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Crews v. Department of the Army

United States Court of Appeals for the Federal Circuit


October 8, 1999

RANDOLPH CREWS, PETITIONER,
v.
DEPARTMENT OF THE ARMY, RESPONDENT.

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.

Before MICHEL, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit Judge.

DECISION

Randolph Crews appeals from a decision of the Merit Systems Protection Board ("Board" or "MSPB"), dismissing his appeal for lack of jurisdiction. Because Mr. Crews has not demonstrated that the Board erred in dismissing his appeal, we affirm.

BACKGROUND

Mr. Crews was a GS-4 Voucher Examiner with the Travel division of the Army's 266th Theater Finance Command in Germany when he was terminated during his probationary period, effective March 10, 1995, for excessive absenteeism, failure to follow proper leave request procedures, and absence without leave. On February 20, 1995, after being notified that he was to be terminated, Mr. Crews sent a letter to the Inspector General ("IG") in which he stated that he was not being paid according to his prior federal service in time and grade while another employee who had a "free ride at a GS-11 status" had "moved on to a GS-12 position with renewal travel agreement benefit."

In a letter dated April 1998, Mr. Crews sought corrective action from the United States Office of Special Counsel ("OSC") alleging his dismissal was in reprisal to whistleblowing activities. In the letter, Mr. Crews alleged that his supervisors "have engaged in a prohibited personnel practice to committ [sic] fraud against the government." Mr. Crews further alleged that creating a job for another employee was a "gross mismanagement of funds" and provided a travel voucher as evidence that the other employee was "enriching himself at the government's expense." The OSC did not take corrective action and closed its files on April 27, 1998. Mr. Crews appealed to the MSPB.

On May 29, 1998, the MSPB issued an order to show cause notifying Mr. Crews that he must file evidence and argument to establish that his appeal was within the Board's jurisdiction. The Board specifically informed Mr. Crews that he must show that he engaged in whistleblower activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8) of the Whistleblower Protection Act, i.e., he disclosed information that he reasonably believed evidenced a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. In response, Mr. Crews stated that the "giving unauthorized preferential treatment" to another employee is proof that the provisions of section 2302(b)(8) have been met.

The Board dismissed Mr. Crews' appeal for lack of jurisdiction reasoning that Mr. Crews failed to make allegations which, if proven, would establish that he made disclosures protected under the Whistleblower Protection Act.

Mr. Crews petitioned the full MSPB for review of the Board's initial decision. The MSPB denied the petition reasoning that it did not meet the criteria for review set forth at 5 C.F.R. § 1201.115. This appeal follows.

DISCUSSION

The Board's jurisdiction is not plenary, but is limited to those areas specifically granted by some law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994). In order for the Board to have jurisdiction of an Individual Right of Action appeal from an agency action terminating an appointment under the Whistleblower Protection Act, one of the things that a petitioner must show, by a preponderance of the evidence, is that he engaged in whistleblower activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8), i.e., he disclosed information that he reasonably believed evidenced a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. See Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).

Mr. Crews asserts that the unauthorized preferential treatment of the other employee constituted a gross waste of funds and a gross mismanagement. However, Mr. Crews has failed to allege how this action represented a gross waste of funds, a gross mismanagement, or was otherwise improper. Mr. Crews has provided no evidence that the position created was unnecessary to the proper functioning of the agency, that supervisors were allowing the other employee to neglect his duties, or any other evidence of wrong doing. Mr. Crews' allegations, without further information, do not reflect matters that a reasonable person would believe show a gross mismanagement, a gross waste of funds, or any of the other situations specified in section 2302(b)(8). See Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 526-27 (Fed. Cir. 1992) (holding that petitioner failed to allege facts which a reasonable person could conclude constituted gross mismanagement or a gross waste of funds).

Similarly, Mr. Crews fails to explain how the travel voucher was evidence of a gross waste of funds. The legislative history of the initial whistleblower provisions, originally passed as part of the Civil Service Reform Act ("CSRA"), Pub. L. No. 95-454 (Oct. 13, 1978), now codified in various portions of title 5 of the United States Code, indicates that the Act was not intended to apply to disclosure of trivial or de minimis matters. See S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2730 (indicating that the Act is needed as a means to protect the "pentagon employee who discloses billions of dollars in cost overruns, the GSA employee who discloses widespread fraud, and the nuclear engineer who questions the safety of certain nuclear plants"). Congress further showed its intent that the term "gross waste of funds" is to reflect more than just debatable expenditure when it passed the Whistleblower Protection Act of 1989, changing the reference from "mismanagement" in the CSRA to "gross mismanagement". The legislative history explains that the amendment:

change[s] the definition of protected disclosures from "mismanagement" to "gross mismanagement". While the Committee is concerned about improving the protection of whistleblowers, it is also concerned about the exhaustive administrative and judicial remedies . . . that could be used by employees who have made disclosures of trivial matters. CSRA specifically established a de minimis standard for disclosures affecting the waste of funds by defining such disclosures as protected only if they involved "a gross waste of funds." [By amending the CSRA], the Committee establishes a similar de minimis standard for disclosures of mismanagement by protecting them only if they involve "gross mismanagement." S. Rep. No. 413, 100th Cong. 2d Sess. 13, 26, 34.

Without providing evidence that the monies expended by the travel voucher were a gross waste of funds and not just a de minimis expenditure, Mr. Crews has failed to demonstrate that he made protected disclosures necessary to establish the Board's jurisdiction.

Thus, we hold that the Board correctly ruled that Mr. Crews' complaint to the Board did not allege "whistleblowing" as the Whistleblower Protection Act defines that term and affirm the Board's dismissal for lack of jurisdiction.

19991008

© 1999 VersusLaw Inc.



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