Johnen v. U.S. Merit Sys. Prot. Bd.

• Decision Date: 26 February 2018
• Docket Number: No. 16-73427,16-73427
• Citation: 882 F.3d 1171
• Parties: Michael J. JOHNEN, Petitioner, v. U.S. MERIT SYSTEMS PROTECTION BOARD; United States Department of the Army, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

882 F.3d 1171

Michael J. JOHNEN, Petitioner,
v.
U.S. MERIT SYSTEMS PROTECTION BOARD; United States Department of the Army, Respondents.

No. 16-73427

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2017, San Francisco, California
Filed February 26, 2018

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; 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.

Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Michael H. Simon,^* District Judge.

GRABER, Circuit Judge:

882 F.3d 1173

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

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.

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

882 F.3d 1174

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...