Bryant v. Dep't of Veterans Affairs, 2021-1896

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtProst, Circuit Judge.
Citation26 F.4th 1344
Parties Eric Terrell BRYANT, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent
Docket Number2021-1896
Decision Date24 February 2022

26 F.4th 1344

Eric Terrell BRYANT, Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent

2021-1896

United States Court of Appeals, Federal Circuit.

Decided: February 24, 2022


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

Kara Westercamp, 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., Tara K. Hogan.

Before Moore, Chief Judge, Prost and Taranto, Circuit Judges.

Prost, Circuit Judge.

In July 2020, petitioner Eric T. Bryant was removed from his position with the Department of Veterans Affairs ("VA") for conduct unbecoming a federal employee. In February 2021, the Merit Systems Protection Board ("Board") upheld Mr. Bryant's removal. Because the Board's decision as to the underlying disciplinary action rests on legal errors in view of our court's recent decisions in Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021), and Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021), we vacate that portion of the Board's decision and remand. We affirm, however, the Board's determination that Mr. Bryant failed to prove his affirmative defense of whistleblower reprisal.

I

The VA employed Mr. Bryant as a police officer with the Veterans Health Administration, Central Alabama Veterans Health Care System ("CAVHCS"), Tuskegee, Alabama. J.A. 1. During the timeframe relevant to this appeal, Mr. Bryant was assigned to CAVHCS's Columbus Community Based Out-Patient Clinic ("CBOC") in Columbus, Georgia. J.A. 3; see J.A. 131.

On June 19, 2020, the VA issued Mr. Bryant a notice of proposed removal under 38 U.S.C. § 714 based on a charge of conduct unbecoming a federal employee. J.A. 130–33. The notice alleged that, in May 2020, while officers of the Muscogee County Sheriff's Office were attempting to serve Mr. Bryant "with a Temporary Family Violence Order of Protection," Mr. Bryant made inappropriate statements to the county officers and displayed a lack of professionalism. J.A. 130. For example, the notice alleged that Mr. Bryant had "ma[de] threats" that "caused these [officers] to fear for their safety," including a threat that Mr. Byrant "would make

26 F.4th 1346

things hard for [the officers]" if they were to "respond to calls for assistance from the CBOC." J.A. 131; see J.A. 130. The notice further stated that Mr. Bryant's conduct was "unacceptable" and "inexcusable" considering that he was a "[f]ederal [p]olice [o]fficer entrusted with carrying a loaded firearm each day." J.A. 131.

On July 9, 2020, the VA issued a final decision sustaining the charge of conduct unbecoming and removing Mr. Bryant. J.A. 103–06. In particular, the deciding official, Mr. Amir Farooqi, found that the charge "as stated in the notice of proposed removal was supported by substantial evidence." J.A. 103 (emphasis added). Mr. Farooqi further decided "to [r]emove [Mr. Bryant] from employment with [the] VA under the authority of 38 U.S.C. § 714," without mentioning the Douglas factors.1 J.A. 103; see J.A. 103–06.

Mr. Bryant subsequently appealed his removal to the Board, where he contested whether the charged conduct occurred and whether removal was an appropriate penalty under the Douglas factors. J.A. 435, 439–40. Mr. Bryant also alleged as an affirmative defense that the VA removed him in reprisal for protected whistleblowing activity. J.A. 435–36. The administrative judge found that "the agency proved the charge by substantial evidence." J.A. 7. The administrative judge further—without performing a Douglas -factors analysis—upheld the agency's penalty of removal under section 714. J.A. 11. In addition, the administrative judge determined that Mr. Bryant "did not prove [his] affirmative defense." J.A. 10. The administrative judge's initial decision became the final decision of the Board on February 26, 2021. J.A. 11, 15. Mr. Bryant now petitions for review of the Board's decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II

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. , 949...

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