Spence v. Dep't of Veterans Affairs

• Decision Date: 08 October 2020
• Docket Number: 2020-1787
• Parties: JO H. DUBOSE SPENCE, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

JO H. DUBOSE SPENCE, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent

2020-1787

United States Court of Appeals for the Federal Circuit

October 8, 2020

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. DC-1221-20-0069-W-1.

JO H. DUBOSE SPENCE, Woodbridge, VA, pro se.

ROBERT R. KIEPURA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.

Before TARANTO, CHEN, and STOLL, Circuit Judges.

TARANTO, Circuit Judge.

Jo H. Dubose Spence worked for the Department of Veterans Affairs (DVA) as a lawyer. In 2018, DVA, after taking several other actions against her for unacceptable performance, removed Ms. Spence from her job. Under 5 U.S.C. § 7701, Ms. Spence filed an appeal to the Merit Systems Protection Board, challenging the removal as an "adverse action" under 5 U.S.C. chapter 75. The Board rejected her challenge, including an affirmative defense—raised under 5 U.S.C. § 7701(c)(2)(B)—that her removal was the result of whistleblower reprisal, both for protected disclosures in violation of 5 U.S.C. § 2302(b)(8) and for protected relief-seeking activity in violation of § 2308(b)(9)(A)(i), (B), (C), or (D). The Board's Removal Appeal decision is not before us. Because Ms. Spence included certain discrimination claims in her Removal Appeal, and wished to press them on judicial review, the forum for review of the Removal Appeal decision was a district court. See Perry v. Merit System Prot. Bd., 137 S. Ct. 1975, 1979-80 (2017); Kloeckner v. Solis, 568 U.S. 41, 56 (2012). Her challenge in district court is pending.

Separately from her adverse-action appeal, Ms. Spence pressed whistleblower-reprisal claims by seeking corrective action for certain alleged DVA personnel actions, first filing with the Office of Special Counsel and then filing an Individual Right of Action (IRA) appeal to the Board, under 5 U.S.C. §§ 1214, 1221, 7701. The Board, which has authority to hear IRA appeals under 5 U.S.C. § 7701, rejected Ms. Spence's challenge. As to nearly all of the challenge, the Board ruled that the whistleblower-reprisal claims in the IRA Appeal were barred, under the doctrine of issue preclusion, by the Board's rejection of whistleblower-reprisal defenses in the Removal Appeal. The Board's IRA Appeal decision is properly before us on Ms. Spence's appeal under 5 U.S.C. § 7703(b)(1)(B). We affirm, except in one respect, as to which we vacate and remand.

I

A

In late 2016, while working as a lawyer for DVA, Ms. Spence was assigned new supervisors. Resp. Appx. 26. By mid-2017, a number of performance and conduct issues arose, and Ms. Spence also began the communications and complaints that gave rise to her later whistleblower charges. For example, during 2017, she faced criticism for her litigation choices, id. at 28-29, and she was "given a written counseling for conduct unbecoming a Federal employee," Pet. Appx. B. In November, she filed an informal complaint with DVA's Office of Resolution Management. Pet. Appx. G, 11; Resp. Appx. 2. At the end of 2017, Ms. Spence received a performance rating lower than her rating for 2016. Resp. Appx. 38.

The pattern continued in 2018. For example, Ms. Spence received a written performance counseling from her supervisor, who warned Ms. Spence that she was not meeting certain critical as well as non-critical performance standards. Id. In mid-May 2018, Ms. Spence filed a complaint with DVA's Office of Inspector General. Id. at 61; Pet. Appx. G, 11. At the end of May, DVA (acting through Ms. Cornish) proposed to suspend Ms. Spence for three days, and in mid-June, DVA (acting through Mr. Fleck) decided to impose the suspension; Ms. Spence initiated a grievance proceeding, but in October, DVA (acting through Mr. Hogan) upheld the suspension. Pet. Appx. G, 14.

On September 11, 2018, Ms. Spence received a notice of proposed removal for "unacceptable performance." Resp. Appx. 41. The proposing official (Ms. Cornish) stated that Ms. Spence was "not taking actions needed and supervisory intervention [wa]s more than rare" and identified specific instances, surveyed nine of Ms. Spence's cases and found "only one meets" the standard for quality, and observed that Ms. Spence "fail[ed] to assist client stakeholders," forcing clients to request advice again from another lawyer. Id. at 41-45. Later in September, Ms. Spence filed a complaint with the Office of Special Counsel challenging various personnel actions including her brief suspension and her proposed removal. See id. at 61. On October 25, 2018, the deciding official (Mr. Fleck) agreed with the charge of unacceptable performance and removed Ms. Spence from her job. See id. at 45.

B

When Ms. Spence appealed her removal to the Board, she challenged the basis of the removal and asserted three affirmative defenses: (1) discrimination based on her race, sex, and age, or reprisal for her Equal Employment Opportunity complaints alleging discrimination; (2) whistleblower reprisal; and (3) harmful procedural error. Resp. Appx. 54-63. On April 26, 2019, after discovery and an evidentiary hearing on the merits, the Board—through an initial decision of an administrative judge that became the Board's final decision—affirmed Ms. Spence's removal. Id. at 22-63; Spence v. Dep't of Veterans Affairs, No. DC-0714-19-0123-I-1, 2019 WL 1904397 (M.S.P.B. Apr. 26, 2019). The Board determined that the agency had met its burden on the charge of unacceptable performance, crediting the supervisors' testimony over Ms. Spence's. Resp. Appx. 46-53. The Board also rejected Ms. Spence's affirmative defenses. In particular, and of importance to the present appeal, the Board made detailed determinations rejecting Ms. Spence's whistleblower contentions, following the established framework (not challenged by Ms. Spence) for adjudicating such contentions even when presented as defenses in adverse-action appeals. See Whitmore v. Dep't of Labor, 680 F.3d 1353, 1364 (Fed. Cir. 2012) (explaining that, for a defense based on 5 U.S.C. § 2308(b)(8), "the former employee must prove by a preponderance of the evidence that he or she made a protected disclosure . . . that was a contributing factor to the employee's termination," and "[i]f the employee establishes this prima facie case of reprisal for whistleblowing, the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken 'the same personnel action in the absence of such disclosure.' 5 U.S.C. § 1221(e)").

In rejecting the whistleblower defense, the Board concluded that the disclosures at issue—Ms. Spence's communications to superiors that questioned the hiring of new attorneys when Ms. Spence's workload was light—were not disclosures protected by 5 U.S.C. § 2308(b)(8). Resp. Appx. 58. The Board reasoned that Ms. Spence had not shown that the DVA actions that were the subject of the communications "violated" a "law, rule, or regulation," id., or that she had a reasonable belief that the new hiring and her light caseload evinced "gross mismanagement or waste of funds," id. at 59. The Board credited testimony that the workload of lawyers in Ms. Spence's position "often ebbed and flowed" and that Ms. Spence's workload remained light because she often refused work. Id. at 60-61.

The Board next concluded that Ms. Spence had "engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she filed a complaint with the Inspector General (IG) regarding the attorney hires in May 2018 and a similar complaint with the Office of Special Counsel (OSC) in September 2018." Resp. Appx. 61. Nevertheless, the Board found that those complaints did not support the whistleblower-reprisal defense. First, the Board found, those complaints were not a contributing factor in the removal proposal or removal decision, because Ms. Cornish was not aware of either complaint before proposing removal and Mr. Fleck did not know, until after the removal decision, that it was Ms. Spence who filed the May 2018 complaint or what the substance of the September 2018 complaint was. Id. at 61-62. Second, the Board found, even if it viewed those complaints as contributing factors that shifted the burden to DVA to show "by clear and convincing evidence that it would have taken the removal action even absent the appellant's protected activity," DVA made that showing. Id. at 62.

The Board's Removal Appeal decision became final on May 31, 2019. Id. at 63. That decision is not before us but is the subject of Ms. Spence's challenge in the U.S. District Court for the District of Columbia. Spence v. Dep't of Veterans Affairs, No. 1:19-cv-01947 (D.D.C. June 28, 2019).

C

After the removal was proposed but before she was removed, Ms. Spence filed a complaint with the Office of Special Counsel charging that DVA took "personnel actions" constituting whistleblower reprisal in violation of 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). See Resp. Appx. 61; Pet. Appx. K, 13. About eleven months later, in August 2019, after the Board's Removal Appeal decision had become final, the Office of Special Counsel sent Ms. Spence a letter stating that it had "terminated its inquiry into [her] allegations of" whistleblower reprisal. Pet. Appx. F. In October 2019, Ms. Spence filed her IRA Appeal with the Board under 5 U.S.C. §§ 1214(a)(3), 1221(a), and 7701.

The administrative judge issued an IRA Jurisdictional Order in November 2019, requiring that Ms. Spence establish jurisdiction. See Resp. Appx. 2. Ms. Spence responded, and so did DVA, which argued that the Board's Removal Appeal decision precluded Ms. Spence's appeal. Id. On December 10, 2019, the administrative judge granted DVA's opposed request to stay discovery. Pet. Appx. I. Two days later, the administrative judge issued an "Order to Show Cause" on "jurisdiction," particularly...