                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SAMUEL JORDAN,                                  DOCKET NUMBER
                 Appellant,                          DC-1221-14-0224-W-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: April 7, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Samuel Jordan, Washington, D.C., pro se.

           Josh C. Hildreth, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action in an individual right of action (IRA)
     appeal. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                           2

     of the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.      Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                       BACKGROUND
¶2         The appellant was formerly employed as an Equal Employment Manager
     with the agency’s National Park Service, Office of Equal Opportunity Programs
     (OEOP), until his employment was terminated, effective July 23, 2012, after the
     agency discovered that he had been improperly selected for the position. 2 Initial
     Appeal File (IAF), Tab 1 at 3, Tab 12 at 5. He filed an appeal with the Board
     alleging that his employment was terminated in retaliation for his protected
     disclosures. IAF, Tab 1 at 1. Specifically, he alleged that he made the following
     disclosures: (1) he disclosed to the OEOP Chief that her unilateral modifications
     of an information technology (IT) contract were violations of contract law and

     2
       The appellant was hired under a merit promotion certificate of eligibles. Initial
     Appeal File (IAF), Tab 8 at 16, Tab 9 at 5-12. After he entered on duty, the agency
     discovered that he was not eligible for reinstatement and had been erroneously referred
     and selected for the position. IAF, Tab 8 at 16-18, 37-38. As a result, the agency
     placed him under a temporary critical appointment while it re-advertised the position
     under delegated examining procedures to allow the appellant to reapply. Id. at 30-40.
     According to the agency, the appellant’s application for the re-advertised position was
     not received by the deadline, and it declined to reopen the advertisement again because
     of the number of preference eligibles already on the certificate. Id. at 17; IAF, Tab 33
     at 4-12.
                                                                                             3

     Federal regulations; and (2) he disclosed to the OEOP Chief, an Associate
     Director, and a contractor various concerns he had regarding the “Jappa” project
     and contract being “ill-advised” and not in accordance with contract law,
     regulations, ethics, or sound management practices. Id. at 4; IAF, Tab 4 at 4-5.
¶3         After finding Board jurisdiction and holding a hearing, the administrative
     judge issued an initial decision finding that the appellant failed to prove by
     preponderant evidence that his disclosures were protected, and, even assuming
     that his disclosures were protected, he failed to show that any disclosure was a
     contributing factor in the agency’s decision to terminate his employment. IAF,
     Tab 35, Initial Decision (ID) at 18-25.
¶4         The appellant has filed a petition for review of the initial decision in which
     he asserts that the administrative judge erred in finding that he failed to prove
     that he made a protected disclosure or that his disclosures were a contributing
     factor in his termination. 3 Petition for Review (PFR) File, Tab 4 at 12, 15-16.
     The appellant also asserts that the administrative judge abused his discretion by
     making arbitrary rulings on the admissibility of witnesses and evidence. 4             Id.




     3
       The appellant’s petition for review was filed 2 days after the deadline established by
     the Clerk of the Board, Petition for Review (PFR) File, Tabs 2-3, but he asserts that
     problems with the Board’s e-Appeal online system prevented him from filing it in a
     timely fashion, PFR File, Tab 4 at 3-4. Because the Board’s e-Appeal logs confirm that
     the appellant attempted to file his petition prior to the deadline, but experienced
     problems, we find that there was good cause for the untimely filing of the petition for
     review. See 5 C.F.R. §§ 1201.113(d), 1201.114(f).
     4
       The appellant has also filed a motion for leave to file an additional pleading to submit
     new documents he received from the agency on August 19, 2015, through a Freedom of
     Information Act (FOIA) request, which he contends establish that he made a protected
     disclosure. PFR File, Tab 7 at 4. The appellant has failed to sufficiently explain the
     nature of these documents, how this alleged new evidence changes the outcome of his
     appeal, or why he could not have submitted such documents with his petition for
     review. See 5 C.F.R. § 1201.114(a)(5). Accordingly, the appellant’s motion is denied.
                                                                                           4

     at 5‑11, 13.    The agency has filed an untimely response to the appellant’s
     petition. 5

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly determined that the appellant failed to prove
     that he made a protected disclosure.
¶5         To prevail on a claim under the Whistleblower Protection Act of 1989, 6 an
     appellant must prove by preponderant evidence that he made a protected
     disclosure and that such disclosure was a contributing factor in an agency
     personnel action; if so, the Board must order corrective action unless the agency
     established by clear and convincing evidence that it would have taken the same
     personnel action in the absence of the disclosure.         Chavez v. Department of
     Veterans Affairs, 120 M.S.P.R. 285, ¶ 17 (2013).
¶6         An individual making a disclosure may be protected from retaliation for
     whistleblowing based on his reasonable belief that his disclosure evidenced one
     or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even
     when his belief is mistaken. See Drake v. Agency for International Development,
     543 F.3d 1377, 1382 (Fed. Cir. 2008). The test for determining whether an
     employee’s belief regarding the disclosed matter is reasonable is whether a
     disinterested observer with knowledge of the essential facts known to and readily

     5
        The agency’s response was due on October 14, 2015. PFR File, Tab 5. On
     November 3, 2015, the agency filed its response accompanied by a motion to waive the
     filing deadline in which the agency’s representative asserts that he misread the Board’s
     order. PFR File, Tab 12 at 4-5. The Board will waive the filing deadline for an
     untimely response to a petition for review only for good cause. Jones v. U.S. Postal
     Service, 110 M.S.P.R. 674, ¶ 5 n.2 (2009). To establish good cause for an untimely
     filing, a party must show that he exercised due diligence or ordinary prudence under the
     particular circumstances of the case. Id. We find that the agency has failed to show
     that it exercised due diligence under the particular circumstances of the case.
     Consequently, we have not considered the agency’s response, which was untimely by
     20 days.
     6
       All of the relevant events occurred prior to the December 27, 2012 effective date of
     the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
     1465.
                                                                                       5

     ascertainable by the employee could reasonably conclude that the actions of the
     agency evidence the wrongdoing disclosed. Lachance v. White, 174 F.3d 1378,
     1381 (Fed. Cir. 1999).
¶7         The administrative judge summarized the appellant’s testimony at the
     hearing regarding his first alleged disclosure as follows. On May 25, 2012, the
     OEOP Chief held a staff meeting in which she announced that some office
     equipment appeared to have been vandalized. ID at 9. An IT contractor present
     at the meeting indicated that he may have accidentally moved the office
     equipment while working on an employee’s computer. Id. As a result, the OEOP
     Chief instructed the contractor that, in the future, he should notify employees in
     advance of accessing their computers and have them present and that he could no
     longer access her computer system because he had compromised and breached
     sensitive Federal data. ID at 9‑10. The appellant regarded such statements as
     “unilateral modifications” to a Government contract and alleged that he then
     disclosed to the OEOP Chief during the meeting that it was not proper in terms of
     normal contractual relations to make such unilateral modifications to an
     agreement. ID at 10.
¶8         The administrative judge found that the appellant failed to prove that a
     reasonable person in his position would have regarded the restrictions the OEOP
     Chief implemented regarding the contractor’s computer access as a contractual
     violation.   ID at 19.   The administrative judge also noted that the appellant
     testified that at the time of his disclosure he had not seen a copy of the contract
     that he asserted the Chief was violating, the appellant did not introduce a copy of
     the contract, and he did not explain how such restrictions violated any specific
     term or provision of the contract.    Id.   Further, the appellant testified that he
     subsequently reviewed the contract and found there was no provision addressing
     the issue of the contractor’s level of computer access. ID at 10 n.12.
¶9         On review, the appellant argues that the administrative judge erred in
     requiring him to have read the specific contract at issue and to have been familiar
                                                                                       6

      with its explicit language. PFR File, Tab 4 at 15. He asserts that most contracts
      include a standard provision specifying that the agreement may be modified only
      in writing with the parties’ consent, and based on his knowledge of this fact he
      reasonably believed that a unilateral modification of the contract was a violation
      of law, rule, or regulation. Id. at 16. We agree with the appellant that the fact
      that he had not seen the contract at the time of his disclosure is not dispositive;
      however, we nonetheless find that he did not prove by preponderant evidence that
      a reasonable person would have concluded that the OEOP Chief’s actions were an
      attempt to modify a Government contract or that her actions were a violation of
      any law, rule, or regulation.
¶10         The appellant’s second disclosure relates to the “Jappa” contract for a
      team‑building project in which a contractor was to conduct one-on-one
      interviews with OEOP employees to discuss their feelings and observations of the
      office. ID at 12; IAF, Tab 4 at 8. As the administrative judge summarized, the
      appellant expressed the following concerns to the OEOP Chief, the Associate
      Director, and the contractor: (1) one-on-one interviews could not be conducted
      without approval by the General Counsel; (2) employees would not be guaranteed
      confidentiality; (3) employees did not have the ability to opt out of the
      discussions; (4) the information obtained from the project would not be shared
      with all of the employees; (5) the contract lacked validation for its methodology
      and did not require evaluations from participating staff, declare a standard or
      measure by which its effectiveness would be assessed, or provide a date by which
      a final report would be submitted by the contractor; and (6) the project appeared
      to be an attempt to find out who wrote an anonymous letter to high-level agency
      officials complaining about the OEOP Chief’s management practices. ID at 7-8,
      12-13, 20-21.
¶11         The administrative judge found that the appellant failed to prove that such
      disclosures were protected because he had not seen the contract and did not
      otherwise provide any authority or evidentiary support for his assertions that the
                                                                                              7

      contract was somehow unethical or illegal, which appeared to have been based on
      speculation. ID at 20-21. On review, the appellant asserts that the administrative
      judge erred in requiring him to have seen the contract and failed to inquire as to
      the reasonableness of his belief.      PFR File, Tab 4 at 15-16.        To that end, he
      contends that he reasonably believed that the “missing features and notifications”
      were indicative of gross mismanagement, a gross waste of funds, and an abuse of
      authority. Id. at 16. As the administrative judge found, the appellant did not
      identify any law, rule, or regulation he contends the project violated.                ID
      at 20‑21. Nor does the record contain any basis from which to discern that a
      reasonable person would have believed that the project violated Government
      contracting principles.    Thus, we find that the appellant did not show that he
      reasonably believed that he disclosed a violation of law, rule, or regulation.
¶12         Similarly, the appellant has not established that a reasonable person would
      have believed that this project constituted gross mismanagement, a gross waste of
      funds, or an abuse of authority. See, e.g., Baldwin v. Department of Veterans
      Affairs, 113 M.S.P.R. 469, ¶ 15 (2010) (defining an abuse of authority as an
      arbitrary or capricious exercise of power by a Federal official or employee that
      adversely affects the rights of any person or that results in personal gain or
      advantage to himself or to preferred other persons); Swanson v. General Services
      Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (defining gross mismanagement as
      creating a substantial risk of significant adverse impact upon the agency’s ability
      to accomplish its mission); Van Ee v. Environmental Protection Agency,
      64 M.S.P.R. 693, 698 (1994) (defining a gross waste of funds as an expenditure
      significantly out of proportion to the benefit reasonably expected to accrue).
      Accordingly, we agree with the administrative judge that the appellant failed to
      prove by preponderant evidence that he made a protected disclosure. 7

      7
        In light of our finding, we need not consider the appellant’s arguments concerning the
      administrative judge’s finding that he failed to establish that any alleged disclosure was
      a contributing factor in his termination. PFR File, Tab 4 at 13-15, 18-20.
                                                                                           8

      The administrative judge did not abuse his discretion in his rulings on discovery,
      admissibility of evidence, or witnesses approved to testify at the hearing.
¶13         The appellant argues that the administrative judge improperly denied his
      request to call the OEOP Chief as a witness because her testimony would have
      established her role in the personnel actions that led to his termination and
      revealed the extent to which his protected disclosures were contributing factors in
      her decision to terminate his employment. 8        PFR File, Tab 4 at 5-6.         The
      administrative judge denied this witness because the appellant had not contacted
      or deposed her, had not obtained any relevant information relating to her
      testimony through requests for interrogatories or admissions, and the appellant
      acknowledged that he did not know what her testimony would be. IAF, Tab 31
      at 3. Nonetheless, the administrative judge informed the appellant that, if he felt
      that this witness was relevant or necessary to corroborate a disputed fact at the
      conclusion of the presentation of evidence at the hearing, he could make a request
      for reconsideration. Id. at 3 n.3. At the conclusion of the hearing, the appellant
      did not request reconsideration of the ruling. ID at 4 n.3.
¶14         It is well settled that an administrative judge has broad discretion to control
      the course of the hearing before him.          Lopes v. Department of the Navy,
      119 M.S.P.R. 106, ¶ 9 (2012). Rulings regarding the exclusion of evidence are

      8
        The appellant appears to contend that the OEOP Chief was involved in the decision
      not to reopen the re-advertised position after his application was not received by the
      deadline. PFR File, Tab 4 at 6. However, the administrative judge credited the
      testimony of the Chief of Human Resources Operations that she unilaterally decided not
      to reopen the position due to the number of preference eligibles on the certificate of
      eligibles, all of whom had hiring preference over the appellant. ID at 23. The Chief of
      Human Resources Operations also specifically testified that the OEOP Chief did not
      instruct or influence her to make the decision. IAF, Tab 34, Hearing Compact Disc at
      3:23, 2:58. The appellant contends that the OEOP Chief had a motive to retaliate
      against him because she was forced to retire on October 30, 2014, due to an Inspector
      General (IG) investigation, commenced following his October 24, 2013 FOIA request,
      which found irregularities in the Jappa contract. PFR File, Tab 4 at 6-7; IAF, Tab 4
      at 12, Tab 24 at 2. These alleged events occurred after the appellant’s termination and
      he acknowledges that he was unable to obtain corroboration of the results of the IG
      investigation. PFR File, Tab 4 at 7.
                                                                                       9

      subject to review by the Board under an abuse of discretion standard. Id., ¶ 11.
      We find no abuse of discretion in the administrative judge’s denial of the
      appellant’s witness based on his failure to discuss her anticipated testimony in
      advance.    Without talking to the witness, the appellant could not confirm the
      accuracy of his proffers. See Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325
      (1985) (finding that an administrative judge has wide discretion to exclude
      witnesses where it has not been shown that their testimony would be relevant,
      material, and nonrepetitious).   Even assuming that the administrative judge
      improperly denied this witness, we find that the appellant’s rights were not
      prejudiced because such testimony would not have resulted in a different outcome
      in light of our finding that the appellant failed to establish that he made a
      protected   disclosure.    See   Sanders   v.   Social   Security   Administration,
      114 M.S.P.R. 487, ¶ 10 (2010) (stating that, to obtain reversal of an initial
      decision on the ground that the administrative judge abused his discretion in
      excluding evidence, the petitioning party must show on review that relevant
      evidence, which could have affected the outcome, was disallowed).
¶15        Next, the appellant argues that the administrative judge was biased against
      him, as evidenced by his allowing the agency to supplement its prehearing
      submissions to include an additional exhibit after the prehearing conference, but
      not allowing the appellant to conduct discovery within 1 week of the hearing.
      PFR File, Tab 4 at 7.      However, this bare assertion does not establish a
      deep‑seated antagonism towards the appellant that would make fair judgment
      impossible and does not overcome the presumption of honesty and integrity
      accorded to administrative judges.    See Bieber v. Department of the Army,
      287 F.3d 1358, 1362-63 (Fed. Cir. 2002); Oliver v. Department of Transportation,
      1 M.S.P.R. 382, 386 (1980).
¶16        The appellant also contends that, when allowing the agency to supplement
      its prehearing submissions, the administrative judge improperly failed to inquire
      whether the agency’s supplemental exhibit, the certificate of eligibles for the
                                                                                        10

      appellant’s June 12, 2012 re-advertised position, “met any probative value or
      basic common sense test.” PFR File, Tab 4 at 9.         Nonetheless, the appellant
      acknowledges that the administrative judge made no ruling regarding the
      agency’s supplemental prehearing submissions.           Id.    To the extent the
      administrative judge relied on this document, we find no abuse of discretion.
      ID at 23. Such a document was relevant and supported the testimony of the Chief
      of Human Resources Operations that, after the appellant’s résumé for the
      re‑advertised position was not received by the deadline, she declined to reopen
      the vacancy announcement because it would have been virtually impossible to
      hire him given the number of other veterans’ preference candidates on the
      certificate of eligibles. ID at 16-17.
¶17         Regarding the appellant’s arguments concerning the denial of discovery,
      PFR File, Tab 4 at 13, it is clear that the administrative judge informed him of
      discovery procedures in the acknowledgment order, IAF, Tab 2 at 3-4. We find
      that the administrative judge did not abuse his discretion in denying the
      appellant’s discovery request within only a week of the hearing. Moreover, the
      document the appellant sought, the March 19, 2012 certificate of eligibles from
      which he was originally hired, would not have affected the outcome.
      See Sanders, 114 M.S.P.R. 487, ¶ 10. The appellant contends this document is
      relevant to show that he was initially hired over preference-eligible candidates
      thereby disputing the agency’s assertion that, even if his application for the
      re‑advertised position had been received before the deadline, it would have been
      virtually impossible to hire him due to the number of veterans’ preference
      candidates on the certificate of eligibles. PFR File, Tab 4 at 13. However, this
      argument is entitled to little weight, given that it is undisputed that the appellant
      was initially hired from a merit promotion certificate of eligibles, IAF, Tab 9 at 5,
      under which an agency is not required to follow veterans’ preference rules, see,
      e.g., Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 7 (2006).
                                                                                        11

¶18        Finally, the appellant contends that the administrative judge improperly
      limited his questioning of two human resources witnesses regarding the
      circumstances that led to his termination. PFR File, Tab 4 at 10-11, 24-26. We
      have reviewed the record and find that the limits placed on his questioning of
      witnesses were within the administrative judge’s broad discretion to control the
      hearing. 5 C.F.R. § 1201.41(b)(3), (6), (10); see, e.g., Tisdell v. Department of
      the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (stating that an administrative judge
      has wide discretion to control the proceedings before him, to receive relevant
      evidence, and to ensure that the record on significant issues is fully developed);
      Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (explaining that an
      administrative judge has wide discretion to control the proceedings, including
      authority to exclude testimony he believes would be irrelevant or immaterial).
¶19        In sum, we find that the appellant’s remaining arguments constitute mere
      disagreement with the administrative judge’s findings and do not provide a basis
      for disturbing the initial decision. See Diggs v. Department of Housing & Urban
      Development, 114 M.S.P.R. 464, ¶ 8 (2010).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order.     See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims   of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
                                                                                 12

the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
                                                                                 13

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.



FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
