Matthew Donahue v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW G. DONAHUE, DOCKET NUMBER

Appellant, DC-1221-22-0483-W-2

v.

DEPARTMENT OF JUSTICE, DATE: August 29, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Robert Feitel , Esquire, Washington, D.C., for the appellant.

Kaymi Ross and Jill McCann , Esquire, Springfield, Virginia, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication

of this appeal.

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action in this individual right of action (IRA)

appeal. For the reasons discussed below, we GRANT the appellant’s petition for

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

review, VACATE the initial decision, and REMAND the case to the Atlanta

Regional Office 2 for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant filed the instant IRA appeal, alleging that the agency engaged

in whistleblower reprisal by directing his reassignment. Donahue v. Department

of Justice, MSPB Docket No. DC-1221-22-0483-W-1, Initial Appeal File (IAF),

Tab 9 at 10-11. The administrative judge developed the record and held the

requested hearing before denying the request for corrective action. Donahue v.

Department of Justice, MSPB Docket No. DC-1221-22-0483-W-2, Appeal File

(W-2 AF), Tab 38, Initial Decision (ID). The following facts, as further detailed

in the record and initial decision, appear to be undisputed.

¶3 The appellant began working for the agency’s Drug Enforcement

Administration (DEA) in 1991. W-2 AF, Tab 34-9, Hearing Transcript (HT) at 9.

He was subject to a mobility agreement and changes to his duty station. W-2 AF,

Tab 27 at 17. Throughout the appellant’s career, he held numerous roles with

ever increasing responsibilities, such as ones in Philadelphia, New York City,

Barranquilla, Colombia, Bogota, Colombia, San Juan, Puerto Rico, and Mexico

City, Mexico. W-2 AF, Tab 23 at 6-8; HT at 11-24. During the latter stages of

his career, the appellant became the Deputy Chief of Operations for Foreign

Operations, stationed in Chantilly, Virginia. W-2 AF, Tab 25 at 19; HT at 24-25.

¶4 While in this latest role, the appellant made the March 2021 disclosure

underlying his claim of whistleblower reprisal. W-2 AF, Tab 25 at 23-24. The

appellant informed the agency’s Office of Professional Responsibility (OPR) that

one of his Senior Executive Service subordinates, the Mexico Regional Director,

engaged in misconduct by traveling to Miami, Florida, to meet with criminal

defense attorneys. Id. According to the appellant, this subordinate did so over

2

This appeal was reassigned from the Board’s Washington Regional Office to the

Atlanta Regional Office and was adjudicated by an administrative judge from that

office.

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the appellant’s explicit instructions and despite the appearance of impropriety,

since those attorneys represented potential targets of DEA investigations. Id.

Soon thereafter, the agency detailed the Mexico Regional Director to a different

position as OPR began investigating. Id.; ID at 3.

¶5 In June 2021, the United States Senate confirmed a new DEA

Administrator. HT at 126-27; ID at 3. A couple of months after that, in August

2021, a new Principal Deputy Administrator (PDA) joined the agency, as well.

HT at 128; ID at 3. These new agency leaders made several personnel changes at

the highest levels of the DEA, including one involving the appellant.

HT at 106-07, 215-25; IAF, Tab 14 at 50-52; ID at 3.

¶6 In October 2021, the PDA notified the appellant that he would be reassigned

to the position of Regional Director for the Andean Region, at an office in

Bogota, Colombia. W-2 AF, Tab 26 at 25, Tab 27 at 7-8. This was an office in

which he had previously worked for several years, in roles that included both

Assistant Regional Director and Acting Regional Director. W-2 AF, Tab 27

at 7-8; HT at 12, 15-17; PFR File, Tab 1 at 8. The letter informing the appellant

of his reassignment stated that the appellant was the best person to replace the

outgoing Regional Director, who was retiring, given the appellant’s expertise and

prior experience in the region. W-2 AF, Tab 26 at 25.

¶7 Days after notification of this directed reassignment, the appellant filed a

complaint with the Office of Special Counsel (OSC), alleging that the

reassignment was reprisal for his whistleblowing disclosure. IAF, Tab 1 at 5,

Tab 9 at 16-25. Among other things, the appellant alleged that his reassignment

by the PDA may be reprisal because the appellant’s whistleblowing implicated a

longtime colleague and friend of both the PDA and the Chief of Operations who

worked directly under the PDA. IAF, Tab 9 at 7-8, 20; HT at 54-56. Around the

time of his OSC complaint, the appellant’s attorney also wrote to the PDA raising

various other concerns, such as one about whether the reassignment amounted to

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a demotion, the need for refresher language training, and questions about the

appellant’s physical safety in Colombia. W-2 AF, Tab 27 at 7-8.

¶8 Over the ensuing months, the new PDA and Administrator proposed and

then sustained the removal of the Mexico Regional Director, i.e., the individual

identified in the appellant’s disclosure as having engaged in misconduct. IAF,

Tab 14 at 57-67; W-2 AF, Tab 27 at 26. Throughout this same time, the agency

also took steps to prepare for the appellant’s reassignment to Colombia. W-2 AF,

Tab 27 at 7-8, Tab 14 at 79, Tab 29 at 36; ID at 4-5. However, in May 2022, the

appellant informed the agency that he would retire that month rather than accept

the directed reassignment to Colombia. W-2 AF, Tab 29 at 138-39; ID at 5.

During this same period, OSC terminated its inquiry into the appellant’s

allegations of whistleblower reprisal, and this appeal followed. IAF, Tab 1, Tab 9

at 26-27.

¶9 The administrative judge developed the record and held the requested

hearing before issuing an initial decision that denied corrective action. She found

that the appellant’s disclosure about his subordinate’s misconduct was protected.

ID at 7-9. She also found that the appellant established the contributing factor

criterion because the PDA who reassigned him in October 2021 had knowledge of

the appellant’s March 2021 disclosure. ID at 9-10. However, upon shifting the

burden of proof, the administrative judge found that the agency proved by clear

and convincing evidence that it would have taken the same action in the absence

of the appellant’s whistleblowing. ID at 10-11. She reasoned that the strength of

the agency’s evidence in support of the action, any motive to retaliate, and

evidence about similarly situated nonwhistleblowers all weighed in the agency’s

favor. ID at 12-19.

¶10 The appellant filed a petition for review. Donahue v. Department of

Justice, MSPB Docket No. DC-1221-22-0483-W-2, Petition for Review (PFR)

File, Tab 1. The agency filed a response, PFR File, Tab 6, and the appellant

replied, PFR File, Tab 9.

5

¶11 On review, the appellant argues, among other things, that the administrative

judge made a prejudicial error pertaining to discovery. PFR File, Tab 1 at 10-15.

In particular, the appellant repeatedly moved to compel the production of

additional evidence because he believed the agency’s discovery responses were

incomplete, but the administrative judge denied the same on multiple occasions.

Id. We find that the circumstances warrant a remand for further proceedings.

¶12 In a September 2022 discovery request, the appellant sought all documents

concerning the agency’s decision to reassign him and implementation of the

same. W-2 AF, Tab 9 at 7-8 n.2, Tab 14 at 22-24. Although we need not recount

it in full, the appellant’s discovery request described several specific agency

computer systems and applications where records related to his reassignment

would likely be found. W-2 AF, Tab 9 at 7-8 n.2, Tab 14 at 22-24. Soon after

this discovery request, the administrative judge dismissed the appeal without

prejudice, for automatic refiling in February 2023. IAF, Tab 17; W-2 AF, Tab 1.

According to the appellant, the agency responded to his discovery request in

November 2022, with just 10 pages of emails and text messages, all of which

were communications between the appellant and the PDA. W-2 AF, Tab 9 at 7-8;

PFR File, Tab 1 at 10.

¶13 In March 2023, the appellant notified the agency that its discovery response

appeared to be incomplete because he had been provided “virtually no emails,

text messages, or other communications” about the decision to reassign him and

implementation of the same. W-2 AF, Tab 9 at 15, Tab 14 at 9. To illustrate his

concern, the appellant provided the agency with a couple of emails that he had

obtained elsewhere, indicating that they should have been included in the

agency’s discovery response. W-2 AF, Tab 9 at 15, 17-24. In the months that

followed, between March and June 2023, the appellant repeatedly pressed the

agency for more information about the completeness of its discovery response,

along with notice that he would file a motion to compel, if need be. W-2 AF,

Tab 13 at 10-11, 13, Tab 14 at 9-20. Agency counsel eventually advised the

6

appellant that he had personally searched again and found no additional materials.

W-2 AF, Tab 13 at 10-11, 13, Tab 14 at 9-20.

¶14 In June 2023, the appellant filed the motion to compel he had warned of,

recounting the ongoing discovery dispute. W-2 AF, Tab 9. He requested “an

Order requiring the production of all relevant documents . . . and a mechanism to

verify the thoroughness of the search and the accuracy of the result.” Id. at 12.

The agency responded, arguing that the motion to compel was untimely because

the appellant filed the motion on the day prehearing submissions were due and

after the period for discovery had ended. W-2 AF, Tab 13 at 6-7. Agency

counsel further asserted that it had already provided all relevant documents within

its possession. Id. at 7-8. While doing so, the agency suggested that the emails

the appellant had discovered on his own, i.e., the ones he identified as

establishing that the agency’s discovery response was incomplete, were not

records in the agency’s possession because the author of the emails had retired

the year before. 3 Id. at 7 n.2. The appellant replied. W-2 AF, Tab 14. Among

other things, he provided a detailed explanation of the systems that should have

been searched; described why agency counsel’s claim to have searched himself

seemed implausible, given the agency’s security protocols; and asked the

administrative judge to designate an agency employee with the necessary access

to both search the identified systems and provide a sworn certification about

doing so. Id. at 5-6.

3

Agency counsel’s assertion contained little detail and was at least partially inaccurate.

The emails were between two agency officials—the Executive Assistant to the Deputy

Chief of Operations and the Acting Section Chief. W-2 AF, Tab 9 at 18-20. The

former sent the first email, and the latter responded with the second email. Id.

Therefore, it was inaccurate for agency counsel to assert that the Acting Section Chief

authored both. W-2 AF, Tab 13 at 7. And while it is plausible that the agency lost

access to the Acting Section Chief’s emails less than a year after his retirement, agency

counsel did not identify any associated record retention policy or otherwise explain the

loss. Agency counsel also did not explain why the retirement of one party to an email

between two agency officials would preclude the agency from locating those emails

through the other party’s email account.

7

¶15 The administrative judge denied the appellant’s motion to compel. She was

not persuaded by his arguments and assertions about the sufficiency of the

agency’s search. W-2 AF, Tab 15 at 1-2. However, that same day, the agency

appointed a new attorney to this appeal. W-2 AF, Tab 16. This new agency

counsel acknowledged the discovery dispute to date, including the appellant’s

specific arguments about the prior agency counsel’s representations and his

access to records. W-2 AF, Tab 18 at 4. She indicated that she had already

begun to further review the matter and the agency’s document production. Id.

A couple of weeks later, in July 2023, the agency acknowledged that it had

uncovered approximately 70 additional records in response to the appellant’s

original discovery request. W-2 AF, Tab 19 at 4.

¶16 Armed with these additional records and the implicit acknowledgment that

the agency’s earlier discovery responses had been incomplete, the appellant

immediately sought to depose those responsible for the agency’s searches. W-2

AF, Tab 20 at 8-9. He also sought associated documentation that would show,

inter alia, the scope of the search and the databases searched. Id. The agency

objected. Id. at 12-13. Therefore, the appellant filed a July 2023 motion to

compel. Id. at 4-5. The agency filed a response in opposition, W-2 AF, Tab 21

at 5-7, and attached the most recent set of 70 records it had located, id. at 17-153.

The administrative judge denied the appellant’s motion to compel, deciding that

the request for deposition was not reasonably calculated to lead to the discovery

of admissible evidence, as required by 5 C.F.R. § 1201.72. W-2 AF, Tab 22.

¶17 During the August 2023 hearing, this topic came up once more as the

appellant took testimony from the PDA. When asked, the PDA acknowledged

that he sometimes used text messages to communicate with other senior leaders.

HT at 304. When further asked whether he sent any text messages about the

appellant’s reassignment, the PDA stated, “I’m sure that there were texts about

the acceptance or the timing or, I’m sure that there were some texts about that.”

Id. at 305. In response to a follow-up, he stated, “I don’t know what I would

8

have texted about, about his reassignment.” Id. at 307. At that point, the

appellant renewed his discovery motions, arguing that no such text messages were

included in the agency’s discovery responses. Id. at 307-08. The administrative

judge denied the renewed motions. 4 Id. at 308-10. The appellant continued to

object to all of these rulings in his closing brief. W-2 AF, Tab 36 at 5 n.1.

¶18 The appellant’s petition for review recounts this timeline of events and,

among other things, argues that the administrative judge erred in her

discovery-related rulings. PFR File, Tab 1 at 10-15. He also submits two sworn

statements, dated after the initial decision, from recently retired agency officials. 5

Id. at 24-26, 28-29.

¶19 The first of these newly submitted sworn statements is from the former

Associate Deputy Assistant Administrator. Id. at 24-26. This individual

describes having personal familiarity with the agency’s records systems and its

processes for seeking records for litigation purposes. Id. at 24-25. She further

4

In denying the renewed motions, the administrative judge seemed to rely, at least in

part, on agency counsel’s representation that some text messages had been provided to

the appellant during discovery and that they were included in the record. HT at 308-10.

However, appellant’s counsel asserted that the only text messages provided were

between the appellant and the PDA, i.e., not between the PDA and any other agency

official. Id. Agency counsel did not indicate otherwise and did not identify where text

messages might be found in the record. Id. In the agency’s response to the appellant’s

petition for review, it once again refers to these text messages in the record, without

identifying where the Board might find them. PFR File, Tab 6 at 11 n.2. Nevertheless,

we found a handful of text messages in an agency pleading, which seem to be between

the appellant and the PDA. IAF, Tab 14 at 11, 96-99.

5

The appellant asserted that these officials were unwilling to speak with him previously

due to fear of reprisal. PFR File, Tab 1 at 12. But the sworn statements are silent about

the matter. Id. at 24-26, 28-29. Nevertheless, in furtherance of his assertion about

them fearing reprisal, the appellant indicated that both individuals retired after the

initial decision was issued. Id. at 12. The agency, however, stated that they retired in

the two months before the initial decision was issued. PFR File, Tab 6 at 15 n.4.

Neither party submitted any evidence about the matter. If the agency’s dates are to be

believed, both retirements happened before the hearing and initial decision in this

appeal. Compare id., with W-2 AF, Tab 15. However, both retirements occurred after

the administrative judge denied the appellant’s first motion to compel, and one of the

retirements happened just 2 days before the appellant’s prehearing submission deadline.

Compare PFR File, Tab 6 at 15 n.4, with W-2 AF, Tab 15 at 2.

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describes how the agency’s searches for emails as it related to the appellant were

“unusually limited.” Id. at 25. Among other things, she asserts that the searches

excluded the period leading up to the appellant’s directed reassignment and

excluded the senior agency officials who would have been involved in the

decision. 6 Id.

¶20 The second sworn statement included in the appellant’s petition is from the

former Deputy Chief Inspector of the agency’s OPR. Id. at 28-29. He similarly

describes having personal familiarity with the agency’s records systems and

processes for seeking records for litigation purposes. Id. at 28. He further

describes why he had reason to believe that the agency had not conducted a

complete search for records in this appeal and how he contacted an Office of

Inspector General investigator about the same in June 2023. Id. at 28-29.

¶21 In the agency’s response to the appellant’s petition, it continues to assert

that the appellant’s June 2023 motion to compel was untimely. PFR File, Tab 6

at 14. The agency also asserts that the administrative judge correctly denied that

motion, the July 2023 motion to compel, and the motion to compel made at the

hearing on the merits. Id. at 14-18. In addition, the agency argues that the Board

should not consider the sworn statements attached to the appellant’s petition

because the appellant has not shown that the information contained in those

statements was previously unavailable. Id. at 15.

ANALYSIS

¶22 Discovery is the process by which a party may obtain relevant information

from another person or a party that the other person or party has not otherwise

provided. Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 10

(2013); 5 C.F.R. § 1201.72(a). Relevant information includes information that

6

The sworn statement and the appellant’s arguments both indicate that a screenshot

relevant to the agency’s search is attached to the sworn statement, PFR File, Tab 1

at 13, 26, but we see no such attachment. The agency’s response to the petition notes

the same and indicates that the agency had reached out to the appellant, seeking the

screenshot, to no avail. PFR File, Tab 6 at 15 n.3.

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appears reasonably calculated to lead to the discovery of admissible evidence.

Chandler, 120 M.S.P.R. 163, ¶ 10; 5 C.F.R. § 1201.72(a). The parties are

expected to start and complete discovery with minimal intervention from the

Board. McClenning v Department of the Army, 2022 MSPB 3, ¶ 19; 5 C.F.R.

§ 1201.71.

¶23 In the event of a discovery dispute, the Board’s regulations contemplate a

prompt motion to compel. 5 C.F.R. § 1201.73(d)(3) (providing that any motion

for an order to compel or issue a subpoena must be filed with the judge within

10 days of the date of service of objections or, if no response is received, within

10 days after the time limit for response has expired). However, the Board’s

regulations also require that the parties attempt to resolve any discovery dispute

before filing a motion to compel. 5 C.F.R. § 1201.73(c)(1) (providing that,

before filing any motion to compel or issue a subpoena, the moving party shall

discuss the anticipated motion with the opposing party or nonparty, and all those

involved shall make a good faith effort to resolve the discovery dispute and

narrow the areas of disagreement).

¶24 To the extent that the agency has argued that the appellant’s June 2023

motion to compel was untimely, we disagree for a few reasons. First, the agency

has acknowledged November 7, 2022, as the date of its initial discovery response.

PFR File, Tab 6 at 14. However, this was during the October 2022 to February

2023 period in which the appeal was dismissed without prejudice. IAF, Tab 17;

W-2 AF, Tab 1. That dismissal did not provide any instructions about how the

parties should proceed in the event of a discovery dispute during the dismissal

period. IAF, Tab 17. In addition, the record before us suggests that the

appellant’s delay in filing a motion to compel was partially attributable to the

agency’s delays in responding to the appellant’s efforts to resolve the matter

independent of the administrative judge. W-2 AF, Tab 13 at 10-11, 13, Tab 14

at 9-20. Also contributing to the delay in filing his motion to compel was that the

motion did not stem from any agency objection to his discovery request. It

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instead stemmed from, inter alia, the appellant uncovering specific emails that the

agency did not provide as part of its discovery response. Finally, we note that the

agency’s argument about the timeliness of the appellant’s June 2023 motion to

compel is silent about the fact that the agency implicitly acknowledged, after the

motion was filed, that it should have turned over an additional 70 records with its

initial discovery response. For all these reasons, we are not persuaded by the

agency’s arguments about the timeliness of the appellant’s first motion to compel.

¶25 Looking more broadly at the appellant’s numerous efforts to ensure that the

agency’s discovery responses were complete, including multiple motions to

compel, we recognize that an administrative judge has broad discretion in ruling

on discovery matters. Dieter v. Department of Veterans Affairs, 2022 MSPB 32,

¶ 25. The Board will not find reversible error in such rulings absent an abuse of

discretion. Id. Nevertheless, we find that the circumstances in this appeal

warrant a remand.

¶26 We are struck by the fact that the appellant repeatedly detailed the records

sought, including the computer systems and applications where they would likely

be found, along with associated security protocols. IAF, Tab 9 at 7-8 n.2. To

illustrate, the appellant sought records relating to the decision to reassign him,

such as ones that might be found within certain specified email domain names,

messaging applications such as WhatsApp or Signal, archived hard drives, and

other agency record storage systems such as “Capstone, Jabber, and Kraft

communications.” W-2 AF, Tab 9 at 7-8 n.2, Tab 14 at 22-23.

¶27 Meanwhile, the agency’s correspondence with the appellant and its

pleadings submitted into the record included only vague assertions that agency

counsel searched for discoverable materials. W-2 AF, Tab 13 at 7, 13. For

example, during email correspondence between the parties about these issues,

agency counsel referred to his own personal “search [and] re-search on the

documents requested.” Id. at 13. In subsequent correspondence, agency counsel

once again stated that the “[a]gency has gone back and reviewed and re-searched

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its files for any additional relevant materials.” Id. at 10. The agency’s pleading

in response to the appellant’s first motion to compel similarly describes its

searches in general terms. Id. at 4, 7. None describe details such as the systems

and applications searched, search terms used, or date limitations. This continued

to be the case, even after the appellant identified some emails that were missing

from the agency’s discovery response, despite the appellant articulating why he

had reason to believe that agency counsel may not have had access to certain

agency systems, and despite the appellant repeatedly asking for more information

about the agency’s searches to ensure their completeness. W-2 AF, Tab 14 at 5-6,

9. Then, agency counsel turned over an additional 70 records, implicitly

acknowledging that its original discovery response was incomplete, without any

explanation for why they were not turned over earlier, and still without

identifying the kinds of searches that had been conducted to obtain discoverable

records. W-2 AF, Tab 19 at 4, Tab 20 at 8-9, 12-13, Tab 21 at 5-6.

¶28 Regarding the sworn statements the appellant attaches to his petition for

review, the agency is correct to note that the appellant did not submit them below.

PFR File, Tab 6 at 15. The Board generally will not consider evidence submitted

for the first time on review absent a showing that the documents and the

information contained in the documents were unavailable before the record closed

despite due diligence, and that the evidence is of sufficient weight to warrant an

outcome different from that of the initial decision. Skarada v. Department of

Veterans Affairs, 2022 MSPB 17, ¶ 5 n.1. However, we exercise our discretion to

consider the appellant’s newly submitted evidence in this appeal. Compare

5 C.F.R. § 1201.115(d) (recognizing that the Board may grant a petition for

review in the case of new and material evidence if the information contained in

that evidence was previously unavailable), with 5 C.F.R. § 1201.115(e)

(providing that the Board nevertheless reserves the authority to consider any issue

before it). We do so because of the particular facts and circumstances at issue.

This includes the appellant’s diligent efforts to ensure that the agency had

13

complied with its discovery obligations below, the agency’s documented failure

to do so at least once before, and the newly submitted evidence’s suggestion that

the agency improperly thwarted the appellant’s efforts to pursue this case. 7 Even

if we did not consider the sworn statements attached to the appellant’s petition,

we would reach the same result.

¶29 In sum, we find that the administrative judge abused her discretion in

denying the appellant’s June 2023 motion to compel, we vacate the initial

decision, and we remand the case for further proceedings. W-2 AF, Tab 9 at 12,

Tab 14 at 22-24. On remand, the administrative judge must order compliance

with the appellant’s discovery request insofar as he sought records about (1) the

2021 decision to transfer him from Chantilly, Virginia, to Bogota, Colombia and

(2) the implementation of the same. IAF, Tab 9 at 7-8, Tab 14 at 23. During the

remand proceedings, the agency must submit a sworn statement by an individual

with knowledge of the search efforts and the agency systems and applications

involved to demonstrate the completeness of its searches for discoverable

materials. The statement must, at a minimum, identify the search parameters, the

systems and applications searched, the search terms, and the time frames

searched. The administrative judge must then determine whether the agency’s

searches were sufficient and, if necessary, order a more complete search. If no

further support for the appellant’s theory of his case is found, the administrative

judge may issue a remand initial decision based on the existing record. 8 See

7

At their core, these sworn statements suggest that the agency did not conduct proper

discovery searches. However, we note that one also describes the agency’s email

retention policy as requiring the retention of emails from all employees for three years

and the permanent retention of emails from senior employees. PFR File, Tab 1 at 24.

This is in stark contrast to original agency counsel’s suggestion that his 2022 search

could not uncover the November 2021 emails in which an Acting Section Chief was the

author or recipient due to his December 2021 retirement. Compare W-2 AF, Tab 13

at 7 n.2, with W-2 AF, Tab 9 at 18-21.

8

The appellant identified another distinct discovery dispute. He recently uncovered a

May 2022 decision by an Equal Employment Opportunity Commission (EEOC) judge in

an unrelated case which found the PDA’s testimony not credible and further found him

to be an official responsible for the agency’s discrimination and reprisal. PFR File,

14

Baird v. Department of the Army, 517 F.3d 1345, 1351 (Fed. Cir. 2008)

(providing comparable instructions after finding that an administrative judge

should have granted an appellant’s motion to compel due to the employing

agency’s “lax attitude towards compliance with . . . discovery requests”). On the

other hand, if additional support for the appellant’s theory of reprisal is

uncovered due to renewed search efforts by the agency, the administrative judge

must offer the appellant a supplemental hearing. Id. In either case, the

administrative judge must conclude by issuing a remand initial decision in which

she may incorporate prior findings to the extent that doing so is warranted. 9

Tab 1 at 31-45. According to the appellant, the agency should have produced this in

response to an interrogatory and when discussing the matter at the hearing. Compare

PFR File, Tab 6 at 195-96 (interrogatory regarding “any investigations and/or

complaints filed” against those involved in the appellant’s reassignment, along with the

agency’s response that there were none involving the PDA), and HT at 210-212 (agency

counsel indicating that the PDA had no prior discipline), with PFR File, Tab 1 at 31-45

(EEOC decision). The agency disagrees and argues that the Board should not consider

this evidence submitted for the first time on review. PFR File, Tab 6 at 19-20

(referencing 5 C.F.R. § 1201.115(d)). Because we are remanding this appeal for further

discovery proceedings, the administrative judge should consider what significance, if

any, the decision in an unrelated case has on this case. See Semenov v. Department of

Veterans Affairs, 2023 MSPB 16, ¶ 34 (exercising the Board’s discretion to instruct an

administrative judge to permit new arguments and evidence about a new claim

presented for the first time on review when the appeal was already being remanded for

other reasons); 5 C.F.R. § 1201.115(e).

9

Because we are remanding the appeal for further proceedings, it would be premature

for us to consider the appellant’s arguments about whether the administrative judge

correctly determined that the agency rebutted his prima facie case of reprisal. PFR File,

Tab 1 at 15-21.

15

ORDER

¶30 For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.