Michael J. Johnen, Petitioner,
U.S. Merit Systems Protection Board; United States Department of the Army, Respondents.
and Submitted December 8, 2017 San Francisco, California
Petition for Review of an Order of the Merits Systems
Protection Board MSPB No. SF-1221-14-0338-W-2
Musell (argued), Stewart and Musell LLP, Emeryville,
California, for Petitioner.
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
Powell (argued), United States Office of Special Counsel,
Oakland, California; Malvina Winston, Attorney;
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
Before: Susan P. Graber and N. Randy Smith, Circuit Judges,
and Michael H. Simon, [*] District Judge.
Systems Protection Board
panel dismissed a petition for review as to the United States
Merit Systems Protection Board; and denied in part, granted
in part, and remanded the petition for review as to the
United States Department of the Army in a case brought by a
former civilian employee at Fort Hunter Liggett, a military
base in California alleging that the Army terminated him and
excluded him from his work site because he had made
complaints that were protected by the Whistleblower
Protection Act of 1989.
Board affirmed the administrative law judge's finding
that the petitioner failed to make a prima facie case that
his complaint to the Department of Defense Inspector General
was a contributing factor in the Army's decision to
terminate him and exclude him from a work site.
panel held that the Army was the only proper respondent in
this case where petitioner brought a "mixed case"
by challenging both jurisdictional or procedural matters
and the merits of an adverse personnel action. The
panel further held that because petitioner was seeking review
of the Board's decision on the merits of his termination
and exclusion, the Board was not the proper respondent; and
only the agency that took the action - the Army - was
properly "the" respondent.
panel also held that the petitioner received due process. The
panel rejected petitioner's argument that the Board
violated his due process rights by deciding his appeal when
only two Board members, instead of the usual three, held
the panel held that the Board's decision on the merits
was supported by substantial ...