discussing the factors relevant to an agency’s affirmative defense to a claim of whistleblower reprisal, which include any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated
How later courts described this case
- discussing the factors relevant to an agency’s affirmative defense to a claim of whistleblower reprisal, which include any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADDISON DAVID AULT, DOCKET NUMBER
Appellant, DC-0752-20-0610-I-1
v.
DEPARTMENT OF COMMERCE, DATE: April 15, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Addison David Ault , Pennington, New Jersey, pro se.
Chieko Clarke , Esquire, and William Horrigan , Esquire, Alexandria,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 5 U.S.C. chapter 43. For the reasons set forth below,
we GRANT the petition for review, VACATE the initial decision, and REMAND
the appeal to the Washington Regional Office for further adjudication consistent
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
with Santos v. National Aeronautics and Space Administration , 990 F.3d 1355
(Fed. Cir. 2021).
BACKGROUND
The appellant was a GS-14 Patent Examiner for the agency’s Patent and
Trademark Office. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 22. The
primary function of this position is to review patent applications and, based on
the result of that review, draft an “office action” with respect to each application.
IAF, Tab 28, Hearing Transcript (Tr.), Vol. 1 at 18-19 (testimony of a Quality
Assurance Specialist). An office action is a written decision on an application
and comes in three basic forms—final allowance, final rejection, and non -final
notice and opportunity for the applicant to respond by modifying or
supplementing an application that might otherwise be rejected. Id. at 19, 23-24
(testimony of the Quality Assurance Specialist). Each draft office action must be
signed by an authorized official before it is issued to the applicant. Id. at 21
(testimony of the Quality Assurance Specialist). As a GS-14 Patent Examiner,
the appellant had full signatory authority and was thus able to issue office actions
independently and without any higher level of review. Id. at 21-24 (testimony of
the Quality Assurance Specialist). It is expected that a GS-14 Patent Examiner be
highly proficient at his job. Id. at 25 (testimony of the Quality Assurance
Specialist).
The Patent Examiner performance plan contains three critical elements—
Production, Quality, and Docket Management—as well as one non-critical
element—Stakeholder Interaction. IAF, Tab 4 at 62-63, 73-83. Performance in
each of these elements is rated on a five-tier scale, from Outstanding, to
Commendable, to Fully Successful, to Marginal, to Unacceptable. Id. at 62-63.
The appellant’s performance year ran from October 1 through September 30 of
each year. Id. at 45, 66.
3
The critical element of Quality is the only performance element at issue in
this appeal. Quality is evaluated based on the rate at which the Patent Examiner’s
office actions contain errors—the lower the error rate, the higher the rating in this
element. Id. at 77. Depending on its nature, the rate of error can fall into one of
the following three categories: Category 1, Category 2, or Category 3. 2 Id.
at 476-78. At issue in this appeal are alleged Category 3 errors, which pertain to
a Patent Examiner’s failure to “[p]roperly reject[] all rejectable claims in a final
rejection; [or] properly allow[] all claims in an allowance.” Id. at 478. An error
rate of 7.5% or greater in any category will result in a Quality rating of
Unacceptable. Id. at 77.
As a GS-14 Patent Examiner, the appellant’s first-level supervisor was a
Supervisory Patent Examiner (SPE). 3 Tr., Vol. 1 at 16 (testimony of SPE 1).
SPEs are the officials primarily tasked with detecting errors in a Patent
Examiner’s work. Id. at 131-32 (testimony of SPE 2). Their review is typically
done on a quarterly basis, during which period the SPE must thoroughly review at
least one office action for each Patent Examiner under her supervision and check
it for errors. IAF, Tab 4 at 446. In practice, the appellant’s supervisors would
review one or two random office actions per Patent Examiner per quarter, and if
they found any errors in that initial sample, then and only then would they expand
2
Generally, only one error will be charged per office action, even if the action contains
multiple errors. However, both a Category 1 and Category 2 or 3 error may be charged
in a single office action if the two errors are unrelated. In addition, Category 1 errors
will not be charged unless the same error is repeated and training and mentoring have
failed to correct the problem. IAF, Tab 4 at 77.
3
During the time period at issue in this appeal, the appellant’s former supervisor took
another position at the agency and a new SPE replaced her in the appellant’s chain of
command. Tr., Vol. 1 at 15-16, 66-67 (testimony of SPE 1), 128, 130 (testimony of
SPE 2). We refer to these individuals as SPE 1 and SPE 2, respectively.
4
their review to additional office actions. 4 Tr. Vol 1 at 27-28, 77-78 (testimony of
SPE 1), 160, 199 (testimony of SPE 2).
If a Patent Examiner disagrees with his SPE’s error determination, he has
the right to rebut that determination orally or in writing. IAF, Tab 1 at 476. If,
after receiving the Patent Examiner’s rebuttal, the SPE maintains that the error
was properly assigned, the Patent Examiner may appeal the issue to the
Technology Center Director. 5 Id.
In any case, only “clear error” may be charged against a Patent Examiner’s
work. Id. at 77. A clear error is one that (1) does not reasonably comply with the
standards identified by the agency, (2) could not have been permitted at the time
and under the circumstances that the action was taken, and (3) is not an honest
and legitimate difference of opinion as to what action should have been taken. Id.
As long as the action taken by the Patent Examiner is reasonable, it is free of
clear error, even if his supervisor would have preferred a different approach. Id.
For fiscal year 2018, the appellant earned a summary rating of
Commendable, including a rating of Commendable in the Quality element. Id.
at 63-64. Nevertheless, SPE 1, who was also the appellant’s rating official,
observed that the quality of his work had declined in the fourth quarter. She
determined that, out of the 26 office actions that the appellant submitted, 4 of
them contained Category 3 errors, for an error rate of 15.38%, which was well in
excess of Unacceptable. Id. at 154. Accordingly, on October 10, 2018, she
issued the appellant an “oral warning,” notifying him that if his performance in
4
To give a rough idea of the total number of office actions that a GS-14 Patent
Examiner could be expected to take in a given quarter, we note that the appellant in this
case issued 26 office actions in the fourth quarter of fiscal year 2018, and 25 office
actions in the first quarter of fiscal year 2019. IAF, Tab 4 at 154, 293.
5
A technology center is a division of the United States Patent and Trademark Office
that processes patent applications falling under a particular field of science or
engineering. The technology center in which the appellant worked processed
biotechnology patent applications. Tr., Vol. 1 at 127-28 (testimony of SPE 2).
5
the Quality element was not at least Marginal for the period between October 28,
2018, and February 2, 2019, then he would be issued a “written warning.” 6
During the oral warning period, SPE 2 became the appellant’s new
supervisor, and at the close of the oral warning period, she determined that 4 of
the 25 office actions that the appellant submitted contained Category 3 errors, for
an error rate of 16%. IAF, Tab 4 at 293-300; Tr., Vol. 1 at 156, 158 (testimony of
SPE 2). Finding that the appellant failed to demonstrate at least Marginal
performance in the Quality element, she issued him a written warning, effective
March 17, 2017. IAF, Tab 4 at 293-301. The written warning period constituted
an “opportunity to demonstrate acceptable performance” under 5 C.F.R.
§ 432.103(d), commonly known as a performance improvement period, and ran
until June 22, 2017. Id. The appellant completed the written warning period
successfully, with an error rate of 4.16%, which was within the Outstanding
performance range. Id. at 77, 343.
On July 17, 2019, SPE 2 notified the appellant of his successful completion
of the written warning period, but she cautioned him of the need to maintain
acceptable performance in the Quality element going forward. Id. at 343.
Specifically, she notified him that his performance would continue to be
monitored over 3 successive 12-week periods, ending March 14, 2020, and that if
his performance in the Quality element fell below the Marginal level during any
one of those periods, he could face reduction in grade or removal. Id. at 343-45.
The first 12-week evaluation period ran from July 21 through October 12,
2019, and the agency determined that, out of the 23 office actions that the
appellant submitted during that time, 3 of them contained Category 3 errors, for
an error rate of 13.03%, which was Unacceptable. Id. at 36-40. The agency
proposed the appellant’s removal for unacceptable performance under 5 U.S.C.
chapter 43. Id. at 34-42. After the appellant responded, the agency issued a
6
To account for approved leave that the appellant took during this time period, the
agency subsequently extended the oral warning evaluation period to February 16, 2019.
IAF, Tab 4 at 158, 160.
6
decision sustaining the charge and removing him effective April 16, 2020.
Id. at 22-27.
The appellant filed a Board appeal, contesting the merits of the agency’s
action and raising affirmative defenses of whistleblower reprisal, retaliation for
union activity, and violations of the First Amendment, the Fair Labor Standards
Act (FLSA), and the Administrative Procedure Act (APA). IAF, Tab 1, Tab 14
at 2-3. After a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. IAF, Tab 36, Initial Decision (ID). She found
that the agency established all the elements of its case, and that the appellant
failed to prove any of his affirmative defenses. ID at 9-38.
The appellant has filed a petition for review, contesting the validity of his
performance standards and disputing the administrative judge’s analysis of his
affirmative defenses. Petition for Review (PFR) File, Tab 1. The agency has
filed a response. PFR File, Tab 3.
ANALYSIS
The appeal must be remanded for further adjudication of the agency’s case
in chief.
At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must show
by substantial evidence that (1) the Office of Personnel Management (OPM)
approved its performance appraisal system; (2) the agency communicated to the
appellant the performance standards and critical elements of his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
agency warned the appellant of the inadequacies of his performance during the
appraisal period and gave him a reasonable opportunity to improve; and (5) the
appellant’s performance remained unacceptable in at least one critical element.
White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013). Further,
even if the employee successfully completes the appraisal period, he may still be
removed for unacceptable performance under chapter 43 if (1) the instances of
7
unacceptable performance are in the same critical elements involved in the
appraisal period, and (2) the agency’s reliance for its action is limited to those
instances of performance that occur within 1 year of the advance notice of the
appraisal period. Muff v. Department of Commerce, 117 M.S.P.R. 291, ¶ 5
(2012). In this case, the administrative judge found that the agency established
by substantial evidence elements 1 through 4 of the White standard, and although
the appellant successfully completed the appraisal period, the agency also showed
by substantial evidence that his performance in the Quality element fell below the
acceptable level shortly thereafter. ID at 10-20.
On petition for review, the appellant does not dispute that OPM approved
the agency’s performance appraisal system or that the agency communicated his
standards to him. Nor does he appear to dispute that the agency gave him a
reasonable opportunity to demonstrate acceptable performance, or that shortly
after he successfully completed the written warning period, his performance in
the Quality element once again fell below the Marginal level . For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency proved these elements of its case by substantial evidence . ID
at 10, 16-20.
The appellant disputes the administrative judge’s finding that his
performance standards were valid. PFR File, Tab 1 at 5-6. The Board has found
that, in order to be valid, performance standards must be reasonable, realistic, and
attainable, clearly stated in writing, and to the maximum extent feasible, permit
the accurate appraisal of performance based on objective criteria. Towne v.
Department of the Air Force, 120 M.S.P.R. 239, ¶ 21 (2013). On petition for
review, the appellant argues that he had no way of knowing how many errors per
quarter he was allowed to make and still have acceptable performance. PFR File,
Tab 1 at 6-7. He argues that the agency gave him conflicting information, and he
questions why he was previously promoted with 6 errors over a 26-week period
but was removed after making only 2 errors over a 12-week period. Id.
8
Performance standards should be specific enough to provide an employee with a
firm benchmark towards which to aim his performance and must be sufficiently
precise so as to invoke a general consensus as to their meaning and intent.
Towne, 120 M.S.P.R. 239, ¶ 21.
We are not persuaded by the appellant’s argument. Under the Quality
standard, as written and as communicated to the appellant on multiple occasions,
performance is expressed as a percentage of office actions that contain clear
errors, not as a raw number of errors allowed during a given period of time. IAF,
Tab 4 at 53-56, 75-78, 157-58, 293, 300. As we believe the appellant
understands, it would not work to write the standard in terms of allowable errors
per year or per quarter or per other period of time because the number of
allowable errors would vary depending on the number of office actions the Patent
Examiner submitted during that time period. As for the appellant receiving a
promotion despite committing six errors during the preceding 6 months, we do
not know what his Quality rating during that time period was or should have
been; there is no evidence to show the number of office actions that the appellant
submitted during that period, what category those six errors were under, or
whether the agency chose to address any of those errors through training or
mentoring rather than charge them against the appellant’s performance, which it
might well decide to do, especially for a Patent Examiner who has not yet
achieved full career ladder promotion. 7 IAF, Tab 4 at 77.
For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant was clearly notified in writing of the
Quality performance standard that he was required to meet. ID at 10-11. Not
only did the appellant receive detailed notice of the standard, the method under
which his performance would be assessed, and the maximum percentage of errors
allowed, but the agency also notified him at the beginning of the oral warning
7
GS-14 is the full-performance level for a nonsupervisory Patent Examiner. Tr., Vol. 2
at 165 (testimony of the appellant’s union representative).
9
period, at the beginning of the written warning period, and immediately after the
written warning period of the precise timeframes under which his performance in
this element would be assessed. IAF, Tab 4 at 157, 300, 343-45. Therefore, we
agree with the administrative judge that the agency proved by substantial
evidence that it clearly communicated to the appellant this performance standard .
In her initial decision, the administrative judge also concluded that the
appellant’s performance standards under the Quality element were sufficiently
objective. ID at 12-13. She found that, although the criteria of this element had
elements of subjectivity, the agency reasonably addressed this matter through its
“clear error” standard, and whatever subjectivity remained did not render the
Quality standard invalid. ID at 13-14; see Neal v. Defense Logistics Agency,
72 M.S.P.R. 158, 162 (1996) (“[T]he fact that performance standards may call for
a certain amount of subjective judgment on the part of the employee’s supervisor
does not automatically render them invalid, especially where, as here, the
appellant’s position involves the type of professional judgment which is not
susceptible to a mechanical rating system.”). The administrative judge also
considered the appellant’s argument that SPEs arbitrarily called errors on
examiners without a consistent basis for doing so and that SPEs used secret
standards and abused the vagueness of the clear error definition to target
employees they did not like. However, she found that the record did not support
the existence of any such abuses. ID at 14-16.
On petition for review, the appellant renews his allegation that the agency
applied its Quality standard inconsistently, but he has not identified any evidence
in the record to support this allegation. PFR File, Tab 1 at 5-7. He appears to
concede this lack of evidence but attributes it to the administrative judge’s denial
of his motion to compel. Id. at 7. For the reasons explained below, we find no
abuse of discretion in the administrative judge’s ruling. In any event, even if the
agency had applied its Quality standard inconsistently or unfairly, this would not
support a finding that the performance standard is invalid. In a chapter 43 appeal,
10
evidence of disparate or unequal application of a performance standard in practice
may be relevant to an appellant’s affirmative defense of prohibited discrimination
or another prohibited personnel practice, but it does not undermine the validity of
the standard itself. 8 Rutz v. Department of Labor, 28 M.S.P.R. 677, 680 (1985).
The appellant does not directly dispute the administrative judge’s finding
that his performance in the Quality element fell to the Unacceptable level within
1 year of the beginning of the written warning period. ID at 17-20. Nevertheless,
we observe that the appellant has taken issue with how the agency evaluates
performance in the Quality element, and we find that this warrants some
discussion. As explained above, SPEs do not evaluate the entire body of a Patent
Examiner’s work but instead review one or two random samples of that work
every quarter to determine whether further scrutiny is warranted. The Board has
held that, when an agency charges an employee with failing to meet a
performance standard that sets a percentage requirement, it is not required to
provide an accounting of every assignment. Addison v. Department of Health and
Human Services, 46 M.S.P.R. 261, 269 (1990), aff’d, 945 F.2d 1184 (Fed. Cir.
1991). At a minimum, however, the agency must establish some methodology for
selecting the examples of alleged unacceptable performance so that a reasonable
8
Evidence of disparate or uneven application of performance standards to the appellant
as compared to non-whistleblowers may be relevant to his whistleblower reprisal
affirmative defense, which is discussed further below. See Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (discussing the factors relevant to
an agency’s affirmative defense to a claim of whistleblower reprisal, which include any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated). Although the appellant
originally raised a claim of sex discrimination, he withdrew that claim, and has not
raised a claim of discrimination on review. IAF, Tab 14 at 6-7. In a chapter 75 appeal,
inconsistent penalties are a factor for the agency and the administrative judge to
consider in determining a reasonable penalty. See McNab v. Department of the Army,
121 M.S.P.R. 661, ¶ 11 (2014) (observing, in an appeal of a removal under chapter 75,
that among those factors the Board will review in determining the reasonableness of the
penalty is its consistency with those imposed upon other employees for the same or
similar offenses). However, because the agency took its action here under chapter 43,
the Board may not review the penalty. Stein-Verbit v. Department of Commerce,
72 M.S.P.R. 332, 340 (1996).
11
person could conclude that the appellant’s performance fell below the position’s
requirements. Id. For the following reasons, we find that the random sample
methodology used to review the work quality of Patent Examiners satisfies those
criteria.
In Player v. Veterans Administration, 32 M.S.P.R. 448, 450 (1987), an
agency took a chapter 43 adverse action against the appellant based on her
alleged unacceptable performance in the critical elements of “accuracy” and
“productivity.” Based on samples of the appellant’s work, the agency found that
more than 20% of the documents that she created needed to be returned for
correction, and she failed to meet deadlines 85% of the time, both of which
exceeded the maximum threshold for acceptable performance. Id. The Board
reversed because the agency failed to show either that it evaluated the entirety of
appellant’s work product or that the samples it evaluated were selected in an
objective, systematic fashion such that the errors in, and the untimeliness of,
those samples could be extrapolated to the appellant’s work product as a whole.
Id. at 450-52. In Bowling v. Department of the Army, 47 M.S.P.R. 379, 382-84
(1991), the Board reached a similar conclusion in an appeal of a
performance-based action under 5 U.S.C. chapter 75. Among other things, the
Board found that the agency failed to show that its sampling of the appellant’s
work product was objective and systematic such that the errors it identified in the
samples could fairly be generalized to the entire body of her work. Id.
The agency’s methodology in the instant appeal does not suffer from the
same defects, principally because it does not rely on extrapolation from the
samples reviewed; nowhere does the agency assume, based on errors found in the
office actions that it actually reviewed, that errors existed in any office actions
that it did not review. In other words, the agency only charged the appellant with
errors that it actually found. The agency’s method of sampling could lead to
errors being undercounted, but it could never lead to errors being overcounted.
We acknowledge that the agency’s method of random sampling could result in
12
Patent Examiners with similar error rates being treated differently; even if a
Patent Examiner’s office actions in a given quarter contain many errors, these
would likely be overlooked if the first office action that the SPE selects for
review that quarter happens to be error-free. Nevertheless, such,
nondiscriminatory, non-retaliatory disparate treatment is immaterial to the issues
in a chapter 43 appeal.
Although the appellant has not demonstrated any error in the administrative
judge’s analysis of the agency’s case in chief, we find that this appeal must be
remanded for further adjudication. Shortly after the initial decision was issued,
the U.S. Court of Appeals for the Federal Circuit held in Santos, 990 F.3d
at 1360-61, that in addition to the elements of the agency’s case set forth above,
the agency must also justify the institution of a performance improvement plan by
proving by substantial evidence that the employee’s performance was
unacceptable prior to that time. The Federal Circuit’s decision in Santos applies
to all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. Although the record
in this appeal already contains evidence suggesting that the appellant’s
performance over the 6 months leading up to the written warning period was
indeed Unacceptable, IAF, Tab 4 at 88-301; Tr., Vol. 1 at 39-95 (testimony of
SPE 1), 139-56 (testimony of SPE 2), we remand the appeal to give the parties the
opportunity to present argument and additional evidence on whether the
appellant’s performance during the period leading up to the written warning was
unacceptable in one or more critical elements, see Lee, 2022 MSPB 11, ¶¶ 15-17.
The appeal must be remanded for further adjudication of the appellant’s
whistleblower defense.
To prove an affirmative defense of retaliation for protected whistleblowing,
an appellant must prove by preponderant evidence that he engaged in activity
protected under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that
the activity was a contributing factor in the contested personnel action. 5 U.S.C.
13
§ 1221(e)(1); Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 13 (2015).
If an appellant meets this burden, the burden of persuasion shifts to the agency to
establish by clear and convincing evidence that it would have taken the same
action in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(2); Shannon
v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 24 (2014).
In her initial decision, the administrative judge found that the appellant was
claiming four written protected disclosures and an unspecified number of oral
disclosures. ID at 22. The first written disclosure occurred in or around
January 2016, when the appellant disputed errors charged him during the
signatory review process, i.e., the review process by which the agency determines
whether a Patent Examiner will be granted signatory authority. IAF, Tab 1 at 5.
The administrative judge found that this disclosure was protected, but the
appellant failed to show that it was a contributing factor in his removal. ID
at 22-23, 25-28. The second written disclosure was a February 4, 2016
memorandum to the union in which the appellant requested that the union initiate
negotiations about the agency’s performance appraisal program. IAF, Tab 1 at 5,
12-16. The administrative judge found that this disclosure was not protected. ID
at 23-24. The third written disclosure was an October 23, 2018 letter that the
appellant wrote to the Department of Labor, objecting to the results of recent
union elections and criticizing the agency’s prohibition on discussing union
matters over its telecommunication systems. IAF, Tab 1 at 5, 18-20. The
administrative judge found that even if this letter were considered a protected
disclosure, the appellant failed to show that it was a contributing factor in his
removal. ID at 24. The fourth written disclosure was a January 19, 2019 email
that the appellant sent to the Technology Center Director, protesting his
assignment to patent applications left by a former Patent Examiner and
complaining of error calls in his work on those applications. IAF, Tab 1 at 5-6.
The administrative judge found that this disclosure was not protected.
ID at 24-25.
14
The appellant characterized his oral disclosures more generally, stating that
he had made “many verbal protected disclosures,” “early and often in [his]
career.” IAF, Tab 1 at 6-7. The administrative judge found that the appellant
failed to identify any of his alleged oral disclosures with reasonable specificity
and therefore failed to show that any of his oral disclosures were protected. ID
at 25. The administrative judge then conducted an alternative analysis, finding
that even if the appellant had shown that one of his disclosures was protected and
was a contributing factor in his removal, the agency proved by clear and
convincing evidence that it would have taken the same action regardless.
ID at 28-30.
On petition for review, the appellant disputes the administrative judge’s
finding that disclosure 1 was not a contributing factor in his removal. He appears
to criticize the administrative judge’s application of the knowledge/timing test of
5 U.S.C. § 1221(e)(1), under which contributing factor may be inferred if the
relevant agency officials knew of the protected disclosure and the personnel
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action.
PFR File, Tab 1 at 9. However, we agree with the administrative judge that
contributing factor with respect to disclosure 1 cannot be established through the
knowledge/timing test. ID at 25-26. A space of 2 years is generally considered
the outer limit for establishing contributing factor under this method, and the time
between the appellant’s January 2016 disclosure and the October 10, 2018 oral
warning was well in excess of that limit. Agoranos v. Department of Justice,
119 M.S.P.R. 498, ¶ 21 (2013); see Salinas v. Department of the Army,
94 M.S.P.R. 54, ¶ 10 (2003) (finding that a lapse of more than 2 years was too
great to satisfy the knowledge/timing test).
Even if the knowledge/timing test is not satisfied, an appellant can still
prove contributing factor by alternative means. In that case, the Board will
consider other evidence, such as that pertaining to the strength or weakness of the
15
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding officials, and whether those
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012). The administrative
judge considered such evidence in this case and found that the appellant still
failed to establish that disclosure 1 was a contributing factor in his removal. ID
at 25-28. Specifically, she found that the agency presented strong evidence in
support of its removal action, “well in excess of its substantial evidence burden,”
that there was no evidence that the appellant’s work was scrutinized more closely
than the work of other Patent Examiners, and that none of the relevant agency
officials would have had a significant retaliatory motive because disclosure 1 was
merely a generalized complaint about the signatory review process and the
unidentified officials involved therein. ID at 26-28. The administrative judge
further found that SPE 1 was the only official who had been shown to have actual
knowledge of disclosure 1, and that her actions prior to leaving the appellant’s
chain of command during the oral warning period were inconsistent with
retaliatory motive. ID at 27-28.
On petition for review, the appellant argues that the administrative judge
improperly considered this disclosure in isolation of his many subsequent
disclosures about the agency’s quality management practices, and considering
these disclosures in the aggregate would yield a finding that disclosure 1 was a
contributing factor in his removal. PFR File, Tab 1 at 9-10. However, the
appellant’s suggested approach of conducting a single contributing factor analysis
for multiple discreet disclosures, some of which are not protected under the
Whistleblower Protection Enhancement Act, is not consistent with precedent. See
Shannon, 121 M.S.P.R. 221, ¶ 32 (“For each disclosure that she finds protected,
the administrative judge shall then determine whether the disclosure was a
contributing factor to the appellant’s removal.”). Although the Board has found
that a protected disclosure can be linked to a distant performance-based personnel
16
action through an intervening continuum of related performance-based actions,
Agoranos, 119 M.S.P.R. 498, ¶ 23, it has never held that such a link can be
established through an intervening continuum of related disclosures. We
therefore decline to impute a finding of contributing factor to disclosure 1 based
on the facts and circumstances surrounding the appellant’s other disclosures.
The appellant also argues that his removal under the very quality
management practices of which he was complaining offers circumstantial
evidence of contributing factor. PFR File, Tab 1 at 10-11. We have considered
the appellant’s argument, but we are not persuaded that the relationship between
the charge underlying his removal and his disclosure about the signatory review
practice several years earlier constitutes evidence, circumstantial or otherwise,
that his disclosure was a contributing factor in the action. For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant did not prove that disclosure 1 was a contributing factor in the removal.
ID at 26-28.
Regarding disclosure 2, the appellant argues that the administrative judge
should have found that it was protected because it pertained to the same subject
matter as disclosure 1. PFR File, Tab 1 at 7. We disagree. In disclosure 1, the
appellant accused agency officials of intentionally misapplying the clear error
standard to increase the number of errors charged against Patent Examiners’
work. IAF, Tab 1 at 5. As the administrative judge correctly found, this was an
allegation of abuse of authority. ID at 22-23. The Board has historically defined
an abuse of authority as an arbitrary and capricious exercise of power by a
Federal official or employee that adversely affects the rights of any person or
results in personal gain or advantage to herself or to other preferred persons.
Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 22 (2013).
However, in Smolinski v. Merit Systems Protection Board, 23 F.4th 1345,
1351-52 (Fed. Cir. 2022), the Federal Circuit defined an abuse of authority more
broadly as an arbitrary and capricious exercise of authority that is contrary to the
17
agency’s mission. In any event, whichever standard is applied to this case, the
result is the same. Disclosure 2 concerned roughly the same subject matter as
disclosure 1 (quality management), but it did not contain any similar allegation of
wrongdoing. IAF, Tab 1 at 12-16. Instead, it is a request for the appellant’s
union to get more involved in negotiating quality management. Id. While the
appellant stated in general terms his opinion that the agency’s quality
management practices were outdated, frustrating, confusing, and discredited, IAF,
Tab 5 at 12, we agree with the administrative judge that disclosure 2 amounted to
a policy dispute not covered under the Whistleblower Protection Enhancement
Act, ID at 23; see Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶¶ 9-10
& n.3 (2015). Even if the appellant’s allegations were true, they would not
represent the kind of danger or wrongdoing described in 5 U.S.C. § 2302(b)(8).
Regarding disclosure 3, the administrative judge found that the appellant
failed to allege that any responsible management official was aware of this
disclosure. ID at 24. Therefore, the administrative judge determined that the
appellant did not prove the knowledge element of the knowledge/timing test. Id.
On petition for review, the appellant disputes the administrative judge’s analysis,
arguing that the knowledge/timing test is not the only way to prove contributing
factor and that he established this element of his case by other means. PFR File,
Tab 1 at 8. We agree with the appellant that the administrative judge’s
contributing factor analysis should not have stopped with the appellant’s failure
to satisfy the knowledge/timing test. See Dorney, 117 M.S.P.R. 480, ¶¶ 14-15.
However, we find that this error did not prejudice the appellant’s substantive
rights because disclosure 3 was not protected. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis to reverse an
initial decision).
As stated above, disclosure 3 was a letter that the appellant sent to the
Department of Labor shortly after a union election. IAF, Tab 1 at 18-20. In this
18
letter, the appellant explained that the agency generally prohibited employees
from using the agency email and telephone systems to conduct union business.
This prohibition, he argued, made it difficult for full-time telework Patent
Examiners to participate in union governance, and during union elections, this
policy also had the effect of favoring incumbent candidates and those who
worked in the office. Id. However, even if all this is true, we do not find that the
appellant had a reasonable belief that his letter evinced any category of danger or
wrongdoing listed in 5 U.S.C. § 2302(b)(8).
The appellant testified that he believed that the agency’s restrictions on the
use of its telecommunication systems violated his or the union’s First Amendment
rights. Tr., Vol. 2 at 25-26 (testimony of the appellant). Although the First
Amendment generally prohibits the Government from regulating speech based on
content, it does not prohibit the Government from “mak[ing] content-based
distinctions when it subsidizes speech.” Davenport v. Washington Education
Association, 551 U.S. 177, 188-89 (2007); see also Ysursa v. Pocatello Education
Association, 555 U.S. 353, 355, 358 (2009) (determining that a state did not
violate the First Amendment by prohibiting public employees from making
payroll deductions to fund a union’s political action committee, reasoning that
“the government . . . is not required to assist others in funding the expression of
particular ideas, including political ones”). We find that the appellant in this case
was essentially seeking Government subsidization of union elections through the
use of agency telecommunications equipment. It is well settled that a union does
not have a right to use agency equipment and resources for internal business such
as elections, and to the extent that a union’s use of agency resources is not
prohibited by law, it is subject to bargaining. See National Oceanic and
Atmospheric Administration and National Weather Service Employees
Organization, 20 F.S.I.P. 021, 2020 WL 3960982, *27-28 (2020); National
Treasury Employees Union and Internal Revenue Service, 38 F.L.R.A. 615,
618-20 (1990). We believe that the appellant understood this at the time he made
19
disclosure 3 because his proposed solution was for the agency and the union to
come to an agreement on the matter. IAF, Tab 1 at 20. We find that the appellant
lacked a reasonable belief that the agency’s policy on using its telework
equipment for internal union business implicated any category of wrongdoing
under 5 U.S.C. § 2302(b)(8).
Regarding disclosure 4, the administrative judge found that the appellant’s
email to the Technology Center Director was not protected because it addressed
the appellant’s individual grievance regarding his work assignments and what he
regarded as unfair treatment between him and another examiner. ID at 24-25.
She further found that the disclosure was conclusory and lacking in specifics
about the alleged unequal treatment. Id. The appellant disputes this finding on
review, arguing that this disclosure was protected because it included allegations
that his supervisor was not doing her job. PFR File, Tab 1 at 8-9. He also argues
that the disclosure was sufficiently specific because, in context, the Technology
Center Director knew who the appellant was talking about and what his
complaints were. Id. at 8.
We agree with the appellant. Unfair and inequitable treatment was
certainly the gravamen of the appellant’s complaint, but he specifically stated that
he was being required to reopen another Patent Examiner’s cases because this
individual had “evidently [been] working for years without even cursory
oversight.” IAF, Tab 1 at 5-6. Given that one of an SPE’s major duties is to
review her subordinate Patent Examiners’ work for quality, and given that the
appellant was reworking multiple office actions by a former Patent Examiner
whose repeated failure to meet those quality standards had long escaped the
SPEs’ attention, we find that the appellant had a reasonable belief that one or
more SPEs had not been doing their job. IAF, Tab 1 at 5-6; Tr., Vol. 1 at 26-27
(testimony of SPE 1). We therefore find that the appellant has shown that he
reasonably believed that disclosure 4 evidenced gross mismanagement, and thus
was protected under 5 U.S.C. § 2302(b)(8). See White v. Department of the Air
20
Force, 63 M.S.P.R. 90, 95 (1994) (defining gross mismanagement as a
management action or inaction which creates a substantial risk of significant
adverse impact upon the agency’s ability to accomplish its mission). In so
finding, we observe that, to the extent that the appellant was motivated to make
this disclosure by his own dissatisfaction with his work assignments, this is not
relevant to whether his disclosure was protected. The fact that an appellant’s
motivation in making his disclosure may have been personal does not prevent the
disclosure from being protected whistleblowing. 5 U.S.C. § 2302(f)(1)(C);
Wojcicki v. Department of the Air Force, 72 M.S.P.R. 628, 634-35 (1996).
We also find that the appellant has proven, under the knowledge/timing
test, that disclosure 4 was a contributing factor in his removal. It is undisputed
that the Technology Center Director was aware of this disclosure and that he
proposed the appellant’s removal less than a year later. IAF, Tab 1 at 6-7,
Tab 4 at 34-42.
As noted above, the administrative judge conducted an alternative analysis,
finding that if the appellant had made a protected disclosure that was a
contributing factor in his removal, the agency proved by clear and convincing
evidence that it would have removed him anyway. ID at 28-30. However, such
an alternative analysis is not permitted under the law. Under 5 U.S.C. § 1221(e)
(2), the Board may not proceed to the clear and convincing evidence test unless it
has first made a finding that the appellant established his prima facie case.
Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014),
aff’d per curiam, 623 F. App’x 1016 (Fed. Cir. 2015). 9 On remand, the
administrative judge should conduct a new clear and convincing evidence
analysis with respect to disclosure 4. In conducting this analysis, the
9
Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the
Board’s decision in Clarke, it has done so on different grounds. Delgado v. Merit
Systems Protection Board, 880 F.3d 913, 923-25 (7th Cir.), as amended on denial of
reh’g and reh’g en banc (7th Cir. 2018). Thus, its disagreement does not implicate the
basis for which we cite Clarke here.
21
administrative judge should bear in mind the heightened clear and convincing
burden of persuasion for the agency’s rebuttal case. 10 See generally Whitmore v.
Department of Labor, 680 F.3d 1353, 1367-68 (Fed. Cir. 2012); see Chambers v.
Department of the Interior, 116 M.S.P.R. 17, ¶ 28 (2011) (finding that “clear and
convincing” is an intentionally high standard of proof).
The appellant has not demonstrated error in the administrative judge’s analysis of
his claim of retaliation for protected union activity.
To establish an affirmative defense of reprisal for union activity that could
be the subject of neither an equal employment opportunity complaint nor an
individual right of action appeal, the appellant must prove by a preponderance of
the evidence that he engaged in protected activity, the accused official knew of
the protected activity, the adverse employment action under review could, under
the circumstances, have been retaliation, and there was a genuine nexus between
the retaliation and the adverse action. Warren v. Department of the Army,
804 F.2d 654 (Fed. Cir. 1986); Mattison v. Department of Veterans Affairs,
123 M.S.P.R. 492, ¶ 8 (2016). In her initial decision, the administrative judge
found that the specific union activity for which the appellant was claiming
reprisal was his February 4, 2016 memorandum requesting that the union initiate
negotiations about the agency’s performance appraisal program (the same
memorandum at issue in the appellant’s second claimed whistleblower disclosure,
discussed above). ID at 30-31. She found that, even assuming that this
constituted protected union activity, the appellant failed to establish a genuine
nexus between this activity and his removal. ID at 31-32.
On petition for review, the appellant argues that the administrative judge
used the wrong standard. He states that the administrative judge simply
dismissed his claim on the basis that SPE 1 was the only individual with
demonstrable knowledge of his February 4, 2016 memorandum, “but it is not
10
Because we are remanding this appeal for the administrative judge to conduct a new
analysis of the agency’s affirmative defense, we do not reach the appellant’s argument
on review that the initial analysis of the issue was incorrect. PFR File, Tab 1 at 9 -12.
22
necessary for each and every individual to know about a given disclosure or
activity in order for that activity to make a contribution to an adverse personnel
action.” PFR File, Tab 1 at 13. We agree with the appellant in principle that a
genuine nexus could be established between protected activity and an adverse
action even if not every official involved in the action knew about the activity.
However, we disagree with his characterization of the administrative judge’s
analysis. The administrative judge did not simply dismiss his claim; she carefully
analyzed it, considering the passage of time between this activity and the
appellant’s removal, who had knowledge of the activity, the roles that various
officials played in the removal action, and any possible anti-union or retaliatory
animus that these individuals might have. ID at 31-32. These were all
appropriate considerations, and for the reasons explained in the initial decision,
we agree with the administrative judge that the appellant did not establish a
genuine nexus between the February 4, 2016 memorandum and his removal. Id.;
see Warren, 804 F.2d at 658.
The appellant has not demonstrated error in the administrative judge’s analysis of
his First Amendment claim.
The appellant argued that the agency violated his and his union’s First
Amendment right to free speech by restricting their ability to discuss the Patent
Examiner performance standards within the office. IAF, Tab 17 at 5-7. The
administrative judge found that the appellant failed to show that the agency
violated his First Amendment right to free speech, and in any event, the appellant
did not establish a causal connection between this matter and his removal. ID
at 34-35. On petition for review, the appellant appears to argue that the
administrative judge misconstrued his claim. According to the appellant, the
agency has deprived the union of a forum for debate about the Patent Examiner
performance standards, which he states are not valid because the union cannot
legitimately bargain about them. PFR File, Tab 1 at 13. However, even
considering the appellant’s argument in this light, he has not shown that his
23
removal resulted from a violation of his First Amendment rights. There is
insufficient evidence in the record to show that the agency did not discuss the
standards with its employees or the union. To the extent that the appellant is
alleging that the agency violated the requirements of chapter 43, we disagree.
“Agencies are encouraged to involve employees in developing and implementing”
their performance appraisal systems and programs, but the law does not require
that they do so. 11 5 C.F.R. §§ 430.204(c), .205(d).
The appellant has not demonstrated error in the administrative judge’s analysis of
his claim that the agency violated the FLSA.
The appellant argued below that the agency violated the FLSA by requiring
Patent Examiners to work in excess of 40 hours per week without additional
compensation, which is prohibited by 29 U.S.C. § 207(a)(1). IAF, Tab 17 at 8.
Specifically, he argued that the time involved in rebutting error charges and
revising completed work often requires that Patent Examiners exceed that
work-hour threshold. Id. In her initial decision, the administrative judge found
that the agency did not violate the FLSA in this regard because overtime or other
time was available for this purpose. ID at 35-36. She further found that the
appellant failed to show that the agency’s actions prevented him from rebutting
charged errors, or that the time he spent rebutting error calls negatively affected
his performance in the Quality element. ID at 36-37.
On petition for review, the appellant disputes the administrative judge’s
findings. He argues that, although overtime or other time might technically have
been available, the agency discouraged and denied his requests for it. PFR File,
Tab 1 at 14. However, for the reasons explained in the initial decision, we agree
with the administrative judge that the appellant has not shown a causal connection
between his removal and the denial or discouragement of his requests for time .
ID at 36-37. Furthermore, the record shows that, as a salaried professional, the
11
We are not suggesting that the current performance appraisal system and program
were developed without employee or union input. The record does not seem to contain
any evidence on this one way or the other.
24
appellant was an FLSA-exempt employee. IAF, Tab 4 at 22; see 29 C.F.R.
§§ 541.300-.301 (defining the exemption for learned professionals). Therefore, it
would appear that the overtime provisions of 29 U.S.C. § 207 do not apply to
him. See 29 U.S.C. § 213(a)(1) (exempting professional employees from
coverage under 29 U.S.C. § 207). Any entitlement that the appellant had to
overtime appears to have arisen under the collective bargaining agreement or
agency policy rather than the FLSA.
The appellant also states that “it is not out of the question” that the agency
would have removed him in retaliation for requesting such time. PFR File, Tab 1
at 14. However, this is a claim of retaliation that is not properly before the Board
because the appellant did not raise it below. See Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence). Furthermore, the appellant’s speculation that
his removal could have been in retaliation for these requests does not meet the
preponderant evidence standard. See Fisher v. Environmental Protection Agency,
108 M.S.P.R. 296, ¶ 18 (2008).
The appellant has not demonstrated error in the administrative judge’s analysis of
his claim that the agency violated the APA.
The appellant argued below that the agency’s “clear error” standard was
nebulous and inconsistently applied, and therefore was in violation of 5 U.S.C.
§ 706(2)(A) as being “arbitrary and capricious.” IAF, Tab 17 at 8-11. In her
initial decision, the administrative judge found that, even if the appellant’s
performance standards and procedures were subject to the APA, the appellant
failed to show that they were arbitrary and capricious. ID at 37. Specifically, she
found that the standards were clearly stated and tied to the appellant’s work
product, that error charges were subject to multiple layers of review, and that the
errors charged against the appellant were appropriate. ID at 37-38.
25
On petition for review, the appellant argues that, “[j]ust because multiple
layers of management go along with targeting an individual does not mean that
the individual was not targeted.” PFR File, Tab 1 at 14. He asserts that agency
management had reason to target him because of his protected disclosures. Id.
at 14-15. This appears to us less an argument about the APA and more an
argument about the appellant’s whistleblower reprisal claims, which we have
already addressed above. We find that the appellant has not identified any error
in the administrative judge’s analysis of this issue. Furthermore, the appellant’s
challenges to his performance standards are excluded from review under the APA.
The APA proscribes arbitrary and capricious “agency action.” 5 U.S.C. § 706(2).
Agency actions covered include rulemaking. 5 U.S.C. § 551(4). However, the
agency’s adoption of its internal performance metrics is excepted from the
rulemaking procedures covered by the APA. See 5 U.S.C. § 553(a)(2) (exempting
from APA rulemaking procedures “matter[s] relating to agency management or
personnel”).
The administrative judge did not abuse her discretion in denying the appellant’s
motion to compel.
Discovery is the process by which a party may obtain relevant information
from another party to an appeal. 5 C.F.R. § 1201.72(a). “Relevant information
includes information that appears reasonably calculated to lead to the discovery
of admissible evidence.” Id. An administrative judge has wide discretion over
matters pertaining to discovery, and the Board will not reverse her rulings on
discovery matters absent an abuse of discretion. Parker v. Department of
Housing and Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007); see 5 C.F.R.
§ 1201.41(b)(4).
The appellant’s theory of the case revolves largely around the agency’s
alleged abuse and uneven application of the Quality standard, which he argues
manifested in error calls that were either arbitrary or engineered to target specific
employees. He contends that he was unable to develop the record on this issue
26
because the administrative judge improperly denied his motion to compel
discovery. PFR File, Tab 1 at 4, 7, 11-13, 15. For the following reasons, we find
no abuse of discretion in the administrative judge’s ruling.
The appellant timely served his initial discovery requests on June 25, 2020,
which was 30 days from the date of the acknowledgment order. IAF, Tab 2,
Tab 6; see 5 C.F.R. § 1201.73(d)(1). In addition to several interrogatories, the
appellant propounded 10 requests for production of documents. IAF, Tab 6. The
agency’s responses were due 20 days later, on July 14, 2020, and it appears that
the agency met that deadline, although its responses were not entirely to the
appellant’s satisfaction. 12 IAF, Tab 10. Under the Board’s regulations, the
appellant had 10 days to serve follow-up discovery on the agency, which would
have been July 24, 2020. 5 C.F.R. § 1201.73(d)(2). Further, any motion to
compel would have been due by the same date. 5 C.F.R. § 1201.73(d)(3).
However, the appellant did not serve follow-up discovery or file a motion to
compel within that time limit. Instead, at the July 30, 2020 prehearing
conference, he informed the administrative judge that he was in the process of
drafting a motion to compel. IAF, Tab 14 at 2. The administrative judge notified
this pro se appellant that the time for filing a motion to compel had already
passed, but in the interest of justice, she extended the time limit to
August 3, 2020. Id.
On that date, the appellant filed a motion to compel discovery. IAF,
Tab 15 at 4-8. He revised 5 of his 10 original requests for production (items 3, 4,
6, 9, and 10), propounded 3 new requests for production (items 11 through 13),
and sought an order compelling discovery on all 8 of them. Id. The agency
opposed the appellant’s motion on both timeliness and relevance grounds. IAF,
12
On July 15, 2020, the appellant filed a document captioned “Response to Agency
Opposition,” in which he took issue with some of the agency’s discovery responses and
objections. IAF, Tab 10. The appellant subsequently clarified that this was not
intended as a motion to compel but was instead an attempt to resolve the discovery
dispute directly with agency counsel. IAF, Tab 14 at 1-2.
27
Tab 19. The administrative judge then issued an order denying the motion to
compel in its entirety, finding that the discovery requests at issue were either
irrelevant, untimely, or both. IAF, Tab 20.
For example, in item 3, the appellant requested the number of examiners
whom the agency had removed under chapter 43 over the past 20 years, and
which critical element those examiners failed to meet. IAF, Tab 15 at 5. He
stated that this information would show broad patterns in the agency’s use of
chapter 43. Id. The administrative judge found that this request exceeded the
scope of the appeal, both in time and in subject, and that his argument that the
information would establish “broad patterns” was speculative and did not identify
the relevancy of this information to the issues in the appeal. IAF, Tab 20 at 2.
She found that the agency responded appropriately to this request by providing
the appellant information about cases similar to his. Id.
We agree with this ruling because the agency’s general historic use of
chapter 43 adverse action procedures is not tied to the agency’s burden of proof
in this particular case or any of the appellant’s affirmative defenses. Under
item 4, the appellant had originally requested information about all of the errors
charged by SPEs 1 and 2 during the course of their careers. IAF, Tab 15 at 5.
When the agency responded that it did not have the requested information, the
appellant amended his request and sought a comparative analysis of the errors
charged in several specific office actions. Id. at 5-6. The administrative judge
found that this was a new request for narrative information unlike the original
document request, and she denied it as untimely. IAF, Tab 20 at 2. We agree
with this ruling because the appellant’s motion to compel was seeking
information outside the scope of the initial discovery request and was served on
the agency outside the regulatory time limit for making follow-up requests. See
5 C.F.R. § 1201.73(d)(2).
Under item 6, the appellant requested that the agency provide a list of
office cases in the Art Units to which SPEs 1 and 2 were assigned, and which
28
were either reopened for prosecution or had a second non-final office action
issued, indicating whether errors were charged in those cases. IAF, Tab 15 at 6.
In his motion to compel, the appellant revised his request and sought information
regarding the raw number of errors charged to each Patent Examiner in the Art
Units during the past 5 years, as well as the raw numbers of reopened cases or
second non-final office actions for each Patent Examiner. Id. at 6-7. The
administrative judge denied this request as not reasonably calculated to lead to
the discovery of admissible evidence and as untimely because it sought different
information than the initial request. IAF, Tab 20 at 3.
We agree with the administrative judge’s ruling, for the reasons stated in
her order. Id. Not only did the appellant’s motion to compel seek information
outside the scope of the initial discovery request, but also it does not appear that
the information sought could be used to show that the agency improperly
identified any of the errors at issue in the instant appeal or that there existed
errors in the other cases that were improperly excused.
The Board remands this appeal for further proceedings consistent with this
Nonprecedential Order.
For the reasons set forth above, we remand this appeal for further
adjudication regarding the appellant’s whistleblower defense and his performance
prior to the written warning period. Regarding the appellant’s whistleblower
defense, both parties were fully apprised of their respective burdens below and
had a full and fair opportunity to present evidence and argument on the issue.
IAF, Tab 31. Therefore, on remand, the administrative judge need not accept any
further evidence or argument on the appellant’s whistleblower claim except to the
extent it concerns the agency’s determination that the appellant’s performance
warranted issuing the written warning. See Santos, 990 F.3d at 1364. Regarding
the appellant’s performance leading up to the written warning period, because the
parties were not notified below that this would be an issue before the Board, the
29
administrative judge shall accept relevant argument and evidence on remand and
shall hold a supplemental hearing if appropriate. See Lee, 2022 MSPB 11, ¶ 17.
The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If on remand the agency makes the additional showing
required under Santos and proves by clear and convincing evidence that it would
have removed the appellant notwithstanding disclosure 4, the administrative
judge may incorporate her prior findings on the other elements of the agency’s
case and the appellant’s affirmative defenses in the remand initial decision. See
id. However, regardless of whether the agency meets its burden, if the argument
or evidence on remand regarding the appellant’s prewritten warning performance
affects the administrative judge’s analysis of the appellant’s affirmative defenses,
she should address such argument or evidence in the remand initial decision. See
Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980)
(explaining that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.