“The Fifth Amendment government immunity does not confer a privilege to lie. See United States v. Apfelbaum, 445 U. S. 115,117 (1980). Due process is guaranteed by the U.S. Constitution and applies to public employment in which the Government has established that there must be a cause to remove or suspend an individual. See Gilbert v. Homar, 520 U.S. 924, 935-36 (1997) (suspension); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985) (removal). Due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ Gilbert, 520 U.S. at 930 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).”
“Defamation in a performance appraisal can occur when an employer makes false or harmful statements that damage an employee’s reputation. [The] Petition Clause of the First Amendment does not provide absolute immunity to a defendant charged with expressing libelous and damaging falsehoods. Also, see Codd v. Velger, 429 U.S. 624 (Feb 22,1977). By its terms, §1001 covers ‘any’ false statement—that is, a false statement ‘of whatever kind as noted in,’ United States v. Gonzales . . . —including the use of the word ‘no’ in response to a question and Brogan v. United States . . . . [United States v. Gonzales, 520 U.S. 1, 5 (1997); Brogan v. United States, 522 U.S. 398 (1988).] The Questions Presented are:”
“1. Whether [the Fifth] Amendment [D]ue [P]rocess [C]lause of the [C]onstitution of the United States is impeded if fairness of the performance appraisal, performance improvement plan and in discovery proceeding of relevant material facts needed to fully develop a record is prevented.”
“2. Whether the Petition Clause of the First Amendment is violated if false metrics/data, unsupported testimonial evidence, misrepresentation about material facts, libelous and harmful falsehoods is used to rate and review employee performance appraisal and rate and fact-finding for allegations of harassment at workplace.”
“3. Whether appellant exhausted his administrative remedies with office of special counsel (OSC) in the disclosure of waste of about additional 2 million dollars in partial prescription fills, the deletion of [the] patient prescription activity log, and the complaint to office of inspector general (OIG) on [September 13, 2020] that was reviewed by the agency on February [8], 2021[,] which may have contributed to the issuance of performance improvement plan (PIP) and fact-finding on workplace harassment charge in violation of 18 U.S.C § 1001 and appellant[’s] [F]irst and [F]ifth [A]mendment right[s] of the [C]onstitution?”
“4. Whether this [C]ourt can review the credibility determination of [an] administrative judge if presented with sufficiently sound reasons to overturn the decision and/or to determine negative suitability of the credibility determination based on evidence on the record as determined.”
“5. Whether the merit panel and [M]erit [S]ystem [P]rotection Board (MSPB) should transfer discrimination claims to district court if it does not have jurisdiction instead of outright denial.”
