Kress v. General Services Administration
Opinion of the Court
DECISION
Marvin F. Kress appeals from the November-17, 2000 final order of the Merit Systems Protection Board (“MSPB”), docket no. CH-1221-99-0598-W-1, which denied Kress’s petition for review of the MSPB’s April 10, 2000 initial decision. In its initial decision, the MSPB denied Kress’s request for corrective action, which was based on his assertion that the General Services Administration (“GSA”) failed to select Kress for reassignment to a GS-9 building services representative position in Lincoln, Nebraska in reprisal for disclosures he made that were protected under the Whistleblower Protection Act. We affirm.
BACKGROUND
On June 28, 1995, Kress, a building service representative in Lincoln, Nebraska, notified GSA’s Office of Inspector General (“OIG”) of several occurrences that constituted, to Kress’s belief, fraud and waste in the operation and maintenance of a federal building. In July 1997, GSA declined to select Kress for reassignment to the position of building service representative in Lincoln, Nebraska. Kress exhausted corrective action from the Office of Special Counsel and subsequently filed suit with the MSPB. Kress asserted that his non-selection in July 1997 constituted i*eprisal for his June 1995 disclosures to the OIG.
In its initial decision, the MSPB determined Kress failed to establish that any information concerning his June 1995 disclosures reached the individuals involved in this personnel action. The administrative judge further stated that she was unable to conclude that anyone relevant to
The MSPB summarily denied Kress’s petition for review in its final order. This appeal follows the aforementioned events.
DISCUSSION
We may reverse a decision of the MSPB if it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, or regulation having been followed; or (3) unsupported by substantial evidence, 5 U.S.C. § 7703(c) (1994).
In considering whether reprisal for whistleblowing activity occurred and whether corrective action is warranted, the MSPB must determine whether Kress has shown by a preponderance of the evidence that a disclosure described in 5 U.S.C. § 2302(b)(8) was a “contributing factor” in the agency’s personnel action.
The administrative judge heard testimony from both the selecting official and the reviewing official. Each testified to a lack of awareness of any complaint Kress made to the OIG. The administrative judge also considered whether Kress established that the selecting official and another member on the selection panel had knowledge of Kress’s whistleblowing activity based on their positions in the GSA employment hierarchy.
Kress’s other arguments lack merit. Consequently, the final decision of the Merit Systems Protection Board is affirmed.
. GSA does not dispute that Kress made protected disclosures under 5 U.S.C. § 2302(b)(8) in his June 1995 letter to the OIG.
. Kress does not contend that the third member of the selection panel, Mary Kosmicki, had any knowledge of his whistleblower activity.
. We note with great concern that GSA violated Fed. Cir. R. 47.6 by citing several nonprecedential cases in its brief to this court. Respondent Br. at 8 (citing Barry v. Department of Treasury, 173 F.3d 435 (Fed.Cir. 1998)); Respondent Br. at 11, 14 (citing Ramey v. United States Postal Serv., 178 F.3d 1312 (Fed.Cir. 1999)); Respondent Br. at 12 (citing Holtgrewe v. FDIC, 152 F.3d 944 (Fed.Cir. 1998)). This improper practice should not be repeated. In spite of the citations, however, the outcome of this case is not affected.
Reference
- Full Case Name
- Marvin F. KRESS v. GENERAL SERVICES ADMINISTRATION
- Status
- Published