     United States Court of Appeals for the Federal Circuit



                                         03-3300

                                 CAROL CZARKOWSKI,

                                                        Petitioner,

                                             v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.




      Joseph J. Jablonski, Jr., of Arlington, Virginia, argued for petitioner.

       Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, argued for respondent. With her on the
brief were Martha B. Schneider, General Counsel, and Stephanie M. Conley, Reviewing
Attorney.

Appealed from:   United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit


                                      03-3300


                               CAROL CZARKOWSKI,

                                                                  Petitioner,

                                          v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                                  Respondent.

                          ___________________________

                          DECIDED: November 8, 2004
                          ___________________________



Before CLEVENGER, RADER and DYK, Circuit Judges.

CLEVENGER, Circuit Judge.


      Carol Czarkowski appeals the decision of the Merit Systems Protection Board

("Board") dismissing her claim under the Whistleblower Protection Act ("WPA") for lack

of jurisdiction. Czarkowski v. Dep't of the Navy, 93 M.S.P.R. 514 (2003). Because the

Board incorrectly interpreted and applied the governing law, we reverse and remand for

further proceedings.

                                          I

      Ms. Czarkowski was employed as a Supervisory Contracts Specialist with the

Department of the Navy's ("agency's") Office of Special Projects ("OSP") under a

Schedule A appointment in the excepted service pursuant to 5 C.F.R. § 213.3106(d)(1).
Her position included dealing with classified contracts of large dollar amounts and was

subject to a periodic Security Background Investigation.      During the course of her

employment in 1997, the agency removed her supervisory responsibilities and placed

her on a performance improvement plan. She believed these personnel actions were

taken in reprisal for protected whistleblower disclosures she had made to her

supervisor.

      After an initial complaint to the Office of Special Counsel on May 24, 1999,

Ms. Czarkowski filed an Individual Right of Action ("IRA") with the Board against the

agency alleging retaliation for disclosures protected by 5 U.S.C. § 2302(b)(8). The

Administrative Judge ("AJ") dismissed Ms. Czarkowski's case on December 3, 1999,

finding that she had not made a protected disclosure under the WPA. On initial appeal,

the Board found that Ms. Czarkowski had made a nonfrivolous allegation of a protected

disclosure and remanded the case to the AJ for further proceedings.         The agency

moved to dismiss, arguing that the           Board did not have jurisdiction over

Ms. Czarkowski's IRA appeal because the OSP was exempt from Board jurisdiction

under 5 U.S.C. § 2302(a)(2)(C)(ii), a statute that denies the Board jurisdiction over IRA

appeals involving certain agencies.

      Some employees in sensitive agency units have been exempted from Board

appeal rights under section 2302(a)(2)(C) of the WPA. The exemptions are found in the

definition of agency, which delineates the agencies that are not covered by the WPA:

      (C) "agency" means an Executive agency and the Government Printing
      Office, but does not include—
             (i) a Government corporation, except in the case of an alleged
      prohibited personnel practice described under subsection (b)(8);
             (ii) the Federal Bureau of Investigation, the Central Intelligence
      Agency, the Defense Intelligence Agency, the National Imagery and



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       Mapping Agency, the National Security Agency, and, as determined by the
       President, any Executive agency or unit thereof the principal function of
       which is the conduct of foreign intelligence or counterintelligence activities;
       or
              (iii) the General Accounting Office.

5 U.S.C. § 2302(a)(2)(C) (2000) (emphasis added).

       On February 14, 2001, the AJ agreed with the agency and dismissed the case on

jurisdictional grounds. The AJ found that Executive Order 12,333, 46 Fed. Reg. 59941

(Dec. 4, 1981), provided the Department of Defense the authorization to use the agency

in foreign intelligence and counterintelligence activities and provided the agency

authority to implement intelligence directives. The AJ further found that the Director of

the Office of Naval Intelligence had authorized the Naval Supply Systems Command

("NAVSUP") to use the Schedule A appointing authority under 5 C.F.R § 213.3106(d)(1)

for positions assigned to intelligence functions. Based upon these findings, the AJ

found that Ms. Czarkowski, a Schedule A contract employee for OSP in NAVSUP,

worked within the agency intelligence organization and as such, the statutory

requirement for a presidential determination, as the AJ understood the WPA, was

satisfied. The AJ thus concluded that Ms. Czarkowski was not an employee that is

eligible to file an IRA appeal with the Board.

       Ms. Czarkowski again appealed to the full Board where the Board upheld the

dismissal of her case on jurisdictional grounds. Noting that Ms. Czarkowski did not

present any evidence contradicting the OSP's intelligence function and the delegation of

this function by the President through Executive Order 12,333, the Board found that an

employee of the Contracts Directorate of the OSP was ineligible to bring an IRA appeal




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and was exempt under the WPA. After the Board dismissed the appeal for lack of

jurisdiction, Ms. Czarkowski timely appealed to this court where the case was

recaptioned to reflect the Board's interest.      We have jurisdiction over this appeal

pursuant to 5 U.S.C. § 7703(b)(1) (2000) and 28 U.S.C. § 1295(a)(9) (2000).

                                            II

      Questions of law and determinations of jurisdiction are reviewed without

deference by this court. Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed.

Cir. 1999).   The Board has jurisdiction over only those actions which are made

appealable to it by law, rule, or regulation. 5 U.S.C. §§ 1205(a)(1), 7701(a) (2000);

Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985). The burden of proving

that an appeal can be taken to the Board is on the petitioner who must show by a

preponderance of the evidence that jurisdiction is proper. 5 C.F.R. § 1201.56(a)(2)

(2004); see Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed. Cir. 2000);

Link v. Dep't of the Treasury, 51 F.3d 1577, 1581 (Fed. Cir. 1995).

                                            III

      The question before this court is whether the OSP has been "determined by the

President" to be an executive agency or unit thereof "the principal function of which is

the conduct of foreign intelligence or counterintelligence activities," as specified in

5 U.S.C. § 2302(a)(2)(C)(ii). The record in this case reveals without dispute that the

President, or his lawful delegate, has not made an actual determination expressly

naming Ms. Czarkowski's unit as an exempt agency under section 2302(a)(2)(C)(ii).

The Board held that an agency or unit thereof could be deemed one so "determined by

the President" even without an express actual determination having been made. The




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Board held that documentary evidence showing Presidential delegation of authority to

conduct foreign intelligence activities to an agency, coupled with other evidence such as

appointments under Schedule A, could suffice to permit the Board to make a decision

that a particular agency or unit thereof had been determined by the President to have as

its principal function the conduct of foreign intelligence or counterintelligence activities.

       On appeal, the agency defends the rationale of the Board, arguing that express

action by the President identifying a particular agency pursuant to section

2302(a)(2)(C)(ii) is unnecessary to exempt an agency from Board review in WPA cases,

and urges us to accept the Board's rationale and analysis of the documentary record.

Ms. Czarkowski argues that even under the Board's rationale, she should prevail, since

in her view the facts of her case cannot be distinguished from the facts in Lewark v.

Department of Defense, 91 M.S.P.R. 252 (2002), a case in which the Board concluded

that the documentary evidence failed to demonstrate the requisite Presidential

determination. Ms. Czarkowski also argues frontally against the agency's theory of the

case, asserting that an agency cannot "earn" exemption from Board review for itself by

reference to documentary evidence of its scope of authority. Instead, Ms. Czarkowski

asserts that the statute in suit is clear: exemption from Board authority exists only with

respect to the agencies expressly named by Congress in the relevant statute and such

other agencies or units thereof that have been expressly determined by the President,

or his lawful delegate, to have as their principal function the statutorily specified

intelligence activities.   Ms. Czarkowski forwards her interpretation of the statute as

harmonious with sound policy that enables the President himself, not the Board, to

determine which agencies should be shielded from the full scope of WPA review before




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the Board.   She also argues that actual express determination by the President of

exempt units will better afford the employees of those units notice of the extent of their

appeal rights to the Board.

                                              IV

       On its face, the statute requires that an exemption from section 2302(a)(2)(C)(ii)

must be "determined by the President." 5 U.S.C. § 2302(a)(2)(C)(ii). In order to exempt

an agency's employees from WPA review rights before the Board, the President, or his

lawful delegate, must decide that the agency has as its principal function the conduct of

foreign intelligence activities. Many agencies have some authority to conduct foreign

intelligence activities, and do so.   The statute assigns to the President the task of

identifying which agencies meet the "principal function" test. This surely is a delicate

call in some circumstances, and it certainly is a call that Congress has left to the

President or his delegate. The statutory language does not suggest that the Board can

effectively make a determination for the President by reviewing documentary evidence

that may suggest an agency has been determined to have the principal function of

conducting foreign intelligence or counterintelligence activities. Documents that suggest

to the Board that a Presidential determination should or could have been made cannot

stand as a proxy for an actual Presidential determination that references the statute.

The burden is on the agency to show that the President, or his delegate, has explicitly

exempted an agency or unit thereof under section 2302(a)(2)(C)(ii).

       The legislative history of the WPA supports the clear meaning of the statute. The

legislative history indicates that it is within the President's discretion to determine which

agencies are exempt from the WPA. See Mark-Up Session on S. 2640: The Civil




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Service Reform Act of 1973, 95th Cong. 69 (1978). This discretion is a judgment that

can only be made when the President finds an agency or unit thereof is principally

engaged in the specified intelligence activities. See S. Rep. No. 95-969, at 18 (1978),

reprinted in 1973 U.S.C.C.A.N. 2723, 2740.          Therefore the Board cannot impute

determinations of exempted units to the President, or his delegate, by interpreting

documentary evidence that may tend to show that an agency principally functions as an

intelligence unit.

       In further support of the requirement of explicit determination by the President, or

his delegate, Congress has expressly provided all intelligence employees, including

those exempted under the mechanism of section 2302(a)(2)(C)(ii), an alternate scheme

for disclosing information without fear of reprisal.    See The Intelligence Community

Whistleblower Protection Act of 1998, Pub. L. 105-272, Title VII, 112 Stat. 2413 (1998)

("ICWPA"). The ICWPA provides the intelligence community a limited right to raise

urgent and serious concerns to Congress or to the appropriate Inspector General. This

act provides a voice to employees in agencies known for the conduct of intelligence

activities which are statutorily denied protection under the WPA and those employees

that have been exempted by presidential determination. Section 702(b)(1)(C) of the

ICWPA provides:

       (C) Any other employee of, or contractor to, an executive agency, or
       element or unit thereof, determined by the President under section
       2302(a)(2)(C)(ii) of title 5, United States Code, to have as its principal
       function the conduct of foreign intelligence or counterintelligence activities,
       who intends to report to Congress a complaint or information with respect
       to an urgent concern may report the complaint or information to the
       appropriate Inspector General (or designee) under this Act or section 17 of
       the Central Intelligence Agency Act of 1949.




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Id. § 702(b)(1)(C). The House Report to this act emphasizes that the President is to

determine which agencies or units thereof are exempt under section 2302(a)(2)(C)(ii)

and states that as of 1998 the President had "made no such determinations." See H.R.

Rep. No. 105-747, Part 1, at 7 (1998).

        The ICWPA further supports the clear intent of Congress that a determination

made pursuant to section 2302(a)(2)(C)(ii) by the President, or his delegate, must be

explicit in order to give exempted employees an opportunity to participate in the

alternate whistleblowing scheme provided for exempted intelligence employees. For

policy reasons, it is important that employees can determine their status under the

WPA, or alternatively under the ICWPA, in order to inform their decision about how to

disclose information without fear of retaliation by personnel. We do not, however, read

the statute to require the President to give actual notice to each employee of each

agency he has determined to have as its principal function the relevant intelligence

activities.   It is enough for the President, or his delegate, to make his express

determinations on the public record by such means as he deems appropriate. It should

not be difficult for employees of agencies that conduct substantial foreign intelligence

activities to learn whether the President, or his delegate, has expressly designated their

particular agency pursuant to section 2302(a)(2)(C)(ii).

                                             V

        The agency failed to demonstrate that the President, or his lawful delegate, had

explicitly exempted Ms. Czarkowski's unit, the OSP, under section 2302(a)(2)(C)(ii) of

the Whistleblower Protection Act from the merit systems appeal process.           Without

explicit exemption of her agency, Ms. Czarkowski met her burden of establishing Board




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jurisdiction, and is protected by an appeal right to the Board of her claim of adverse

personnel action by the agency in response to her allegedly protected disclosure. We

therefore reverse the finding of the Board that Ms. Czarkowski's unit is exempt from the

merit systems appeal process and remand for further adjudication of her whistleblower

claim.



                            REVERSED AND REMANDED




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