United States Court of Appeals for the Federal Circuit
                                        2009-3120


                                TERESA C. CHAMBERS,

                                                             Petitioner,

                                             v.

                           DEPARTMENT OF THE INTERIOR,

                                                             Respondent.


     Paula Dinerstein, Public Employees           for   Environmental      Responsibility,   of
Washington, DC, argued for petitioner.

      Hillary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With her
on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Todd M. Hughes, Deputy Director.

      Barbara Sheehy, Assistant Counsel, National Treasury Employees Union, of
Washington, DC, argued for amicus curiae National Treasury Employees Union. With her
on the brief were Gregory O’Duden, General Counsel, and Barbara A. Atkin, Deputy
General Counsel.

Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
                                      2009-3120

                               TERESA C. CHAMBERS,

                                                           Petitioner,
                                           v.

                         DEPARTMENT OF THE INTERIOR,

                                                           Respondent.


Petition for review of the Merit Systems Protection Board in consolidated case nos.
DC1221040616-M-1 and DC0752040642-M-1.

                           ___________________________

                               DECIDED: April 21, 2010
                           ___________________________


Before DYK, SCHALL, and PROST, Circuit Judges.

DYK, Circuit Judge.

      Teresa Chambers (“Chambers”) petitions for review of an adverse decision of the

Merit Systems Protection Board (“Board”). See Chambers v. Dep’t of the Interior, 110

M.S.P.R. 321 (2009) (“Chambers III”). The Board sustained Chambers’ removal from

her position as the Chief of United States Park Police (“Park Police”). We affirm the

Board’s decision sustaining charges 3, 5 and 6. However, we reverse the Board’s

decision to sustain charge 2. In light of the reversal of charge 2, we remand to the

Board for reconsideration of whether removal remains a reasonable penalty and

whether the agency has presented clear and convincing evidence that it would have
taken the same personnel actions against Chambers based on the sustained charges,

in the absence of her protected disclosures.

                                    BACKGROUND

      The relevant background has already been set forth in detail in our prior opinion

in Chambers v. Department of Interior, 515 F.3d 1362 (Fed. Cir. 2008) (“Chambers II”).

We therefore present only a brief summary here. Chambers served as Chief of the

United States Park Police, a component of the National Park Service (“NPS”), which is

within the Department of the Interior (“the agency”). On November 20, 2003, Chambers

spoke with a reporter from the Washington Post.            On December 2, 2003, she

communicated with a United States House of Representatives (“House”) Interior

Appropriations Subcommittee staffer.     Both of these communications concerned the

Office of Management and Budget’s (“OMB”) recent decision not to seek an increase in

the U.S. Park Police budget and the Park Police’s need for additional resources. In her

conversations with the reporter and the staffer, Chambers expressed her belief that due

to underfunding, the U.S. Park Police lacked adequate staff and that inadequate staffing

posed various risks to the public in those areas patrolled by the U.S. Park Police.

      The House staffer subsequently informed Chambers’ supervisor, Donald Murphy

(“Murphy”), of Chambers’ communications with her. The Washington Post published an

article on December 2, 2003, which attributed several statements to Chambers. On the

evening of December 2, 2003, Murphy imposed restrictions on Chambers’ authority to

communicate with the news media. On December 5, 2003, Chambers was placed on

administrative leave, and on December 17, 2003, Murphy proposed to remove




2009-3120                                   2
Chambers, citing six charges of misconduct, several of which were grounded in

Chambers’ communications with the Washington Post reporter and the House staffer. 1

Chambers challenged these actions, claiming retaliation for disclosures protected under

the Whistleblower Protection Act (“WPA”). See 5 U.S.C. § 2302(b)(8).

      On July 9, 2004, the deciding official, the Deputy Assistant Secretary for Fish and

Wildlife and Parks, Paul Hoffman (“Hoffman”), issued an agency decision sustaining all

six charges and terminating Chambers. Charge 1 derived from Chambers’ conversation

with the House staffer, and charges 2, 3, and 4 derived from the conversation with the

Washington Post reporter. Charges 5 and 6 derived from unrelated incidents that took

place between March and early September of 2003. The agency took no disciplinary

action against Chambers with respect to those earlier incidents until after Chambers’

communications with the reporter and with the House staffer. Chambers appealed to

the Board.




      1
              The six charges were as follows:

       1.     Making improper budget communications with an Interior
Appropriations Subcommittee staff member.
       2.     Making public remarks regarding security on the National Mall, in
parks, and on parkways in the Washington, D.C. metropolitan area.
       3.     Improperly disclosing budget deliberations to a Washington Post
reporter.
       4.     Improper lobbying.
       5.     Three specifications of failing to carry out a supervisor’s
instructions.
       6.     Failing to follow the chain of command.

Chambers III, 110 M.S.P.R. at 322.




2009-3120                                  3
      In an Initial Decision, the Administrative Judge (“AJ”) sustained charges 2, 3, 5,

and 6. She did not sustain charges 1 and 4 because she found that the agency had

failed to prove these charges. The AJ then found that Chambers had not made any

protected disclosures; that despite only four of the charges being sustained, the agency

would have imposed the penalty of removal anyway; and that, even if the statements

were protected by the WPA, the agency had proved that it would have taken the same

action in the absence of the alleged whistleblowing activity.          However, the AJ also

determined that the disclosures were a contributing factor in the discipline. The Board

affirmed the AJ’s decision, and Chambers appealed to this court. See Chambers v.

Dep’t of the Interior, 103 M.S.P.R. 375 (2006) (“Chambers I”).

      On appeal, we rejected Chambers’ appeal with respect to the charges and the

penalty of removal based on grounds other than the WPA. Chambers II, 515 F.3d at

1370-71.    However, with respect to Chambers’ disclosures alleged to be protected

under the WPA, we held that the Board had applied an improper standard. Id. at 1368.

The Board had reasoned that under our decision in White v. Department of the Air

Force, 391 F.3d 1377 (Fed. Cir. 2004), “[a] policy disagreement can serve as the basis

for a protected disclosure only if the legitimacy of a particular policy choice ‘is not

debatable among reasonable people.’”       Chambers I, 103 M.S.P.R. at 387 (quoting

White, 391 F.3d at 1382). It then determined that this case “presents a classic policy

disagreement over which reasonable minds might differ.”          Id.    The Board therefore

concluded that none of the disclosures were protected under the WPA because they did

not evidence “a substantial and specific danger to public health or safety.” Id. at 388,




2009-3120                                  4
390. To prevail on a claim under the WPA, an employee must show that she disclosed

information she reasonably believed evidences “(i) a violation of any law, rule or

regulation, or (ii) 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).

We held that the Board incorrectly applied the standard pertaining to claims of gross

mismanagement in evaluating disclosures as to a “substantial and specific danger to

public health or safety.” Chambers II, 515 F.3d at 1368. We therefore vacated the

Board’s decision with respect to the WPA issue and remanded the case to the Board for

reconsideration under the correct WPA standard.

      On remand, the two-member Board “affirm[ed] . . . as modified” the initial

decision sustaining Chambers’ removal and denying her request for corrective action.

Chambers III, 110 M.S.P.R. at 321. The Board first denied Chambers’ motion to reopen

its previous decision and to reconsider the merits of the sustained charges apart from

the WPA issue. The Board also rejected her WPA claims. Although the two Board

members agreed on the disposition of the case, they did not agree on the reasoning.

Chairman McPhie, in a separate concurring opinion, indicated that he would find certain

of Chambers’ statements both to the Washington Post reporter and to the House staffer

to be protected as evidencing a substantial and specific danger to public health or

safety. In particular, he found that the first two statements Chambers made to the

Washington Post that were cited by the agency in charge 2 were protected under the

WPA. He also found additional statements made to the Washington Post reporter, not

cited specifically by the agency in charge 2, to be protected. Nonetheless, he indicated




2009-3120                                  5
that he would find that the agency’s penalty remained reasonable and that the agency

presented clear and convincing evidence that it would have taken the same actions

against Chambers in the absence of the disclosures he found protected, based on

charges 3, 5, 6, and the sustained part of charge 2. 2     Vice Chairman Rose, in a

separate concurring opinion, noted that she would find none of Chambers’ statements

to be protected. She therefore did not reach the issues of whether the agency would

have taken the same actions in the absence of the allegedly protected statements.

      Chambers timely appealed to this court. We have jurisdiction under 28 U.S.C.

§ 1295(a)(9).

                                    DISCUSSION

      Our review of final Board decisions is limited. We may only set aside agency

actions, findings, or conclusions we find to be “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.”   5 U.S.C. § 7703(c).    We review legal questions de novo.

Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed. Cir. 2008).

                                           I

      Under 5 U.S.C. § 2303(b)(8), an agency is prohibited from taking a personnel

action against an employee for disclosing information the employee reasonably believes



      2
              Chairman McPhie also would find that Chambers’ placement on
administrative leave, the order restricting her media access, and her removal all
constitute personnel actions under the WPA.




2009-3120                                 6
evidences gross mismanagement, a gross waste of funds, an abuse of authority, a

substantial and specific danger to public health or safety, or a violation of law, rule or

regulation. See Lachance v. White, 174 F.3d 1378, 1380-81 (Fed. Cir. 1999). Pursuant

to 5 U.S.C. § 2302(b), to establish reprisal for whistleblowing, the employee must

establish four elements: (1) the acting official has the authority to take, recommend, or

approve any personnel action; (2) the aggrieved employee made a protected disclosure;

(3) the acting official used his authority to take, or refuse to take, a personnel action

against the aggrieved employee; and (4) the protected disclosure was a contributing

factor in the agency’s personnel action.      See Lachance, 174 F.3d at 1380.           If the

employee makes this showing, there is still no violation of the WPA if the agency can

prove by clear and convincing evidence that it would have taken the same personnel

action(s) in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(2).

       As we explained in our opinion in Chambers II, the inquiry into whether a

disclosed danger is sufficiently “substantial and specific” to warrant protection under the

WPA is guided by several factors, among these: (1) “the likelihood of harm resulting

from the danger;” (2) “when the alleged harm may occur;” and (3) “the nature of the

harm,” i.e., “the potential consequences.” Chambers II, 515 F.3d at 1369. 3 Disclosures



       3
              We stated:

       The Board has . . . [stated] that “revelation of a negligible, remote, or ill-
       defined peril that does not involve any particular person, place, or thing, is
       not protected.” Our court has held that the disclosure of a danger only
       potentially arising in the future is not a protected disclosure. Rather, the
       danger must be substantial and specific . . . . If the disclosed danger could
       only result in harm under speculative or improbable conditions, the




2009-3120                                    7
of dangers to public health or safety must be considered separately from claims of gross

mismanagement, and the fact that a particular health or safety statement involves a

policy decision or disagreement does not deprive it of protection under the WPA. Id. at

1368-69.        Consistent with these factors, the outcomes of past cases addressing

whether particular disclosures were protected as revealing a substantial and specific

danger to public health and safety have depended upon whether a substantial, specific

harm was identified, and whether the allegations or evidence supported a finding that

the harm had already been realized or was likely to result in the reasonably foreseeable

future.       Cases in which the employee’s burden was found to be satisfied have

concerned specific allegations or evidence either of actual past harm or of detailed

circumstances giving rise to a likelihood of impending harm. 4



          disclosure should not enjoy protection. Another important factor is when
          the alleged harm may occur. A harm likely to occur in the immediate or
          near future should identify a protected disclosure much more than a harm
          likely to manifest only in the distant future. Both of these factors affect the
          specificity of the alleged danger, while the nature of the harm-the potential
          consequences-affects the substantiality of the danger.

Chambers II, 515 F.3d at 1369 (citations omitted).
          4
              See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 907 (Fed. Cir. 2008)
(holding that where an employee of an agency responsible for safely transporting
nuclear weapons and other nuclear materials objected to a proposed change in policy
that would have transferred responsibility for safety management “to personnel who
lacked appropriate education and experience in safety management,” her complaint
established Board jurisdiction because she provided detailed allegations concerning the
rigors and risks associated with training); Woodworth v. Dep’t of the Navy, 105 M.S.P.R.
456, 463 (2007), aff’d, 329 F. App’x 281 (Fed. Cir. 2009), cert. denied, 2010 WL 265885
(Mar. 1, 2010) (the Board held sufficient to confer jurisdiction an employee’s complaint
that workers who disassembled missiles were exposed to missile blast residue that
contained “chemical elements and metal compounds which are harmful caustic, toxic,




2009-3120                                        8
       To prevail on the merits of a WPA claim, an employee must prove by a

preponderance of the evidence that she made a protected disclosure. See Johnston v.

Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Chambers argues that certain

statements she made to the Washington Post as well as statements she made to the

House staffer were protected under section 2303(b)(8) because they constituted

disclosures of information she reasonably believed evidenced a substantial and specific

danger to public safety.

       Charges 5 and 6, which concern instances in which Chambers was found to

have failed to follow a supervisor’s instructions and failed to properly follow the chain of

command, are not alleged by Chambers to involve any WPA-protected disclosures.

Because we affirmed the Board’s decision on the merits with respect to all charges

apart from the WPA issues, charges 5 and 6 are governed by our opinion in Chambers

II, which sustained the charges. See 515 F.3d at 1369-70.




irritants and carcinogens,” and that he had already experienced resultant “skin, eye, and
nose irritation and that he suffered from many sinus infections which he believed were
caused by exposure to the missile blast residue”); Wojcicki v. Dep’t of the Air Force, 72
M.S.P.R. 628, 634 (1996) (the Board found that an employee made protected
disclosures by revealing evidence that the agency’s sandblasting practices had caused
him to cough up blood, and that it was exposing other workers to similar health
hazards); Braga v. Dep’t of the Army, 54 M.S.P.R. 392, 398 (1992), aff’d, 6 F.3d 787
(Fed. Cir. 1993) (the Board held protected the complaint of a designer of body armor for
soldiers where “the real-world threat levels from anti-personnel mines greatly exceeded
the threat level he had been asked to design the [body armor] to meet, and that soldiers
relying on the [body armor] for protection would therefore be in grave danger of being
killed or maimed.”).




2009-3120                                    9
       We therefore need only consider charges 2 and 3. At the outset, we note that

charges 2 and 3 were not based on Chambers’ statements to the House staffer but

were based entirely on Chambers’ statements to the Washington Post.

       Chambers argues on appeal that charge 3 is in part grounded in disclosures

protected under the WPA as disclosing a substantial and specific danger to public

safety. Charge 3 accuses Chambers of “[i]mproper disclosure of budget deliberations.”

J.A. 120. The Washington Post article in question attributed the following statement to

Chambers: “She said she has to cover a $12 million shortfall for this year and has asked

for $8 million more for next year.” Id. at 121. The agency charged Chambers with

improperly disclosing that she had “asked for $8 million more for next year.” Id. The

agency stated that at the time, the 2005 budget had not yet been transmitted to

Congress, and by informing the reporter of this request, Chambers disclosed 2005

federal budget deliberations to the media before transmittal of the budget to Congress,

in violation of agency protocol. 5

       On remand from this court, both members of the Board apparently did not

consider this statement as being related to public safety and therefore did not address

it. Chambers argues on appeal that Chambers’ statement about the budget, which is

the foundation for charge 3, is indeed protected because “[w]hile the statement

regarding Park Police funding needs does not disclose a substantial and specific danger



       5
               Chambers previously disputed the accuracy of the statement which is the
subject of charge 3. However, the AJ rejected her claim in that regard and all of the
AJ’s factual findings have been affirmed by the Board and by this court. See Chambers
II, 515 F.3d at 1370.




2009-3120                                 10
to public safety in isolation, it is part of Chambers’ overall disclosure that lack of funds

was causing staffing shortages which in turn were causing dangers to public safety.”

Appellant’s Br. 30. We agree with the Board that Chambers’ disclosure of these specific

budget numbers is not an aspect of her disclosures directed to public safety. Indeed,

Chambers admits that this statement does not “disclose a substantial and specific

danger to public safety in isolation.” Though it is true that the budget provided for law

enforcement necessarily limits the extent of protection of public health and safety,

Chambers alleged no substantial or specific danger to public health and safety in

connection with her disclosure of budget numbers. Accordingly, the Board was correct

in considering this statement to be unprotected.       We therefore hold that the Board

properly sustained charge 3.

       However, we reach a different result as to charge 2: “Making public remarks

regarding security on the Federal mall, and in parks and on the Parkways in the

Washington, D.C., Metropolitan area.” J.A. 120. Charge 2 is supported by a single

specification. For convenience, we have numbered the individual statements. The

specification details that Chambers made certain statements to the Washington Post

reporter and specifies that the resulting newspaper article

       among other things, state[d] the following:

       [1] Chambers said traffic accidents have increased on the Baltimore-
       Washington Parkway, which now often has two officers on patrol instead
       of the recommended four.
       ...
       [2] ‘It’s fair to say where it’s green, it belongs to us in Washington D.C.,’
       Chambers said of her department. ‘Well, there’s not enough of us to go
       around to protect those green spaces anymore.’




2009-3120                                   11
      ...
      [3] The Park Police’s new force of 20 unarmed security guards will begin
      serving around the monuments in the next few weeks, Chambers said.
      She said she eventually hopes to have a combination of two guards and
      two officers at the monuments.

J.A. 120. 6 The agency charged that these statements were improper because these

“public remarks about whether and how many armed and unarmed U.S. Park Police

officers are patrolling the Washington, D.C., metropolitan area[,] Federal malls, parks,

and Parkways constitute [improper] public remarks about the scope of security present

and contemplated for these areas under your jurisdiction.” Id. Chambers argues on

appeal that all of her public safety-related disclosures to the Washington Post reporter

were protected under the WPA.       Chairman McPhie analyzed all of the statements

attributed to Chambers by the Washington Post reporter in his article. With respect to

the statements detailed in charge 2, he found the first two listed statements and other

statements not listed to be protected and found the third listed statement to be

unprotected.    Vice Chairman Rose found all of Chambers’ statements to be

unprotected.

      We do not find it necessary for present purposes to examine all of Chambers’

statements to the Washington Post reporter as we agree with Chairman McPhie that

Chambers’ first statement that traffic accidents have increased on the Baltimore-



      6
               Chambers asserted previously that    she did not identify the number of
guards who would begin serving around the           monuments and that the reporter
incorrectly attributed this statement to her. The   AJ found that Chambers did in fact
make this statement and the AJ’s factual findings   have been upheld by the Board and
by this court.




2009-3120                                 12
Washington (“BW”) Parkway, which often had two officers on patrol instead of the

recommended four, was protected under the WPA as evidencing a substantial and

specific danger to public health or safety. First, an increase in traffic accidents is a

significant and serious danger to public safety.     Second, this statement details the

specific consequence that has already resulted from the diversion of officers from the

BW Parkway: more traffic accidents. Third, this statement contains the specific details

as to the cause of the increased danger, namely the reduction from four officers to two.

Here, the alleged danger—increased traffic accidents—was not vague or speculative. It

was more than likely to occur, indeed it was certain, as it had already occurred. Such

specificity is sufficient to establish a disclosure meriting protection under the WPA.

Further, Chambers’ beliefs both that traffic accidents present a substantial danger and

that the diversion of Park Police from the BW Parkway was the cause of the increase in

traffic accidents were reasonable. 7 Chambers’ supervisor, Murphy, acknowledged that

a change in “police staffing to patrol the highways” could affect traffic safety. Chambers

III, 110 M.S.P.R. at 330. Chambers had expertise in public safety, and she was familiar

with the areas under her jurisdiction.    Her expertise in these matters supports the

reasonableness of her belief.




      7
              The test for determining whether an employee had a reasonable belief
that her disclosures evidenced misconduct under the WPA is whether “a disinterested
observer with knowledge of the essential facts known to and readily ascertainable by
the employee [could] reasonably conclude that the actions of the government evidence”
wrongdoing as defined by the WPA. Lachance, 174 F.3d at 1381.




2009-3120                                  13
       Because the sole specification for charge 2 is grounded in a WPA-protected

disclosure, the charge cannot stand. Vice Chairman Rose stated that she would sustain

the whole of charge 2 as she found no WPA-protected disclosures. Chairman McPhie

noted that he would sustain charge 2, reasoning that “the non-protected statements

made by [Chambers] to the Washington Post were alone sufficient to sustain Charge 2.”

Chambers III, 110 M.S.P.R. at 337. However, the law is clear that such charge-splitting

is impermissible.

       We have explained that “[w]hen an agency proposes to discipline an employee, it

must notify the employee of the conduct with which he is charged ‘in sufficient detail to

permit the employee to make an informed reply.’” Lachance v. Merit Sys. Prot. Bd., 147

F.3d 1367, 1371 (Fed. Cir. 1998) (quoting Pope v. U.S. Postal Serv., 114 F.3d 1144,

1148 (Fed. Cir. 1997), and Brook v. Corrado, 999 F.2d 523, 526 (Fed. Cir. 1993)).

Agencies typically give this notice by designating a particular charge and accompanying

the charge with a narrative description, the “specification,” which sets forth the details of

the charged misconduct. Id. If the agency designates a specific charge as the basis for

the proposed discipline, it must of course prove all the elements of that charge. Id.

Where the agency only sets forth one specification, we have long held that

       [i]t is not permissible for the [Board] to split a single charge of an agency
       into several independent charges and then sustain one of the newly-
       formulated charges, which represents only a portion of the original charge.
       If the agency fails to prove one of the elements of its charge, then the
       entire charge must fall.




2009-3120                                    14
Burroughs v. Dep’t of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). Here charge 2

cannot stand. 8 Discipline may not be based on a disclosure protected by the WPA.

See, e.g., Greenspan v. Veterans Admin., 464 F.3d 1297, 1305 (Fed. Cir. 2006).

Because the sole specification set forth to support charge 2 is grounded in at least one

WPA-protected disclosure, charge 2 cannot stand.

      In order to prevail on a claim of reprisal for making disclosures protected under 5

U.S.C. § 2303(b)(8), an appellant must show by preponderant evidence that the

disclosures were a contributing factor in the agency’s personnel action. See 5 U.S.C.

§ 1221(e)(1). The AJ considered this issue and found that the Chambers’ statements

that had been reported in the Washington Post were a contributing factor in Chambers’

placement on administrative leave and in her removal. The agency did not challenge

this finding below, nor does it do so now. We therefore hold that the disclosure we find

protected was a contributing factor in the agency’s decision to take adverse action

against Chambers.

                                           II

      The remaining issues are whether removal remains a reasonable penalty in light

of the dismissal of charge 2 and whether the agency has proved by clear and



      8
               The cases Chairman McPhie cites in support of his decision to sustain
charge 2 do not hold that a charge may be parsed out and then sustained in part. For
example, in Greenough v. Dep’t of the Army, 73 M.S.P.R. 648, 656-57 (1997), the
agency proved two specifications, but not the third, and the Board held that that was
sufficient to sustain the charge. Greenough does not authorize the Board to sustain a
charge where the agency only sets forth one specification in support of the charge, and
the charged conduct is grounded in WPA-protected disclosures. See also Hicks v.
Dep’t of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995).




2009-3120                                 15
convincing evidence that it would have taken the same personnel actions against

Chambers in the absence of the protected disclosures. See 5 U.S.C. § 1221(e)(2)

(providing that “[c]orrective action . . . may not be ordered if the agency demonstrates

by clear and convincing evidence that it would have taken the same personnel action in

the absence of such disclosure”). We are unable to sustain the Board’s decision as to

either of these questions. Chairman McPhie’s opinion relies on portions of charge 2 to

sustain the reasonableness of the penalty.       Chambers III, 110 M.S.P.R. at 337

(indicating that “removal remains a reasonable penalty for the four sustained charges”).

Our decision setting aside charge 2 means that the conduct covered by charge 2 cannot

be relied on to sustain the reasonableness of the penalty even if some of that conduct

could have formed the basis for a proper charge.      Chairman McPhie also relied on

portions of charge 2 in determining that the agency had established by clear and

convincing evidence that it would have taken the same action based on the sustained

charges. Id. at 339 (finding that the agency provided clear and convincing evidence

“that it would have taken the same disciplinary actions against [Chambers] for her

conduct underlying charges 3, 5 and 6, and the sustained portion of charge 2, even in

the absence of her protected conduct”).

      In the case of Vice Chairman Rose, she did not explicitly address the

reasonableness of the penalty (presumably because she would have sustained charges

2, 3, 5, and 6). She did not decide whether the agency had established by clear and

convincing evidence that it would have taken the same action absent the protected

disclosures because she found that none of the disclosures was protected. Thus,




2009-3120                                 16
neither opinion provides a basis for sustaining the Board’s action. Even if one of the

opinions could be sustained, sustaining one of two board opinions, when each is

necessary to the result, is not sufficient to sustain the action. 9 See Corus Group PLC v.

Int’l Trade Comm’n, 352 F.3d 1351, 1363 (Fed. Cir. 2003) (“If any opinion necessary to

the majority . . . fails to satisfy the statutory standard, the decision must be set aside.”).

       Under the circumstances we think that the most appropriate course is to remand

to the Board for further consideration. As to the reasonableness of the penalty, the

Board must consider on remand whether the agency’s penalty of removal was

reasonable in light of the three remaining sustained charges—charges 3, 5, and 6. See

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305 (1981). Here, the deciding official’s

testimony is ambiguous as to whether he would or would not have taken the same

action if charge 2 had not been sustained. 10 The resolution of such ambiguities is a



       9
             Of course, if we determine that a particular result is legally compelled, no
remand to the Board would be necessary.
       10
              The deciding official’s testimony is as follows:

                JUDGE BOGLE: . . . Looking at the charges here, all of which you
       sustain, would you have imposed a lesser penalty if some of them had not
       been sustained, and if so, can you tell us which ones?
                THE WITNESS: Yes. If fewer than all of the charges had been
       sustained, I would have still imposed the penalty of removal.
                For me, the charge of improper disclosure of budget information
       [charge 3], the violation of the OMB circular [charge 3], the disclosure of
       the staffing and patrol numbers at the icons and the Federal parkways
       [charge 2], and the willful failure to carry out instructions by her immediate
       supervisor [charge 5], those all together aggregated to the point that I felt
       it [sic] was justified in removal.
                JUDGE BOGLE: Are you saying that each of these charges
       standing alone would warrant the penalty of removal?




2009-3120                                     17
matter for the Board in the first instance. If the Board determines that the deciding

official would have removed Chambers based only on charges 3, 5, and 6, the Board

itself must determine whether the penalty was reasonable. However, if there is “some

indication that the agency would have regarded the sustained charges as insufficient to

justify the penalty imposed,” the Board must remand the case to the agency for

redetermination of the appropriate penalty in the first instance.    Guise v. Dep’t of

Justice, 330 F.3d 1376, 1381 (Fed. Cir. 2003); see Modrowski v. Dep’t of Veterans

Affairs, 252 F.3d 1344, 1353 (Fed. Cir. 2001).

      As to the second question, the Board must decide whether the agency has

established by clear and convincing evidence that it would have removed Chambers

based on the sustained charges 3, 5, and 6. In making this determination, the agency

cannot rely on the conduct underlying charges 1, 2, and 4, which have been set aside.

We have identified certain factors which should be considered when determining this

issue, such as



             THE WITNESS: No, I don’t think I’m saying that. I think what I’m
      saying is those three in particular together [charges 2, 3, and 5] warrant
      removal.
             JUDGE BOGLE: Tell me again which three you are talking about.
             THE WITNESS: The disclosure of budget numbers. . . . The
      disclosure of security and staffing levels at the icons, and the failure to
      carry out instructions.
             JUDGE BOGLE: Those were the three most important charges in
      your mind, and if those three were not sustained, what penalty would you
      have chosen?
             THE WITNESS: I would probably have proposed a suspension and
      perhaps a reinstatement into a position of less responsibility.

J.A. 442-43.




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      [1] the strength of the agency’s evidence in support of its personnel action;
      [2] the existence and strength of any motive to retaliate on the part of the
      agency officials who were involved in the decision; and [3] any evidence
      that the agency takes similar actions against employees who are not
      whistleblowers but who are otherwise similarly situated.

Carr v. Social Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).

      Before rendering a final decision on the two questions we have set out, the Board

should receive briefing from the parties and should consider whether, for any reason, a

remand to the AJ is appropriate. 11

            AFFIRMED-IN-PART, REVERSED-IN-PART, and REMANDED

                                        COSTS

      No costs.




      11
             On appeal, Chambers challenges three actions by the agency: placing
her on administrative leave, restricting her media access, and removal. The parties
place almost all of their emphasis on the removal issue, as do we. On remand, the
Board should address the other two actions as well to see if corrective action is
warranted.




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