Robert v. Serrao v. Merit Systems Protection BoardRobert v. Serrao v. Merit Systems Protection Board
Lead Opinion
Opinion for the court filed by Circuit Judge SCHALL. Dissenting opinion filed by Circuit Judge NEWMAN.
Robert V. Serrao petitions for review of the final decision of the Merit Systems Protection Board (“Board”) in Serrao v. Department of Commerce, Docket No. NY-1221-95-0317-W-1. The March 21, 1995 initial decision of the Administrative Judge (“AJ”) became the final decision of the Board after Serrao failed to file a petition for review. In his decision, the AJ dismissed for lack of jurisdiction the individual right of action (“IRA”) appeal that Serrao sought to bring before the Board pursuant to the Whistle-blower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of 5 U.S.C.) (“WPA”). We affirm.
BACKGROUND
I.
Serrao is a Special Agent in the New York Field Office of the Office of Export Enforcement of the United States Department of Commerce (“agency”). On January 18,1994, Josephine Fontana Moran, Serrao’s supervisor, removed Serrao from the Kennedy Air-porVNew York City work rotation and assigned him to work in New York City.
The agency has an administrative grievance system. It is embodied in Department Administrative Ordеr 202-771, dated March 18,1986 (the “Grievance Order”). On February 3,1994, Serrao exercised his rights under
On February 19,1994, pursuant to Section 6 of the Grievance Order, Serrao filed a formal grievance with Carl B. Ward, Chief of the Human Resources Division for the agency’s Eastern Region.
Meanwhile, on March 1, 1994, Serrao filed a second informal grievance with Ms. Moran. In it, he challenged an official reprimand that she issued to him on February 16 for “unprofessional, disrespectful and insubordinate conduct.” Ms. Moran denied the grievance on March 16.
On March 10, 1994, Serrao filed a complaint with the United States Office of Special Counsel (“OSC”).
I have recently filed a grievance against my supervisor, Special Agent in Charge (SAIC) of the New York Field Office[,] ... Josephine Fontana Moran. Initially, I filed an informal grievance which was denied by the SAIC. I followed the informal grievance with a formal grievance which was filed with my personnel office. The grievance was based on an harassment campaign waged against me by the SAIC for over a two year period.
I want at this time to file a complaint with the Office of Special Counsel ... against the SAIC claiming a prohibited personnel practice as she has threatened to take a personnel action against me as a result of my filing this grievance. Since the filing of this grievance, the SAIC has retaliated against me in the form of several adverse action forms and a written reprimand,threatening to suspend or remove me from Federal Service.
On Marсh 26, 1994, Serrao filed another formal grievance with Mr. Ward. In it, he complained about Ms. Moran’s March 16 denial of his informal grievance that followed his reprimand for insubordinate behavior. Serrao referred to Ms. Moran’s “abusive tirades” against him over a period of two years, stating that she was retaliating against him because of “his filing of a grievance against her.” The response to the March 26 grievance appears, from the record, to be an October 31, 1994 memorandum from Frank W. Deliberti, an agency management official. Mr. Deliberti stated that “Ms. Moran’s written reprimand dated February 16, 1994 was fully justified” and that he had found no evidence to support Serrao’s claim that the reprimand was “a retaliatory action on Ms. Moran’s part.”
On October 4, 1994, Ms. Moran rated Ser-rao’s performance as “marginal,” and on October 6, she placed him on a performance improvement plan. In so doing, she wrote: “[I]f your performance continues to deteriоrate to the unsatisfactory level, I will have no choice but to initiate action to remove you from your position as a Criminal Investigator.” On October 12, Serrao reported these “additional acts of retaliation” to OSC. Ser-rao stated: “I would greatly appreciate it if you would add to your ‘final’ report an addendum to include my recent year end performance rating which I received on October 6, 1994. I also was put on a Performance Improvement Plan.... These additional acts of retaliation must be forwarded with your report.”
II.
On February 14, 1995, Serrao filed an appeal with the Board, purportedly under the WPA. Serrao stated that, pursuant to
After the appeal was filed, the AJ issued an acknowledgement order in which he directed Serrao to file a submission addressing the question of the Board’s jurisdiction. The AJ informed Serrao that the matters he was appealing — the performance appraisal and his placement on a performance improvement plan — did not appear to be actions that were appealable to the Board. The AJ stated: “[Y]our petition will be dismissed unless you allege facts that if true would show that a personnel action was taken, proposed,
This letter is to confirm our conversation concerning the complaint submitted to the ... OSC ... by your client, Robert Ser-rao. In the complaint, ... Mr. Serrao stated that he had received a lowered performance appraisal rating and a written reprimand. Mr. Serrao also explained that agency officials removed him from a detail, harassed him, and threatened him with (1) a lowered performance appraisal rating (and subsequent placement on a performance improvement plan); (2) suspension; and (3) removal. Mr. Serrao alleged that the agency officials took or threatened to take these actions because he had filed a grievance against his supervisor, because he made disclosures of abuse of authority, gross mismanagement, and harassment, and because he was mistakenly identified as the source of a complaint to the agency’s Office of Inspector General.
On March 25, 1995, the AJ dismissed Ser-rao’s appeal for lack of jurisdiction. The AJ ruled first that the Board did not have jurisdiction over the appeal under
DISCUSSION
We must affirm the AJ’s decision to dismiss Serrao’s appeal unless Serrao establishes that the decision is (1) 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.
Serrao does not challenge the AJ’s ruling that his petition to the Board did not qualify as an adverse action appeal. Thus, the only issue before us is whether the AJ erred in dismissing the petition as an IRA appeal.
I.
When, as in this case, there does not exist an independent right to appeal an аdverse personnel action directly to the Board, an employee may be able to bring an IRA appeal. See
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, ■with respect to such authority—
* * * * * *
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee ... because of—
(A) any disclosure of information by an employee ... which the employee ... 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 ...; or
(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee ... 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.
The term “personnel action” is defined in
Thus, in order to establish the Board’s jurisdiction over his IRA appeal, Serrao had to show by preponderant evidence that (1) he engaged in whistleblowing activity by making a disclosure protected by
II.
We hold that the AJ did not err in dismissing Serrao’s IRA appeal for lack of jurisdiction. The ground for our holding is that, as explained below, before bringing his appeal, Serrao did not seek corrective action from OSC with respect to reprisal for having made disclosures protected by
A.
In his March 10 complaint to OSC Serrao claimed that Ms. Moran had retaliated against him for his having filed a grievance against her in connection with his transfer from Kеnnedy Airport. He stated: “[S]he has threatened to take a personnel action against me as a result of my filing this grievance.” Thereafter, on October 12, Ser-rao reported what he believed were additional acts of retaliation on Ms. Moran’s part. In short, Serrao complained to OSC about various alleged acts of reprisal (reprimands and a marginal performance rating) for his having filed a grievance against Ms. Moran.
As seen above, under
B.
Serrao seeks to avoid the jurisdictional bar by making two arguments. First, he contends that the fact that he exercised rights under the Grievance Order should not bar Board jurisdiction. Serrao bases this argument on certain language in Spruill v. Merit Sys. Protection Bd.,
We must reject Serrao’s argument. First,
C.
Serrao’s second argument against the jurisdictional bar is that, even assuming his OSC complaint was based upon alleged
Preliminarily, it is important to note that Serrao is complaining about two kinds of alleged reprisal: (i) reprisal that he suffered because of disclosures that were made anonymously but that were attributed to him (the 1991 OIG investigation); and (ii) reprisals that he suffered as a result of disclosures that he made (relating to the termination of the undercover investigation and the misuse of sick leave). We address the latter first.
In Ellison v. Merit Systems Protection Board,
In Fisher v. Department of Defense,
The test of the sufficiency of an employee’s charge of whistleblowing to OSC is the statement that the employee makes in the complaint to OSC requesting corrective action under
In Ward, we stated that an employee “must ‘give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.’ ”
Under
CONCLUSION
Serrao was not the subject of a personnel action appealable to the Board as an adverse action under
COSTS
Each party shall bear its own costs.
AFFIRMED.
Notes
. This grievance was refiled on March 23, 1994. Accordingly, doсuments in the record generally refer to it as the March 23 grievance. To be consistent with the record, we will follow that approach here, except where the context requires otherwise.
. OSC is responsible for receiving and investigating allegations of prohibited personnel practices under the WPA.
. Citing
. Pursuant to
. Thе dissent notes that the brief of the Board states that Serrao "had previously sought corrective action from the Office of Special Counsel.” This concession as to a legal issue is not binding upon us, however, and does not affect the outcome of the case. Questions of law are entirely within our own purview to decide. Newell Cos. v. Kenney Mfg. Co.,
. Bump v. Department of the Interior,
.We use the word "purportedly” to describe the disclosures contained in Serrao’s formal grievance because we express no view as to whether those disclosures would qualify for protection under the WPA. See Ward v. Merit Sys. Protection Bd.,
. We also need not address whether the anonymous disclosures that led to the OIG investiga-tíon qualified for protection under the WPA. See note 7, supra.
. The February 22, 1995 letter from an attorney at OSC to Serrao's attorney confirming a conversation concerning Serrao's OSC complaint does not alter our conclusion. We view this letter as akin to a “subsequent characterization ... in [Serrao's] appeal to the Board” of the statements in the complaint. Ward,
Dissenting Opinion
dissenting.
I respectfully dissent.
I
This appeal is from the MSPB’s dismissal, for lack of jurisdiction, of an Individual Right of Action appeal taken by Robert Serrao from actions of his supervisor, Josephine Moran. Her actions were asserted to be in reprisal for his disclosures of her violations of law, mismanagement, аnd abuses of authority. These disclosures were made in agency grievances, and also to the Special Counsel, the Inspector General, and management officials.
The only issue is jurisdiction. The Board held that if whistleblowing disclosures were made in a grievance, the Whistleblower Protection Act did not apply. The Board ignored all of Mr. Serrao’s asserted whistle-blowing disclosures outside of the grievances, and did not comment on their existence. Thus the Board held that Mr. Serrao could not take an Individual Right of Action appeal to the Board. In so holding, the Board violated and misapplied Federal Circuit precedent, as well as its own precedent. This is the jurisdictional issue on appeal.
The panel majority, however, does not review this issue. Instead, the panel majority has decided the case sua sponte on an issue that was not relied on by the Board, not argued by any party, not supported by the record, and not before us. The opinion of the administrative judge, from which this appeal is taken, did not challenge the exhaustion of remedies before the Special Counsel. Neither side appealed the issue. The Board’s brief as Respondent not only does not dispute this point, but affirmatively states that Mr. Serrao had completed this step. See Brief for Respondent Merit Systems Protection Board at 3 n. 2 (Sept. 18, 1995) (“He had previously sought corrective action from the Office of Special Counsel (OSC) as required by
Indeed, the panel majority appears to have selected this ground without reference to the record, for the record supports the Board’s recognition that the requisite administrative remedies were sought and that the requisite time had elapsed. Precedent requires that appellate review of an administrative decision be on the same ground as that considered by the administrative agency. The employee must “articulate with reasonable clarity and precision [before the OSC] the basis for his request for corrective action under the WPA.” Ellison v. Merit Sys. Protection Bd.,
The court also holds that Mr. Serrao did not exhaust his administrative remedies in alleging reprisal as a result of Ms. Moran’s belief that he was the anonymous informant in the 1991 Inspector General investigation. However, Mr. Serrao’s March 10, 1994 complaint to the Special Counsel lists the accusations of being the informant as one of “the three stages that have taken place and why I believe there is justification to file a complaint with the OSC.” Indeed, a February 22,1995 letter from the Special Counsel indicates his understanding of Mr. Serrao’s complaint:
Mr. Serrao alleged that the agency officials took or threatened to take these actions [of reprisal] because he had filed a grievance against his supervisor, because he made disclosures of abuse of authority, gross mismanagement, and harassment, and because he was mistakenly identified as the source of a complaint to the agency’s Offiсe of Inspector General.
The panel majority curiously considers this letter “as akin to a ‘subsequent characterization ... in [Serrao’s] appeal to the Board’ of the statements in the complaint,” and cites Ward v. Merit Systems Protection Board,
The court’s ruling is thus on an issue not relied on by the Board in its decision and not mentioned by the Board in its brief. Neither Mr. Serrao nor the Board could respond. Procedural due process requires that a party have an opportunity to respond to any new issue that the court deems dispositive, but that had been decided in the party’s favor before the agency, and not appealed. See Mathews v. Eldridge,
[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.
Securities & Exchange Comm’n v. Chenery Corp.,
Further, the panel majority’s ruling that the ease was not properly before the Board for failure to exhaust the procedures before the Special Counsel is untenable for neither Petitioner nor Respondent appealed this aspect. They did not raise it, arguе it, or even mention the relevant facts. The panel majority’s dismissal without record or argument by the parties contravenes the Court’s admonition that no litigant’s complaint should be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson,
II
The Board summarized the jurisdictional issue before it as follows:
In an initial decision, an administrative judge found that the Board has no jurisdiction over Mr. Serrao’s individual right of action appeal under the Whistleblower Protection Act of 1989,5 U.S.C. § 1221 , because information disclosed in a grievance is not covered under5 U.S.C. § 2302(b)(8) . The initial decision became the final decision of the Board when neither party filed a petition for review with the full Board pursuant to5 C.F.R. § 1210.113 .
(Emphasis added). That is the issue before us.
The Board held that reprisal for the filing of grievances is not appealable as an IRA appeal under the WPA, and did not discuss Mr. Serrao’s whistleblowing either within or outside of the grievances. It is necessary to sеparate the statute that prohibits retaliation for the filing of grievances,
The Board’s treatment of Mr. Serrao’s whistleblowing disclosures as having been made only by grievance procedure is contrary to fact. When determining jurisdiction on the pleadings, disputed facts can not be found adversely to the complainant. Ephraim v. Brown,
In his grievances filed with Carl B. Ward, Chief of the Department of Commerce’s eastern regional Humаn Resources Division, Mr. Serrao stated, inter alia, that Ms. Moran had conducted a harassment campaign against him over a two-year period, that Ms. Moran
Mr. Serrao states that the disclosures of misfeasance, illegality, and retaliation that he made to Mr. Ward in his grievance letters of March 23 and 26,1994 are protected whistle-blower activity as defined by
The Board incorrectly perceived the statute when it held that all “disclosures made within grievance proceedings are covered by
§ 2302(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
* * * * * *
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—
(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,
if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.
(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information 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;
(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A);
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law;....
(Emphases added).
In Ellison v. Merit Systems Protection Board,
In Spruill the EEOC complaint did not contain whistleblowing disclosures as defined in
The Board applied this precedent in Bump v. Department of the Interior,
Although the Board now argues that Bump should be limited to that case, Mr. Serrao’s case highlights the need for clarity in this law. The Board in its decision cited a large number of Board decisions earlier than Bump and inconsistent with Bump. Although the Board acknowledges that in Bump the employee made disclosures to the Special Counsel as well as by grievance, the Board does not explain why it has not followed Bump in Mr. Serrao’s case. It is essential that the Board maintain consistency in application of its own and Federal Circuit rulings, in serving the federal employees who depend on the Board for just resolution of the employment matters assigned to it.
Mr. Serrao’s disclosures on their face relate to illegality, gross mismanagement, and abuse of authority, the subject matter of
The panel majority does not reach the merits of Mr. Serrao’s claim. It may be that his disclosures were in fact without substance, or that the disciplinary actions were in fact untainted by reprisal for whistleblow-ing. No findings on the merits were made by the Board. I would vacate the dismissal and remand to the Board for that purpose. See Barnes v. Office of Personnel Management,
. The Board argues otherwise on this appeal, for the first time in the proceedings.' The Board's dismissal did not mention this point. Prima fa-cie, the disclosures of obtaining false certification to carry firearms, obstructing an official investigation, and abusing sick leave, are within the statutory categories. See Horton v. Department of the Navy,