Wayne C. Wall v. OFFICE OF PERSONNEL MANAGEMENT
No. 2009-3112
United States Court of Appeals, Federal Circuit.
Oct. 13, 2009.
577-578
Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant Director. Of counsel was Wade M. Plunkett, Office of General Counsel, Office of Personnel Management, of Washington, DC.
Before LOURIE, LINN, and MOORE, Circuit Judges.
LINN, Circuit Judge.
Wayne C. Wall (“Wall”) petitions for review of a final decision of the Merit Systems Protection Board (“Board”), dated April 17, 2009, which affirmed the denial of Wall’s application for disability retirement. Wall v. Office of Pers. Mgmt., 111 M.S.P.R. 122 (2009). In reaching that decision, the Board gave no weight to Wall’s post-termination medical evidence, citing Reilly v. Office of Personnel Management, 108 M.S.P.R. 360 (2008).
On July 15, 2009, we vacated the Reilly decision, holding that the categorical rejection of all medical evidence not based on tests or examinations conducted during the petitioner’s employment was an erroneous legal standard. Reilly v. Office of Pers. Mgmt., 571 F.3d 1372, 1382-83 (Fed.Cir.2009) (holding that the Board’s standard constitutes “a substantial departure from important procedural rights and goes to the heart of the administrative determination”). In the present case, because the Board’s categorical rejection of Wall’s post-termination medical evidence is improper under our recent decision in Reilly, we vacate the Board’s decision and remand for reconsideration under the correct legal standard.
VACATED and REMANDED
COSTS
No costs.
Varnziel WINFIELD, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
No. 2009-3199
United States Court of Appeals, Federal Circuit.
Oct. 13, 2009.
579-581
Ellen M. Lynch, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director.
Before BRYSON, CLEVENGER and DYK, Circuit Judges.
PER CURIAM.
Varnziel Winfield appeals the final decision of the Merit Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. Winfield v. Dep’t of Veterans Affairs, No. CH31221080547-W-2, 111 M.S.P.R. 108 (March 17, 2009). We affirm.
I
Mr. Winfield was a probationary employee with the Department of Veterans Affairs (“Agency”), where he was a Readjustment Counseling Social Worker at the Agency’s Veterans Center in Chicago Heights, IL. The Agency terminated Mr. Winfield on April 6, 2007. The Agency’s stated reasons included Mr. Winfield’s eviction from a rental property, his unfavorable reference from a previous employer, and his inability to perform the duties of an outplacement counselor. On July 31, 2007, Mr. Winfield filed a Form OSC-11 complaint with the Office of Special Counsel (“OSC”), alleging that his termination was a retaliation for protected disclosures. Specifically, Mr. Winfield’s complaint alleged that he was terminated because he disclosed his grievances concerning his team leader Lemuel Slaughter, first to Lemuel Slaughter himself, then to Regional Manager Clarence Slaughter. Mr. Winfield also alleged that he disclosed Lemuel Slaughter’s misconduct to Dean Laposwitz of the Agency’s Human Resources office at the Hines VA Medical Center in Illinois, and to Lorrie Pettis, who Mr. Winfield identified only as a consultant. In response to a form question asking what agency action occurred as a result of his disclosure to Pettis, Mr. Winfield answered that he was “advised to discuss with supervisor.” As for his disclosure to Dean Laposwitz, Mr. Winfield listed the Agency’s response as “unknown.”
The OSC concluded that Mr. Winfield’s complaints were unsubstantiated and closed its investigation. Mr. Winfield then appealed his termination to the Board. In addition to contesting the Agency’s asserted reasons for his termination, Mr. Winfield also filed an Individual Right of Action (“IRA”) appeal to the Board, based on his alleged protected disclosures. The administrative judge (“AJ”) dismissed the complaint for lack of jurisdiction because she found that the Board had no general authority to review Mr. Winfield’s probationary termination, and because Mr. Winfield had failed to allege any protected disclosures that elicited a prohibited retaliatory personnel action. After the full Board affirmed the AJ’s decision, Mr. Winfield appealed to this court. We have jurisdiction pursuant to
II
The Board’s jurisdiction is an issue of law, which we review de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995). We are bound by the Board’s factual findings unpinning the jurisdictional determination “unless those findings are not supported by substantial
III
We agree with the Board’s conclusion that it lacked jurisdiction to review Mr. Winfield’s termination. The Board’s jurisdiction to review a probationary employee’s termination is limited to issues of partisan political motivations, marital status, or improper procedure.
We also agree with the Board that it had no jurisdiction over Mr. Winfield’s IRA appeal for alleged whistleblowing. The Board’s jurisdictional inquiry is limited to the alleged disclosures and the characterization of the disclosures that the appellant brought before the OSC. See Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed.Cir.1992). To establish the Board’s jurisdiction, an appellant must make “non-frivolous allegations that (1) he engaged in whistleblowing activity by making a protected disclosure under
Mr. Winfield’s disclosure to Regional Manager Clarence Slaughter simply outlined his general misgivings about his working conditions, training, office equipment, work hours, professional development, and lack of supervisory support. To qualify for whistleblower protection, however, an appellant must have a reasonable belief that his disclosure “evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” Langer v. Dep’t of the Treasury, 265 F.3d 1259, 1266 (Fed.Cir.2001) (citing
As for Mr. Winfield’s alleged disclosures to team leader Lemuel Slaughter, Mr. Winfield’s only additional disclosure was his accusation to Lemuel Slaughter that he—Lemuel Slaughter—had been meeting with one of Mr. Winfield’s former employers and had been “defaming [Mr. Winfield’s] character.” We have explained that “[w]hen an employee reports or states that there has been misconduct by a wrongdoer to the wrongdoer, the employee is not making a ‘disclosure’ of misconduct.” Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1350 (Fed.Cir.2001). Therefore, Mr. Winfield’s alleged disclosures to Lemuel Slaughter (the alleged wrongdoer) are insufficient to establish Board jurisdiction.
Nor do Mr. Winfield’s alleged disclosures to Dean Laposwitz and Lorrie Pettis qualify as protected whistleblowing over which the Board has jurisdiction. In his OSC complaint, the only Agency response that Mr. Winfield listed as result of these disclosures was that he was “advised to discuss with supervisor.” This is not a
IV
For the foregoing reasons, we affirm the Board’s dismissal.
COSTS
No costs.
Ronald L. ROSS, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 2009-3137
United States Court of Appeals, Federal Circuit.
Oct. 13, 2009.
Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
Before RADER, ARCHER, and GAJARSA, Circuit Judges.
PER CURIAM.
Ronald L. Ross (“Ross”) appeals the final decision of the Merit Systems Protection Board (“Board”) dismissing his appeal challenging the United States Postal Service’s (“USPS”) failure to select him for