                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JUNE T. SOOTER,                                 DOCKET NUMBER
                   Appellant,                        CH-1221-12-0588-W-1

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: April 2, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           June T. Sooter, Lebanon, Kentucky, pro se.

           Frances C. Silva, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     granted her request for corrective action. 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 of the law to the facts of the case; the

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115).       For the reasons discussed below, we
     DENY the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant held a series of temporary positions with the agency’s Census
     Bureau in Kentucky. Initial Appeal File (IAF), Tab 8 at 9-10. She began her
     appointments in March 2009. Id. at 14. Her last temporary position was that of
     Crew Leader. Id. at 9. The agency terminated the appellant effective July 24,
     2010, for inappropriate conduct. IAF, Tab 18 at 92-93. The appellant filed a
     complaint with the Office of Special Counsel (OSC) alleging that her termination
     was in retaliation for her having made protected disclosures that employees were
     falsifying time sheets and mileage reimbursement reports and two supervisors
     were involved in an inappropriate relationship.         IAF, Tab 1.     The appellant
     alleged that she made the disclosures to both her first-line supervisor and to her
     area manager. Id. at 11. In May 2012, OSC informed the appellant that it was
     closing its inquiry into her complaint and advised her of her Board appeal rights.
     Id. at 12.
¶3         The appellant initiated an individual right of action (IRA) appeal with the
     Board. 2 Id. at 4, 6-8. The administrative judge held a hearing and granted the

     2
       The appellant initiated her appeal on July 3, 2012. IAF, Tab 1 at 1. During the
     pendency of this IRA appeal, Congress passed, and the President signed into law, the
     Whistleb lower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126
     Stat. 1465. In Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 25-26
     (2013), we found that the WPEA clarified the defin ition of a protected disclosure under
     section 2302(b)(8) and held that this defin ition should be applied to cases pending
                                                                                          3

     appellant’s request for corrective action. IAF, Tab 59, Initial Decision (ID) at 2.
     The administrative judge found that the appellant exhausted her administrative
     remedies with OSC and that her termination was a covered personnel action under
     the statute.   ID at 4-5.   She also found that the appellant’s disclosures that
     employees were submitting false time and mileage documents and supervisors
     were approving fraudulent documents were protected because they demonstrated
     violations of a law, rule, or regulation and abuse of authority. ID at 7-8. The
     administrative judge found that the individual who terminated the appellant knew
     of the disclosures and that they were a contributing factor in her decision to
     terminate the appellant based on the proximity of the disclosures to her
     termination. ID at 8. She also found that the agency failed to prove by clear and
     convincing evidence that it would have taken the personnel action in the absence
     of the appellant’s protection disclosures. ID at 10.
¶4        The appellant has filed a timely petition for review of the initial decision.
     Petition for Review (PFR) File, Tab 1. The agency responded to the appellant’s
     petition for review, and the appellant has filed a reply. PFR File, Tabs 3-4.
¶5        In her petition for review, the appellant argues that the administrative judge
     accepted false documents as true, incorrectly found that she made her protected
     disclosures because she was upset that she was not awarded a supervisory
     position, and erred with regard to the date of her termination. 3 PFR File, Tab 1


     before the Board. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 11
     (2014). Nonetheless, we do not find that the WPEA’s clarification of protected
     disclosures affects the outcome of this appeal. Further, the provision in the WPEA for
     compensatory damages does not apply retroactively; therefore, the appellant will not be
     eligible to seek these damages as relief. See King v. Department of the Air Force,
     119 M.S.P.R. 663, ¶¶ 15-18 (2013).
     3
       To secure corrective action from the Board, an appellant must first exhaust her
     administrative remedies with OSC. Aquino, 121 M.S.P.R. 35, ¶ 9. The appellant then
     must prove by preponderant evidence that she engaged in wh istleb lowing activity by
     making a protected disclosure, and that such whistleblowing activity was a contributing
     factor in an agency personnel action. Schnell v. Department of the Army, 114 M.S.P.R.
     83, ¶ 18 (2010). If proven, the Board must order corrective action unless the agency
                                                                                             4

     at 4-10.   The appellant’s challenges to the initial decision’s findings of fact
     constitute mere disagreement with the explained findings of the initial decision,
     which are supported by the record. ID at 2-4. The appellant has shown no basis
     for disturbing those findings.      See Davis v. Department of Veterans Affairs,
     106 M.S.P.R. 654, ¶ 6 (2007) (mere disagreement with the administrative judge’s
     findings and credibility determinations does not warrant full review of the record
     by the Board).
¶6         The appellant also argues that the administrative judge erred when she did
     not award interim relief. PFR File, Tab 1 at 10. The administrative judge did not
     order interim relief because the appellant was a temporary employee with less
     than a month left in her temporary appointment at the time of her termination. ID
     at 11. An administrative judge should order interim relief for the period of time
     from the issuance of the initial decision until the decision becomes the final order
     of the Board or the issuance of a final Board order on a petition for review unless
     the administrative judge determines interim relief to not be appropriate. 5 C.F.R.
     § 1201.111(c)(1); see Costin v. Department of Health & Human Services,
     72 M.S.P.R. 525, 530 (1996) (finding interim relief to be available in IRA
     appeals), modified on other grounds by Costin v. Department of Health & Human
     Services, 75 M.S.P.R. 242 (1997).         Because we must remand the appeal for
     further development of the record regarding the proper corrective action for a
     temporary employee, we find the administrative judge properly found interim
     relief to be inappropriate in this appeal.



     establishes by clear and convincing evidence that it would have taken the same
     personnel action in the absence of the protected disclosure. I d. Neither party
     challenges on review the administrative judge’s findings that the appellant exhausted
     her administrative remedies, proved by preponderant evidence that she made protected
     disclosures that were a contributing factor in her termination, and that the agency failed
     to prove by clear and convincing evidence that it would have term inated her in the
     absence of her protected disclosures. PFR File, Tabs 1, 3-4. We see no reason to
     disturb these well-reasoned findings.
                                                                                      5

¶7        Generally, an appellant who prevails in an IRA appeal is entitled to status
     quo ante relief that includes the following:      cancellation of the retaliatory
     personnel action; reinstatement to her former position or to another substantially
     equivalent position, as appropriate; back pay; interest on back pay; and other
     employment benefits that she would have received had the action not occurred.
     Schnell, 114 M.S.P.R. 83, ¶ 25. The appellant who prevails is also eligible for
     relief that exceeds the status quo ante, including medical costs incurred, travel
     expenses, other reasonably foreseeable consequential damages, and may request
     disciplinary action be imposed against agency officials who engaged in retaliatory
     conduct.   Daniels v. Department of Veterans Affairs, 105 M.S.P.R. 248, ¶ 23
     (2007); 5 C.F.R. § 1201.202(b).    Our reviewing court has determined that the
     term “consequential damages” in 5 U.S.C. § 1221(g) is limited to reimbursement
     of out-of-pocket costs to make an individual whole for an improper personnel
     action but does not include nonpecuniary damages. 4      Bohac v. Department of
     Agriculture, 239 F.3d 1334, 1343 (Fed. Cir. 2001).       The administrative judge
     determined that the appellant’s request for consequential damages should be
     addressed in an addendum proceeding. ID at 11.
¶8        As the administrative judge noted in the initial decision, the appellant was
     hired under a temporary appointment that was followed by a series of extensions
     and additional temporary appointments for over a year before her termination. ID
     at 2. Though the appellant had less than 1 month remaining on her temporary
     appointment at the time of her termination, the appellant seeks damages through
     the remainder of the operation of the Lexington, Kentucky Census Bureau office.
     IAF, Tab 1 at 8, Tab 18 at 91-93.       The record does not reflect whether the
     Lexington, Kentucky office is still in operation or when it closed. As such, the
     record is not sufficiently developed as to the appropriate corrective action to

     4
      The WPEA did not substantively change an individual’s entitlement to consequential
     damages for whistleblower reprisal. See King, 119 M.S.P.R. 663, ¶ 15 (discussing
     changes made in the WPEA to section 1221(g)(1)(A)(ii)).
                                                                                    6

     order and the appeal must be remanded for further adjudication.          Schnell,
     114 M.S.P.R. 83, ¶ 25.
¶9        On remand, the parties should be given the opportunity to present additional
     evidence and argument as to whether the appellant’s temporary position would
     have been extended and for how long a period of time for the Board to order the
     appropriate corrective action. The administrative judge may incorporate her prior
     findings that we have adopted into a new initial decision that also addresses the
     length of her temporary employment.

                                         ORDER
          For the reasons discussed above, we REMAND this case to the regional
     office for further adjudication in accordance with this Remand Order.




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