Appealed from: Merit Systems Protection Board
Before Lourie, Clevenger, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Gajarsa, Circuit Judge.
William E. Willis II (Willis) petitions for review of a final decision of the Merit Systems Protection Board (the Board), Docket No. SL-1221-96-0042-W-2. On February 25, 1997, the Board denied Willis's petition for review of an initial decision issued on August 2, 1996. In the initial decision, the Administrative Judge (AJ) dismissed Willis's Individual Right of Action (IRA), filed pursuant to the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified at various sections of 5 U.S.C. (1994)) (the WPA). The AJ's determination, that Willis failed to satisfy the WPA's jurisdictional prerequisites, was supported by substantial evidence and not contrary to law. We affirm.
The facts of this case are set forth with great specificity in the AJ's opinion. Set forth below are only those facts necessary to resolve the issues presented on appeal. Willis was employed as a District Conservationist (DC) with the United States Department of Agriculture (USDA) from 1973 until his retirement on June 11, 1993. As part of his duties, Willis was assigned to review farms for compliance with conservation plans approved by the USDA. *fn1 In 1992, Willis inspected 77 farms for compliance with USDA conservation plans and found 16 farms to be out of compliance. Of these 16 farms, seven appealed Willis's finding. The USDA Soil Conservation Service (SCS) granted the appeals of six of these seven farms, thereby reversing Willis's determination that the farms failed to comply with USDA conservation plans. The Area Office found that the farmers had met exceptions to strict compliance with the conservation plans due to unusual conditions, or the use of other acceptable conservation practices that resulted in similar savings in soil erosion. A later investigation conducted by the USDA Office of the Inspector General sustained the decision of the Area Office.
In a letter dated August 21, 1992, Willis was criticized by his supervisor, Mr. Erwin Aust (Aust), for a number of reasons, including problems in the quality reviews of Willis's office. Willis replied to the criticisms in a letter dated September 24, 1992, in which Willis objected to each of his supervisor's criticisms. Willis also accused Aust of harassing him. On November 10, 1992, Mr. Jeffrey Vonk (Vonk), Aust's immediate supervisor, conducted a meeting with Willis and Aust to address the poor working relationship between Willis and Aust. At various times, Willis expressed to Aust and to Vonk a desire to be transferred to another position.
In April 1993, the USDA announced a vacancy for the position of Area Resources Conservationist in Fairfield, Iowa, which is located some distance from Willis's then existing job location in Atlantic, Iowa. The series and grade of this position were the same as the DC position held at the time by Willis. On April 30, 1993, Willis rejected an offer to transfer to the Fairfield position. In a letter dated May 5, 1993, Vonk directed the reassignment of Willis to the Fairfield position against his wishes. Rather than accept the directed reassignment to the Fairfield position, Willis elected to initiate retirement proceedings. Before the paperwork finalizing Willis's retirement was completed, Willis met with Vonk, who informed Willis that he did not have to retire and could remain in his position in Atlantic as an alternative to the Fairfield position. Instead, Willis retired from service with the USDA effective June 11, 1993.
On July 19, 1993, Willis sent a letter to the Center for Resource Conservation (CRC) alleging that his supervisors manipulated rules in order to provide farmers with satisfactory conservation compliance determinations in reversing Willis's 1992 determinations. On July 22, 1993, Willis wrote a similar letter addressed to the Director of the Office of Personnel Management (OPM) in which he alleged various improper personnel actions arising from the reversals of his compliance determinations in 1992. Willis alleged that these improper personnel actions forced him to retire in 1993. On August 8, 1994, Willis sent a letter to the Office of Special Counsel (OSC) in which he requested an investigation of personnel actions taken against him beginning in 1986 and also requested a review of the 1992 reversals by SCS of the farms Willis found to be out of compliance with USDA conservation plans.
On October 30, 1995, unable to obtain satisfactory relief from the OSC, Willis filed an IRA appeal with the Board in which he sought corrective action for a lower performance rating, receipt of a verbal reprimand, receipt of a directed reassignment, and for involuntary retirement. Willis alleged that these adverse personnel actions were taken in retaliation to disclosures he made regarding the reversals of his 1992 compliance findings. Willis claimed that his disclosures were protected under the WPA.
In an initial decision, the AJ dismissed Willis's IRA without prejudice because the OSC had accepted Willis's complaint for investigation but had not issued a decision. On March 15, 1996, Willis refiled his appeal with the Board after he withdrew his complaint from the OSC prior to a report being issued by the OSC. On June 6, 1996, the AJ held a telephonic conference with the parties to determine whether Willis had properly established a claim of whistleblowing. In a memorandum opinion dated June 7, 1996, the AJ determined that the letters forwarded by Willis to the OSC and CRC after the effective date of his retirement could not have contributed to the adverse personnel actions or Willis's allegedly involuntary retirement because the letters were in fact sent after his retirement. The AJ further concluded that Willis's finding of several farms out of conservation compliance and the subsequent reversals of those findings were not protected disclosures under the WPA because they were not included in the complaint to the OSC. Willis appealed this decision to the full Board. On February 25, 1997, the Board denied Willis's petition for review, making the AJ's initial decision the final decision of the Board.
On appeal, a decision by the Board cannot be overturned unless it is found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).
The issue before us concerns whether the Board was correct in dismissing Willis's IRA on the ground that his complaint to the OSC was not premised on a prohibited personnel action covered by 5 U.S.C. § 2302(b)(8), a jurisdictional prerequisite under 5 U.S.C. § 1221(a). According to the WPA, a government official may not take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee . . . because of . . . any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or 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) (1994). To maintain an IRA under the WPA, a petitioner must first establish Board jurisdiction by making non-frivolous allegations that: (1) the petitioner engaged in a whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) based on the protected disclosure, the agency took or failed to take a personnel action as defined by 5 U.S.C. § 2302(a). See Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 688-89 (Fed. Cir. 1992) ("[S]ubject-matter jurisdiction existed-as long as the petitioner asserted non-frivolous claims."). The petitioner must also demonstrate ...