              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                Is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit
                                      04-3216

                               DONALD L. BAKER,

                                                        Petitioner,

                                         v.

                       DEPARTMENT OF AGRICULTURE,

                                                        Respondent.

                        ___________________________

                        DECIDED: April 8, 2005
                        ___________________________

Before MICHEL, Chief Judge, RADER, and LINN, Circuit Judges.

RADER, Circuit Judge.

                                I. INTRODUCTION

       The Merit Systems Protection Board (Board) found that evidence did not

support Mr. Baker’s allegation that he was terminated in reprisal for

whistleblowing activity. Baker v. Dep’t of Agriculture, No. DA-1221-02-0419-W-1

(M.S.P.B. Dec. 12, 2002) (Initial Decision); Baker v. Dep’t of Agriculture, No. DA-

1221-02-0419-W-1 (M.S.P.B. Mar. 10, 2004).           Because the Board correctly

applied whistleblower protection law, this court affirms.

                                II. BACKGROUND

       On May 20, 2001, Mr. Baker received a temporary, part-time appointment

as a Soil Scientist for the Hydraulic Engineering Research Unit at the Plant
Sciences and Water Conservation Research Laboratory in Stillwater, Oklahoma.

Mr. Darrel Temple, his supervisor, assigned Mr. Baker to a scientific project. Mr.

Baker was terminated after an incident involving an inappropriate reaction to the

misdelivery of a personal order by the United Parcel Service (“the UPS incident”).

On February 3, 2002, Mr. Baker filed a complaint with the Office of Special

Counsel (OSC), asserting that he had been terminated for disclosing protected

information under 5 U.S.C. § 2302(b) (2000). See also Whistleblower Protection

Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified throughout 5 U.S.C.)

(WPA). Specifically, Mr. Baker claimed he was terminated because he disclosed

to Mr. Temple that certain methods used in the project were flawed. Mr. Baker

also claimed that his termination was in reprisal for disclosing, in connection with

the UPS incident, that the Research Laboratory facility lacked adequate street

address markings, which could delay the arrival of emergency vehicles. OSC

determined Mr. Baker had not engaged in protected whistleblowing activity.

      Mr. Baker filed an appeal to the Board under 5 U.S.C. § 1221(a) and 5

C.F.R. §§ 1209.1-1209.4 (2005). With respect to Mr. Baker’s disclosures to Mr.

Temple regarding the project’s allegedly flawed methods, the Board concluded

that the WPA does not apply where an employee makes complaints to his own

supervisor about that supervisor’s conduct. Huffman v. Office of Pers. Mgmt,

263 F.3d 1341, 1348-50 (Fed. Cir. 2001).         Thus, these disclosures did not

constitute protected whistleblowing activity under 5 U.S.C. 2302(b)(8).        The

Board decided that Mr. Baker’s disclosures concerning the laboratory’s improper

street markings were, on the other hand, covered by this statute because the




04-3245                                  2
information dealt with “a substantial and specific danger to public health or

safety.” Initial Decision, slip op. at 7. After reviewing the record of Mr. Baker’s

employment, the Board found that the only protected disclosure, that of the

inadequate street markings, was not a contributing factor in the termination

decision.

                                  III. Analysis

      This court affirms a decision of the Board unless it is arbitrary, capricious,

an abuse of discretion, not in accordance with the law, or unsupported by

substantial evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers.

Mgmt, 243 F.3d 1375 (Fed. Cir. 2001).

      The WPA permits an employee to seek corrective action from the Board in

connection with certain personnel actions allegedly taken, not taken, or

threatened, in reprisal for engaging in protected whistleblowing, as defined by 5

U.S.C. § 2302(b)(8).    5 U.S.C. § 1221(a) (2000).        However, the scope of

protected disclosures is limited. Huffman, 263 F.3d at 1349-50.

      Two grounds for the limitation of scope in Huffman are pertinent here: (1)

complaints made to a supervisor regarding the supervisor’s actions are not

“disclosures,” as the supervisor necessarily is aware of his own conduct; and (2)

the purpose of the WPA, to encourage disclosures to persons who will be in a

position to act to remedy the wrong, is not supported when the wrongdoer is told

of the wrong as the wrongdoer is not in the proper position to effect a remedy.

263 F.3d at 1348-50.




04-3245                                 3
      Mr. Baker’s complaints to Mr. Temple are similar to the complaints

considered in Willis v. Dep’t of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 1998).

There, Willis did “no more than voice his dissatisfaction with his superiors’

decision,” and the WPA was found to not be applicable. Huffman, 263 F.3d at

1349. While Mr. Baker’s dissatisfaction arose from possible error in a scientific

project that could pose a danger to public safety, it falls into the unprotected

disagreements category described in Huffman and its predecessors. The Board

did not err in finding that these disclosures are not protected by the WPA.

      Turning to the street markings complaint, this court agrees with the Board

that the WPA does protect such a disclosure. Mr. Baker’s job did not entail

making such observations about the facility, and he told the proper agency

officials about the problem. However, the Board found no evidence suggesting

Mr. Baker was terminated as a reprisal for disclosing this information. Because

the Board’s evaluation of Mr. Baker’s complaints was in accordance with the law,

the Board’s decision is affirmed.




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