Panel Activity

One of the three cases on the Federal Circuit’s hearing schedule last week that attracted an amicus brief was Tao v. Merit Systems Protection Board. Tao presented several arguments challenging the Merit Systems Protection Board’s dismissal of her individual right of action (“IRA”) appeal, which alleged violations of the Whistleblower Protection Enhancement Act of 2012. After the U.S. Office of Special Counsel filed an amicus brief in support of Tao, the Merit Systems Protection Board filed its own brief agreeing that the underlying judgment should be vacated and the case should be remanded for further adjudication. Unsurprisingly, late last week a panel of the court reversed in part, vacated in part, and remanded the case.

The panel included Judges Dyk, Mayer, and Hughes. In a per curiam opinion, they summarized some of the relevant facts as follows:

At the time of the relevant events of this case, Dr. Tao had been employed as a pharmacist (Pharmacy Program Manager) at the Department of Veterans Affairs Greater Los Angeles Health Care System Pharmacy Service for thirty years. On February 20, 2018, Dr. Tao filed a complaint alleging prohibited personal practices with OSC. The retaliatory personnel actions Dr. Tao alleged with OSC were a three-day suspension imposed on her on June 17, 2017, her detail to a staff pharmacist position at a different location beginning July 24, 2017, a proposed removal letter issued on February 16, 2018, and the failure to provide a performance rating. OSC informed Dr. Tao on October 11, 2018, that OSC was closing its inquiry into her case and advised her that she “may have a right to seek corrective action from the [Board]” by filing an individual right of action appeal. J.A. 318–19. Dr. Tao filed a timely individual right of action appeal with the Board, making largely the same allegations that she had raised in her OSC complaint and supplemental disclosures to OSC while her case was pending.

Before the Board, Dr. Tao had raised sixteen actions that she contended were protected under 5 U.S.C. § 2302(b)(8), (9), or both. As explained by the court, § 2302(b)(8) covers “reprisal based on disclosure of information” and § 2302(b)(9) covers “reprisal based upon exercising a right to complain.” The court described Dr. Tao’s sixteen allegations, and as to each, the administrative law judge’s ruling and the position on review of the Board and OSC.

The court highlighted that the Board conceded error with respect to several allegations:

The Board . . . concedes that the AJ’s ruling that Dr. Tao’s actions were not protected was erroneous with respect to items (5), (6), and (7), and likely erroneous with respect to item (3). The Board concedes as well that the AJ erred with respect to items (2) and (8) . . . , which the Board concedes contained a protected disclosure under § 2302(b)(8), and item (10), which the Board concedes involved a protected activity under § 2302(b)(9)(B).

As a result, the court reversed as to items (2), (3), (5)–(8), and (10), agreeing with the Board that they at least in part alleged protected activities and disclosures over which the Board has jurisdiction, and remanded for further proceedings. Notably, however, even as to the parts of these items that the Board did not concede error, the panel still vacated and remanded for the Board to reconsider or consider the allegations.

The court also noted that the Board took no position on other items and also remanded “these aspects of Dr. Tao’s claim for the Board to reconsider or consider in the first instance.”

Notably, on remand, “given the magnitude of the AJ’s errors,” the court found that “reassignment is appropriate” and, as a result, ordered that “the case should be reassigned to a new administrative judge.”