Mr. Cali was appointed to a GS-13 supervisory engineering position with the Department of the Navy at the Public Works Department of the U.S. Naval Air Station in Sigonella, Italy. His appointment required him to complete a two-year probationary period. (Cali v. Department of the Navy (CAFC No. 2024-1722 (nonprecedential), 12/5/2024)
Along came the COVID crisis and the Navy responded in accordance with DoD directives. In September 2021, the Department of Defense issued guidance mandating COVID-19 vaccination certification for each civilian employee. For unvaccinated employees, weekly COVID testing was directed. As a result, unvaccinated employees or those refusing to disclose their vaccination status were required to undergo weekly testing. Refusal to comply resulted in the employee being denied access to DoD facilities. (Opinion p. 2)
Mr. Cali requested a religious reasonable accommodation exemption from vaccination. He also raised concerns about the use of COVID-19 test kits authorized under Emergency Use Authorization (EUA) by the FDA, instead of those with full approval. He argued that the agency’s testing policy lacked the required “informed consent.” (p. 2)
In January 2022, after refusing to participate in the COVID-19 testing unless provided with FDA-approved tests, Mr. Cali was notified that his insistence upon using only FDA-approved tests “would be considered a refusal to submit to a COVID-19 test.” (p. 4) Cali acknowledged that he understood this warning.
Cali was terminated shortly thereafter during his probationary period. He was ordered to return to the United States. The notice cited his “failure to comply with COVID-19 testing, command policy, and host nation law….conduct …considered unfit for continued Federal employment.” (p. 4)
The MSPB dismissed Cali’s appeal due to lack of jurisdiction. He then filed a whistleblower complaint with the Office of Special Counsel (OSC), alleging his dismissal and order to return to the U.S. constituted retaliation by the agency. When the OSC closed its file without finding whistleblowing retaliation, Cali filed an “Individual Right of Action (IRA)” appeal to the MSPB seeking to convince that Board that he had been retaliated against. In its decision, the MSPB administrative judge found Cali met his burden to establish he was a whistleblower. However, he denied Cali’s request for corrective action after finding that the agency met its “clear and convincing burden of proof to support that it would have terminated Mr. Cali notwithstanding his protected disclosures, activities, or perceived whistleblower status.” (Pp. 4-5)
The Federal Circuit reviewed the MSPB’s decision under the standards set out by law, which required that the decision be upheld unless it was arbitrary, capricious, or unsupported by substantial evidence. The Court evaluated several grounds raised by Cali in his appeal. Mr. Cali took his case to the federal appeals court.
The court found that Cali’s disclosures regarding the testing policy were protected under the Whistleblower Protection Act. However, it concluded that the Navy demonstrated clear and convincing evidence that Cali would have been terminated regardless of his whistleblower activities because of his refusal to comply with testing requirements.
The court further found that Mr. Cali’s insistence on using only fully FDA-approved tests was in effect a refusal to comply with the testing order. In response to Cali’s argument that the testing mandate was unlawful, and therefore he did not have to follow it, the court disagreed. It ruled that the Navy’s requirement for testing was lawful. It rejected Cali’s argument that requiring unapproved EUA tests without informed consent was illegal. (Pp. 6-7)
The court affirmed Cali’s removal from his position within the Department of the Navy. The court concluded that the agency acted within its rights to terminate based on the failed compliance with mandatory health safety procedures.
