Bannister v. Dep't of Veterans Affairs, 2021-1832

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtProst, Circuit Judge.
Docket Number2021-1832
Decision Date24 February 2022



No. 2021-1832

United States Court of Appeals, Federal Circuit

February 24, 2022

Petition for review of the Merit Systems Protection Board in No. DA-0714-20-0517-I-1.

Robert Stephens Webb, III, Tully Rinckey PLLC, Austin, TX, argued for petitioner. Also represented by Michael Fallings.

Liridona Sinani, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Brian M. Boynton, Martin F. Hockey, Jr., Elizabeth Marie Hosford.

Before Prost, Chen, and Hughes, Circuit Judges.


Prost, Circuit Judge.

In August 2020, petitioner Angelina Bannister was suspended from her position with the Department of Veterans Affairs ("VA") for conduct unbecoming a federal employee. In February 2021, the Merit Systems Protection Board ("Board") upheld Ms. Bannister's suspension. Because the Board's decision as to the underlying suspension rests on an incorrect statement of law in view of our court's recent decision in Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021), we vacate that portion of the Board's decision and remand. We affirm, however, the Board's determination that Ms. Bannister's affirmative defense of whistleblower reprisal failed.


Ms. Bannister has been employed by the VA for over two decades. During the timeframe relevant to this appeal, the VA employed Ms. Bannister as a staff pharmacist at the Southeast Louisiana Veterans Health Care System in the Baton Rouge Outpatient Clinic, Baton Rouge, Louisiana. J.A. 2.

On July 14, 2020, the VA issued Ms. Bannister a notice of proposed removal under 38 U.S.C. § 714 based on a charge of conduct unbecoming a federal employee. J.A. 247-49. The notice alleged (in four specifications) that Ms. Bannister had repeatedly spoken rudely and inappropriately to various veterans and coworkers, including, for example, that Ms. Bannister had "yell[ed] and scream[ed]" at pharmacy personnel in response to being informed that she had been "assigned to provide curbside triage to pharmacy patients." J.A. 247-48.

On August 7, 2020, the VA issued a final decision sustaining the charge of conduct unbecoming (but mitigating the proposed penalty of removal to a 30-day suspension). J.A. 186-87. Notably, after considering Ms. Bannister's "written replies" "along with all the evidence developed and


provided to [Ms. Bannister]," the deciding official "found that the charge as stated in the notice of proposed removal [was] supported by substantial evidence." J.A. 186 (emphasis added).

Ms. Bannister subsequently appealed her suspension to the Board. In relevant part, Ms. Bannister contested whether the charged conduct occurred, and she alleged as an affirmative defense that the VA suspended her in reprisal for protected whistleblowing activity. J.A. 2, 13. The administrative judge found that "the agency proved by substantial evidence" that Ms. Bannister had "engaged in conduct materially consistent with the specifications." J.A. 12. The administrative judge also determined that Ms. Bannister's "affirmative defense fail[ed]." J.A. 21. The administrative judge's initial decision became the final decision of the Board on February 4, 2021. J.A. 24, 28. Ms. Bannister now petitions for review of the Board's decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9).


Our review of Board decisions is limited. Whiteman v. Dep't of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A final decision of the Board must be affirmed unless 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); see also Potter v. Dep't of Veterans Affs.,...

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