                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RONALD J. HERMAN,                               DOCKET NUMBER
                   Appellant,                        DC-1221-10-0164-B-3

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: July 6, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Dennis L. Friedman, Esquire, Philadelphia, Pennsylvania, for the appellant.

           Gail Elkins, 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
     denied his request for corrective action. For the reasons discussed below, we
     GRANT the appellant’s petition for review, VACATE the initial decision, and
     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2         The appellant is a GS–13 Human Resource Management Examiner with the
     agency’s Bureau of Prisons. In that position, he reviews and evaluates programs
     at each of the agency’s 116 correctional facilities and its central Human
     Resources Department. Previously, he filed an individual right of action (IRA)
     appeal   alleging   that   the   agency   retaliated   against   him   for   protected
     whistleblowing. See Herman v. Department of Justice, 115 M.S.P.R. 386 (2011).
     The appellant alleged that he made the following disclosures protected under the
     Whistleblower Protection Act (WPA): (1) a manager violated the Privacy Act by
     telling the appellant’s second-level supervisor, R.S., that the appellant’s review of
     the agency’s Consolidated Employee Services Center may have been unduly
     harsh because his daughter, who had worked there, had been disciplined; (2) his
     first-level supervisor, R.E., abused her authority by issuing two letters of
     counseling, issuing a critical mid-year performance review, and threatening to
     detail him to another position while indicating that if he (the appellant) applied
     for another position she would make everything go away; and (3) R.S. and R.E.
     abused their authority during a number of facility reviews by arriving late, not
     interacting with the review team, making sarcastic and inappropriate comments in
     front of the team, and delegating to an inmate the handling of sensitive
     documents. Id., ¶ 2. The appellant alleged that, in retaliation for his alleged
     protected disclosures, the agency took the following personnel actions: (1) issued
     him two letters of counseling; (2) gave him an unfavorable mid-year performance
     review; and (3) reassigned him to a different position. Id.
¶3         The administrative judge dismissed the appeal for lack of jurisdiction,
     finding that the appellant failed to make a nonfrivolous allegation that he had
     made a protected disclosure. Id., ¶ 4. The Board reversed the initial decision,
     found that the appellant had made a nonfrivolous allegation that he made
     protected disclosures, thus establishing Board jurisdiction, and remanded the
     appeal for a hearing.      Id., ¶¶ 12-14; see Peterson v. Department of Veterans
                                                                                            3

     Affairs, 116 M.S.P.R. 113, ¶ 8 (2011) (once an appellant establishes jurisdiction
     over his IRA appeal, he is entitled to a hearing on the merits of his claim). On
     remand, the administrative judge bifurcated the hearing, 2 assumed that the
     appellant had made a prima facie case of retaliation under the WPA, and
     proceeded directly to whether the agency proved by clear and convincing
     evidence that it would have taken the same action absent the appellant’s
     whistleblowing,    without    first   deciding   whether    he   had   established    by
     preponderant evidence that he made a protected disclosure and whether that
     disclosure was a contributing factor to a personnel action.             See Herman v.
     Department of Justice, 119 M.S.P.R. 642, ¶ 19 (2013). The administrative judge
     allowed testimony only on the issue of whether the agency established its
     affirmative defense by clear and convincing evidence, found that the agency met
     its burden of proof, and denied the appellant’s request for corrective action. Id.,
     ¶ 6. The appellant again petitioned for review, arguing that the administrative
     judge erred in his fact findings and credibility determinations and prevented him
     from fully developing his case. Id., ¶ 7.
¶4         The Board agreed and found that the record was not sufficiently developed
     for it to determine whether the agency carried its burden by clear and convincing
     evidence. Id., ¶¶ 12-20. The Board also found that in this case the circumstantial

     2
        As noted, this case arises under the WPA, and, under that statute, administrative
     judges often bifurcated the hearing, assuming that the appellant had established his
     prima facie case of retaliation by preponderant evidence and proceeding directly to the
     agency’s affirmative defense, i.e., whether the agency proved by clear and convincing
     evidence that it would have taken the same action absent the whistleblowing. See
     Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 17 (2003), aff’d, 97 F. App’x 322
     (Fed. Cir. 2004). However, in 2012, Congress passed the Whistleblower Protection
     Enhancement Act (WPEA). Pub. L. No. 112-199, 126 Stat. 1465. The WPEA instructs
     that a denial of a request for corrective action on the basis that the agency established
     its affirmative defense may only be made “after a finding that a protected disclosure
     was a contributing factor,” i.e., after a finding that the appellant made his prima facie
     case. 5 U.S.C. § 1221(e)(2); see Belyakov v. Department of Health & Human Services,
     120 M.S.P.R. 326, ¶ 7 n.3 (2013). Although this case arises under the WPA, we are
     also adjudicating it consistent with the provisions of the WPEA.
                                                                                              4

     evidence bearing on retaliatory motive includes the substance of the appellant’s
     allegedly protected activity as well as the extent to which R.S. was aware of it.
     Id., ¶ 20. The Board further found that R.S.’s motive to retaliate is relevant to
     both the existence and strength of any motive to retaliate on the part of the
     agency officials who were involved in the decision. Id. The Board noted that our
     reviewing court, in Kahn v. Department of Justice, 618 F.3d 1306, 1316 (Fed.
     Cir. 2010), stated its preference that the Board resolve all issues in an IRA
     appeal,     including    whether     the   appellant   proved   his   prima   facie   case.
     Herman, 119 M.S.P.R. 642, ¶ 19. The Board’s decision remanded the appeal for
     “further adjudication of the appellant’s prima facie case of whistleblower
     reprisal” and, if necessary, a new analysis of whether the agency established by
     clear and convincing evidence that it would have taken the personnel actions at
     issue in the absence of the disclosures. Id., ¶ 21.
¶5           A different administrative judge was assigned to adjudicate the appeal on
     the second remand. 3 In the second remand decision, the new administrative judge
     determined that the appellant had not met his burden to prove his prima facie case
     of retaliation, finding that he had failed to prove by preponderant evidence that he
     had made protected disclosures.            MSPB Docket No. DC-1221-10-0164-B-3,
     Remand Appeal File (RAF), Tab 54, Remand Initial Decision.
¶6           In his petition for review, the appellant contends that the administrative
     judge was precluded by the law of the case doctrine from finding that the
     appellant had failed to make protected disclosures. MSPB Docket No. DC-1221-
     10-0164-B-3, Petition for Review (PFR) File, Tab 5 at 10-11. He asserts that the
     Board found in Herman, 115 M.S.P.R. 386, that he had made protected
     disclosures. PFR File, Tab 5 at 10-11. He also asserts that the administrative
     judge erred in denying his motion to compel discovery of email exchanges
     between various agency officials, including R.S. and R.E., to which the agency

     3
         The original administrative judge in this matter retired.
                                                                                         5

     had access, as these emails were relevant to his burden to prove his prima facie
     case. Id. at 11-15. The agency has responded to the petition for review, and the
     appellant has replied to that response. PFR File, Tabs 8, 12.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant’s assertions regarding the law of the case doctrine are unavailing.
¶7        The law of the case doctrine refers to the practice of courts to refuse to
     reopen what already has been decided in an appeal and of following a prior
     decision in an appeal of the same case.            Hoover v. Department of the
     Navy, 57 M.S.P.R. 545, 552 (1993). Contrary to the appellant’s assertion, the
     Board previously did not decide that he had made protected disclosures in
     Herman, 115 M.S.P.R. 386.        Rather, the Board agreed with the administrative
     judge that the appellant had exhausted his procedural remedies before the Office
     of Special Counsel (OSC), and, under the “knowledge/timing,” had made a
     nonfrivolous allegation that his disclosures were a contributing factor to the
     alleged retaliatory personnel actions. Herman, 115 M.S.P.R. 386, ¶ 9. The Board
     went on to find that the appellant also made a nonfrivolous allegation that he had
     made protected disclosures, thus establishing jurisdiction over his IRA appeal.
     See id., ¶ 10-12; see also Yunus v. Department of Veterans Affairs, 242 F.3d
     1367, 1371 (Fed. Cir. 2001) (the Board has jurisdiction over an IRA appeal if the
     appellant has exhausted his administrative remedies before OSC and makes
     nonfrivolous allegations that:     (1) he engaged in whistleblowing activity by
     making a protected disclosure; and (2) the disclosure was a contributing factor in
     the agency’s decision to take or fail to take a personnel action).       Thus, the
     Board’s prior decision merely precluded the administrative judge from dismissing
     the appellant’s IRA appeal for lack of jurisdiction.
                                                                                              6

     The administrative judge abused her discretion in denying the appellant’s motion
     to compel discovery.
¶8         Discovery is the process by which a party may obtain relevant information
     from another party to an appeal. 5 C.F.R. § 1201.72(a). “Relevant information
     includes information that appears reasonably calculated to lead to the discovery
     of admissible evidence.” Id. What constitutes relevant information in discovery
     is to be liberally interpreted, and uncertainty should be resolved in favor of the
     movant absent any undue delay or hardship caused by such request.                 Ryan v.
     Department of the Air Force, 113 M.S.P.R. 27, ¶ 15 (2009).                “The scope of
     discovery is broad: ‘[d]iscovery covers any nonprivileged matter that is relevant
     to the issues involved in the appeal . . . .’”               Baird v. Department of the
     Army, 517 F.3d 1345, 1351 (Fed. Cir. 2008) (quoting 5 C.F.R. § 1201.72(b)).
     The Board will not reverse an administrative judge’s rulings on discovery matters
     absent   an   abuse    of   discretion.     Wagner      v.    Environmental    Protection
     Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.
     1993) (Table).
¶9         In this appeal, the appellant attempted to discover emails, notably those
     initiated by R.S. and R.E., to meet his burden of establishing a prima facie case of
     reprisal for whistleblowing. 4 See RAF, Tab 14. Specifically, according to the
     appellant, the emails would show, among other things, that R.S. communicated



     4
       In contrast to the nonfrivolous allegations necessary to establish Board jurisdiction, in
     order to establish a prima facie case of reprisal for whistleblowing, the appellant must
     prove, by preponderant evidence, that: (1) he made a disclosure described under
     5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a
     contributing factor in the agency’s decision to take or fail to take a personnel action as
     defined by 5 U.S.C. § 2302(a). Webb v. Department of the Interior, 122 M.S.P.R. 248,
     ¶ 6 (2015). To establish that an appellant made a protected disclosure under 5 U.S.C.
     § 2302(b)(8), he need not prove that the matter disclosed actually established one of the
     categories of wrongdoing listed under section 2302(b)(8)(A); rather, he must show that
     the matter disclosed was one which a reasonable person in his position would believe
     evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). Id.
                                                                                             7

      with various agency officials, including R.E., in an effort to control and influence
      agency actions involving the appellant. PFR File, Tab 5 at 11-15.
¶10        The appellant asserted that the agency’s representation, that it had no access
      to emails covering the critical time periods involved in his discovery requests,
      was “inconceivable.” RAF, Tab 16 at 9. Based on the appellant’s assertion, the
      administrative judge ordered the agency to submit affidavits from employees in
      the agency’s information technology (IT) office regarding, among other things,
      the systems searched and the information found.           RAF, Tabs 19, 23.         The
      appellant maintained that the agency’s response to the administrative judge’s
      order was misleading, and he filed a motion for sanctions. RAF, Tab 33. He
      alleged that the agency failed to acknowledge that its email management system,
      described as “Netmail” by the employee who conducted the email search in
      response to the appellant’s discovery requests, is an archival tool for emails from
      which   an   employee    cannot   erase   emails,   and   that    R.S.’s   and    R.E.’s
      communications during the critical time frame would have been available in
      response to the appellant’s discovery request.      Id. at 4-6.    The administrative
      judge denied the appellant’s motion but approved his request for the IT employee
      to testify regarding the agency’s archival email system. RAF, Tab 39.
¶11        In his petition for review, the appellant references the IT employee’s
      testimony in which he admits that, although he searched Netmail in response to
      the appellant’s discovery requests, he failed to search another database called
      “GroupWise”. PFR File, Tab 5 at 14. The appellant contends that this testimony
      shows that critical emails would have been available through a search of
      GroupWise and that the administrative judge erred by failing to sanction the
      agency for not producing them. Id. at 11-17.
¶12        As the appellant asserts (and the agency does not appear to dispute), the IT
      employee testified that, in addition to Netmail, the agency has an email system
      called GroupWise that it used in the past and continues to use.                  Hearing
      Transcript (HT) at 10-11.    The witness also testified that “GroupWise allows
                                                                                       8

      users to create personal archives that can be stored where the user specifies,
      whether it be on their local hard drive or on a network location, and there is no
      easy way to determine the location of these emails or to search them.”         HT
      at 11-12. He further testified that the Netmail system was implemented in 2010,
      and, at that time, the agency began to migrate employees’ emails into Netmail.
      HT at 13. The appellant, however, filed a Request for Production of Documents
      dating from 2008 and 2009. RAF, Tab 14 at 28-29. The IT employee testified
      that neither R.S.’s nor R.E.’s emails were pulled into the Netmail system because
      they left the agency early in 2010 and the agency started implementing Netmail
      around September 2010. HT at 27.
¶13        Because the appellant remained an employee of the agency, his emails were
      pulled into Netmail.    See HT at 28 (testimony of IT employee).        When the
      appellant asked at the hearing about the emails that he had sent that were not
      retrieved in the IT employee’s Netmail search, the IT employee testified that
      GroupWise contains both personal emails, which he does not have the capacity to
      search, and GroupWise archived emails, which he can search. HT at 294-95. He
      testified, moreover, that the emails that the appellant produced appear to have
      come from GroupWise archived emails. HT 295-96. When asked if he searched
      those archived emails, the IT employee admitted that he did not. HT at 302. He
      also testified about the complex process necessary to search GroupWise personal
      emails, concluded that it was possible, and acknowledged that he did not conduct
      such a search. HT at 302-05. Finally, when asked what had happened to the
      content of R.S.’s email account when she retired, the IT employee answered that
      agency policy was to eliminate the account, but he acknowledged that he was not
      responsible for that function. HT at 308.
¶14        Based on the record evidence, we find that GroupWise and Netmail are
      different email systems, that the content of the two systems, while similar in some
      ways, is not identical, and that based on the testimony of the agency’s IT
      employee, the agency did not search GroupWise pursuant to the appellant’s
                                                                                           9

      discovery request.    It is also clear from the record that the GroupWise email
      system may contain emails, notably those to or from R.S. and R.E., that may be
      relevant to the appellant’s prima facie case, including the reasonableness of his
      belief that one of the matters he disclosed is protected, the knowledge of his
      disclosures by agency officials, and the motivation of R.S., R.E., or other agency
      officials to retaliate against him. 5 Even if the agency carried out its policy to
      delete R.S.’s and R.E.’s email accounts after they left the agency, other
      employees remained at the agency who may have been the recipients of emails
      from R.S. and R.E., emails that may remain in their GroupWise personal archives
      because they would have predated the agency’s efforts to pull GroupWise’s
      personal archived emails into Netmail.
¶15         Because the appellant bears the burden of establishing his prima facie case
      and the emails in the GroupWise system appear that they might be relevant or
      might lead to the discovery of relevant evidence, we find that the administrative
      judge abused her discretion in failing to grant the appellant’s motion to compel
      and order the agency to search the GroupWise email system for emails responsive
      to the appellant’s discovery request. Accordingly, we vacate the initial decision
      and remand this appeal for the administrative judge to reopen discovery
      consistent with this decision.    Once discovery is complete, the appellant may
      request a supplemental hearing to address issues arising as a result of the
      agency’s responses to his discovery request. The administrative judge then shall
      issue a new initial decision.




      5
       The Board, in its second remand order, specifically determined that the appellant must
      be permitted to develop the record on the substance of his allegedly protected activity
      as well as the extent to which R.S. was aware of it. See Herman, 119 M.S.P.R. 642,
      ¶¶ 12-20.
                                                                                           10

                                             ORDER
¶16         For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order. 6




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




      6
        The appellant also asserts on review that the administrative judge erred in failing to
      find whether the agency proved its affirmative defense, i.e., whether it showed by clear
      and convincing evidence that it would have taken the personnel actions absent the
      appellant’s whistleblowing. This case is not yet in a posture to address whether the
      agency proved its affirmative defense. Only if the appellant makes out a prima facie
      case is the agency required to prove by clear and convincing evidence that it would
      have taken the same personnel action in the absence of the protected disclosure.
      5 U.S.C. § 1221(e)(2); see Fellhoelter v. Department of Agriculture, 568 F.3d 965,
      970-71 (Fed. Cir. 2009).
