Petition for review of the Merit Systems Protection Board in consolidated case nos. DC1221040616-M-1 and DC0752040642-M-1.
The opinion of the court was delivered by: Dyk, Circuit Judge
Before DYK, SCHALL, and PROST, Circuit Judges.
Teresa Chambers ("Chambers") petitions for review of an adverse decision of the Merit Systems Protection Board ("Board"). See Chambers v. Dep't of the Interior, 110 M.S.P.R. 321 (2009) ("Chambers III"). The Board sustained Chambers' removal from her position as the Chief of United States Park Police ("Park Police"). We affirm the Board's decision sustaining charges 3, 5 and 6. However, we reverse the Board's decision to sustain charge 2. In light of the reversal of charge 2, we remand to the Board for reconsideration of whether removal remains a reasonable penalty and whether the agency has presented clear and convincing evidence that it would have taken the same personnel actions against Chambers based on the sustained charges, in the absence of her protected disclosures.
The relevant background has already been set forth in detail in our prior opinion in Chambers v. Department of Interior, 515 F.3d 1362 (Fed. Cir. 2008) ("Chambers II"). We therefore present only a brief summary here. Chambers served as Chief of the United States Park Police, a component of the National Park Service ("NPS"), which is within the Department of the Interior ("the agency"). On November 20, 2003, Chambers spoke with a reporter from the Washington Post. On December 2, 2003, she communicated with a United States House of Representatives ("House") Interior Appropriations Subcommittee staffer. Both of these communications concerned the Office of Management and Budget's ("OMB") recent decision not to seek an increase in the U.S. Park Police budget and the Park Police's need for additional resources. In her conversations with the reporter and the staffer, Chambers expressed her belief that due to underfunding, the U.S. Park Police lacked adequate staff and that inadequate staffing posed various risks to the public in those areas patrolled by the U.S. Park Police.
The House staffer subsequently informed Chambers' supervisor, Donald Murphy ("Murphy"), of Chambers' communications with her. The Washington Post published an article on December 2, 2003, which attributed several statements to Chambers. On the evening of December 2, 2003, Murphy imposed restrictions on Chambers' authority to communicate with the news media. On December 5, 2003, Chambers was placed on administrative leave, and on December 17, 2003, Murphy proposed to remove Chambers, citing six charges of misconduct, several of which were grounded in Chambers' communications with the Washington Post reporter and the House staffer.*fn1
Chambers challenged these actions, claiming retaliation for disclosures protected under the Whistleblower Protection Act ("WPA"). See 5 U.S.C. § 2302(b)(8).
On July 9, 2004, the deciding official, the Deputy Assistant Secretary for Fish and Wildlife and Parks, Paul Hoffman ("Hoffman"), issued an agency decision sustaining all six charges and terminating Chambers. Charge 1 derived from Chambers' conversation with the House staffer, and charges 2, 3, and 4 derived from the conversation with the Washington Post reporter. Charges 5 and 6 derived from unrelated incidents that took place between March and early September of 2003. The agency took no disciplinary action against Chambers with respect to those earlier incidents until after Chambers' communications with the reporter and with the House staffer. Chambers appealed to the Board.
In an Initial Decision, the Administrative Judge ("AJ") sustained charges 2, 3, 5, and 6. She did not sustain charges 1 and 4 because she found that the agency had failed to prove these charges. The AJ then found that Chambers had not made any protected disclosures; that despite only four of the charges being sustained, the agency would have imposed the penalty of removal anyway; and that, even if the statements were protected by the WPA, the agency had proved that it would have taken the same action in the absence of the alleged whistleblowing activity. However, the AJ also determined that the disclosures were a contributing factor in the discipline. The Board affirmed the AJ's decision, and Chambers appealed to this court. See Chambers v. Dep't of the Interior, 103 M.S.P.R. 375 (2006) ("Chambers I").
On appeal, we rejected Chambers' appeal with respect to the charges and the penalty of removal based on grounds other than the WPA. Chambers II, 515 F.3d at 1370-71. However, with respect to Chambers' disclosures alleged to be protected under the WPA, we held that the Board had applied an improper standard. Id. at 1368. The Board had reasoned that under our decision in White v. Department of the Air Force, 391 F.3d 1377 (Fed. Cir. 2004), "[a] policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy choice 'is not debatable among reasonable people.'" Chambers I, 103 M.S.P.R. at 387 (quoting White, 391 F.3d at 1382). It then determined that this case "presents a classic policy disagreement over which reasonable minds might differ." Id. The Board therefore concluded that none of the disclosures were protected under the WPA because they did not evidence "a substantial and specific danger to public health or safety." Id. at 388, 390. To prevail on a claim under the WPA, an employee must show that she disclosed information she reasonably believed evidences "(i) a violation of any law, rule or regulation, or (ii) 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). We held that the Board incorrectly applied the standard pertaining to claims of gross mismanagement in evaluating disclosures as to a "substantial and specific danger to public health or safety." Chambers II, 515 F.3d at 1368. We therefore vacated the Board's decision with respect to the WPA issue and remanded the case to the Board for reconsideration under the correct WPA standard.
On remand, the two-member Board "affirm[ed] . . . as modified" the initial decision sustaining Chambers' removal and denying her request for corrective action. Chambers III, 110 M.S.P.R. at 321. The Board first denied Chambers' motion to reopen its previous decision and to reconsider the merits of the sustained charges apart from the WPA issue. The Board also rejected her WPA claims. Although the two Board members agreed on the disposition of the case, they did not agree on the reasoning. Chairman McPhie, in a separate concurring opinion, indicated that he would find certain of Chambers' statements both to the Washington Post reporter and to the House staffer to be protected as evidencing a substantial and specific danger to public health or safety. In particular, he found that the first two statements Chambers made to the Washington Post that were cited by the agency in charge 2 were protected under the WPA. He also found additional statements made to the Washington Post reporter, not cited specifically by the agency in charge 2, to be protected. Nonetheless, he indicated that he would find that the agency's penalty remained reasonable and that the agency presented clear and convincing evidence that it would have taken the same actions against Chambers in the absence of the disclosures he found protected, based on charges 3, 5, 6, and the sustained part of charge 2.*fn2 Vice Chairman Rose, in a separate concurring opinion, noted that she would find none of Chambers' statements to be protected. She therefore did not reach the issues of whether the agency would have taken the same actions in the absence of the allegedly protected statements.
Chambers timely appealed to this court. We have jurisdiction under 28 ...