MSPB Law Blog

By John V. Berry, www.berrylegal.com

The U.S. Court of Appeals for the Federal Circuit, in Whitmore v. DOL, Case No. 2011-3084 (May 30, 2012), issued a new major ruling with respect to federal employee whistleblower cases in reversing the decision of the Merit Systems Protection Board (MSPB) to dismiss Mr. Whitmore's whistleblower retaliation appeal.  

The Whitmore Decision for Whistleblowers

The case at issue involved a federal employee who had been removed from his position with the Department of Labor (DOL). The DOL, in removing the federal employee, had alleged that the federal employee's removal had been due to his alleged disruptive and insubordinate behavior while at work.  The employee, however, had alleged that the removal was the result of unlawful retaliation for his lawful whistleblowing disclosures to the DOL.

The MSPB Appeal

The federal employee appealed his removal to the Merit Systems Protection Board (MSPB) where the case was then dismissed by the assigned administrative judge.  In the proceedings before the administrative judge, most of Mr. Whitmore's witnesses on the whistleblower claims were excluded by the judge.  The full MSPB Board then affirmed the administrative judge's decision.  The employee filed an appeal of the decision to the U.S. Court of Appeals for the Federal Circuit based mostly on the fact that the administrative judge had excluded important evidence as to the whistleblowing activities by the federal employee.

The Federal Circuit Reverses in a New Major Whistleblower Decision

The Federal Circuit, in evaluating the case on appeal, found that the MSPB had improperly excluded or ignored evidence offered by the federal employee necessary to adjudicate his whistleblower retaliation claim, and had applied the law incorrectly in the dismissal.  As a result the Federal Circuit vacated the decision and remanded the case to the MSPB.  In closing their opinion, the Federal Circuit took the unusual step of reminding the MSPB about the critical responsibilities they have in whistleblower retaliation cases:

“The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the public, yet whistleblowers are at a severe evidentiary disadvantage to succeed in their defenses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove—by clear and convincing evidence—that the same adverse action would have been taken absent the whistleblowing.

Despite Robert Whitmore’s highly unprofessional and intimidating conduct, which may well ultimately justify some adverse personnel action, he is nevertheless a bona fide whistleblower. Mr. Whitmore is therefore entitled to the full scope of protection afforded by the Whistleblower Protection Act, which ensures for him and whistleblowers everywhere that they need not fear retribution for disclosing to the public such vital information concerning an agency or official as “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 . . . .” 5 U.S.C. § 2302(b)(8).

Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation."

Whitmore, at 42-43.

What the Whitmore Decision Means for Whistleblowers at the MSPB

 One of the most important issues that will result out of this decision is that administrative judges at the MSPB will now likely permit more testimony and evidence to be heard on whistleblower retaliation claims which will help to establish these claims.  The Whitmore decision makes it clear that the Federal Circuit believes that the MSPB must fully consider the evidence that an employee wishes to present in support of his or her claims under the Whistleblower Protection Act. This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding an individual’s federal employment issues. 

The full case is located at www.cafc.uscourts.gov/images/stories/opinions-orders/11-3084.pdf.  

By John V. Berry, www.berrylegal.com

In McGriff v. Navy, 2012 MSPB 62 (Apr. 26 2012), the Merit Systems Protection Board (MSPB) seemed to take more interest in considering the rights of federal employees suffering from an adverse personnel action when it involves a security clearance issue.  The Board in McGriff reversed the administrative judge’s dismissal of the federal employee's appeal on the basis that there were potential procedural due process and harmful error grounds that had to be addressed by the administrative judge in the context of the suspension on security clearance grounds.

Background of McGriff MSPB Appeal

As background, McGriff was part of a full review by the MSPB of 3 other similar security clearance cases that had been grouped together as part of the review.

At issue in McGriff was the action of the federal agency (the Department of the Navy) in indefinitely suspending the federal employee involved on the basis that his access to classified information had been suspended pending final adjudication by the agency. At the time that the Navy had proposed the federal employee's indefinite suspension, solely based on a loss of access to classified information, the Navy's internal oversight agency for security clearances, DONCAF, had not yet issued a letter of intent to revoke his security clearance.

The Navy sustained the indefinite suspension in this case based on an agency policy stating that "once a command has suspended an individual's access to classified information . . . the command cannot reinstated access until DONCAF adjudicates the issues." McGriff, at 3. Apparently, there were other important issues involved, including the issue of whether the deciding official had the authority to reassign an employee rather than just place him or her on administrative leave. The deciding official in McGriff sustained the suspension. 

However, before DONCAF had issued it's decision on the federal employee's security clearance adjudication, he filed an MSPB appeal. The federal employee contended that "the agency failed to provide him with sufficient notice of the allegations against him to enable him to present a meaningful response and that the action was unwarranted."  McGriff, at 4. Based on prior precedent, the appeal was dismissed by an MSPB administrative judge that found that the federal employee had been given a reasonable opportunity to respond to the proposed suspension based on the information that had been given by the Agency. The federal employee then appealed the decision to the full Board of the MSPB, again alleging that the Navy had not provided full due process to him and a meaningful ability to respond to the allegations resulting in his suspension of access to classified information.

The Board Reviews and Reverses the McGriff Decision

The Board, in a very interesting decision, reversed the administrative judge based principally on an interpretation of the 1997 Supreme Court case of Gilbert v. Honar, 520 U.S. 924 (1997), holding:

"Pursuant to Loudermill, Stephen, Kriner and Homar, we find that the appellant was entitled to constitutional due process, i.e., notice and a meaningful opportunity to respond, upon being indefinitely suspended based on the agency’s security clearance decision. We therefore consider the Homar factors in order to determine whether the timing, place and circumstance of the procedures used in this case afforded the appellant his right to due process."

McGriff, at 14 (emphasis added).

The Board then applied the 3 factors from Homar in evaluating the McGriff case, which are: (1) The private interest affected by the official action; (2) The risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) The government’s interest. Id. The Board, in evaluating the McGriff case under Homar found that the timing and the circumstances of the due process procedures at issue were not sufficient to warrant reversal, but found that the second factor, involving the risk of erroneous deprivation to warrant reversal to be cause for serious concern. In particular, the Board focused on the second Homar factor, i.e. the risk of erroneous deprivation of the property interest involved. The Board evaluated the case as follows:

“Here, based on the totality of the evidence, we find that the agency did have reasonable grounds to support the suspension. Specifically, on March 5, 2009, it received an IG hotline complaint that the appellant was involved in a private business owned by his spouse, NetAnalysis Consulting LLC, and had attempted to secure government contracts for the business using his government e-mail account and official time. The subsequent Report of Investigation concerning that IG complaint indicated that the investigation substantiated allegations of conflict of interest, misuse of government equipment, conflicting outside employment and activities, misuse of official time, and misuse of subordinate’s time. In a June 3, 2009 memorandum, Capt. Purnell of the agency’s Judge Advocate concluded that the IG’s investigation and report were legally sufficient and substantiated the appellant’s violation of 16 various laws and regulations.

Conversely, DONCAF had neither fully investigated, nor finally decided, whether it would permanently revoke the appellant’s security clearance when the agency indefinitely suspended him. . . . [O]verall, we conclude that the agency did have reasonable grounds to support the appellant’s suspension. Moreover, we reject the appellant’s assertion that the agency failed to provide him with the specific reasons for the action before he responded to the proposal notice, thereby denying him a meaningful opportunity to respond. To the contrary, we find that the notice of proposed indefinite suspension, coupled with the notice of temporary suspension of the appellant’s security clearance, gave the appellant sufficient information to enable him to respond to the agency’s proposed indefinite suspension."

McGriff, at 15-17 (emphasis added) (internal citations omitted).

The Basis for Reversal in McGriff

After dismissing the initial parts of the federal employee’s arguments on appeal, the Board then reversed the administrative judge’s dismissal based on the potential that procedural due process concerns still existed, holding that: “Nonetheless, a significant question exists as to whether the appellant had a meaningful opportunity to respond to the proposed indefinite suspension such that the procedures that were used posed a risk of erroneous deprivation of the appellant’s property interest. Providing an appellant with a reasonable opportunity to reply that satisfies constitutional due process requires more than mere notice; the reply opportunity may not be an empty formality, and the reply or deciding official should have authority to take or recommend agency action based upon the reply.“

McGriff, at 17.

Applying these principles to McGriff, the Board found that there were real questions about whether the deciding official had lacked the authority to change the initial decision to suspend the federal employee involved or whether the deciding official was in fact barred from permitting reassignment while a security clearance matter was pending. The record had appeared to demonstrate that the deciding official on the suspension had lacked authority to take any action other than to affirm the proposed suspension prior to DONCAF’s clearance adjudication. The Board then reversed the administrative judge’s dismissal, finding the following: “If the deciding official lacked the authority to do anything but affirm the indefinite suspension, the procedures used in effecting the appellant’s indefinite suspension sufficiently ran the risk of an erroneous deprivation of his property interest in employment such as to find that the agency violated his right to constitutional due process.” McGriff, at 19-20. The Board further found that, on remand, that the federal employee could attempt to also prove that the Navy had not followed their own internal regulations in regards to the processing of the federal employee’s security clearance. 

The Board found that if this was demonstrated, the federal employee could potentially show that harmful error had occurred. Specifically, the Board held that: “Under 5 U.S.C. § 7511(c)(2)(A), the Board will not sustain an adverse action if the appellant shows harmful error in the application of the agency’s procedures in arriving at the decision under appeal. Therefore, even when an appellant fails to establish a violation of constitutional due process, he may still show that the agency committed harmful error in failing to follow the required statutory procedures or the agency’s own regulations.” McGriff, at 20.

What the McGriff Case Means for Security Clearance Matters

The McGriff case is important because it leaves an opening to meaningfully challenge the security clearance procedures used by federal agencies (and the failure to follow them) in suspending a federal employee on the basis of his security clearance at the MSPB. The issue here is likely not settled here as the matter has to go back to the administrative judge, and from there likely back to the Board (and perhaps to the Federal Circuit), but it provides a new legal argument for future appeals where a federal agency does not provide due process in matters related to security clearance appeals and/or does not follow their own internal procedures for processing these types of cases.

Each MSPB appeal is unique and it is recommended that federal employees obtain legal counsel to evaluate the full impact of their individual cases. Should you need legal assistance in an MSPB or security clearance matter, you can contact our Firm at www.berrylegal.com to go over your individual appeal.