Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnen v. U.S. Merit Systems Protection Board

United States Court of Appeals, Ninth Circuit

February 26, 2018

Michael J. Johnen, Petitioner,
v.
U.S. Merit Systems Protection Board; United States Department of the Army, Respondents.

          Argued and Submitted December 8, 2017 San Francisco, California

         On Petition for Review of an Order of the Merits Systems Protection Board MSPB No. SF-1221-14-0338-W-2

          Wendy Musell (argued), Stewart and Musell LLP, Emeryville, California, for Petitioner.

          Jimmy 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 Respondents.

          Lisa Powell (argued), United States Office of Special Counsel, Oakland, California; Malvina Winston, Attorney;

          Louis 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 Counsel.

          Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Michael H. Simon, [*] District Judge.

         SUMMARY [**]

         Merit Systems Protection Board

         The 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.

         The 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.

         The 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.

         The 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 office.

         Finally, the panel held that the Board's decision on the merits was supported by substantial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.