May 18, 2016

In the Matter of a Whistleblower Appeal

DIANA MALLARD v. UNITED STATES POSTAL SERVICE

P.S. Docket No. WB 15-280

APPEARANCE FOR COMPLAINANT:
Danielle Campbell, Esq.
The Law Office of Guy D. Loranger

APPEARANCE FOR RESPONDENT:
Anthony Rice, Esq.
Northeast Area Law Office

DECISION ON MOTION TO DISMISS 

Respondent United States Postal Service moves to dismiss Complainant Diana Mallard’s Complaint.  The Complaint seeks review of the September 8, 2015 decision by the United States Postal Service Office of Inspector General (OIG) under Section 666.3 of the Employee and Labor Relations Manual (ELM), which found that a protected disclosure did not occur that would give rise to an investigation by the OIG under applicable Postal Service Whistleblower Protection regulations.  Appeal Record and Respondent’s Motion to Dismiss, Tab 10; see also ELM §§ 666.18, 666.37. 

The Postal Service argues that applicable Whistleblower Protection regulations do not provide for an appeal of the OIG decision to an administrative law judge under these circumstances.  Complainant argues that review is available under the federal Whistleblower Protection Act (WPA), 5 U.S.C. §§ 2301-2306 and/or the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559.  

PROCEDURAL BACKGROUND 

On September 12, 2013, Complainant initiated an informal Equal Employment Opportunity (EEO) process in connection with her allegation of sex discrimination.  Appeal Record and Respondent’s Motion to Dismiss, Tab 1.

On December 21, 2013, Complainant filed a formal EEO complaint with the Postal Service alleging retaliation for prior protected activity in connection with the same general subject matter as her informal EEO complaint (Case No. 48-040-0048-13).  Appeal Record and Respondent’s Motion to Dismiss, Tab 2.

On June 9, 2014, Respondent issued a Final Agency Decision dismissing the Complainant's formal EEO complaint.  Appeal Record and Respondent’s Motion to Dismiss, Tab 3.

On August 29, 2014, Complainant filed a civil action in the United States District Court, District of Maine, asserting claims under the federal Whistleblower Protection Act, the Maine Whistleblower Protection Act, and the federal False Claims Act, alleging retaliation by Respondent.  Appeal Record and Respondent’s Motion to Dismiss, Tab 4.

On May 5, 2015, the District Court issued an Order dismissing the Complaint in its entirety.  Appeal Record and Respondent’s Motion to Dismiss, Tab 8.

On June 26, 2015, following dismissal of her District Court complaint, Complainant filed a complaint with the OIG alleging that management officials in the Unity, ME Post Office retaliated against her.  Appeal Record and Respondent’s Motion to Dismiss, Tab 9.

On September 8, 2015, the OIG Area Special Agent in Charge informed Complainant that the OIG’s investigation into her claim was complete and that her allegation “does not meet the criteria necessary for us to proceed with a whistleblower reprisal investigation because a protected disclosure was not made.”  The OIG also informed Complainant that it would not be taking any further action concerning her reprisal allegation.  Appeal Record and Respondent’s Motion to Dismiss, Tab 10.

On October 9, 2015, Complainant’s attorney filed with the Judicial Officer of the United States Postal Service an “Appeal of Inspector General’s Decision.” 

On October 30, 2015, Respondent filed a pleading entitled Appeal Record and Respondent’s Motion to Dismiss.

On November 17, 2015, after receipt of additional pleadings addressing the motion, oral argument on Respondent’s Motion to Dismiss was held.  The parties submitted additional briefs following oral argument.

DISCUSSION 

Complainant seeks review of the OIG decision not to pursue her allegations of retaliation under section 666.3 of the ELM, based upon the OIG’s determination that no protected disclosure occurred.  The Postal Service seeks dismissal of the Complaint on the grounds that I lack jurisdiction to hear such an appeal.  For reasons discussed herein, I find that I do not have jurisdiction to hear this appeal.

I.              Postal Service Whistleblower Protection Regulations

The Postal Service adopted regulations governing certain prohibited personnel practices involving whistleblower activity.  Section 666.18 of the ELM provides:

• No one may take or fail to take a personnel action, or threaten to do so, with respect to any employee or applicant for employment because the employee or applicant discloses information that he or she believes evidences:
  a.          A violation of any law, rule, or regulation, or
  b.          A gross waste of funds, gross mismanagement, an abuse of authority, or a substantial and specific danger to public health or safety. Disclosure of information that is specifically prohibited by law does not carry the protection described above. However, no disclosure under a. and b. above is prohibited by law if made to the Inspector General of the Postal Service. There can be no reprisal for disclosures to the Inspector General unless the complaint was made or the information disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.

Pursuant to these regulations, the Postal Service adopted procedures to govern the investigation and prosecution of allegations that meet the requirements of ELM section 666.18. 

Under section 666.32, the regulations contemplate an initial review of the allegations by the OIG.

• Upon receipt of the allegations, the Office of Inspector General will conduct a preliminary review of the allegations. If the Office of Inspector General determines that the allegations warrant further review, a questionnaire may be sent to the complainant that must be completed and returned to the Office of Inspector General within 30 calendar days. The Office of Inspector General will review the completed questionnaire to determine whether it will investigate the allegations or decline further action.
  If the Office of Inspector General declines to review allegations or terminates an investigation, it shall prepare and transmit to the complainant a written statement notifying the complainant of:
  a.          Its decision not to review allegations or to terminate an investigation; and,
  b.          The reasons for declining to review allegations or for terminating an investigation.

If the OIG finds that reasonable grounds exist that the personnel action was taken in violation of the regulations, the Vice President, Labor Relations (VP-LR) must decide whether to stay the personnel action.  ELM § 666.343.  If the VP-LR declines to issue a stay within three days, the OIG may request that a Postal Service administrative law judge issue a stay.  ELM § 666.344.  After receipt of the OIG report, the Postal Service must issue a decision on the allegations.  ELM § 666.36.  If the Postal Service declines to take corrective action, or the OIG determines that the action of the Postal Service is not corrective, the Complainant may then file an appeal with the Office of Administrative Law Judges for further review and decision.  ELM § 666.37. 

Aside from the provisions of the regulations that pertain to a stay of the personnel action, the Office of Administrative Law Judges does not become involved in these matters until the VP-LR either fails to act, or the OIG determines that the action taken by the VP-LR is not sufficient to correct the problem.  The parties agree that neither situation exists under the present appeal.  Rather, Complainant seeks review of the OIG decision issued under ELM section 666.32 that Complainant’s allegations do “not meet the criteria necessary . . .  to proceed with a whistleblower reprisal investigation[.]”  There exists no express provision in existing regulations for this type of review.  Unlike the federal Whistleblower Protection Act, Postal Service regulations do not provide for a private right of action when the OIG finds no violation of ELM section 666.18.  Compare, 5 U.S.C. § 1221(a)(providing for a individual right of action for federal employee whistleblowers after similar finding by Office of Special Counsel), and ELM § 666.3.

II.            Application of Federal Whistleblower Protection Act to the United States Postal Service

The federal WPA provides that an employee is entitled to a private right of action if the Office of Special Counsel (OSC) declines to investigate an allegation of retaliation made by a federal employee that falls within the provisions of the Act.  See 5 U.S.C. § 1221(a).¹  This private right of action protects federal employees by providing an additional layer of review if OSC improperly declines to prosecute whistleblower cases.  Complainant argues that this private right of action extends similar protections to Postal Service personnel.  The Postal Service argues that the federal WPA is not applicable to the Postal Service.  It maintains that the limited protections contemplated by the ELM are Postal Service employees’ sole and exclusive rights pertaining to whistleblower activities.

In its decision pertaining to Complainant, the District Court addressed the application of the federal WPA to the Postal Service. 

• Under § 2302(b)(8)(A) of the WPA, it is a ‘prohibited personnel practice’ for ‘[a]ny employee who has the authority to take, direct others to take, recommend, or approve any personnel action’ to
  
  • take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee ... because of any disclosure of information by an employee ... which the employee ... reasonably believes evidences (i) any violation of any 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 or safety....
• 5 U.S.C. § 2302(b)(8)(A)(i)-(ii). A ‘personnel action’ may be considered a ‘prohibited personnel practice’ only if it occurs within an ‘agency’ as defined in the statute. See 5 U.S.C. § 2302(a)(2)(A). Therefore, for Ms. Mallard's claim to fall within the scope of § 2302, the Postal Service must be deemed either an agency or a government corporation, and she must be deemed an employee for the purposes of that section.
  An ‘agency’ is defined as ‘an Executive Agency and the Government Publishing Office’, with a few exceptions that do not apply here. See 5 U.S.C. § 2302(a)(2)(C). Title 5 defines an ‘Executive Agency’ as including ‘an Executive department, a Government Corporation, and an independent establishment.’ 5 U.S.C. § 105. Section 101 lists fifteen executive departments; the Postal Service is not among them. See 5 U.S.C. § 101. Next, an ‘independent establishment’ means ‘an establishment in the executive branch (other than the United States Postal Service or the Postal Regulatory Commission)....’ 5 U.S.C. § 104. Finally, a ‘Government Corporation’ is defined as ‘a mixed ownership Government corporation and a wholly owned Government corporation’; the statute lists a number of entities and does not include the Postal Service. See 31 U.S.C. § 9101. Because the Postal Service is excluded from the definitions of an ‘Executive department’, a ‘Government Corporation’, and an ‘independent establishment’ under Title 5, the Court concludes that the Postal Service is not within the definition of ‘agency’ for the purposes of the WPA.

Mallard v. Brennan, 2015 WL 2092545 at *7-8 (D. Me. 2015)(footnote call numbers omitted).

I see no basis to disagree with the District Court’s analysis.  Accordingly, I conclude that the federal WPA does not apply to the Postal Service.  See 5 U.S.C. § 2105(e); see also Booker v. Merit Systems Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992), cert denied, 510 U.S. 862 (1993).  As the WPA does not apply to the Postal Service, the individual right of action contemplated by section 1221 is likewise inapplicable. 

Complainant further argues that adoption of the NO FEAR Act by Congress made the WPA applicable to the Postal Service notwithstanding the foregoing.  Once again, the District Court addressed this specific argument in its 2015 decision.

• The NO FEAR Act, which went into effect in 2003, includes provisions requiring federal agencies to provide additional reimbursement for discrimination cases, to notify and train employees about their rights, and to report on employee complaints against the agency. Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 §§ 201–302, Pub.L. No. 107–174, 116 Stat. 566, 566 (2002). Ms. Mallard cites no caselaw supporting her argument that the NO FEAR Act expands the coverage of the WPA [to the Postal Service], likely because there is none. The cases the Court has found uniformly conclude that the NO FEAR Act does not create any private cause of action or substantive rights. The Court concludes that the NO FEAR Act does not expand the coverage of the WPA to include the Postal Service. Even if the Postal Service encouraged employees to pursue whistleblowing activities under the WPA, which it did not, such encouragement may not supersede clear congressional intent to exclude the Postal Service from claims under the WPA.

Mallard, 2015 WL 2092545 at *9 (D. Me. 2015)(footnote call number omitted).  I find the District Court’s reasoned opinion regarding this matter persuasive.

The NO FEAR Act is primarily a notification, training, and reporting statute that seeks to hold federal government agencies financially liable for any monetary penalties associated with successful discrimination or whistleblower protection actions.  I agree that inclusion of the Postal Service in the terms of the NO FEAR Act, while maintaining the Postal Service’s exclusion from the WPA, certainly raises questions regarding congressional intent.  However, principles of statutory construction disfavor amendments of prior statutes by implication.  See, e.g., Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 664, n.8 (2007)(“we have repeatedly recognized that implied amendments are no more favored than implied repeals”); United States v. Welden, 377 U.S. 95, 102, n.12 (1964) (“Amendments by implication . . . are not favored”); United States Ass’n of Reptile Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 155 (D.D.C. 2015)(amendments by implication are disfavored).

If Congress intended to extend the requirements of the WPA to the Postal Service, it is unlikely to have done so simply by including the Postal Service in the provisions of the NO FEAR Act.  Rather, the adoption of the NO FEAR Act was an opportunity for Congress to extend expressly the protections of the WPA to Postal Service employees.  It did not do so.  Therefore, I find that the passage of the NO FEAR Act does not constitute an implied amendment of the WPA to include the Postal Service.   Accordingly, the individual right of action under 5 U.S.C. § 1221 is not available to Postal Service employees.²

III.           Administrative Procedure Act Application to Review of OIG Whistleblower Allegations

Complainant asks that I extend my statutory jurisdiction under the APA to include sua sponte review of OIG decisions under the Whistleblower Protection regulations.  I decline to do so.  Under the APA, an administrative law judge appointed under the provisions of 5 U.S.C. § 3105 may exercise such adjudicatory powers as are delegated by statute to the agency.  The adjudicatory powers contemplate that a statute provide for review “on the record” in accordance with 5 U.S.C. § 504 for an administrative law judge to review a particular agency action.  I am unaware of any precedent, nor has Complainant presented any case law, to support the notion that general adjudicatory powers of an administrative law judge under the APA permit review of agency action on the judge’s own motion.   

Further, my jurisdiction under Postal Service Whistleblower Protection provisions is regulatory, not statutory.  As the federal WPA does not apply to the Postal Service, and as the NO FEAR Act does not provide any individual cause of action for Postal Service employees, my jurisdiction in such matters is limited to whatever powers are specifically addressed within Postal Service regulations.  Current Postal Service regulations do not contemplate the type of judicial review of OIG decisions sought by this Complainant.  

ORDER

Respondent’s Motion to Dismiss is GRANTED.
The Appeal is DISMISSED.

James G. Gilbert
Chief Administrative Law Judge

¹ “[MSPB] has jurisdiction over an IRA [individual right of action] appeal if the appellant has exhausted his administrative remedies before the OSC and makes ‘non-frivolous allegations’ that (1) he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).” Yunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

² Even if the WPA were applicable to the Postal Service, it is unclear whether the individual right of action contemplated by the WPA would include appeal to the Office of Administrative Law Judges.  See 5 U.S.C. § 1221.  Nevertheless, the Postal Service may wish to review this provision of the WPA with regard to a final decision by the OIG and consider whether an appeal similar to the provisions of section 1221 would be beneficial for Postal Service employees.  A review by the Office of Administrative Law Judges on a denial by the OIG to investigate whistleblower actions would bring Postal Service Whistleblower Protection regulations closer in line with the existing provisions of the federal WPA.  Given the important public policy purposes behind the WPA - policy considerations no doubt equally important to the Postal Service and its customers - such a review might prove to be a logical and beneficial extension of existing regulations.