This morning, the Federal Circuit issued one nonprecedential opinion in a case appealed from the Merit Systems Protection Board and one nonprecedential opinion in a veterans case. The court also issued one nonprecedential order denying a petition for a writ of mandamus to reverse a transfer order by the Western District of Texas. Here are the introductions to the opinions and text from the order.
McLaughlin v. Merit Systems Protection Board (Nonprecedential)
Lori D. McLaughlin appeals from a final decision of the Merit Systems Protection Board (“Board”) dismissing her whistleblower Individual Right of Action (“IRA”) appeal for lack of jurisdiction and failure to exhaust certain claims. See McLaughlin v. Dep’t of Just., No. DC-1221-19-0114-W1, 2019 WL 1516865 (Apr. 1, 2019). Because the administrative judge (“AJ”) did not consider all of McLaughlin’s timely-filed pleadings and did not apply the correct law to all aspects of his analysis, we vacate the Board’s decision. We remand for the Board to reconsider whether McLaughlin has asserted claims that fall within the jurisdiction of the Board, based on the complete record and in light of all applicable legal standards.
NEWMAN, Circuit Judge, concurring in part, dissenting in part.
This case raises a recurring issue of whistleblower protection, viz., the role of the Merit Systems Protection Board. Here the MSPB held that it did not have “jurisdiction” of this Individual Right of Action appeal, stating that Ms. McLaughlin’s complaint was inadequate to establish MSPB jurisdiction.
In its brief on this appeal, the MSPB acknowledges that the administrative judge erred in refusing to accept Ms. McLaughlin’s filing after the government shutdown, stating that “it is typically the MSPB’s practice to allow rebuttal to new evidence or argument submitted by the other party just before the record closed,” citing 5 C.F.R.§ 1201.59(c)(2). MSPB Br. 14. The MSPB also confesses error of law, stating: “Respondent concedes that the administrative judge’s analysis pertaining to conflicting motivations between EEO retaliation and whistleblower retaliation appears to be inconsistent with the law in either area.” MSPB Br. 16 n.6, citing Savage v. Dep’t of the Army, 122 M.S.P.R. 612, 634-35 (2015), for the holding that an appellant need only prove that EEO retaliation was a motivating factor in a personnel action, and Bradley, 123 M.S.P.R. at 555-56 (holding that an appellant must make a nonfrivolous allegation that whistleblower reprisal was “one factor” that affected a personnel action).
It is apparent that jurisdiction is now recognized by the MSPB, despite its request for remand to determine jurisdiction. Precedent establishes that: “Where it is clear . . . that the Board has jurisdiction over a case,” it is unnecessary to remand for a jurisdictional redetermination. Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Here, it is apparent that the AJ’s negation of MSPB jurisdiction is not in accordance with law. That decision warrants reversal. See Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 774 n.5 (1985) (the MSPB’s decision must be reversed “if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” quoting 5 U.S.C. § 7703(c)).
The question of “jurisdiction” is squarely presented for review. We should decide it, whereby this remand would go directly to the merits of the IRA appeal. From my colleagues’ indecisive action, and the further delay that accompanies it, I respectfully dissent.
Prewitt v. McDonough (Nonprecedential)
George D. Prewitt appeals from the memorandum decision of the United States Court of Appeals for Veterans Claims, which affirmed in part, remanded in part, and dismissed in part Mr. Prewitt’s appeal from the decision of the Board of Veterans’ Appeals. For the reasons listed below, we dismiss Mr. Prewitt’s appeal.
In re True Chemical Solutions, LLC (Nonprecedential Order)
On March 5, 2021, the United States District Court for the Western District of Texas granted Performance Chemical Company (“PCC”)’s motion for intra-division transfer under 28 U.S.C. § 1404(a). On the eve of trial, True Chemical Solutions, LLC (“True Chem”) now petitions this court for a writ of mandamus reversing that transfer order. We deny True Chem’s petition.
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We are not prepared to say that the district court clearly abused that discretion. The district court meaningfully analyzed the transfer factors. The court found that the more congested docket in plaintiff’s chosen forum would likely cause additional delay and prejudice to PCC, particularly given it was seeking injunctive relief. The district court further found that no non-party witness resides within the Midland-Odessa Division and several non-party witnesses residing in other parts of Texas would find it significantly easier, safer, and cheaper to travel to Waco for trial. The district court added that it was unlikely that an actual physical trailer located in Midland would be an exhibit during the trial and did not foresee the opportunity for any field trips during a trial. Under these circumstances, we cannot say True Chem has established a clear and indisputable right to relief.