                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2007-3100



                                 KARL R. DETRICH,

                                                     Petitioner,

                                          v.


                           DEPARTMENT OF THE NAVY,

                                                     Respondent.


        Archibald J. Thomas, III, Thomas & Klink, of Jacksonville, Florida, argued for
petitioner.

       Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. On
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
Todd M. Hughes, Assistant Director, and Leslie Cayer Ohta, Attorney.

Appealed from: United States Merit Systems Protection Board
                            NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                         2007-3100

                                     KARL R. DETRICH,

                                                                         Petitioner,

                                              v.

                              DEPARTMENT OF THE NAVY,

                                                                         Respondent.

                           ___________________________

                           DECIDED: October 22, 2007
                           ___________________________


Before NEWMAN, RADER, and DYK, Circuit Judges.

PER CURIAM.

      Karl R. Detrich (“Detrich”) was removed from his position with the Department of

the Navy (“agency”), effective August 23, 2004, based on eight charges of misconduct.

He appealed that removal to the Merit Systems Protection Board (“MSPB” or “Board”).

After a hearing, the administrative judge (“AJ”) sustained the removal, finding that the

agency had proved seven of the eight charges by preponderant evidence, that Detrich

had failed to establish the affirmative defense of reprisal, and that the penalty of

removal was reasonable. Detrich petitioned the full Board to review this initial decision.

The Board denied review, and the AJ’s decision became the decision of the Board.

Detrich petitions for review in this Court, contending that the decision was not supported

by substantial evidence and that the penalty of removal was so disproportionate as to

constitute an abuse of discretion.
       The seven charges sustained by the AJ against Detrich were: 1) failure to follow

instructions and comply with deadlines by establishing himself as a Test Control Officer;

2) failure to follow instructions and comply with deadlines by selecting classroom

furniture; 3) failure to follow instructions and comply with deadlines by meeting with the

new librarian; 4) failure to follow instructions and comply with deadlines by submitting an

annual marketing plan; 5) failure to follow instructions and comply with deadlines by

completing    a   Standard     Operating     Procedure/Plan;     6)   failure   to   follow

instructions/inappropriate conduct for sending e-mails containing allegations of abusive

treatment by management outside of the chain of command and in violation of an

established e-mail policy; and 7) unauthorized absence.

      According to Dennis Duck, the official who made the decision to remove Detrich,

charge 6 was the only one that, taken individually, would be considered “very serious.”

J.A. at 265. Charge 6 was based at least in large part on an e-mail sent by Detrich on

May 31, 2004, 1 to Jeffrey Wataoka, Director of the Human Resources Service Center

for the Pacific region of the Department of the Navy. In this e-mail Detrich repeated two

questions he had asked Mr. Wataoka in a previous e-mail, both regarding an alleged

incident of abuse by one of Detrich’s supervisors, and also included an additional

allegation of abuse by his immediate supervisor. Because Mr. Wataoka was not in

Detrich’s chain of command, the AJ found that this e-mail violated the e-mail policy

provided to Detrich by a memorandum on May 4, 2004, in which Detrich’s immediate

      1
              As the AJ recognized, the notice of proposed removal identified an e-mail
of May 21, 2004, but it was “undisputed that there is no e-mail of that date in the
record.” J.A. at 20. Rather, the agency and Detrich agreed that the charge referred to a
May 31, 2004, e-mail, which was in the agency record. The notice of proposed removal




2007-3100                                2
supervisor stated, “I will remind you that we have a chain-of-command and that you

should follow it by first addressing issues with me.” Agency Exhibit 4o.

       Charges 1 through 5 and charge 7 are all supported by substantial evidence.

Charge 6 is supported by substantial evidence with regard to Detrich’s violation of the e-

mail policy.   We have substantial doubt as to the validity of that policy under the

Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified in

scattered sections of 5 U.S.C.) (“WPA”).      The WPA does not permit an agency to

discipline an employee for disclosing protected information merely because that

information has been reported outside the chain of command.           An agency cannot

require that protected disclosures be made only to supervisory personnel. See Huffman

v. Office of Pers. Mgmt., 263 F.3d 1341, 1351 (Fed. Cir. 2001). However, Detrich’s

counsel confirmed at oral argument that Detrich did not raise a WPA claim on appeal in

this case.

       Additionally, because the penalty of removal was not disproportionate to the

charged offenses, the agency committed no abuse of discretion. Therefore we affirm.

No costs.




erroneously stated that the e-mail was enclosed with that notice; however, the AJ found
that this error was harmless.


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