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Herman v. Department of Justice

October 25, 1999

RICHARD D. HERMAN, PETITIONER,
V.
DEPARTMENT OF JUSTICE, RESPONDENT.



Before Michel, Schall, Circuit Judges, and Smith, Senior Circuit Judge, Michel, Circuit Judge.

Appealed from: Merit Systems Protection Board

The Petitioner, Dr. Richard Herman, filed an Individual Right of Action ("IRA") appeal to the Merit Systems Protection Board ("Board" or "MSPB"), alleging that he was reassigned in retaliation for whistleblowing activities. See MSPB Docket No. AT-1221-98-329-W-1. On the government's motion, the Board dismissed the appeal for lack of jurisdiction, ruling that none of the disclosures upon which Dr. Herman based his complaint was a protected disclosure under the Whistleblower Protection Act ("WPA"). See 5 U.S.C. § 2302(b)(8)(A) (1994) (protecting an employee from adverse personnel actions taken in retaliation for disclosing information that the employee reasonably believes evidences "a violation of 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 and safety"). Because both the specific language in the Act and our case law interpreting the Act support the Board's Conclusion, we affirm.

BACKGROUND

In September 1997, Dr. Herman was laterally reassigned from the position of Chief Clinical Psychologist, GM-13, at the Federal Prison Camp, Eglin Air Force Base, Florida, to that of Staff Clinical Psychologist, GM-13, at the Federal Correctional Complex, Coleman, Florida. Dr. Herman filed a complaint about his reassignment with the United States Office of Special Counsel ("OSC"). The OSC terminated its investigation without taking corrective action. Dr. Herman timely appealed to the MSPB.

Before the MSPB, Dr. Herman alleged that his reassignment to a new facility was a "prohibited personnel action" which was taken in retaliation for two separate whistleblowing disclosures. Dr. Herman contended that the first disclosure was a memorandum given in July 1997 to the associate warden at the prison camp urging the warden to either formalize an agreement with the Base hospital for use of its facilities in the event there is a suicidal inmate or create a suicide watch room at the prison camp. Before the Board, Dr. Herman asserted that the memorandum indicated that failure to have a formal written agreement with the hospital, or have a suicide watch room at the camp itself, potentially posed a substantial and specific danger to the public health and safety within the meaning of the WPA and violated the U.S. Department of Justice/Federal Bureau of Prisons Suicide Prevention Program ("SPP") Directive P.S. 5324.03.

Dr. Herman contended that the second disclosure was a statement he made in June 1997, by telephone to the national Employee Assistance Program ("EAP") Coordinator in Washington, DC, and in writing to the associate warden that EAP Directives requiring confidentiality of counseling information may have been violated when his department's telephone log was copied during an investigation of his conduct by prison officials. The EAP provision, Directive P.S. 3792, states that the "confidential nature of EAP counseling information of all employees referred for assistance shall be preserved with the same enhanced level of confidentiality as counseling records of employees with alcohol and drug abuse problems." (emphasis added). Dr. Herman contended that the copying of the telephone log during an investigation of Dr. Herman's alleged unauthorized use of the telephone could have been a violation of Directive P.S. 3792 and of other federal laws and regulations.

The Administrative Judge ("AJ") conducted a pre-hearing conference in which she questioned whether the disclosures qualified as protected disclosures under the WPA and ordered Dr. Herman to submit evidence and argument that his disclosures met any of the criteria set forth in 5 U.S.C. § 2302(b)(8). Following receipt of the parties' written responses, the AJ concluded that Dr. Herman did not establish that a reasonable person in Dr. Herman's position would believe that the disclosures were protected disclosures under the WPA and dismissed Dr. Herman's IRA appeal without an evidentiary hearing for lack of jurisdiction.

Dr. Herman 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 (1999). The initial decision thus became the final decision of the Board.

On timely appeal to this court, Dr. Herman contends that the Board reversibly erred, first, in finding that a reasonable person in his position would not believe that Dr. Herman's memorandum concerning the suicide watch room disclosed a substantial and specific danger to public health or safety or disclosed a violation of the SPP Directive, and second, in finding that a reasonable person would not believe that Dr. Herman's disclosure concerning the photocopying of the telephone log constituted a disclosure of a violation of the EAP Directive.

We have jurisdiction under 28 U.S.C. § 1295(a)(9) (1994).

DISCUSSION

The Board's jurisdiction is not plenary, but is limited to adverse personnel actions expressly made appealable to it by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994); Middleton v. Department of Defense, __ F.3d__, 1999 WL 600391, at *3 (Fed. Cir. 1999). The burden of showing jurisdiction is on the petitioner. See 5 C.F.R. § 1201.56(a)(2)(i) (1999). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law, which we review de novo. See Middleton, __ F.3d at __, 1999 WL 600391, at *3.

In order for the Board to have jurisdiction over an IRA appeal under the WPA, 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 the WPA, i.e., he disclosed information that he reasonably believed evidenced "a violation of law, rule, or regulation," 5 U.S.C. ยง 2302(b)(8)(A)(i), or "gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public ...


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