Doyle v. Dep't of Veterans Affairs

• Docket Number: 2022-1844,2022-1901,2023-1311,2023-1204
• Decision Date: 01 July 2024
• Citation: Doyle v. Dep't of Veterans Affairs, 2022-1844, 2022-1901, 2023-1204 (Fed. Cir. Jul 01, 2024)
• Parties: JOCELYN LISA DOYLE, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent JOCELYN LISA DOYLE, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

1

JOCELYN LISA DOYLE, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, RespondentJOCELYN LISA DOYLE, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent

Nos. 2022-1844, 2022-1901, 2023-1311, 2023-1204

United States Court of Appeals, Federal Circuit

July 1, 2024

This disposition is nonprecedential.

Petitions for review of the Merit Systems Protection Board in Nos. PH-1221-18-0012-A-1, PH-1221-18-0012-P-2 PH-1221-23-0051-W-1, PH-3443-17-0116-I-1 .

JOCELYN LISA DOYLE, Boonsboro, MD, pro se.

DANIEL FALKNOR, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondentDepartment of Veterans Affairs.Also represented by BRIAN M BOYNTON, CLAUDIA BURKE, DEBORAH ANN BYNUM, WILLIAM JAMES GRIMALDI, KELLY A. KRYSTYNIAK, PATRICIA M. MCCARTHY, DELISA SANCHEZ.

ELIZABETH W. FLETCHER, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondentMerit Systems Protection Board.Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH.

Before REYNA, HUGHES, and CUNNINGHAM, Circuit Judges.

PER CURIAM

In this consolidated appeal, Jocelyn Lisa Doyle proceeds pro se and challenges four separate decisions by the Merit Systems Protection Board.All four appeals stem from Ms. Doyle's employment with the Department of Veterans Affairs during the period of 2015 through 2018.We affirm all four decisions.

BACKGROUND

The four decisions Ms. Doyle challenges on appeal concern consequential damages, attorney's fees, jurisdiction, and res judicata.Giving rise to these decisions are Ms Doyle's non-selection claim and two individual right of action claims she brought before the Merit Systems Protection Board("MSPB" or "Board").We discuss each claim and the four Board decisions below.

A. Non-Selection Claim

On July 26, 2015, Ms. Doyle was appointed a GS-6 dental assistant at the Martinsburg, West Virginia medical center within the Department of Veterans Affairs("VA").Case No. 22-1844, S.Appx16.^[1] On September 27, 2016, Ms. Doyle applied for the position of Lead Dental Assistant, which is an excepted-service position.Ms. Doyle was not selected for the position.On December 12, 2016, Ms. Doyle challenged the VA's non-selection decision before the Board ("non-selection claim").

On April 26, 2017, the administrative judge ("AJ") dismissed Ms. Doyle's non-selection claim for lack of jurisdiction.Ms. Doyle filed a petition for review to the full Board, in which she argued that the VA's failure to select her as Lead Dental Assistant violated the Whistleblower Protection Act of 1989 ("WPA"), the Whistleblower Protection Enhancement Act of 2012 ("WPEA"), and the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA").Case No. 23-1204, S.Appx74.

On November 15, 2022, the Board denied Ms. Doyle's petition, noting that it lacked jurisdiction over Ms. Doyle's non-selection claim and that the USERRA did not apply to Ms. Doyle because she was not a veteran nor claimed to be a member of the armed services ("November 2022 Jurisdictional Decision").The Board, however, recognized that Ms. Doyle alleged a whistleblower reprisal claim when arguing that the VA violated the WPAandWPEA.The Board forwarded that allegation to the Board's Northeastern Regional Office to be docketed as an individual right of action ("IRA") claim.This IRA claim is discussed below as the "second IRA claim."Seeinfra, Section B.ii.

B.IRA Claims

In December 2016, the same month Ms. Doyle brought her non-selection claim before the Board, Ms. Doyle made a disclosure to the Safety Office about unsafe blade removal practices by the dental team, practices she observed as a dental assistant.This disclosure led the VA to investigate into these practices and to temporarily reassign Ms. Doyle to other positions that did not involve patient care.The investigation concluded that the dental department was not a healthy environment for Ms. Doyle.She then agreed with the agency to serve as a GS-6 Advanced Medical Support Assistant starting on September 3, 2017.^[2]

i

On October 17, 2017, Ms. Doyle filed an IRA claim with the Board, alleging that her disclosure concerning unsafe blade practices was a protected disclosure and that the VA took retaliatory action in response to her whistleblowing ("first IRA claim").Before the Board, Ms. Doyle argued that the retaliatory action included non-selection for the Lead Dental Assistant position and other personnel actions, such as adverse performance evaluations and a retaliatory investigation.

In June 2019, the Board determined there was no retaliatory conduct.Concerning Ms. Doyle's allegation that the VA retaliated against her when it did not hire her as Lead Dental Assistant, the Board noted that Ms. Doyle was not selected for the position beforeshe made a disclosure in December 2016.And even if Ms. Doyle's alleged "suggestions" to her supervisors in the months before the non-selection decision rose to a protected disclosure, the Board determined that the "evidence is overwhelming that the agency would have made the same decision in the absence of the disclosure/protected activity."Case No. 23-1311, S.Appx23.

Ms. Doyle appealed portions of the Board's decision to this court.Doyle v. Dep't of Veterans Affs., 855 Fed.Appx. 753, 753(Fed. Cir.2021);see alsoCaseNo. 23-1311, S.Appx53 &n.2(noting in her appeal brief that she sought review of a performance evaluation, a retaliatory investigation, two reassignments to non-patient care duties, and a retaliatory hostile work environment).Ms. Doyle did not challenge the Board's determination that the VA did not retaliate against Ms. Doyle when the VA did not select her as Lead Dental Assistant.On appeal, Ms. Doyle obtained legal representation by the Federal Practice Group.On May 14, 2021, this court reversed the Board's decision as unsupported by substantial evidence.Doyle, 855 Fed.Appx. at 762.

On remand, Ms. Doyle was legally represented for a brief period.The firm withdrew its representation in November 2021.In its December 14, 2021, remand order, the Board determined that Ms. Doyle's IRA claim was meritorious and granted corrective action.The Board's remand order became final, with no party appealing that decision.Ms. Doyle then moved for consequential damages, which the Board denied ("March 2022 Consequential Damages Decision").Ms. Doyle also moved for attorney's fees, which the Board granted in part ("April 2022 Attorney's Fees Decision").

ii

On November 18, 2022, the Board's Northeastern Regional Office received and docketed Ms. Doyle's second IRA claim that the VA's failure to appoint her as the Lead Dental Assistant was retaliatory.^[3] The AJ issued a show cause order, asking Ms. Doyle to explain why this IRA claim should not be barred under the doctrines of res judicata or collateral estoppel in light of her first IRA claim, filed back on October 17, 2017.

In response, Ms. Doyle did not address whether her second IRA claim was barred by res judicata or collateral estoppel but instead listed and summarized various claims she brought before different forums over the years.In December 2022, the Board dismissed Ms. Doyle's second IRA claim on grounds of res judicata ("December 2022 Res Judicata Decision").

C.The Current Appeals

Ms. Doyle challenges the Board's (1)March 2022 Consequential Damages Decision, docketed as the 22-1844 appeal; (2)April 2022 Attorney's Fees Decision, docketed as the 22-1901 appeal; (3)November 2022 Jurisdictional Decision, docketed as the 23-1204 appeal; and (4)December 2022 Res Judicata Decision, docketed as the 23-1311 appeal.On April 10, 2024, we consolidated these four appeals.We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of Board decisions is limited.5 U.S.C. § 7703(c).We set aside a Board decision only when 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."Id.

A. March2022 Consequential Damages Decision

In the 22-1844 appeal, Ms. Doyle challenges the Board's March 2022 Consequential Damages Decision.In her motion below, Ms. Doyle sought consequential damages in connection with her first IRA claim for back pay and benefits, medical and travel expenses, and various other out-of-pocket costs, including attorney's fees, restoration of leave, spending for jewelry, an alarm system, an emotional support animal, home maintenance/repair costs, as well as recovery of investment losses, credit card debt, and poor credit score.Ms. Doyle also sought promotion to a GS-13 position as a form of consequential damages.Case No. 22-1844, AppelleeBr. 10.The Board found there was no indication that Ms. Doyle had lost any pay or benefits.The Board also declined to address any medical and travel expenses because they would be addressed in other proceedings.The Board then denied Ms. Doyle's motion for consequential damages because Ms. Doyle failed to establish that she incurred costs that were reasonable, foreseeable, and causally related to the agency's adverse actions at issue in her first IRA claim.

Upon a finding of whistleblower reprisal, the Board may award "back pay and related benefits, medical costs incurred travel expenses, [and] any other reasonable and foreseeable consequential damages."5 U.S.C. § 1221(g)(1)(A)(ii).This court has interpreted "any other reasonable and foreseeable consequential damages" to cover only items "similar in nature" to the specific items listed in the statute, i.e., back pay and related benefits, medical costs incurred,...