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Moss v. Department of Air Force

U.S. Court of Appeals, Federal Circuit


February 10, 1999

MORRIS W. MOSS, JR., PETITIONER,
v.
DEPARTMENT OF THE AIR FORCE, RESPONDENT.

Before Newman, Michel and Clevenger, Circuit Judges.

The opinion of the court was delivered by: Per Curiam

Mr. Morris Moss petitions for review of the Administrative Judge's ("AJ's") initial decision of September 23, 1997, rendered final by the Merit Systems Protection Board ("Board") decision declining review on August 17, 1998, in Moss v. Department of the Air Force, Docket No. CH- 1221-97-0313-B-1. The AJ's September 23, 1997 decision denied Moss's request for corrective action based on his allegations that he made a disclosure protected by the Whistleblower Protection Act ("WPA") of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of 5 U.S.C.) and was the victim of retaliation. Because we hold his letter to management does not qualify as a protected disclosure, we affirm.

I.

Mr. Moss was employed by the Air Force as chief of the travel follow-up unit in the financial services branch at Wright-Patterson Air Force Base in Ohio. On January 24, 1996 he sent a letter to the deputy comptroller of the Air Force protesting an action taken the day before by his supervisor, Gerald Moore, involving one of Mr. Moss's subordinates, Debra Cook. In this letter Mr. Moss alleged that Mr. Moore had unduly pressured Ms. Cook in a lengthy private interview to supply certain information. The information sought apparently concerned Mr. Moore's suspicions that Mr. Moss improperly favored Ms. Cook to the detriment of other employees. In the interview, however, Ms. Cook apparently denied that she was the beneficiary of any such favoritism or that Mr. Moss had failed in any way to perform his job. Neither Ms. Cook nor Mr. Moss was subsequently disciplined, but the supervisor was apparently the subject of an investigation concerning the incident.

Mr. Moss claims that his letter of January 24, 1996 is a protected disclosure under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (1994). He further alleges that as a result of this letter he was adversely affected at work. The only evidence proffered by Mr. Moss of such adverse effect is that in July of 1996 he received a regular performance appraisal in which he was rated five points lower than he believes justified. Mr. Moss alleges, but provides no evidence of, a second act of retaliation against him by his supervisor involving a suggestion by Mr. Moore that Mr. Moss refrain from filing a written complaint about a subordinate employee.

II.

The whistleblower statute protects an employee from adverse job consequences if the employee establishes that he had a reasonable belief that he disclosed a violation of any law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety. See 5 U.S.C. § 2302(b)(8)(B). The AJ considered Mr. Moss's allegations and found that his January 24, 1996 letter did not identify an abuse of power by Mr. Moore, or a specific violation of law which his supervisor had committed. See Moss, slip op. at 6-8. Furthermore, the AJ found that Mr. Moss failed to establish that he had a reasonable belief that Mr. Moore had abused his power in any way or violated any law. See id. Finally the AJ found no persuasive evidence that Mr. Moore's actions resulted in any adverse job consequences either for Ms. Cook or Mr. Moss. See id. at 9. The only incident alleged here was an interview by Mr. Moss's superior of an employee under Mr. Moss's direct supervision, from which Mr. Moss was absent. This cannot be colored in any way as illegal, ultra vires, against regulations, or otherwise an abuse of power.

This court must affirm the Board's decision unless 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. See 5 U.S.C. § 7703(c); Cheeseman v. OPM, 791 F.2d 138, 140 (Fed. Cir. 1986). In addition, interpretation of a statute is a question of law that we review de novo. King v. Briggs, 83 F. 3d 1384, 1387 (Fed. Cir. 1996). We uphold the AJ's finding as supported by substantial evidence and agree with the AJ's Conclusion that Mr. Moss's letter of January 24, 1996 did not constitute a protected disclosure. In any event we hold that the AJ's finding that retaliation was not established was supported by substantial evidence. For all these reasons, the AJ's decision must be and is affirmed.

19990210


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