Michael Johnen v. U.S. Merit Systems Protection

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. JOHNEN, No. 16-73427

Petitioner,

MSPB No.

v. SF-1221-14-0338-W-2

U.S. MERIT SYSTEMS

PROTECTION BOARD; UNITED OPINION

STATES DEPARTMENT OF THE

ARMY,

Respondents.

On Petition for Review of an Order of the

Merits Systems Protection Board

Argued and Submitted December 8, 2017

San Francisco, California

Filed February 26, 2018

Before: Susan P. Graber and N. Randy Smith, Circuit

Judges, and Michael H. Simon,* District Judge.

Opinion by Judge Graber

*

The Honorable Michael H. Simon, United States District Judge for

the District of Oregon, sitting by designation.

2 JOHNEN V. MSPB

SUMMARY**

Merit Systems Protection Board

The panel dismissed a petition for review as to the United

States Merit Systems Protection Board; and denied in part,

granted in part, and remanded the petition for review as to the

United States Department of the Army in a case brought by

a former civilian employee at Fort Hunter Liggett, a military

base in California alleging that the Army terminated him and

excluded him from his work site because he had made

complaints that were protected by the Whistleblower

Protection Act of 1989.

The Board affirmed the administrative law judge’s

finding that the petitioner failed to make a prima facie case

that his complaint to the Department of Defense Inspector

General was a contributing factor in the Army’s decision to

terminate him and exclude him from a work site.

The panel held that the Army was the only proper

respondent in this case where petitioner brought a “mixed

case” by challenging both jurisdictional or procedural matters

and the merits of an adverse personnel action. The panel

further held that because petitioner was seeking review of the

Board’s decision on the merits of his termination and

exclusion, the Board was not the proper respondent; and only

the agency that took the action – the Army – was properly

“the” respondent.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JOHNEN V. MSPB 3

The panel also held that the petitioner received due

process. The panel rejected petitioner’s argument that the

Board violated his due process rights by deciding his appeal

when only two Board members, instead of the usual three,

held office.

Finally, the panel held that the Board’s decision on the

merits was supported by substantial evidence and was

procedurally proper.

In a separate memorandum disposition, the panel granted

the petition in part and remanded the case for consideration

of an additional issue.

COUNSEL

Wendy Musell (argued), Stewart and Musell LLP,

Emeryville, California, for Petitioner.

Jimmy S. McBirney (argued), Trial Attorney; Allison Kidd-

Miller, Assistant Director; Robert E. Kirschman Jr., Director;

Chad A. Readler, Acting Assistant Attorney General; Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent Department of the Army.

Stephen Fung (argued), Attorney; Jeffrey A. Gauger,

Reviewing Attorney; Katherine M. Smith, Deputy General

Counsel; Bryan G. Polisuk, General Counsel; Office of the

General Counsel, Merit Systems Protection Board,

Washington, D.C.; for Respondents.

Lisa Powell (argued), United States Office of Special

Counsel, Oakland, California; Malvina Winston, Attorney;

4 JOHNEN V. MSPB

Louis Lopez, Associate Special Counsel; Carolyn N. Lerner,

Special Counsel; United States Office of Special Counsel,

Washington, D.C.; for Amicus Curiae United States Office of

Special Counsel.

OPINION

GRABER, Circuit Judge:

Petitioner Michael Johnen alleges that the United States

Department of the Army terminated him and excluded him

from his work site because he had made complaints that are

protected under the Whistleblower Protection Act of 1989

(“Act”). He seeks review of an adverse decision of the Merit

Systems Protection Board. In this opinion, we address three

issues: (1) whether the Board is a proper respondent;

(2) whether the Board deprived Petitioner of due process by

issuing a two-person decision; and (3) whether the Board’s

ruling on the merits—that Petitioner failed to make a prima

facie case that his complaint to the Department of Defense

Inspector General (“DODIG”) was a contributing factor in the

Army’s decision to terminate him and exclude him from a

work site—is supported by substantial evidence and free of

procedural error. We hold: (1) the Army is the only proper

respondent; (2) Petitioner received due process; and (3) the

Board’s decision on the merits is supported by substantial

evidence and is procedurally proper.1

1

In a separate memorandum disposition, filed this date, we grant the

petition in part and remand the case for consideration of an additional

issue.

JOHNEN V. MSPB 5

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2008, Petitioner worked as a civilian

Supervisory Engineering Technician for the U.S. Army

Installation Management Command, Directorate of Public

Works, at Fort Hunter Liggett, a military base in California.

On October 26, 2012, he filed a complaint with DODIG. As

relevant here, Petitioner alleged that he had been the subject

of an investigation during which Army employees had made

false statements about him. He further alleged in his DODIG

complaint that he had encountered nepotism within the Army.

The army terminated Petitioner’s employment on August 21,

2013, purportedly because the Directorate of Public Works

was overstaffed; two days later, he was excluded from the site

for 180 days because of the termination.

Shortly thereafter, Petitioner filed a complaint with the

Office of Special Counsel, alleging as relevant here that his

termination and exclusion from his work site were retaliation

for his DODIG complaint, a form of whistleblowing. After

a hearing, an administrative judge denied Petitioner’s request

for corrective action. On the merits, the administrative judge

found that the DODIG complaint did not contribute either to

the Army’s decision to terminate Petitioner or to its decision

to exclude him from the site. Petitioner appealed that

decision to the Board, which affirmed. Petitioner filed a

timely petition for review with this court, naming both the

Army and the Board as respondents.

6 JOHNEN V. MSPB

DISCUSSION

A. The Board as a Respondent

We first consider whether Petitioner properly named both

the Board and the Army as respondents. Title 5 U.S.C.

§ 7703(a)(2) provides:

The Board shall be named respondent in

any proceeding brought pursuant to this

subsection, unless the employee . . . seeks

review of a final order or decision on the

merits on the underlying personnel action

. . . , in which case the agency responsible for

taking the personnel action shall be the

respondent.

(Emphases added.) Petitioner brings procedural and

jurisdictional challenges, but he also disputes the Board’s

determination on the merits of the underlying personnel

action. We have not yet considered who is the proper

respondent in a “mixed” case—that is, one in which the

employee challenges both jurisdictional or procedural matters

and the merits of an adverse personnel action.

Congress clearly intended for only one party to be “the”

respondent in any given petition to review a Board decision.

Moreover, the text following the word “unless” clearly makes

the pivot point an employee’s challenge to the merits of a

personnel decision. Here, because Petitioner is seeking

review of the Board’s decision on the merits of his

termination and exclusion, the Board is not the proper

respondent. Only the agency that took the action—here, the

Army—is properly “the” respondent.

JOHNEN V. MSPB 7

Our conclusion on that issue accords with the Federal

Circuit’s holding that the employing agency is the proper

respondent when a petition for review involves both

jurisdictional and merits issues.2 Amin v. Merit Sys. Prot.

Bd., 951 F.2d 1247, 1252 (Fed. Cir. 1991). We are persuaded

by the Federal Circuit’s reasoning. A fundamental purpose

of the Civil Service Reform Act of 1978, Pub. L. No. 95-454,

92 Stat. 1111, was to transfer adjudicatory authority from the

old Civil Service Commission to the Board. Amin, 951 F.2d

at 1251–52. If the Board had to serve as the respondent in a

case in which the merits of an underlying personnel action

were at issue, the Board “would be placed in a position

adversarial to employees whose rights it was established to

adjudicate,” thus undermining the Board’s role as a neutral

adjudicatory body. Id. at 1252; accord Spruill v. Merit Sys.

Prot. Bd., 978 F.2d 679, 686 (Fed. Cir. 1992).

We hold that the Army is the only proper respondent here.

Accordingly, we dismiss the petition with respect to the

Board.

B. Two-person Decision

Petitioner next argues that the Board violated his due

process rights by deciding his appeal when only two Board

members, instead of the usual three, held office; there was a

vacancy on the Board at the time of the relevant decision.

We review that legal question de novo. Gilbert v. Nat’l

Transp. Safety Bd., 80 F.3d 364, 367 (9th Cir. 1996).

2

For many years, the Federal Circuit had sole jurisdiction to review

Board decisions. Whistleblower Protection Enhancement Act of 2012,

Pub. L. No. 112-199, 126 Stat. 1465; Daniels v. Merit Sys. Prot. Bd.,

832 F.3d 1049, 1054 (9th Cir. 2016), cert. denied, 137 S. Ct. 1242 (2017).

8 JOHNEN V. MSPB

Relevant statutory authority states that the “Board is

composed of 3 members.” 5 U.S.C. § 1201. But the statute

also suggests that the Board can function without all three

members. See id. § 1203 (“[W]hen the offices of Chairman

and Vice Chairman are vacant, the remaining Board member

shall perform the functions vested in the Chairman.”).

Applicable regulations interpreting those statutory provisions

also contemplate action by a Board with fewer than three

members. See 5 C.F.R. §§ 1200.2(b) (“If the office of the

Chairman is vacant . . . , then the Vice Chairman performs the

Chairman’s duties.”), 1200.3(e) (“This section applies only

when at least two Board members are in office.”). Petitioner

has pointed to no legal authority suggesting that a two-

member Board may not act. For those reasons, the Board’s

decision stands despite the vacancy.

C. Merits as to Termination and Exclusion

Finally, we consider the merits of the decision with

respect to the DODIG complaint. We must set aside the

Board’s decision on the merits if it is “(1) arbitrary,

capricious, an abuse of discretion, 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 evidence.” 5 U.S.C.

§ 7703(c). We also adopt the Federal Circuit’s standard of

review with respect to credibility determinations, to which

that court gives great deference. Briley v. Nat’l Archives &

Records Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001).

After exhausting remedies before the Office of Special

Counsel, an employee who seeks further review must make

“non-frivolous allegations that (1) he engaged in

whistleblowing activity by making a protected disclosure

JOHNEN V. MSPB 9

under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a

contributing factor in the agency’s decision to take or fail to

take a personnel action as defined by 5 U.S.C. § 2302(a).”

Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1051 (9th Cir.

2016) (internal quotation marks omitted), cert. denied, 137 S.

Ct. 1242 (2017). An employee may establish a prima facie

case by circumstantial, as well as direct, evidence. 5 U.S.C.

§ 1221(e)(1); Whitmore v. Dep’t of Labor, 680 F.3d 1353,

1367 (Fed. Cir. 2012). If an employee has established a

prima facie case, an agency may “demonstrate[] by clear and

convincing evidence that it would have taken the same

personnel action in the absence of such disclosure.” 5 U.S.C.

§ 1221(e)(2); see Kahn v. Dep’t of Justice, 618 F.3d 1306,

1316 (Fed. Cir. 2010) (declining to proceed to the clear-and-

convincing-evidence test because the petitioner had not

established a prima facie case).

Here, it is undisputed that the DODIG complaint was a

protected disclosure. And the termination and exclusion were

personnel actions. The key question was whether there was

a relationship between the complaint and the personnel

actions, more specifically, whether the complaint was a

“contributing factor” to the personnel actions. 5 U.S.C.

§ 1221(e)(1).

Substantial evidence supports the Board’s determination

that the DODIG complaint did not motivate the Army’s

decision to terminate and exclude Petitioner. The Board

relied on the administrative judge’s finding that the two

decision-makers did not know about Petitioner’s DODIG

complaint when they terminated and excluded Petitioner.

The Board also relied on the finding that the decision-makers

lacked constructive knowledge, in that no one who was aware

of the DODIG complaint influenced the decision-makers.

10 JOHNEN V. MSPB

Nor was the timing of the termination and exclusion close

enough to the time when the DODIG complaint was filed so

as to imply a connection. Finally, the Board relied on other

factors, including the Army officials’ lack of a retaliatory

motive and the administrative judge’s credibility conclusions.

The administrative judge found the Army’s witnesses to be

“highly credible, noting that each clearly and concisely

answered the questions posed to them,” whereas Petitioner

testified to “unsupported assumptions and engage[d] in

unwarranted speculation.”

Petitioner argues that the Board ignored certain items of

circumstantial evidence that, he claims, show that the

decision-makers did know about his DODIG complaint. But

it is evident from the Board’s lengthy and detailed opinion

that the Board considered all the evidence and simply found

it wanting.

Petition DISMISSED as to the United States Merit

Systems Protection Board; as to the United States

Department of the Army, petition DENIED in part,

GRANTED in part, and REMANDED. The parties shall

bear their own costs on appeal.