The case is Miranne v Navy (CAFC No. 2021-1497 (nonprecedential) 8/8/2021). Miranne was a psychologist in a non-sensitive position at the Navy Advancement Center in Pensacola, Florida. After 18 years, the Commanding Officer (CO) issued an order subjecting Miranne’s and all positions that accessed the Navy Marine Corps Intranet to background investigations leading to a clearance of at least “non-critical sensitive” in order to comply with Department of Defense and Navy policy. In Miranne’s case, he was told his position required a secret clearance. He took strong issue with the decision. After several months of pushback on his part, Marianne sent an email to the entire chain of command as well as others, maintaining that most of his coworkers agreed with him that access to the intranet did not require a security clearance and that the CO’s decision was a pretext, a “fraud.” (Opinion pp. 3-4)
The Navy charged Miranne with disrespectful and improper conduct. He was removed. (P. 4)
Following an appeal hearing before an Administrative Judge of the Merit Systems Protection Board (the Board), the judge rejected Miranne’s whistleblower defense and sustained his removal. Among other things, the Board called Miranne’s email “as delicate and nuanced as a cannon blast… [with] an air of moral superiorty, abrasiveness, condescension, and profound disrespect which simply cannot be minimized or misinterpreted.” (Opinion pp. 4-5) Given Miranne’s “dreadfully poor judgement” and his professional position, removal was justified. (P. 5)
The appeals court has now sustained the Board. Mr. Miranne’s removal stands. The court agreed with the Board’s conclusion that he was not a whistleblower, given that his beliefs about the clearance issue were “unreasonable.” Further, there was substantial evidence that the new requirement was adopted in order to comply with regulation and not as a pretext. (P. 7)
As to the penalty, Miranne argued the tone of his email against the new security requirement was justified. The Board found there was substantial evidence to support that his email was disrespectful. The court agrees with the Board, pointing to, among other things, one boss’s testimony that “the email was the most disrespectful and unprofessional email I have seen or received in my 35 years of service.” It was, the court said, “exceptionally offensive,” and represented “dreadfully poor judgment.” (P. 8)
