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Bosley v. Merit Systems Protection Board

December 14, 1998

JOHN P. BOSLEY, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.



Before Rich, Plager, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Bryson, Circuit Judge.

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

Petitioner John P. Bosley filed an independent right of action in the Merit Systems Protection Board alleging violations of the Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103 Stat. 16 (1989). See 5 U.S.C. § 1221(a). The Board dismissed the action for lack of subject matter jurisdiction. We conclude that the Board correctly held that it lacked jurisdiction over the acts of alleged reprisal addressed in its opinion, but that other acts of alleged reprisal presented by Mr. Bosley but not addressed by the Board may support jurisdiction. We therefore affirm the Board's order in part, vacate the order in part, and remand the case to the Board for further proceedings.

I.

Mr. Bosley is an employee of the U.S. Customs Service. In January 1988, he received a certificate of award for undercover work he had performed. The certificate bore a stamp containing the words "High Quality Pay Increase." Following the award, however, Mr. Bosley did not receive a salary increase, and in July 1988 he filed a grievance with the Customs Service asserting that he should have been granted a quality step increase in his salary. He was told that he had not received a pay increase because he had not received an "outstanding" evaluation; under applicable regulations a quality step increase could be granted only if the employee received an outstanding evaluation in the pertinent rating period.

In 1996 Mr. Bosley filed a complaint with the Office of Special Counsel (OSC) in which he alleged that the denial of the quality step increase was in retaliation for disclosures he had made regarding a supervisory Customs official in 1987. In addition, Mr. Bosley stated that his supervisors had retaliated against him by threatening him with dismissal and giving him long-term assignments away from his home office. In early 1997, the OSC notified Mr. Bosley that it had terminated its inquiry into his charges and that he could seek corrective action from the Merit Systems Protection Board. Mr. Bosley then filed an independent right of action with the Board, in which he claimed that he was denied a pay increase because of his whistleblowing.

Because the WPA did not become effective until July 1989, the administrative Judge noted that the Board might not have jurisdiction over the case and issued a show cause order directing Mr. Bosley to address the jurisdictional issue. In response, Mr. Bosley argued that the denial of a pay increase in January 1988 affected every pay check he received after that time, and that the agency's retaliatory action should therefore be within the jurisdiction of the Board under the WPA. In addition, he argued that the Board had jurisdiction to award him back pay, and that other acts of reprisal, i.e., threats of dismissal and assignments away from his home office, had occurred after the statute's effective date.

The administrative Judge dismissed Mr. Bosley's appeal for lack of subject matter jurisdiction. In a brief opinion, the administrative Judge rejected Mr. Bosley's claim that the denial of a quality step increase violated the WPA, but did not address Mr. Bosley's claims with regard to the other alleged retaliatory acts. Mr. Bosley petitioned for full Board review of the administrative Judge's decision. In his petition, he focused on the denial of the quality step increase and did not mention the other alleged acts of reprisal. The full Board denied the petition for review.

II.

Under the WPA, the Board has jurisdiction to grant relief to employees who have suffered reprisals for making protected disclosures. See 5 U.S.C. § 1221(a); 5 U.S.C. § 2302(b)(8). The WPA, however, applies only to acts of reprisal that occurred after the statute became effective on July 9, 1989. See WPA, Pub. L. No. 101-12, § 11, 103 Stat. 16, 35 (1989) (effective 90 days after April 10, 1989, enactment); Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 625 (Fed. Cir. 1992).

Mr. Bosley does not argue that the decision to deny him a quality step increase occurred after the effective date of the WPA. Instead, he contends that each paycheck he received after July 9, 1989, constituted a new violation of the WPA, because each paycheck was smaller than it would have been had he received a quality step increase in January 1988.

That theory fails. The alleged act of reprisal that led to Mr. Bosley's injury was the act of denying him a quality step increase, an act that occurred in January 1988. To be sure, his regular salary checks were not increased thereafter. But that was a consequence of the denial of the quality step increase; each check did not constitute a separate act of reprisal.

Mr. Bosley argues that he has suffered a "continuing violation" of the WPA from 1988 to the present because the denial of a quality step increase in 1988 has had continuing effects on each of his paychecks since then. A "continuing violation" has been held to overcome statutory time bars when it would have been unreasonable to expect the plaintiff to sue at an early stage in a continuing course of conduct, such as when particular conduct would constitute, or be recognized as, a violation only in light of later events. See Galloway v. General Motors Serv. Parts Operation, 78 F.3d 1164, 1166-67 (7th Cir. 1996). That was plainly not the case here. The denial of a pay increase to Mr. Bosley had monetary effects that continued into the future, just as any refusal to promote an employee or hire an applicant would have. Such consequences of an alleged violation, however, do not constitute separate violations or render the original violation continuing. See Delaware State College v. Ricks, 449 U.S. 250, 259 (1980); Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997); Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir. 1997); Lane v. United States, 208 Ct. Cl. 955, 956 (1975). Mr. Bosley's "continuing violation" theory with respect to the denial of his quality step increase is therefore inapplicable on the facts of this case.

In the alternative, Mr. Bosley contends that the Board has jurisdiction to award him a recovery under the Back Pay Act. That Act provides that when an unjustified or unwarranted personnel action is corrected on appeal to the Board, the employee is entitled to receive any pay that was denied to the employee by reason of the unlawful personnel action. See 5 U.S.C. ยง 5596(b). The Back Pay Act thus provides a remedy for unlawful personnel actions that are within the jurisdiction of the Board. But if the Board does not otherwise have jurisdiction over a particular personnel action, the Back Pay Act does not confer such jurisdiction on the Board. The Back Pay Act thus ...


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