                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 6

                           Docket No. DA-1221-14-0006-W-1

                                     James Webb,
                                       Appellant,
                                            v.
                             Department of the Interior,
                                        Agency.
                                    January 13, 2015

           John-Michael Lawrence, Esquire, New Orleans, Louisiana, for the
             appellant.

           Martin R. Steinmetz, Esquire, Tulsa, Oklahoma, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision which
     denied his request for corrective action under the Whistleblower Protection Act.
     We DENY the petition for review and AFFIRM the initial decision AS
     MODIFIED by this Opinion and Order.

                                     BACKGROUND
¶2         The appellant filed an individual right of action (IRA) appeal with the
     Board challenging several personnel actions based upon his making two alleged
     protected disclosures. Initial Appeal File (IAF), Tabs 1, 6. In his request for
                                                                                           2

     corrective action, the appellant argued that he made a protected disclosure when
     he authored a position paper advocating for a different organizational
     restructuring pursuant to the Secretary of the Interior’s directive separating and
     reassigning the responsibilities that had been conducted by the Mineral
     Management Service (MMS) into new management structures and that he made a
     separate protected disclosure on July 22, 2013, in an email to several agency
     officials when he expressed his concern with the agency’s proposed change to
     fees it charged for certain permits. IAF, Tab 6 at 4.
¶3         The appellant exhausted his whistleblower complaint with the Office of
     Special Counsel (OSC), IAF, Tab 1, and, after a period of prehearing discovery,
     the administrative judge issued an initial decision denying the appellant’s request
     for corrective action, IAF, Tab 54, Initial Decision (ID). 1 In his initial decision,
     the administrative judge found that the appellant failed to nonfrivolously allege
     that his first disclosure was a protected disclosure because it consisted of a policy
     dispute and did not otherwise evidence one of the categories of wrongdoing listed
     in 5 U.S.C. § 2302(b)(8). ID at 5-8.
¶4         As to the appellant’s second disclosure, the administrative judge found
     that, although the appellant nonfrivolously alleged facts establishing the Board’s
     jurisdiction over this disclosure, he failed to establish by a preponderance of the
     evidence that he reasonably believed that his email disclosed a violation of a law,
     rule, or regulation. ID at 10. Specifically, the administrative judge found that,
     although the appellant initially expressed skepticism over the agency’s proposed
     change to the fees it charged certain permit applicants, after engaging in a series
     of email exchanges with several agency officials, the appellant stated that he
     understood the basis for the proposed change and had “no problem with the
     policy now that it has been clearly explained.” IAF, Tab 43, Subtab 1 at 37.
     1
       The appellant requested a decision on the written record on the day of the hearing. ID
     at 1 n.1.
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     Based on the appellant’s statement, the administrative judge found that the
     appellant could not establish that he had a reasonable belief that he had disclosed
     a violation of law, rule, or regulation, and he denied the appellant’s request for
     corrective action. ID at 14.
¶5         The appellant has filed a petition for review challenging both of the
     administrative judge’s findings. Petition for Review (PFR) File, Tab 1 at 9, 15.
     The agency has not filed a response.

                                         ANALYSIS
¶6         In order to establish a prima facie case of reprisal for whistleblowing, the
     appellant must prove, by preponderant evidence, that: (1) he made a disclosure
     described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
     under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
     protected activity was a contributing factor in the agency’s decision to take or fail
     to take a personnel action as defined by 5 U.S.C. § 2302(a).               5 U.S.C.
     § 1221(e)(1); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12
     (2011). If the appellant makes out a prima facie case, the agency is given an
     opportunity to prove, by clear and convincing evidence, that it would have taken
     the same personnel action in the absence of the protected disclosure. 5 U.S.C.
     § 1221(e)(2); see Fellhoelter v. Department of Agriculture, 568 F.3d 965, 970-71
     (Fed. Cir. 2009).   To establish that an appellant made a protected disclosure
     under 5 U.S.C. § 2302(b)(8), an appellant need not prove that the matter
     disclosed actually established one of the categories of wrongdoing listed under
     section 2302(b)(8)(A); rather, he must show that the matter disclosed was one
     which a reasonable person in his position would believe evidenced any of the
     situations specified in 5 U.S.C. § 2302(b)(8). Chavez v. Department of Veterans
     Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
¶7         We agree with the administrative judge that the appellant’s first alleged
     disclosure pertaining to the reorganization of the MMS is not a protected
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     disclosure because it constitutes a policy disagreement with the agency’s
     implementation of the Secretary of the Interior’s order dividing the MMS into
     several smaller agency subcomponents. ID at 5-8. The record reflects that the
     Secretary of the Interior ordered the MMS to be divided into three new, separate
     subcomponents, including the Bureau of Ocean Energy Management (BOEM), to
     which the appellant was assigned.         See, e.g., PFR File, Tab 1 at 25-26. 2
     Following the proposed subdivision, however, the appellant authored a position
     paper advocating for the creation of a plans division on both the BOEM’s
     national and regional levels. IAF, Tab 6 at 7-9. After authoring this paper, the
     appellant alleged that the agency took several personnel actions against him
     based on his disclosure of, inter alia, gross mismanagement, a gross waste of
     funds, and an abuse of authority stemming from the decision not to create a plans
     division as suggested by the appellant. Id. at 32.
¶8         We agree with the administrative judge that the appellant’s position paper
     does not constitute a protected disclosure under section 2302(b)(8) but rather
     embodies the appellant’s policy disagreement with the agency’s restructuring of
     the MMS and creation of the BOEM.           ID at 8. The Board has held that the
     statutory protection for whistleblowers is not a weapon in arguments over policy
     or a shield for insubordinate conduct.          See O’Donnell v. Department of
     Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013), aff’d, 561 F. App’x 926 (Fed. Cir.
     2014). Even under the expanded protections afforded to whistleblowers under the
     Whistleblower    Protection    Enhancement      Act   of   2012    (WPEA),     general
     philosophical or policy disagreements with agency decisions or actions are not
     protected unless they separately constitute a protected disclosure of one of the
     categories of wrongdoing listed in section 2302(b)(8)(A).               See 5 U.S.C.


     2
      We have been unable to locate a copy of the Secretary’s order in the record developed
     below. We take official notice of the Secretary’s order pursuant to 5 C.F.R. § 1201.64.
                                                                                       5

      § 2302(a)(2)(D); see also O’Donnell, 561 F. App’x at 930 (citing the legislative
      history of the WPEA).
¶9          We recognize that, in O’Donnell, the Board, citing White v. Department of
      the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004), indicated that for a lawful
      policy decision to constitute gross mismanagement, its impropriety must not be
      “debatable among reasonable people.” O’Donnell, 120 M.S.P.R. 94, ¶ 14. The
      legislative history of the WPEA criticizes White, however, stating that “[t]he
      requirement that the disclosure must lead to ‘a conclusion that agency erred (that)
      is not debatable among reasonable people’ could [cause confusion because] it
      could be read to require proof that the alleged misconduct actually occurred.”
      S. Rep. No. 112-155 at 10 n.37 (2012).       The Senate Committee Report thus
      emphasized that:
            [T]here should be no additional burdens imposed on the employee
            beyond those provided by the statute, and that this test—that the
            disclosure is protected if the employee had a reasonable belief it
            evidenced misconduct—must be applied consistently to each kind of
            misconduct and each kind of speech covered under section
            2302(b)(8).
            The Committee notes that the requirement that the employee need
            show only reasonable belief applies, as well, in determining whether
            the narrow exception for policy disputes, added by S. 743, applies.
            In other words, if an employee has a reasonable belief that the
            disclosed information evidences the kinds of misconduct listed in
            section 2302(b)(8), rather than a policy disagreement, the disclosure
            is protected.
      S. Rep. No. 112-115 at 10-11 (emphasis added).          Based on the foregoing,
      consistent with congressional intent, we clarify O’Donnell here to emphasize that
      if an employee has a reasonable belief that the disclosed information evidences
      the kinds of misconduct listed in section 2302(b)(8), rather than a policy
      disagreement, it is protected.
¶10         Applying this standard, we concur with the administrative judge that the
      appellant’s position paper is a policy disagreement with the agency’s lawful
      decision to restructure the former MMS pursuant to the Secretary of the Interior’s
                                                                                             6

      directive, and we find that the appellant has otherwise failed to establish that he
      had a reasonable belief that the disclosed information evidenced the kinds of
      misconduct listed in section 2302(b)(8). 3 See ID at 8.
¶11         We also find that the appellant failed to establish by preponderant evidence
      that he had a reasonable belief that he disclosed a violation of law, rule, or
      regulation when he engaged in an email exchange with several agency officials in
      July 2013 about proposed changes to permitting fees. ID at 13; see IAF, Tab 43,
      Subtab 1 at 36-37. 4    The record reflects that the appellant initially expressed
      uncertainty over a proposed change in the way the agency charged for certain
      drilling permits. After receiving an email from the agency’s Unit 2 Supervisor of
      the Environmental Operations Section concerning the proposed change, the
      appellant emailed a response, which stated, inter alia, that, “I still have a problem
      with this proposed policy and am unclear about it. How can you . . . change the
      requirements of the regulations . . . when the reg[ulations] state for the fee for
      EPs is per surface location and for DOCDs per well[?]” IAF, Tab 43, Subtab 1 at
      36.   The Supervisor clarified in an email response sent shortly thereafter that

      3
        A disclosure of gross mismanagement excludes management decisions which are
      merely debatable. See Ormond v. Department of Justice, 118 M.S.P.R. 337, ¶ 11
      (2012). An employee discloses an abuse of authority when he alleges that a federal
      official has arbitrarily or capriciously exercised power which has adversely affected the
      rights of any person or has resulted in personal gain or advantage to himself or to
      preferred other persons, see McCollum v. Department of Veterans Affairs, 75 M.S.P.R.
      449, 455-56 (1997), and an employee discloses a gross waste of funds when he alleges
      that a more than debatable expenditure is significantly out of proportion to the benefit
      reasonably expected to accrue to the government, see Embree v. Department of the
      Treasury, 70 M.S.P.R. 79, 85 (1996). The appellant’s policy paper contains no such
      disclosures because it fails to allege that the decision to restructure the MMS, as
      proposed, would result in personal gain to any person or would involve any expenditure
      of federal funds; rather, the recommendations advanced therein only reflect the
      appellant’s opinion of the best way to restructure the MMS and constituted his
      disagreements with debatable management decisions. IAF, Tab 6 at 7-9.
      4
       The record demonstrates that this email communication took place over the course of
      approximately 20 minutes.
                                                                                            7

      “[t]here is no change from the regulations.”          Id.   The appellant thereafter
      responded, “I have no problem with the policy now that it has been clearly
      explained.” Id.
¶12         Because the appellant’s statements occurred in the context of a general
      discussion over a proposed policy, we conclude that the email was part of a
      policy discussion, the matters discussed therein were merely debatable, and a
      disinterested observer with knowledge of the essential facts known to and readily
      ascertainable by the appellant could not reasonably conclude that they evidenced
      any   of    the   situations   specified    in   5   U.S.C.     § 2302(b)(8).       See
      Chavez, 120 M.S.P.R. 285, ¶ 18. That is, the appellant’s email did not disclose
      an alleged violation of law, rule, or regulation; rather, it merely requested
      clarification about the proposed policy in light of his concerns that, if adopted, it
      could run afoul of the agency’s regulations. 5 Accordingly, the appellant failed to
      establish by a preponderance of the evidence that he reasonably believed he
      disclosed a violation of law, rule, or regulation in his July 2013 email. 6

      5
        Although an appellant need not establish an actual violation of a law, rule, or
      regulation in order to demonstrate that he had a reasonable belief that the disclosure
      evidenced one of the categories of wrongdoing listed in section 2302(b)(8), an
      appellant’s involvement and understanding of the subject matter at issue may be
      considered in determining whether he established that he had a reasonable belief that he
      disclosed a violation of law, rule, or regulation. See Stiles v. Department of Homeland
      Security, 116 M.S.P.R. 263, ¶ 17 (2011) (an appellant does not have to establish an
      actual violation in order to have a reasonable belief that he disclosed one of the
      categories of wrongdoing under section 2302(b)(8)); Smith v. Department of the Army,
      80 M.S.P.R. 311, ¶ 10 (1998) (an appellant’s involvement with the subject matter may
      go to whether the appellant had a reasonable belief).
      6
        In so ruling, we do not hold that statements occurring in the context of a policy
      discussion can never constitute a protected disclosure. As the WPEA amendments
      make clear, a communication concerning policy decisions that lawfully exercise
      discretionary authority is not a disclosure unless the employee reasonably believes that
      the disclosure evidences any 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(a)(2)(D). Rather, we hold
      only that, under the circumstances of this case, the appellant’s comments in his July
                                                                                            8

¶13         In light of the foregoing, we do not rely on the administrative judge’s
      conclusion   that   the   appellant’s   disclosure   was   unprotected    because    he
      subsequently stated that he understood the basis for the proposed change and had
      “no problem with the policy now that it has been clearly explained.” 7 ID at 13.
      Based on the appellant’s subsequent statement, the administrative judge found
      that the appellant could not establish that he had a reasonable belief that he had
      disclosed a violation of law, rule, or regulation. ID at 12-13. Under the statute,
      however, the test is whether the appellant had a reasonable belief that he was
      disclosing a violation of law, rule, or regulation at the time he made the
      disclosure, not in light of events or conversations occurring thereafter. 5 U.S.C.
      § 2302(b)(8). Accordingly, we VACATE this portion of the initial decision.
¶14         The administrative judge’s initial decision denying corrective action is
      AFFIRMED AS MODIFIED. The appellant’s petition for review is DENIED.

                                              ORDER
¶15         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).


      2013 email were communications concerning policy and that, in making them, he failed
      to establish that he reasonably believed that he was disclosing one of the categories of
      wrongdoing under section 2302(b)(8).
      7
        On review, the appellant argues that he continued to express concern over the
      agency’s proposed policy change and that his opinion never changed. See PFR File,
      Tab 1 at 15. In support of this argument, the appellant relies on a separate email
      conversation from September 2013 which references his continued disagreement with
      the proposed policy change. Id. at 37. To the extent that the appellant may have made
      separate disclosures concerning any renewed, or different, concerns he might have had
      with the policy change, he did not exhaust those putative disclosures with OSC and they
      are not before the Board. See Coufal v. Department of Justice, 98 M.S.P.R. 31, 38
      (2004) (the Board’s jurisdiction in an IRA appeal is limited to issues raised before
      OSC); IAF, Tab 6 at 4 (listing the last disclosure made on July 22, 2013), Tab 1 at 21
      (same).
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                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
         You have the right to request review of this final decision by the United
States 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
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. 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 United States 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 United States 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 United
States     Code,    at   our     website,     http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
                                                                              10

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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit.        The 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.
