Mestan v. International Boundary

95 F. App'x 1012
CourtCourt of Appeals for the Federal Circuit
DecidedApril 12, 2004
DocketNo. 04-3095
StatusPublished
Cited by1 cases

This text of 95 F. App'x 1012 (Mestan v. International Boundary) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mestan v. International Boundary, 95 F. App'x 1012 (Fed. Cir. 2004).

Opinion

DECISION

PER CURIAM.

Richard Mestan appeals from a decision of the Merit Systems Protection Board, Docket No. DA-1221-02-0420-W-1, dismissing his individual-right-of-action (“IRA”) appeal for lack of jurisdiction. We affirm.

BACKGROUND

From 1996 through 2000, Mr. Mestan served two consecutive two-year term appointments as an environmental engineer with the International Boundary and Water Commission, United States and Mexico (“the agency”). Mr. Mestan began his service at the agency’s Ambos Nogales Wastewater Facility in Arizona. During his time in Arizona, Mr. Mestan brought several concerns to the attention of his supervisor, Carlos Pena. According to Mr. Mestan’s argument to the Board, those concerns included:

The [agency] was wasting far too much electrical energy. It did not need (or still need) to operate all of the aerators full throttle, 24 hours a day. As the agencies [sic] only PhD environmental engineer specializing in wastewater, I informed the management that a proper balance between mixing and aeration was the main thing needed. This could be achieved with simple modifications to the existing complete-mix lagoon aerators.
The [agency’s] treatment efficiency was (and is) significantly compromised by the practice listed above. As a result, the plant has been in violation of state and federal regulations for discharge of a point source flow to a waterway.... The added threat of ammonia to human health and/or the environment has been blown out of proportion. Toxicity testing has never clearly demonstrated that expensive measures to remove almost all the ammonia in the wastewater are necessary. ...

Mr. Mestan alleges that in order to keep his position he was required in 2000 to move to Calexico, California, to support the Mexicali wastewater project. Because the cost of living and taxes were much higher in California, Mr. Mestan argues, he effectively took a pay cut when he moved. Mr. Mestan also alleges that his working conditions were much worse in California.

In California, the agency gave Mr. Mes-tan the use of a government vehicle for work-related purposes. The agency subsequently suspended Mr. Mestan for 14 days for what Mr. Mestan characterized as a false charge of improperly using the vehicle for other than official purposes. [1014]*1014After Mr. Mestan’s second term with the agency expired, his appointment was not renewed or made permanent.

Mr. Mestan filed a complaint with the Office of Special Counsel (“OSC”) alleging, inter alia, that he was suspended and that his term appointment was not extended because he was a whistleblower. Mr. Mes-tan referred to the concerns he voiced to Mr. Pena as the acts of whistleblowing for which the agency had allegedly retaliated against him. After an investigation, the OSC closed its inquiry on Mr. Mestan’s complaint on the ground that his disclosures to Mr. Pena regarding recommendations for correcting treatment inefficiencies were not disclosures protected by the Whistleblower Protection Act (‘WPA”), 5 U.S.C. § 2302(b)(8). The OSC concluded that because Mr. Mestan did not establish that his disclosures were protected, the WPA did not give him a basis for challenging the agency’s failure to extend his term appointment. Regarding his disclosure that the project he was working on would require operating and maintenance costs grossly out of proportion to the population the project was designed to serve, the OSC ruled that the disclosure might be protected, but that Mr. Mestan had failed to establish a connection between that disclosure and the personnel actions to which he objected.

Mr. Mestan then filed an IRA appeal with the Merit Systems Protection Board. The administrative judge who was assigned to the case ruled that the disclosures on which Mr. Mestan relied were not protected disclosures and that the Board therefore did not have jurisdiction to hear the appeal. In particular, the administrative judge concluded that the disclosures at issue “were all made to his immediate supervisor, Mr. Carlos Pena, in connection with his duties and constituted arguments regarding the efficiency, performance, and legal sufficiency of the very project he was coordinating. In other words, they constituted the very type of arguments and recommendations that the appellant was expected to make through normal channels.” Mr. Mestan filed a petition for review by the full Board, which denied the petition. As a result, the initial decision of the administrative judge became the final decision of the Board. Mr. Mestan then sought review by this court.

DISCUSSION

The Board has jurisdiction over an IRA 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). The agency does not dispute that Mr. Mestan exhausted his administrative remedies before the OSC and that the agency’s decision not to renew his appointment constituted a failure to take a personnel action within the meaning of the WPA. The dispositive issue on this appeal is therefore whether Mr. Mestan made nonfrivolous allegations that the disclosures he made to Mr. Pena were protected.

We have held that “an employee who makes disclosures as part of his normal duties cannot claim the protection of the WPA.” Huffman v. Office of Pers. Mgmt, 263 F.3d 1341, 1352 (Fed.Cir.2001), citing Willis v. Dep’t of Agric., 141 F.3d 1139, 1144 (Fed.Cir.1998) (a disclosure by an employee assigned to review farms for compliance with Department of Agriculture conservation plans that seven farms were out of compliance was not a protected disclosure because “[djetermining whether or not farms were out of compliance was part of his job performance and in no way [1015]*1015did it place Willis at personal risk for the benefit of the public good”).

Mr. Mestan’s position description provided as follows, in pertinent part:

The incumbent is responsible for managing assigned environmental investigations (some of which are on-going, and some of which are at the original initiation stage) of transboundary pollution problems by:
Reviewing existing data and information regarding the specific pollution problems including, but not limited to, prior environmental impact statements, water quality studies, and previously developed facilities plans and/or concept studies;
Serving as the primary technical point of contact for providing information, scheduling meetings, and/or responding to changes in scope;

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Bluebook (online)
95 F. App'x 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mestan-v-international-boundary-cafc-2004.