Daniels v. MSPB, No. 13-73913 (9th Cir. 2016)
Annotate this CasePetitioner, an employee of the SSA, seeks review of a Board order dismissing his individual right of action (IRA) appeal for lack of jurisdiction. The court concluded that the Board did not err in dismissing petitioner's IRA appeal because petitioner has not made a non-frivolous allegation under the Whistleblower Protection Act (WPA), 5 U.S.C. 2302(b)(8)(A). Petitioner was employed by the SSA as a Hearing Office Director. Faced with disciplinary proceedings, petitioner filed an IRA with the Board, alleging that he engaged in protected whistleblowing activity under the WPA for which he could not be disciplined. The court concluded that the standard for determining whether a petitioner has made a non-frivolous disclosure is analogous to the standard for reviewing a motion to dismiss. In this case, disclosures 1–2 are not protected disclosures, because an agency ruling or adjudication, even if erroneous, is not a violation of the law or gross mismanagement under the WPA; disclosures 3–5 are not protected disclosures, because communications concerning policy decisions are explicitly excluded from protection under the WPA; and there is no evidence that the SSA took any personnel action against petitioner as a result of disclosures 3–5. Accordingly, the court denied the petition for review.
Court Description: Whistleblower Protection Act. The panel denied a petition for review of a decision of the Merit Systems Protection Board (“MSPB”) dismissing a federal employee’s individual right of action appeal for lack of jurisdiction because the employee did not make a non- frivolous allegation under the Whistleblower Protection Act (“WPA”). Under the WPA, a federal employer is prohibited from taking personnel action against an employee who has disclosed information that evidences a violation of law, or gross mismanagement, gross waste of funds, abuse of authority, or substantial danger to public health or safety. An aggrieved employee, such as petitioner, may file with the MSPB an individual right of action that includes “non- frivolous allegations.” Petitioner was employed by the Social Security Administration, and he was suspended for fourteen days by an administrative law judge based on three charges. He filed an individual right of action with the MSPB, arguing that he made five disclosures that were protected whistleblowing activity under the WPA. The panel held that the standard for determining whether a petitioner has made a non-frivolous disclosure is analogous to the standard for reviewing a motion to dismiss. DANIELS V. MSPB 3 The panel held that petitioner did not allege a non- frivolous protected disclosure under the WPA. Specifically, the panel held that Disclosures #1-2 were not protected disclosures because an agency ruling or adjudication, even if erroneous, was not a violation of the law or gross mismanagement under the WPA. The panel further held that Disclosures #3-5 were not protected disclosures because communications concerning policy decisions were explicitly excluded from protection under the WPA. The panel also held that there was no evidence that the federal agency took any personnel action against petitioner as a result of Disclosures #3-5.
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