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Lachance v. White

May 14, 1999

JANICE R. LACHANCE, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, PETITIONER,
v.
JOHN E. WHITE, RESPONDENT, AND MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.



Before Mayer, Chief Judge, Newman, and Lourie, Circuit Judges.

The opinion of the court was delivered by: Mayer, Chief Judge.

Appealed from: Merit Systems Protection Board

The Director of the Office of Personnel Management ("OPM") seeks review of the final order of the Merit Systems Protection Board, White v. Department of the Air Force, 78 M.S.P.R. 38 (1998), which found that Air Force employee John E. White made disclosures protected by the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (1994) ("WPA"). Because the board failed to properly evaluate whether White had a reasonable belief that his disclosures evidenced gross mismanagement by the Air Force, we reverse and remand.

Background

White was a GM-13 Supervisory Education Services Specialist at Nellis Air Force Base, Nevada. His duties included working with colleges and universities that provide on-base educational services. In 1992, the Air Force implemented the Bright Flag Quality Education System ("QES"), which mandated quality standards for schools contracting with Air Force bases for educational services. The Air Force required all bases to incorporate the QES standards in the memoranda of understanding that they sign with the schools.

On May 4, 1992, the Air Force held a meeting attended by representatives of the schools and the Tactical Air Command. During the meeting, White criticized the manner in which the Air Force implemented the QES, particularly the lack of notice and input from the schools. He also criticized some of the standards required by the QES, claiming that they were too burdensome and would seriously reduce the education opportunities available on-base. White repeated these concerns in private meetings with Air Force officials.

On June 1, 1992, White was detailed for 120 days to a GS-12 Administrative Officer position without a reduction in pay because his supervisor purportedly lost confidence in his ability to support the QES. White then filed a complaint with the Office of Special Counsel ("Special Counsel"), claiming that the detail was in violation of the WPA. On July 23, 1992, the Special Counsel informed White of his right to pursue his claim before the Merit Systems Protection Board, which he did.

In an October 26, 1992 initial decision, an administrative Judge found that White's disclosures were not protected by the WPA. The board reversed this decision, however, holding that White had disclosed information that he reasonably believed evidenced gross mismanagement. See White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994). On remand, the administrative Judge found that the Air Force had violated the WPA, canceled White's detail, and ordered that he be returned to his prior status. The Air Force appealed and OPM sought to intervene on its behalf. Finding that it did not attempt to intervene as early as practicable, the board held that OPM did not satisfy the requirements for intervention under 5 U.S.C. § 7701(d)(1) (1994). See White v. Department of the Air Force, 71 M.S.P.R. 607, 616-17 (1996). The board also affirmed the initial finding of a WPA violation. See id. at 615- 16.

OPM filed for review in this court, asserting that the board erred in rejecting its attempt to intervene. However, the board subsequently requested a remand of the petition, admitting that the intervention was timely and expressing its willingness to address OPM's substantive arguments. On remand, the board affirmed its Conclusion that White's disclosures were protected by the WPA. See White, 78 M.S.P.R. at 43. OPM petitioned this court for review of the board's decision, which we granted. See Lachance v. White, 155 F.3d 569 (Fed. Cir. 1998) (Table). Discussion

We 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." 5 U.S.C. § 7703(c) (1994). "Interpretation of a statute is a question of law that we review de novo." Frederick v. Department of Justice, 73 F.3d 349, 351-52 (Fed. Cir. 1996).

The board found that the Air Force violated section 2302(b) of the WPA, which provides in part that:

"(b) Any employee who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . .

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee . . . because of-

(A) any disclosure of information by an employee . . . which the employee . . . reasonably ...


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