the confidentiality of employees who had called him as part of an Employee Assistance
*1381
Program (EAP) and was therefore a violation of the prison’s EAP directive. Dr. Herman further asserted that a memorandum he wrote complaining about the copying of his telephone logs amounted to a protected disclosure. This court, emphasizing that the telephone logs were not identified as potentially confidential by being kept in a security-approved container as mandated by the EAP directive and that Dr. Herman could not show that any confidential information was actually copied, determined that the “copying of confidential information, if any, would have been inadvertent.”
Herman,
In
Langer,
Mr. Langer complained that the IRS was allowing secretaries to open pink envelopes that might contain confidential information. Relying on
Herman,
we held that the relevant disclosures “evidence[d] disagreements Langer had with his supervisors regarding the formal policy for handling of the pink envelopes that might contain confidential grand jury information,” and that “any actual viewing of grand jury material by a secretary would at most have been inadvertent.”
Langer,
We held in
Herman
that: “The determination of whether an employee has a reasonable belief that a law, rule, or regulation was violated turns on the facts of the particular case.”
Herman,
Third, the AJ erred with regard to the standard set forth in
Lachance v. White,
By requiring Mr. Drake to prove that the agency personnel were intoxicated, the AJ erroneously required Mr. Drake to prove that an actual violation occurred. This is in direct conflict with the standard set forth in
Lachance. See also Huffman v. Office of Pers. Mgmt.,
CONCLUSION
Because the AJ erred by finding that that Mr. Drake had not made a protected disclosure under 5 U.S.C. § 2302(b)(8), we reverse and remand for the Board to determine the appropriate corrective action to which Mr. Drake is entitled consistent with this opinion.
REVERSED and REMANDED
Notes
. The trivial or de minimis idea comes from the statute itself. In 5 U.S.C. § 2302(b)(8)(A)(ii), the statute refers to
"gross
mismanagement, a
gross
waste of funds, an abuse of authority, or a
substantial
and specific danger to public health or safety ....”
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(emphasis added). Moreover, the legislative history indicates that the statute protects, for example, a "pentagon employee who discloses billions of dollars in cost overruns, the GSA employee who discloses widespread fraud, and the nuclear engineer who questions the safety of certain nuclear plants.”
Herman,