. He must show only that the allegations he disclosed were such that a reasonable person in his position would believe they evidenced one of the situations covered by 5 U.S.C. § 2302(b)(8). See Pashun v. Department of the Treasury, 74 M.S.P.R. 374, 380- 81 (1997).

5 U.S.C. § 2302(b)(8). In order to trigger the provisions of the WPA, an employee must be in, or an applicant for, a “covered position,” 5 U.S.C. § 2302(a)(2)(B), in an “agency,” 5 U.S.C. § 2302(a)(2)(C), and must make a “disclosure.” 5 U.S.C. § 2302(a)(2)(D). The WPA only applies to certain employees of the United States government. Further, its methods of redress involve appeals to the Merit Systems Protection Board, 5 U.S.C. § 7701, complaints to the Office of Special Counsel, 5 U.S.C. § 1212, and an individual right of action Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 4 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 5 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 before the Merit Service Protection Board.

30 Statutes 5 U.S.C. §2302(a)(2)(xii) ................................................................................................... 15 §2302(a)(2)(A) ..................................................................................................... 16 §2302(b) ............................................................................................................... 16 §2302(b)(1) .......................................................................................................... 25 §2302(d) ............................................................................................................... 15 §3311 ................................................................................................................... 17 §7106 ................................................................................................................... 19 §7121 ................................................................................................................... 25 §7121(a)(1) .......................................................................................................... 24 §7121(d) ............................................................................................................... 25 5 U.S.C. app. §404

The MPSB’s suggestion that placement on paid administrative leave may, in some circumstances, qualify as a “disciplinary or corrective action” for purposes of 5 U.S.C. § 2302(a)(2)(A)(iii) does not in any way indicate that placement on paid administrative leave is a “removal” or “transfer.” To the contrary, since transfers are expressly mentioned in 5 U.S.C. § 2302(a)(2)(A)(iv), and removals are expressly mentioned in 5 U.S.C. § 7512, cross-referenced in 5 U.S.C. § 2302(a)(2)(A)(iii) (“an action under chapter 75 of this title”), it is clear that the MSPB in LaMell recognized that placement on paid administrative leave is neither a transfer nor a removal. As explained in defendants’ opening brief, the Fifth Circuit decision in Oliver v. U.S. Postal Serv., 696 F.2d 1129 (5th Cir. 1983), reflects the same understanding.

In fact, subsection (b)(8) is very narrowly tailored in that it is restricted to whistleblower complaints submitted to “the Special Counsel, or to the Inspector General of an agency.” See 5 U.S.C. § 2302(b)(8). Thus, Plaintiff cannot argue now that by Case 1:05-cv-02157-RMU Document 19 Filed 05/23/2007 Page 16 of 20 In Plaintiff’s Opposition Brief, he cites his August 22, 2005, EEO Affidavit, as proof that he9 was relying upon not only the 1998 Settlement Agreement as a basis for his retaliation claim, but also “all of his complaints.”

AC ¶ 22. However, given WPA’s statutory definition of a federal “Executive Agency,” 5 U.S.C. §§ 2302(a)(2)(B),(C), there is no authority to expand the WPA to a state employer, regardless of whether it is regulated by the federal government or has received some federal funds. See Krueger v. Lyng, 927 F.2d 1050, 1054 (8th Cir. 1991) (holding WPA did not apply to county executive director even though position created by federal regulations of United States Department of Agriculture); Shaw v. Nat’l R.R. Passenger Corp., 2014 WL 1302055, at *4 (E.D. Pa. April 1, 2014) (granting Rule 12(b) motion to dismiss WPA claim after holding Amtrak employee was not a federal employee despite fact Amtrak received federal funds); Williams v. Va., State Bd.

There must be an element of blatancy. Gross mismanagement means a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.5 Carolyn v. Department of Interior, 63 M.S.P.R. 684, *12 (M.S.P.B. 1994) (quoting Sazinski v. Department of Housing and Urban Development, 73 M.S.P.R. 682, *7-9 (M.S.P.B. 1997) (concluding that three disclosures the appellant claims were whistleblowing were not protected under 5 U.S.C. § 2302(b)(8)). In Carolyn, the court reasoned that the federal Whistleblower Protection Act was designed to reach management decisions that go beyond simple negligence or wrongdoing, and far beyond the personal disagreements of an employee with her manager’s supervision.

; Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005) (describing a prohibited personnel practice as “any ‘personnel action’ 15 Reply in Support of Motion To Dismiss - No. 2:14-cv-6309-GW-CW Case 2:14-cv-06309-GW-CW Document 46 Filed 04/01/15 Page 27 of 38 Page ID #:479 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, even if no one had the authority to require plaintiff to recuse herself— which, as explained above, is not the case—the relevant provision of the CSRA also specifically encompasses the authority to “recommend” a personnel action. 5 U.S.C. § 2302(b). Thus, OGC acted within its authority when it recommended recusal.

Pertinent to Plaintiff’s allegations, the CSRA provides: “[e]mployees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences (A) a violation of any law, rule, or regulation, or (B) 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. § 2301(b)(9); see also 5 U.S.C. § 2302(b)(8) (prohibited personnel practices listed). The Fifth Circuit has given “wide-berth” to the preclusive effects of the CSRA.

In turn, “personnel action” is defined to include actions including disciplinary or corrective actions, reassignments, performance evaluations, decisions concerning pay or benefit, or any other significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A)(i)-(xi). Here, the heart of Mr. Gartner’s complaint is a challenge to VA personnel practices covered by the CSRA.