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`IN THE
`
`V
`
`SUPREME COURT OF THE UNITED STATES
`
`CHRISTOPHER CHIN-YOUNG,
`
`Petitioner,
`
`V.
`
`J1
`
`DEPARTMENT OF THE ARMY,
`
`US MERIT SYSTEMS PROTECTION AGENCY,
`
`Respondents.
`
`On Petition for Writ of Certiorari to the
`
`United States Court of Appeals for the Federal Circuit
`
`PETITION FOR WRIT OF CERTIORARI
`
`CHRISTOPHER CHIN-YOUNG '
`
`Petitioner, Pro Se
`
`PO Box 73
`
`Carborro, NC 27510
`
`(850) 706-0264
`
`

`

`QUESTIONS PRESENTED
`
`Whether covered Federal employees under employment-at-will have an absolute right to
`
`constitutionally sound due process procedures under MSPB administrative law
`
`Whether Federal employees-whistle blowers are entitled to de novo legal review of a directed
`
`reassignment
`
`Whether federal employees return rights to official employment positions are discretionary
`
`

`

`PARTIES TO THE PROCEEDING
`
`Petitioners in this Court is Christopher R Chin-Young, in his capacity as a disabled veteran, and
`
`whistle-blower, appearing pro se (non-lawyer)..
`
`Legal Representative(s) of the United States Merit Systems Protection Agency, and
`
`Legal Representative(s) of the Department of the Army
`
`RELATED PROCEEDINGS
`
`United States Court of Appeals for the Federal Circuit (CAFC) in Chin-Young, 2023-1510,
`
`Review of Merit System Protection Board (MSPB) in No. DC-0752-15-1030-1-1.
`
`United States Court of Appeals for the Federal Circuit (CAFC) in Chin-Young, 2023-1590,
`
`Review of Merit System Protection Board (MSPB) in No. DC-1221-17-0013-W-l.
`
`United States Court of Appeals for the Federal Circuit (CAFC) in Chin-Young, 2023-1588,
`
`Review of Merit System Protection Board (MSPB) in No. DC-0752-11-0394-1-1.
`
`

`

`TABLE OF CONTENTS
`
`QUESTION PRESENTED
`
`TABLE OF CONTENTS
`
`INDEX TO APPENDICES
`
`TABLE OF AUTHORITIES
`
`PETITION FOR A WRIT OF CERTIORARI
`
`OPINIONS BELOW
`
`JURISDICTION
`
`FEDERAL RULE INVOLVED
`
`STATEMENT OF THE CASES
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`REASONS FOR GRANTING THE WRIT
`
`CONCLUSION
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`Page
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`n
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`in
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`,iv
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`»v
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`. 1
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`1
`
`1
`
`2
`
`3
`
`25
`
`26
`
`A
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`i
`i ,i>
`
`

`

`INDEX TO APPENDICES
`
`Federal Circuit Court Decisions
`
`Federal Rules of Civil Procedure (FRCP)
`
`MSPB AJ Ratification
`
`Code of Federal Rules (CFR)
`
`MSPB Transcript Excerpts
`
`MSPB Transcript Correspondence
`
`APPENDIX A
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`APPENDIX B
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`APPENDIX C
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`APPENDIX D
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`APPENDIX E
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`APPENDIX F
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`w yt
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`

`

`Page
`
`6
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`6 6 7
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`7 1
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`2 1
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`2
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`12
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`14
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`14
`
`15
`
`15
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`15
`
`22
`
`Pet. App. B
`
`Pet. App. B
`
`5
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Lucia v. Securities and Exchange Commission, 585 U.S.
`
`(2018)
`
`McIntosh v. Department of Defense, No. 19-2454 (Fed. Cir. 2022).............
`
`Edmondv. U.S., 520 U.S. 651 (1997)..................................................... .
`
`Cheney v. Dept, of Justice, 479 F.3d 1343, 1352-53 (Fed. Cir. 2007)...........
`
`King v. Alston, 75 F.3d 657, 659-661 (Fed. Cir. 1996)..................................
`
`Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).......
`
`Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 407 (1996)
`
`Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 680-81 (1991)....
`
`Ketterer, 2 M.S.P.R. at 299 n.8
`
`Wear v. Department of Agriculture, 22 M.S.P.R. 597 (1984)....................................
`
`Raboum v. Department of Justice, 38 M.S.P.R. 103,105 (1988)..............................
`
`Renville v. Department of Health & Human Services, 26 M.S.P.R. 566, 568 (1985)
`
`Youssef v. Dept, of Justice, 112 LRP 38310 (July 20, 2012).....................................
`
`Statutes
`
`5 C.F.R. § 1201.31
`
`Rules
`
`Fed. R. Proc. 15,25,34
`
`Fed. R. Evid. 404(b)
`
`Other Authorities
`
`5 CFR § 9701.706 - MSPB appellate procedures
`
`

`

`PETITION FOR A WRIT OF CERTIORARI
`
`Petitioner Christopher Chin- Young, pro se, respectfully requests the issuance of a writ of certiorari to
`
`review the judgments of the United States Federal Circuit Court of Appeal in these cases. Pursuant to
`
`this Court’s Rulel2.4, the Petitioner is filing a “single petition for a writ of certiorari” because the
`
`“judgments
`
`sought to be reviewed” are from “the same court and involve identical or closely
`
`related questions.” Sup. Ct. R. 12.4.
`
`OPINIONS BELOW
`
`The decision of the United States Federal Circuit Court of Appeals in Chin-Young, 2023-1510 is
`
`published at
`
`(Fed Cir. 2023), and is reproduced at Pet. App. A
`
`The decision of the United States Court of Appeals for the Federal Circuit in Chin-Young, 2023-1590 is
`
`published at
`
`(Fed Cir. 2023), and is reproduced at Pet. App. A.
`
`The decision of the United States Federal Circuit Court of Appeals in Chin-Young, 2023-1588 is
`
`published at
`
`(Fed Cir. 2023), and is reproduced at Pet. App. A
`
`JURISDICTION
`
`The Federal Circuit Court of Appeals Circuit entered judgment in Chin-Young, 2023-1510
`
`on
`
`September 20, 2023. See Pet. App. A This petition is timely filed with 60 days of the decision
`
`on
`
`Petition for Rehearing En Banc entered on November 08,2023 See Pet. App. A.
`
`The Federal Circuit Court of Appeals Circuit entered judgment in Chin-Young, 2023-1590
`
`November 14, 2023. See Pet. App. A
`
`The Federal Circuit Court of Appeals Circuit entered judgment in Chin-Young, 2023-1588
`
`on
`
`on
`
`November 09,2023. See Pet. App. A
`
`This Court’s jurisdiction is invoked under 28 U.S.C. § 1254.
`
`1
`
`

`

`STATUTORY PROVISIONS INVOLVED
`
`Pertinent statutory provisions are reprinted in the appendix to this petition. See Pet. App. D.
`
`FEDERAL RULE INVOLVED
`
`Pertinent rules are reprinted in the appendix to this petition. See Pet. App. B.
`
`Federal Rule of Civil Procedures, Rule 15. Amended and Supplemental Pleadings
`
`Federal Rule of Civil Procedures, Rule 25. Substitution of Parties
`
`Federal Rule of Civil Procedures, Rule 34. Producing Documents, Electronically Stored Information,
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`and Tangible Things, or Entering onto Land, for Inspection and Other Purposes Primary tabs
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`Federal Rule of Evidence 404(b). Character Evidence; Crimes or Other Acts
`
`2
`
`

`

`STATEMENT
`
`1, Case# 23-1510. In 2015, after a series of whistle-blower complaints by Petitioner, the Department
`
`of the Army removed petitioner from his Supervisory Program Analyst position, Deputy Director CXO
`
`with the Army CIO/G6 organization based on his refusal to accept a directed reassignment to a new
`
`career field as cybersecurity subject matter expert in a SCIF at the Pentagon with new requirements for
`
`a top secret clearance. Petitioner argued that he was denied due process, that he had return rights to his
`
`permanent position that was not abolished, and the detail reassignment to the Cyber Security
`
`Directorate was a phantom assignment and "illegitimate," but the MSPB ruled that such an argument
`
`about directed assignment goes to the merits of the Agency's decision to detail him, and thus does not
`
`fall within the Board's jurisdiction. The Federal Circuit affirmed.
`
`2, Related Case# 23-1588. After a series of IG complaints and EEO complaint, the Department of the
`
`Army removed petitioner from his position with the U.S. Army Contracting Command (ACC)
`
`as a
`
`Supervisory Program Analyst in 2011, and Petitioner appealed appearing pro se before the MSPB. In a
`
`related EEO case that Petitioner had filed an earlier against his employer through his then-counsel,
`
`Robert Waldeck, to the EEOC, petitioner informed the counsel for the Army that he retained new
`
`counsel in the ongoing EEO case. The new counsel was identified to be James Shoemaker. Mr.
`
`Shoemaker entered an appearance in the EEO case, but because of confusion about a “mixed case” he
`
`also submitted a Designation of Representative form to the MSPB, which was not signed by petitioner.
`
`Mr. Shoemaker appeared before the Board and arranged a settlement agreement to resolve petitioner’s
`
`claims. The settlement agreement was signed by Mr. Shoemaker.. A Board administrative judge
`
`approved the settlement and dismissed the appeal. Petitioner protested that he did not authorize
`
`settlement and did not sign the settlement, but a fraudulent signature was attributed to him; in addition,
`
`a stipulation of the agreement barred Petitioner from any contact with the Agency in negotiations or
`
`3
`
`

`

`otherwise. Later, Mr. Shoemaker filed for enforcement of the agreement, and a second modified
`
`agreement was arranged and signed without Petitioner’s consent. Subsequently, petitioner, pro se, filed
`
`a petition for review of the administrative judge’s decision that dismissed the case as settled. Petitioner
`
`alleged newly discovered evidence in the form of an affidavit from Mr. Shoemaker, which stated that
`
`Mr. Shoemaker was not designated as petitioner’s representative in the case. Petitioner referred to the
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`designation of representative forms submitted to the MSPB, one that he signed designating himself as
`
`proceeding pro se, and the another submitted by Mr. Shoemaker which lacked petitioner’s signature.
`
`Petitioner contended that Mr. Shoemaker was not petitioner’s designated representative and was not
`
`authorized to enter into the settlement agreement nor the modified settlement agreement. However, the
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`MSPB denied the appeal, and the Federal Circuit affirmed the denial.
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`3. Related Case 23-1590. While on tour in Afghanistan, on a formal reassignment from the Army to
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`the Department of Defense, Petitioner filed a complaint to the Special Investigator for the
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`Reconstruction of Afghanistan, and was immediately issued travel orders to return to the DoD MoDA
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`program office in the United States. Subsequently, Petitioner filed complaints with the Office of
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`Special Counsel. On August 31, 2016 Petitioner was advised by OSC of his right to seek corrective
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`measures by filing with MSPB. OSC issued the final determination letter that indicated: “Your
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`disclosures concerned Dr. Catherine Warner’s appointment and possible contract violations.” Petitioner
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`then filed an IRA with the MSPB which was denied jurisdiction. The Federal Circuit affirmed.
`
`I. ISSUES OF VITAL IMPORTANCE TO MERIT BASED FEDERAL EMPLOYMENT
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`MSPB Administrative Judge Constitutionality Issue (common to all three cases)
`
`4
`
`

`

`Issues of subject matter jurisdiction are never waived and therefore can be raised on a collateral
`
`appeal where in this case Petitioner submits that MSPB AJ Sherry Zamora’s findings and decision were
`
`issued in violation of the US Constitution and is thus void ab initio. In the record below, Petitioner
`
`moved for recusal of the AJ and for a hearing before a bona fide Administrative Law Judge (ALJ), but
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`his motion was denied by AJ Sherry Zamora who refused to recuse from the case. MSPB
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`administrative judges are not administrative law judges (commonly referred to as ALJs), an entirely
`
`separate classification of independent, highly skilled, and carefully screened judicial officers defined by
`
`the Administrative Procedure Act (APA). The APA actually makes no reference to administrative
`
`judges, nor does the MSPB organic statute, which does refer to administrative law judges. MSPB
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`administrative judges, it turns out, are a creation of the MSPB itself. Seizing on the flexibility permitted
`
`by these statutes (while ignoring the precatory language regarding ALJs), the MSPB adopted
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`regulations that define “judge” to include “[a]ny person authorized by the Board to hold a hearing or to
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`decide a case without a hearing, including an attorney-examiner, an administrative judge, an
`
`administrative law judge, the Board, or any member of the Board.” While thus coming the
`
`disingenuous title “administrative judge,” the MSPB has largely dispensed with ALJs. The “judge”
`
`label is misleading for another reason, since the MSPB itself uses the term “attorney-examiner” for
`
`performance evaluations of its so-called administrative judges, who actually are the agency’s own
`
`lawyers. Noteworthy, the Board’s rules grant MSPB employees, including the Board Members
`
`themselves, the right to a hearing before an ALJ. Furthermore, AJs are required to be appointed IAW 5
`
`CFR § 9701.706 - MSPB appellate procedures, (b) MSPB may decide any case appealed to it or may
`
`refer the case to an administrative law judge appointed under 5 U.S.C. 3105 or other employee of
`
`MSPB designated by MSPB to decide such cases. MSPB or an adjudicating official must make a
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`decision at the close of the review and provide a copy of the decision to each party to the appeal and to
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`OPM. However, AJ Sherry Zamora was not properly appointed.
`
`5
`
`

`

`Similarly, in Lucia v. Securities and Exchange Commission, 585 U.S.
`
`(2018) this Court
`
`ruled that SEC employees serving as ALJs exercised such significant governmental authority over
`
`people like Ray Lucia that they were Officers of the United States, rather than merely civil-service
`
`employees. As officers, the Court held, the ALJs should have been appointed pursuant to the
`
`Appointments Clause in Article II of the Constitution. (Article II requires the President, with advice
`
`and consent of the Senate, to appoint principal officers; Congress may vest the appointment of inferior
`
`officers in the President, Heads of Departments, or courts of law). But in a later case, the Federal
`
`Circuit in McIntosh v. Department of Defense, No. 19-2454 (Fed. Cir. 2022) held that MSPB AJs are
`
`not principal officers because, among other things, the AJs’ decisions are subject to review by the
`
`MSPB’s three-member Board - who are nominated by the President and confirmed by the Senate (i.e.,
`
`principal officers). Importantly, the Federal Circuit held that the Board “maintains significant review
`
`authority over [AJs’] decisions.” However, there are the two types of constitutional officers: principal
`
`officers and inferior officers, if not principal officers then MSPB AJs are inferior officers, and
`
`improperly appointed nonetheless. Importantly, the Supreme Court held that an inferior officer is one
`
`who has a superior and whose work is directed and supervised at some level by others who were
`
`nominated by the President and confirmed by the Senate. Edmond v. U.S., 520 U.S. 651 (1997).
`
`Post Lucia, MSPB treated Lucia as little more than a formality and had its Department Head
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`issue pro forma order to rubber-stamp the prior internal appointments of its AJ, and later this action was
`
`found to be deficient so the new MSPB Board ratified prior appointments (See App C) on April 04,
`
`2022, some seven years later. However, none of these actions cured the fact that MSPB AJ Sherry
`
`Zamora was not properly appointed when she made her findings and decisions in the three cases
`
`(combined herein) in her initial decisions in 2015-2019, and the Board erred in extending deference to
`
`her 2015-2019 findings and credibility decisions, with further compound error by the Federal Circuit in
`
`applying a deferential standard of review. Bottom line is that AJ Sherry Zamora in all three cases did
`
`6
`
`

`

`not have the authority to review Petitioner’s employment appeals, and Petitioner was denied a sound
`
`constitutional review process.
`
`II SEPARATE CASE CONTROVERSIES
`
`1. CAFC CASE # 23-1510
`
`Constitutional Protection
`
`A covered federal employee is entitled to pre-action due process procedural rights as identified
`
`at 5 U.S.C. § 7513. When an agency fails to provide these pre-action due process rights, the adverse
`
`action cannot be sustained and the Board will overturn the action. Cheney v. Dept, of Justice, 479 F.3d
`
`1343, 1352-53 (Fed. Cir. 2007); King v. Alston, 75 F.3d 657, 659-661 (Fed. Cir. 1996). The U.S.
`
`Supreme Court has repeatedly held that, when a cause is required to remove a public employee, due
`
`process is necessary to determine if that cause has been met. Neither Congress nor the President has
`
`the power to ignore or waive due process. Applying deference, ignoring, or overlooking the record
`
`undermines the whole point of constitutional protection.
`
`The CAFC Decision states “...Mr. Chin-Young’s argument that the Agency committed harmful
`
`procedural error by not making accessible the evidence it relied on in deciding to remove him. This
`
`argument is contrary to the substantial evidence of record, and the Board did not err by concluding that
`
`offering to make the materials available upon request was not a harmful procedural error...Here,
`
`substantial evidence supports the Board’s conclusion that the Agency made the evidence accessible to
`
`Mr. Chin-Young by offering it for inspection upon request. E.g., S.A. 181-82 (Notice of Proposed
`
`Removal informing Mr. Chin-Young that he had the right to reply to the notice and “to review the
`
`material relied upon in this matter,” by contacting a Human Resource Specialist whose contact
`
`information was provided). And while Mr. Chin-Young implies that he tried to access the documents
`
`7
`
`

`

`but was refused access, this allegation is not supported by the record. As the administrative judge
`
`explained in her decision, the only evidence that Mr. Chin-Young tried to access these documents was
`
`his own testimony, and the administrative judge did not find that testimony credible. S.A. 89 n.33. In
`
`contrast, the other testimony—which the administrative judge did find credible—and the email
`
`evidence on this point show (1) that Mr. Chin-Young was informed he needed to contact the Human
`
`Resource Specialist to access the evidence supporting his removal and (2) that he did not request those
`
`documents. Thus, there is substantial evidence that the Agency made the materials accessible to Mr.
`
`Chin-Young and that Mr. Chin-Young was not denied access.”
`
`Contrary to this decision, the written record shows in the Petition for Review submitted to the
`
`Board, in his rebuttal to the proposed removal notice, Petitioner stated: “Agency failed to provide all
`
`documents in relied upon in tis action.” ECF #28-14 at 3, outline no. 6. On June 2, 2015 Petitioner’s
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`rebuttal to Blohm’s proposed removal notice was mailed to the deciding official, Randell Robinson,
`
`and to his supervisor of record Gary Wang. ECF #28-14 at 4. On the same day, June 2, 2015,
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`Petitioner emailed the same rebuttal statement to Ms. LaBacz and others, including Mr. Blohm.
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`Agency MSPB File subtab 4E at MSPB Tab 9, p. 47-50 of 75. He also indicated his “Home/Mailing
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`Address” of Alpharetta, GA. ECF #28-14 at 4. Subsequently, as he testified without objection, that he
`
`“continuously requested the materials because ... there were no materials sent to me any which way.”
`
`HT 4, 127:21-128:1. Petitioner did exactly what he was told to do to obtain the evidence file: contact
`
`Ms. LaBacz. ECF #28-3 at 22. Ms. LaBacz did not produce the evidence file nor did she (or anyone)
`
`invite Petitioner to the Pentagon or anywhere else to access any evidence file. Instead, in a belated
`
`effort to cover the error, on June 26, 2015 Ms. LaBacz emailed Petitioner, falsely claiming “you have
`
`not requested the materials relied upon to support the action proposed, as was offered to you in the
`
`Notice [of the proposed removal].” Ex 16, p. 72. Ms. LaBacz’s June 26, 2015 email was copied to
`
`Richard Kane, the Agency counsel, and to Essye Miller, the new Director, Cybersecurity. Ex 16, p. 72,
`
`8
`
`

`

`p. 50. The evidence file relied upon was never emailed or mailed to him. Instead, on June 19, 2015,
`
`Gary Blohm, the proposing official, emailed Petitioner, reiterating the same instruction on how to
`
`obtain the evidence file: to contact Angela LaBacz by phone or email. Id.
`
`The record further shows in Petitioner’s Informal Opening Brief that On June 2, 2015 Petitioner
`
`mailed and emailed Ms. LaBacz and others, including Mr. Blohm (the proposing official) and Mr.
`
`Robinson (the deciding official), attaching his rebuttal to the Notice of Proposed Removal, which he
`
`entitled: “Answer And Defense of Employee.” Ex 15. Chin-Young emails to Gary Wang, May 26, 2015
`
`and May 20, 2015, p. 48, p. 51. In his aforementioned rebuttal, Petitioner wrote down his mailing
`
`address in Georgia: 14635 Birmingham Hwy., Alpharetta, GA 30004. Ex 15, p. 3. Specifically,
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`Petitioner stated in his rebuttal: “Agency failed to provide all documents it relied upon in its actions”
`
`and demanded that “a certified copy of all evidence relied upon by the Agency” be provided to him. Id.
`
`He testified credibly without objection on the 4th day of hearing on February 5th 2016 that he
`
`requested the evidence file by emailing and by calling LMER. Ex 11: Hearing Transcript on 4th day, p.
`
`128, lines 1-8. His request for the evidence file fell on deaf ears. He never received the evidence the
`
`proposing official relied upon to issue the notice of proposed removal. Ex 11, p. 129, line 22 through p.
`
`130, line 1. The written record contradicts the Court’s erroneous finding, “and (2) that he did not
`
`request those documents.” The US Constitution requires that Petitioner at least be given a chance to
`
`make a meaningful reply to the charges against him, before his property rights in employment are taken
`
`away by the Government.
`
`It is not reasonable that the Federal Circuit could not or chose not to review sworn testimony de
`
`novo, and just kept repeating the findings of the MSPB AJ. While factual questions are normally
`
`reviewed under a deferential standard, here the MSPB AJ erroneously excluded consequential evidence
`
`of sworn testimony that was accorded no weight whatsoever, and so the Federal Circuit was required to
`
`review the record de novo. It’s an egregious error to rule that that “the only evidence that Mr. Chin-
`
`9
`
`

`

`Young tried to access these documents was his own testimony..when a certified record of sworn
`
`testimony of the Agency’s proposing official and Decision official receiving Petitioner’s request to
`
`access the documents is right at one’s finger tip. The CAFC Decision is in further error by stating, “In
`
`contrast, the other testimony—which the administrative judge did find credible...” but provides no
`
`reference to “the other evidence.” The record is devoid of any contrasting testimony on this point
`
`except for Agency Counsel’s assertions and the AJ’s speculation that if the Petitioner had reported to a
`
`[phantom] detail assignment at the Pentagon then he would’ve been allowed a limited amount of time
`
`to access the evidence file, but none of that is evidence. Just look at the record (extracted) below. The
`
`Agency’s removal proposing authority (Mr. Blohm), and the Agency’s removal authority (Mr.
`
`Robinson) both did their best to avoid saying that the Petitioner contacted them and the LMER for the
`
`evidence relied on by the Agency and none was sent or given to him, but their sworn testimony
`
`confirmed they received Petitioner’s reply to the removal proposal requesting the evidence and the
`
`request was sent via email and post mail to them. See Pet. App. E
`
`However the MSPB administrative Judge simply dismissed Petitioner’s testimony by saying he
`
`wasn’t credible, and the Board, followed by the Federal Circuit applied deference to her credibility
`
`decision. This is an egregious error that renders the certified record worthless. Note, MSPB maintains
`
`a win rate of nearly 99% in favor of Agencies against federal employees by simply stating the
`
`Appellant (Petitioner) is not credible and establishing an AJ-made record favorable to Agencies for
`
`review; but in case 23-1510 (the only case where the MSPB allowed a hearing), Petitioner went the
`
`extra mile to fight for a record documented by a certified court reporter which eventually was placed in
`
`the file after a protracted struggle with AJ Sherry Zamora who denied several request for the certified
`
`record, but was unsuccessful in keeping it out. See Pet. App. F
`
`10
`
`

`

`Ex Parte Communication is a Due Process violation that cannot be overlooked, omitted, or excused
`
`The Federal Circuit Court’s Decision highlights the significance of the external
`
`information and ex parte communication that factored into the Agency’s decision and MSPB
`
`affirmation of that decision, specifically, “After Mr. Chin-Young had served only six weeks abroad, the
`
`Senior Telecommunications Advisor working with Mr. Chin-Young in Afghanistan recommended that
`
`Mr. Chin-Young be immediately redeployed because he had “demonstrated an inability to adjust...[,]
`
`caused Senior Leaders to question his ability ..., and [was] a negative influence
`
`to other team members.” S.A. 119.” And separately that “To the contrary, the evidence of record shows
`
`that he came back to the United States ten months early and that at least one other employee in
`
`Afghanistan recommended that he be sent back because of unsatisfactory work.”
`
`Arguendo, if the Petitioner was at fault for not “accessing” the evidence file for any reason, the
`
`Agency’s Decision Official (and Proposal Official) could still not be excused for considering external
`
`information or ex parte communication that was not even mentioned in the Proposal for Removal. In
`
`proposing removal for Petitioner, the proposing official, Mr. Gary Blohm, only served Petitioner his
`
`May 29, 2015 Memorandum of the Notice of Proposed Removal, and nothing else, via mail and
`
`emails , including to the address of Petitioner’s home of record in Alpharetta, Georgia. Agency File Part
`
`1, subtab 4F at MSPB Tab 9, p. 74 of 75. During his testimony, Mr. Blohm stated that he reviewed the
`
`following documents in support of his Proposal: multiple emails between Petitioner and other
`
`management staff, leave requests, documents regarding Petitioner’s detail to Afghanistan, Petitioner’s
`
`reasonable accommodation requests, and the letter from Dr. Catherine Warner. HT 2, 211:7-22, 204:12-
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`22. There was no way for the Petitioner and or his non-attorney representative to know that Dr.
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`Warner’s memo existed and would be factored so heavily in the decision to remove; it certainly wasn’t
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`mentioned in the proposal to remove. Despite many written requests, phone calls, and email
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`communication by the Petitioner to Agency officials, including LMER, CIO/G6 cybersecurity
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`managers, CI0/G6 leadership, the Removal Proposal Authority, and the Removal Decision Authority
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`no evidence file was produced and there was no mention of the material ex parte communication in
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`memo form from Dr. Warner to CIO/G6 officials that was separate from the HQISAF travel
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`authorization letter. Dr. Warner’s memo turned out to be derogatory diatribe that the Proposal Official
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`reviewed but did not mention in his proposal or any other communique, and on which the Deciding
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`Official heavily relied, per his testimony, to reach his false conclusions that the Petitioner could no
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`continue in the MoDA program and therefore was effectively released.
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`Due process under the Constitution requires that a tenured federal employee be provided
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`“written notice of the charges against him, an explanation of the employer’s evidence, and an
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`opportunity to present his side of the story.” Cleveland Board of Education v. Loudermill, 470 U.S. 532.
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`546 (1985). Petitioner did not receive the constitutional and statutory procedural protections to which
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`he was entitled before his removal or termination. When an Agency subjects a non-probationary
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`federal employee to an appealable Agency action that deprives him of his property right in his
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`employment without prior notice and an opportunity to respond, such an action constitutes an
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`abridgment of the employee's Constitutional right to minimum due process of law. See Cleveland
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`Board of Education v. Loudermill, 40 U.S. 532, 546 (1985); Tompkins v. Office of Personnel
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`Management, 72 M.S.P.R. 400, 407 (1996); Stephen v. Department of the Air Force, 47 M.S.P.R. 672,
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`680-81 (1991). The record shows the Agency demonstrated inadequate notice, withholding of material
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`evidence relied on, unlawful ex parte communication, and failure to provide a meaning opportunity to
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`reply to the removal authority.
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`Violation of the separation of distinct legal entities
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`DoD and the US Army are separate legal entities. The record is clear that Petitioner was not
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`released from DoD to the Army after returning from his DoD Detail assignment (to Kabul Afghanistan)
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`to the DoD MoDA Program Office, before the Army prematurely removed him from his official
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`position of employment that was obligated by return rights. The record is rather telling that even Ms.
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`Miller whose memo of detail assignment the Agency relies on, admits to knowing the travel letter or
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`Letter of Release was not a release from the MoDA detail but in fact just what it says - Release for
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`Redeployment. Verbatim, the record of Ms. Miller’s testimony reads as such —
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`238:11 Q. The document that was shown from the agency
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`238:12file, the subject, Letter of Release for Redeployment,
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`238:13 signed by Mr. Gale on August 29, 2014. Does this
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`238:14 document have anything to do with release for his
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`238:15 travel from Afghan to the United States?
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`238:16 A. I don't know.
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`238:17 Q. Do you know what document this is, what kind
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`238:18 of nature of the document this is?
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`238:19 A. The document says that his — basically, his
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`238:20 deployment was done, and he was free to return.
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`238:21 Q. Okay. So to your knowledge, this document
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`238:22 shows that he's released from the detail?
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`239:1 A. No. He's released from his deployment.
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`239:6 A. This is a release from his deployment to
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`239:7 Afghanistan supporting the Ministry of Defense-
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`239:8 Afghanistan.
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`239:9 Q. So this letter says that he’s released from
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`239:10 that detail?
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`239:11 A. From his deployment.
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`Obviously, since the Petitioner was not released from DoD to the Army then the Army had no
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`authority to detail him from his permanent position of record. This is indisputable evidence of record
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`that Petitioner’s removal was unlawful on the merits and in execution.
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`Split Circuit Conflict: This Non Precedential Decision conflicts with established Precedent
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`concerning discipline resulting from Directed Assignments
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`The Federal Circuit’s Non Precedential Decision in affirming the MSPB/Agency decision is
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`flawed, and contravenes established precedent by the Board, this Circuit, and other Circuit Courts
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`about discipline concerning directed assignments; specifically the Court’s Decision states “...We agree
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`with the Board that such an argument goes to the merits of the Agency’s decision to detail him, and
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`thus does not fall within the Board’s jurisdiction...” However it is well settled law that the agency has
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`the burden of proving by a preponderance of the evidence the legitimacy of a removal action taken
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`against an employee. 5 U.S.C. § 7701(c)(1)(B). If the AWOL charge is based upon an employee's
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`failure to accept a directed assignment, the agency must prove by a preponderance of the evidence that
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`its decision to assign the employee to another position was bona fide, and based upon legitimate
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`management reasons. Umshler v. Department of the Interior, 44 M.S.P.R. 628, 630 (1990). To avoid
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`the potential abuses that can occur if an agency should use directed reassignments to procure an
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`employee's separation through retirement, resignation, or removal, the Board held in Ketterer v.
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`Department of Agriculture, 2 M.S.P.R. 294 (1980), that the agency must show that its decision to
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`reassign an employee was a bona fide determination based on legitimate management considerations in
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`the interests of the service. There, it warned that "agency discretion to reassign may no more properly
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`be invoked as a veil to effect an employee's separation than may a reduction in force. Ketterer, 2
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`M.S.P.R. at 299 n.8. Significantly, in Wear v. Department of Agriculture, 22 M.S.P.R. 597 (1984), the
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`Board explicitly recognized the complexity of situations where agencies could effect action either by
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`RIF or by directed reassignments. In a holding that has important implications for the instant case, the
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`Board stated that the reasons that would justify a RIF would also justify a directed reassignment. See
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`also Raboum v. Department of Justice, 38 M.S.RR. 103, 105 (1988), finding that an agency's obligation
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`is to provide evidence that supports the "genuineness" of the reasons for its reassignment; Renville v.
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`Department of Health & Human Services, 26 M.S.RR. 566, 568 (1985), These cases show that the
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`Board's review of a directed assignment action is to assure that an otherwise legitimate management
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`tool is not used for illegitimate reasons, and that in so doing, it focuses on the actual reasons for the
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`reassignment rather than the means by which it was effected. That is, the Board's review centers on the
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`legitimacy of the reasons for the reassignment, not on whether the action was reversed on technical,
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`procedural, or other grounds. In Youssef v. Dept, of Justice, 112 LRP 38310 (July 20, 2012), the D.C.
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`Circuit ruled that a lower court erred when it ru