U.S. Court of Appeals, Federal Circuit
February 09, 1999
RHUBERDIA K. SMITH, PETITIONER,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, RESPONDENT.
Before Mayer, Chief Judge, Newman and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Rhuberdia K. Smith appeals an initial decision of the Merit Systems Protection Board, Docket No. SF1221970785-W-1 (December 15, 1997), which became final on July 9, 1998, and dismissed her claim of retaliation in violation of the Whistleblower Protection Act of 1989, Pub. L. No. 101-112, 103 Stat. 16 (1989) (codified at various sections of Title 5, United States Code) ("WPA"). We affirm.
We must affirm the decision of the board unless we find that it is: "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1994). Such a finding is not warranted here.
"[T]o establish a case of reprisal for whistleblowing under the WPA, an employee must demonstrate by a preponderance of the evidence that [her] disclosure is covered by [5 U.S.C. § 2302(b)(8) (1994)] and that it was a contributing factor in the personnel action." Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). A covered disclosure is defined as "any disclosure of information by an employee . . . which the employee . . . 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).
"The policy goal behind the WPA was to encourage government personnel to blow the whistle on wasteful, corrupt or illegal government practices without fearing retaliatory action by their supervisors or those harmed by the disclosures." Marano v. Department of Justice, 2 F.3d 1137, 1142 (Fed. Cir. 1993). Disclosures of private action will not suffice; rather, the WPA requires disclosure of "improper governmental practices." See id.
Smith's disclosure-her e-mail to Secretary of Housing and Urban Development Henry Cisneros-alleged only private misbehavior. She claimed that "the Crypt Gang" and "the Mob" were harassing and threatening both her and her family, including when she was at work. This disclosure, however, does not assert any misconduct by the government. Indeed, in the same message Smith acknowledged that the Los Angeles Inspector General was "working closely with the Justice department on drug prevention and the elimination of illegal drug activity" and merely asked Secretary Cisneros if it was "possible for your office to lend more assistance." The board was correct in finding that Smith's disclosure failed to satisfy the requirements of section 2302(b)(8).