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`
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ELIAS FEUER,
`Petitioner
`
`v.
`
`NATIONAL LABOR RELATIONS BOARD,
`Respondent
`______________________
`
`2019-1390
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. NY-1221-17-0200-W-1.
`______________________
`
`Decided: September 13, 2019
`______________________
`
`ELIAS FEUER, New York, NY, pro se.
`
`
` SONIA W. MURPHY, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by JOSEPH H.
`HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
`KIRSCHMAN, JR.
` ______________________
`
`Before PROST, Chief Judge, PLAGER and DYK, Circuit
`Judges.
`
`
`
`

`

`2
`
`FEUER v. NLRB
`
`PER CURIAM.
`Elias Feuer appeals from the Merit Systems Protection
`Board (“Board”) holding that the National Labor Relations
`Board (“NLRB”) did not violate Feuer’s rights under the
`Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8), be-
`cause (1) it did not take any personnel action against him
`and (2) the NLRB had shown by clear and convincing evi-
`dence that it would have taken the same action regardless
`of Feuer’s protected disclosures. We reject the Board’s first
`ground but affirm as to the second ground.
`BACKGROUND
`Feuer was employed as a lawyer at the NLRB for
`thirty-two years. In 2012, he was appointed to an Admin-
`istrative Law Judge (“ALJ”) position at the Social Security
`Administration (“SSA”). In July 2016, the NLRB posted an
`announcement for “more than one” ALJ vacancy located in
`the Washington, D.C. and New York, New York duty sta-
`tions. The posting stated that “[c]andidates must currently
`hold an Administrative Law Judge position, at the AL-3
`level or above for at least one year or be eligible for rein-
`statement to an ALJ position based on prior experience as
`an ALJ.” J.A. 449. Feuer, who was qualified for the vacant
`positions, applied seeking an appointment to the New York
`position. He was not selected. Two other candidates were
`selected for the New York duty station and three candi-
`dates were selected for the Washington, D.C. duty station.
`After learning of his non-selection, Feuer contacted the
`NLRB on five separate occasions with allegations of agency
`misconduct. Feuer claimed, inter alia, that one of the ALJs
`who had been selected for the New York position, Benjamin
`Green, did not meet the one-year requirement under the
`NLRB’s posting. At the close of the posting, Green had less
`than one year of service as an ALJ at the SSA. After an
`internal investigation, the NLRB determined, in consulta-
`tion with the Office of Personnel Management (“OPM”),
`that the one-year requirement was solely intended to
`
`

`

`FEUER v. NLRB
`
`3
`
`implement an OPM regulation that prohibited transfer of
`an ALJ to a new position within one year of the ALJ’s last
`appointment without consent of the transferee and trans-
`feror agencies. The NLRB determined that on the date of
`his scheduled transfer from the SSA to the NLRB, Green
`would have served at his ALJ position for over one year and
`was therefore eligible under the regulation and the vacancy
`announcement. On November 13, 2016, the NLRB ap-
`pointed Green to the New York position as it had originally
`planned to do before Feuer made his disclosures. On No-
`vember 14, 2016, the agency mistakenly reposted the va-
`cancy announcement before taking it down within one day.
`
`Feuer appealed the agency’s actions to the Board, al-
`leging that the NLRB’s decision not to select him for the
`allegedly vacant New York position after his protected dis-
`closures and its subsequent decision not to select him in
`connection with the November 14 posting were made in re-
`taliation for his whistleblowing activities. After a four-day
`hearing, the ALJ denied Feuer’s appeal. The ALJ con-
`cluded that Feuer had made two protected disclosures: (1)
`an October 17, 2016 telephone call to Mark Pearce, Chair-
`man of the NLRB, alleging that the NLRB engaged in age
`discrimination, nepotism, and violations of its standard
`hiring procedures and (2) an October 24 letter sent to
`Chairman Pearce wherein Feuer made the same allega-
`tions as his telephone call, as well as the allegation that
`Green’s appointment was improper. The ALJ found that
`Feuer’s disclosures satisfied the knowledge/timing test and
`were “contributing factors” under 5 U.S.C. § 1221(e)(1).
`However, the ALJ found that the retaliation that Feuer al-
`leges—the agency’s non-selection of Feuer for the New
`York position as well as its November 14 posting—were not
`“personnel actions” as defined by 5 U.S.C. § 2302(a)(2)(A).
`The ALJ also found that even if these events constituted
`personnel actions, the agency had proven by clear and con-
`vincing evidence that Feuer would not have been selected
`for the position.
`
`

`

`4
`
`FEUER v. NLRB
`
`Feuer did not seek review from the full Board, but in-
`stead timely filed a petition for review in our court. The
`ALJ’s decision became the decision of the Board. We have
`jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
`DISCUSSION
`Our review of Board decisions is limited to whether the
`decision was “(1) arbitrary, capricious, an abuse of discre-
`tion, or otherwise not in accordance with law; (2) obtained
`without procedures required by law, rule, or regulation
`having been followed; or (3) unsupported by substantial ev-
`idence.” 5 U.S.C. § 7703(c). Our review is “without regard
`to errors” that do not affect the parties’ “substantial
`rights.” 28 U.S.C. § 2111; see also Boss v. Dep’t of Home-
`land Sec., 908 F.3d 1278, 1282 (Fed. Cir. 2018).
`Agencies may not take or fail to take personnel action
`against an employee in retaliation for a protected whistle-
`blower disclosure. See 5 U.S.C. § 2302(b)(8). A protected
`disclosure is “any disclosure of information by an employee
`or applicant which the employee or applicant reasonably
`believes evidences . . . a violation of any law, rule, or regu-
`lation.” Kahn v. Dep’t of Justice, 618 F.3d 1306, 1311 (Fed.
`Cir. 2010) (alteration in original) (quoting 5 U.S.C.
`§ 2302(b)(8)(A)). Personnel action includes non-selection
`for an appointment. See Ellison v. Merit Sys. Prot. Bd., 7
`F.3d 1031, 1034 (Fed. Cir. 1993); Monasteri v. Merit Sys.
`Prot. Bd., 232 F.3d 1376, 1380 (Fed. Cir. 2000); Ruggieri v.
`Merit Sys. Prot. Bd., 454 F.3d 1323, 1325 (Fed. Cir. 2006).
`I
`Feuer first argues that the Board erroneously found
`that he had made only two protected disclosures when he
`had in fact made five protected disclosures. The Board de-
`termined that Feuer made two protected disclosures: a tel-
`ephone call to Chairman Pearce on October 17, 2016 and a
`letter sent to Chairman Pearce on October 24, 2016. Feuer
`alleges that the Board failed to consider his three
`
`

`

`FEUER v. NLRB
`
`5
`
`subsequent disclosures: a formal complaint filed with the
`NLRB Inspector General on October 28, 2016, a letter sent
`to the NLRB attorney Jennifer Kovachich on November 7,
`2016, and an email sent to the Inspector General on No-
`vember 8, 2016. The Board’s analysis of Feuer’s protected
`disclosures failed to mention these subsequent disclosures.
`Feuer’s additional disclosures were substantively the same
`as his initial disclosures to Chairman Pearce with one ex-
`ception. Feuer’s November 7th letter and November 8th
`email included a new allegation that the agency intended
`to create a sham posting to hire the ineligible candidate.
`The Board erred when it failed to consider these three ad-
`ditional protected disclosures. However, consideration of
`these additional disclosures—which were largely the same
`as his earlier disclosures—would not have affected the re-
`sult. Therefore, the Board’s error was harmless. 28 U.S.C.
`§ 2111.
`
`II
`The Board held that Feuer had made protected disclo-
`sures and that because Feuer made his disclosures directly
`to the Chairman within one month of his alleged personnel
`actions, there was a presumption that Feuer’s disclosures
`were “contributing factors” as defined under 5 U.S.C.
`§ 1221(e)(1). But it held that there had been no personnel
`action (i.e. non-selection) because following his disclosure
`there had been no vacancy. The question of whether a va-
`cancy existed because Green was not qualified depends on
`the interpretation of the vacancy announcement’s require-
`ment that “[c]andidates must currently hold an Adminis-
`trative Law Judge position . . . for at least one year.”
`J.A. 449.
`The Board held that the posting “as a whole” was
`“somewhat ambiguous” and that the phrase “must cur-
`rently” was subject to reasonable debate, and therefore de-
`ferred to the NLRB’s interpretation that the one-year
`requirement was satisfied as long as Green had one year
`
`

`

`6
`
`FEUER v. NLRB
`
`service at the time of his transfer. J.A. 347–48. Feuer ar-
`gues that the Board erred when, citing Auer v. Robbins, 519
`U.S. 452, 461 (1997) and Fed. Express Corp. v. Holowecki,
`552 U.S. 389, 403 (2008), it deferred to the NLRB’s inter-
`pretation of the phrase “must currently.” Feuer urges that,
`absent this erroneous interpretation, the NLRB would
`have rescinded its offer to Green and Feuer would have
`been appointed as the “next highest ranked applicant.”1
`Appellant’s Br. 9. Feuer contends that the meaning of the
`phrase “must currently” in the one-year requirement is
`clear—the applicant must to hold an ALJ position for one
`year “by the time they submit their application, but no
`later than the application deadline.” Appellant’s Br. 7.
`The NLRB contends that the language in the posting
`was intended to implement an OPM regulatory require-
`ment, which recites: “[a]n agency may not transfer an indi-
`vidual from one administrative law judge position to
`another administrative law judge position within 1 year af-
`ter the individual’s last appointment, unless the gaining
`and losing agencies agree to the transfer.” 5 C.F.R.
`§ 930.204(h). Thus, the Board found that Green was eligi-
`ble for the position and that the agency did not take per-
`sonnel action against Feuer.
`We conclude that the posting is not an interpretation
`of the regulation. Although the regulation is cited in the
`vacancy announcement, there is no citation to the regula-
`tion in the section on qualifications, and the regulation has
`nothing to do with the qualifications or experience level re-
`quired for the position—the subject of the vacancy an-
`nouncement’s requirement. Therefore, the question is
`
`1 Feuer also argues that the posting and cancellation
`of the November 14th vacancy announcement was a per-
`sonnel action. In these circumstances an administrative
`error cannot constitute retaliatory personnel action under
`5 U.S.C. § 2302(b)(8).
`
`

`

`FEUER v. NLRB
`
`7
`
`whether deference is due to an agency’s interpretation of
`an agency document that is not a regulation, an issue as to
`which there is little authority. Even assuming Auer-like
`deference is owed in some circumstances to such interpre-
`tations, we think it is not owed here. First, no deference is
`due when the agency’s interpretation does not reflect a
`“fair and considered judgment.” Kisor v. Wilkie, 139 S. Ct.
`2400, 2417 (2019) (quoting Christopher v. SmithKline Bee-
`cham Corp., 567 U.S. 142, 155 (2012)). Courts do not defer
`to an agency’s “‘convenient litigating position’ or ‘post hoc
`rationalization advanced’ to ‘defend past agency action
`against attack.’” Id. (quoting Christopher, 567 U.S. at
`155); see also S. Cal. Edison Co. v. United States, 226 F.3d
`1349, 1357 (Fed. Cir. 2000) (noting that affording deference
`to agency interpretations of contract provisions “could lead
`the courts to endorse self-serving post-hoc reinterpreta-
`tions of contracts that an agency might offer in the context
`of a litigation,” especially when the agency is a party to the
`contract (citing National Fuel Gas Supply v. Federal En-
`ergy Reg. Comm’n, 258 U.S. App. D.C. 374, 811 F.2d 1563,
`1571 (D.C. Cir. 1987))). No deference is due to the agency’s
`interpretation adopted here in response to Feuer’s allega-
`tions in the present controversy.
`Second, as the Supreme Court has recently instructed,
`“a court should not afford Auer deference unless the regu-
`lation is genuinely ambiguous.” Kisor, 139 S. Ct. at 2415
`(citing Christensen v. Harris County, 529 U.S. 576, 588
`(2000) and Bowles v. Seminole Rock & Sand Co., 325 U.S.
`410, 414 (1945)). “[A] court must exhaust all the ‘tradi-
`tional tools’ of construction” before making a finding of am-
`biguity. Id. (emphasis added) (quoting Chevron U.S.A.
`Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
`837, 843, n.9 (1984)). The purpose of the vacancy an-
`nouncement is to determine the qualifications and experi-
`ence necessary for the position. The plain meaning of the
`phrase “currently” means “at present.” Webster’s Third
`New International Dictionary 557 (1986). In this context,
`
`

`

`8
`
`FEUER v. NLRB
`
`the vacancy announcement’s use of the word “currently”
`must mean “at the time the posting closes.” A requirement
`that an applicant “must currently” satisfy to be eligible for
`a position cannot be satisfied after the posting is closed.
`Such an interpretation would unreasonably read the word
`“currently” to mean “in the future” instead of the its proper
`meaning: “at present.” This plain meaning is reinforced by
`the 2017 NLRB Administrative Policies and Procedures
`Manual, which requires that application requirements
`must be evaluated at the close of the posting or at a time
`otherwise expressly specified in the application. While not
`in effect at the time of Feuer’s alleged personnel action, this
`Manual confirms that even the agency reads the plain
`meaning of “currently” to mean at the close of posting.
`We hold that the Board erred in adopting the NLRB’s
`interpretation of the phrase “must currently” in the va-
`cancy announcement. As a result, we hold that the Board’s
`finding that Green was eligible for the New York position
`was not supported by substantial evidence, and the agency
`took a personnel action against Feuer by not selecting him.
`III
`However, our inquiry does not end there. The Board
`concluded that the NLRB had shown by clear and convinc-
`ing evidence that it would not have selected Feuer for the
`position even in the absence of his protected disclosures un-
`der the nonexclusive three-factor test described in Carr v.
`Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). “To
`be clear, Carr does not impose an affirmative burden on
`the agency to produce evidence with respect to each and
`every one of the three Carr factors to weigh them each in-
`dividually in the agency’s favor.” Miller v. Dep’t of Justice,
`842 F.3d 1252, 1257 (Fed. Cir. 2016) (internal quotations
`omitted). This court reviews the Board’s finding of inde-
`pendent causation for substantial evidence. Id. at 1258.
`The first Carr factor is “the strength of the agency’s ev-
`idence in support of its personnel action.” Carr, 185 F.3d
`
`

`

`FEUER v. NLRB
`
`9
`
`at 1323. In this case, the personnel action is the NLRB’s
`rejection of Feuer’s application in connection with the va-
`cancy created by Green’s ineligibility. Feuer argues that
`but for the NLRB’s selection of an ineligible applicant, the
`agency would have selected him, the next most qualified
`applicant. Feuer contends that the NLRB has a “historical
`agency-wide practice” of hiring the next most-qualified can-
`didate. Appellant’s Br. 22. However, the NLRB provided
`evidence to show that it would not have automatically se-
`lected the next ranked candidate if Green had not been se-
`lected. This evidence included NLRB Policy and Procedure
`documents from the relevant time period that did not pro-
`vide for such a practice as well as testimony from both the
`Chief Judge and Chairman of the NLRB. The Board did
`not err in concluding that “[t]he record shows the NLRB
`did not have a process or procedure to select the next most
`eligible candidate in line.” J.A. 362.
`In the absence of any policy requiring his selection, the
`NLRB produced evidence that Feuer would not have been
`selected for the New York position. This evidence included
`testimony from the Chairman, Chief Judge, Deputy Chief
`Judge, and records from the NLRB’s selection process. The
`Board noted that while Feuer clearly had the knowledge
`and experience required for the position, the Chairman
`considered Feuer to be “lacking in judicial temperament,”
`the Chief Judge expressed an “adverse opinion concerning
`[Feuer’s] writing samples,” and the Deputy Chief Judge
`had expressed adverse opinions concerning Feuer’s people
`skills. J.A. 357–58. The Board also noted that Feuer had
`previously applied to a vacancy at the NLRB and was not
`selected. The Board did not err in finding “the strength of
`the NLRB’s evidence that it would not have selected
`[Feuer] despite his whistleblowing activities to be persua-
`sive evidence.” J.A. 358. The Board also did not err in con-
`cluding that the NLRB had met its burden of persuasion
`and that the first Carr factor weighed in favor of the
`agency.
`
`

`

`10
`
`FEUER v. NLRB
`
`The second Carr factor is “the existence and strength
`of any motive to retaliate on the part of the agency officials
`who were involved in the decision.” Carr, 185 F.3d at 1323.
`While the Board noted that the parties did not directly ad-
`dress the issue of “motive on the part of the NLRB to retal-
`iate against” Feuer, it found that, based on the testimony
`given by the Chairman, “[t]he evidence [did] not support a
`finding of retaliation.” J.A. 359–60. The Board observed
`that the Chairman took Feuer’s allegations seriously, di-
`rected an investigation of Feuer’s complaints, and made an
`objectively reasonable (though ultimately erroneous) deci-
`sion not to make a second vacancy announcement based on
`a good-faith belief that Green was eligible for the position.
`The third and final Carr factor is “any evidence that
`the agency takes similar actions against employees who
`are not whistleblowers but who are otherwise similarly sit-
`uated.” Carr, 185 F.3d at 1323. Here, the Board noted the
`“unusual” situation before it meant that “there is little or
`no available evidence on how the NLRB has handled other
`similarly situated applicants because withdrawal or dis-
`qualification for an ALJ transfer would be rare.” J.A. 361.
`When the whistleblower is in a unique or unusual situa-
`tion, “the absence of any evidence relating to Carr factor
`three can effectively remove that factor from the analysis.”
`Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1374 (Fed. Cir.
`2012). This is the case here.
`We conclude that substantial evidence supports the
`Board’s decision that the NLRB had “provided clear and
`convincing evidence that it would have taken the same
`course of action (non-selection of [Feuer]) regardless of
`[Feuer’s] protected disclosures.” J.A. 363.
`AFFIRMED
`COSTS
`
`No costs.
`
`