Case: 23-1981 Document: 46 Page: 1 Filed: 02/25/2025
United States Court of Appeals
for the Federal Circuit
______________________
MARK L. SADLER,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2023-1981
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-16-0122-W-1.
______________________
Decided: February 25, 2025
______________________
ADAM AUGUSTINE CARTER, The Employment Law
Group, PC, Washington, DC, argued for petitioner. Also
represented by ROBERT SCOTT OSWALD.
BRITTNEY M. WELCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE
ANNE NIOSI.
______________________
Before DYK, CLEVENGER, and HUGHES, Circuit Judges.
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2 SADLER v. ARMY
DYK, Circuit Judge.
Petitioner Mark L. Sadler was employed by the United
States Army until the Army suspended him and then removed him for insubordination. Mr. Sadler alleged that
the suspension and removal were retaliation in violation of
the Whistleblower Protection Act and sought corrective action at the Merit Systems Protection Board (“Board”). In
the course of the Board proceedings, Mr. Sadler moved for
the Board to sanction the government for destruction of evidence. The Board ultimately denied Mr. Sadler’s motion
for sanctions and his request for corrective action. We affirm.
BACKGROUND
This case involves two whistleblower complaints filed
by Mr. Sadler. Mr. Sadler contends the Board erred in concluding that his first Office of Special Counsel (“OSC”) complaint failed to sufficiently allege protected activity and,
with respect to his second OSC complaint, the Board,
though finding protected activity, erred in concluding that
the government had shown by clear and convincing evidence that it would have taken the same actions absent the
protected activity. The facts are somewhat complex.
Mr. Sadler was employed by the Army starting in September 2009 as a Computer Scientist, GS-13, in the Test
Technology Division. In April 2012, Mr. Sadler was transferred to the Data Sciences Division, where his supervisor
was Branch Chief Quentin Stringham.
On October 11, 2012, Mr. Stringham emailed Mr. Sadler to set “objectives for [Mr. Sadler’s] performance evaluation.” J.A. 2019. The October 12 email assigned
Mr. Sadler the task of developing and supporting a “software testing program.” Id. On October 17, 2012,
Mr. Stringham reiterated that he had asked Mr. Sadler “to
put together a plan for developing a software testing program.” J.A. 1377.
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SADLER v. ARMY 3
The software testing program was to be developed so
that it “can be executed in conjunction with [the] contractor.” 1 J.A. 2019. Developing the software testing program
included delivering a testing process and a document that
“outline[d] the testing process and all deliverables, responsibilities and measurements associated with [the] required
testing activities.” J.A. 2019. Mr. Stringham proposed a
completion date “no later than” December 31, 2012.
Mr. Sadler “took steps in accordance with that plan, including reviewing the contract [relevant to the software testing
program and] meeting with” employees of the contractor.
J.A. 11; see also J.A. 2814–20 (Mr. Sadler’s testimony).
However, Mr. Sadler testified that he came to believe that
the assignment to create the software testing program
“seemed to be inappropriate” because he “would have been
injecting [himself] into the contractor’s [software] development processes,” which already included software testing.
J.A. 2819–20.
In January 2013, Mr. Sadler emailed his second-line
supervisor, Tracy Mullendore, and a higher-level Army official, Colonel A. Scott Estes, with concerns about his assigned task. That month, Mr. Sadler also submitted a
revised project plan to Mr. Stringham. Mr. Sadler indicated he would provide a draft document describing the
steps of the software testing process by February 14, 2013,
and a final version of the document by March 18, 2013.
1 Mr. Sadler asserts, and the government does not
dispute, that the “contractor,” J.A. 2019, Mr. Stringham referred to in his October 12 email is IP Network Solutions.
See Pet’r’s Br. 5–6; J.A. 2461–63. IP Network Solutions
had a contract with the government to provide “software
administration and maintenance as well as full software
development life-cycle projects . . . in support of the Test
Mission Management System.” J.A. 1737; see, e.g.,
J.A. 1715, 1737–41, 1871–1935.
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4 SADLER v. ARMY
Mr. Sadler never provided either document to Mr. Stringham.
On February 13, 2013, Mr. Sadler and Mr. Stringham
met to discuss Mr. Sadler’s progress. Mr. Sadler declined
to provide a current status of his task. On February 19,
2013, Mr. Stringham instructed Mr. Sadler to “provide all
information and documentation [he had] created/compiled
pursuant to [this task]” by close of business and informed
him that “[f]ailure to comply with this instruction or any
other instruction could result in formal disciplinary action.” J.A. 1414 ¶¶ 7, 9. Mr. Sadler responded to this instruction by emailing Mr. Stringham and Mr. Mullendore,
copying Col. Estes and others, stating that “[t]here ha[d]
been no new activity on the referenced task.” J.A. 1659.
On March 14, 2013, Mr. Sadler filed a first complaint
with OSC alleging whistleblower retaliation. Mr. Sadler’s
allegations as to what agency personnel actions were taken
against him are unclear. But in his first OSC complaint,
Mr. Sadler alleged that he made protected disclosures that
included “[p]ossible improprieties between [Mr. Stringham] and his contract employees” and “[p]ossible
[f]raud/[w]aste/[a]buse . . . [by diverting] funds for critical
software safety tools . . . to [a] new computer floor[.]”
J.A. 2138–39. On April 16, 2013, OSC terminated its inquiry into Mr. Sadler’s allegations, and on June 18, 2013,
Mr. Sadler appealed to the Board.
On June 26, 2013, after the filing of Mr. Sadler’s first
OSC complaint, Mr. Stringham proposed suspending
Mr. Sadler for five days for insubordination. On August 5,
2013, Mr. Mullendore implemented the suspension, although he mitigated the penalty from five days to four, effective August 12 through August 15, 2013. On August 7,
2013, Mr. Sadler received an unfavorable performance rating.
On August 19, 2013, Mr. Stringham sent Mr. Sadler an
email asking about the status of the assigned task.
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SADLER v. ARMY 5
Mr. Sadler replied that there was “[n]o change.” J.A. 1694.
On August 21, 2013, Mr. Stringham proposed removing
Mr. Sadler for insubordination. On August 22, 2013, in
light of the proposed removal, the Board administrative
judge (“AJ”) dismissed Mr. Sadler’s first Board appeal
without prejudice “to allow [Mr. Sadler] to exhaust his remedies with OSC concerning his allegation that the August 7, 2013 suspension was retaliation for whistleblowing
activity.” J.A. 20.
On August 31, 2013, Mr. Sadler filed a second OSC
complaint, alleging further whistleblower retaliation for
the filing of his first OSC complaint and appeal; Mr. Sadler
alleged the retaliation included the “four[-]day suspension,” “unsatisfactory performance report,” and “proposed
removal.” J.A. 2215. On September 23, 2013, the Army removed Mr. Sadler from his position. In October 2015, OSC
informed Mr. Sadler that it had terminated its inquiry into
his second OSC complaint. Thereafter, Mr. Sadler filed his
second appeal with the Board; the Board apparently
treated this action as reviving the first OSC complaint and
addressed both complaints together.
As part of his second Board appeal, the parties engaged
in discovery. Mr. Sadler ultimately filed a motion for sanctions, alleging that the Army lost or destroyed critical evidence: Col. Estes’s computer files, specifically his “.pst
file,” 2 which contained archived emails and documents.
See J.A. 971–77. Mr. Sadler did not complain in his motion
that the Army had destroyed other evidence. However,
Mr. Sadler also alleged that the Army failed to identify and
produce other discovery material, such as material from
2 A .pst file is an electronic storage file format that
can be used to store data. The .pst format is commonly
used to archive data, such as email messages, calendar information, and contacts, from Microsoft programs, like Microsoft Outlook.
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6 SADLER v. ARMY
“Mr. Mullendore’s computer ‘backup copy’” and chat logs
from a messaging service, IBM Sametime. J.A. 971–72 ¶ 2,
974 ¶ 9. In a later-filed rebuttal, Mr. Sadler clarified he
“d[id] not seek sanctions pursuant to 5 C.F.R. ֻ§ 1201.74(c)
for failure to comply with a discovery order” but instead
“s[ought] sanctions for the loss or destruction of relevant
evidence”—i.e., spoliation. Appellant’s Rebuttal to
Agency’s Response to Motion for Sanctions ¶ 2, Sadler v.
Dep’t of Army, MSPB No. DE-1221-16-0122-W-1; accord
J.A. 2439 n.1. In subsequent supplemental memoranda,
however, Mr. Sadler alleged that the Army failed to identify and preserve other relevant evidence beyond Col. Estes’s files. For example, Mr. Sadler pointed to “the failure
of anyone to backup [sic] and retain files relating to
Mr. Sadler until . . . January 2015” and the “loss of a substantial body of material submitted to the OSC during
2015.” J.A. 1161.
The AJ denied Mr. Sadler’s motion for sanctions. The
AJ explained his reasoning in his original order dated January 20, 2017, and in his decision denying reconsideration
dated September 25, 2017. The AJ limited his analysis to
Col. Estes’s .pst file, finding that Mr. Sadler had disclaimed any theory that he was requesting sanctions for
failure to comply with an order compelling discovery under
5 C.F.R. § 1201.74(c). The AJ found that in 2013, Col. Estes created the .pst file “on his laptop hard drive (and likely
on an external hard drive),” J.A. 2439, and that the file contained information “relevant to [Mr. Sadler’s] pending litigation,” J.A. 2441. The AJ further found that the Army
“wiped and reimaged” the hard drive after Col. Estes left
his command and that “the external hard drive was, . . .
most likely, shredded.” J.A. 2439–40. However, the AJ
concluded that the .pst file was lost due to “an ordinary
procedure when there was a change in command” and so
declined to exercise his discretion by sanctioning the Army.
J.A. 2441. Mr. Sadler moved for reconsideration.
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SADLER v. ARMY 7
In denying reconsideration, the AJ followed the standard for the failure to preserve electronically stored information adopted in the 2015 amendments to Rule 37(e) of
the Federal Rules of Civil Procedure, which requires a finding that “the party [that failed to preserve electronically
stored information] acted with the intent to deprive another party of the information’s use in the litigation” in order to apply adverse inferences. FED. R. CIV. P. 37(e)(2).
In the September 2017 decision (which included the denial of reconsideration of the sanctions issue), the AJ denied Mr. Sadler’s request for corrective action. The AJ
concluded the Board lacked jurisdiction over Mr. Sadler’s
first OSC complaint, concluding it did not contain a protected disclosure because “a reasonable person in [Mr. Sadler’s] position would not believe [that the disclosures
alleged in his first OSC complaint] evidenced a violation of
any law, rule, or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety within the meaning of [5 U.S.C. § 2302(b)(8)].” J.A. 32.
As to Mr. Sadler’s second OSC complaint, the AJ found
that Mr. Sadler had engaged in protected whistleblower activity—namely, (1) filing his first OSC complaint on
March 4, 2013, and (2) appealing his first OSC complaint
to the Board on June 18, 2013. The AJ also found that
these protected activities were a contributing factor in the
Army’s personnel actions against Mr. Sadler. The AJ then
found, however, that the Army established by clear and
convincing evidence that it would have taken the same actions absent Mr. Sadler’s protected activities—i.e., that the
Army had established independent causation.
In April 2023, the full Board denied Mr. Sadler’s petition for review and affirmed the AJ’s initial decision, which
became the Board’s final decision.
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8 SADLER v. ARMY
Mr. Sadler seeks review of the Board’s decision. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and
5 U.S.C. § 7703(b)(1)(A).
DISCUSSION
Our review of final Board decisions is limited. We may
only set aside agency actions, findings, or conclusions we
find to be “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). We review legal questions de novo.
Rumsey v. Dep’t of Just.,
866 F.3d 1375, 1379 (Fed. Cir.
2017). We review the Board’s rulings on discovery issues
for abuse of discretion. Kirkendall v. Dep’t of Army,
573 F.3d 1318, 1321 (Fed. Cir. 2009).
I. First OSC Complaint
Mr. Sadler argues the Board erred in concluding that
the disclosures he identified in his first OSC complaint
were not protected disclosures under 5 U.S.C.
§ 2302(b)(8). 3 We disagree.
For the Board to have jurisdiction over Mr. Sadler’s
first OSC complaint, he was required to present a nonfrivolous allegation that he made a protected disclosure. Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir.
2016). Nonfrivolous allegations are allegations that are
not vague, conclusory, or facially insufficient, and that the
petitioner reasonably believes to be true. Piccolo v. Merit
Sys. Prot. Bd.,
869 F.3d 1369, 1371 (Fed. Cir. 2017). Protected disclosures include “any disclosure of information by
3 As noted earlier, it is not clear what personnel actions Mr. Sadler alleged were retaliatory in the first OSC
complaint, and the Board did not address this requirement
in its final decision.
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SADLER v. ARMY 9
an employee . . . which the employee . . . reasonably believes evidences[] (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety.” 5 U.S.C. § 2302(b)(8);
see also
id. § 2302(a)(2)(D) (defining “disclosure”).
The Board properly found that Mr. Sadler’s allegations
in his first OSC complaint were not protected disclosures
within the meaning of Section 2302(b)(8) because his allegations were vague, conclusory, and failed to reveal circumstances from which a disinterested person in his position
could reasonably conclude that the agency’s actions evidenced any of the violations described in that section. See
Piccolo, 869 F.3d at 1371; Lachance v. White,
174 F.3d
1378, 1381 (Fed. Cir. 1999).
On appeal, Mr. Sadler argues that (1) the cancellation
of funding for certain software tools evidenced a “gross
waste of funds”; (2) the cancellation of funding for the software tools while providing funding for a new computer
room floor evidenced “gross mismanagement”; (3) his assignment to work on the software development task evidenced an “abuse of authority” because it resulted in
personal gain for Mr. Stringham; and (4) his assignment to
work on the software development task was to the detriment of his other employment responsibilities and thus evidenced “a substantial and specific danger to public health
or safety.” See Pet’r’s Br. 51–63. As the Board found, the
problem common to each of these arguments is that
Mr. Sadler failed to allege the substantive details required
to establish jurisdiction. See Ellison v. Merit Sys. Prot. Bd.,
7 F.3d 1031, 1036 (Fed. Cir. 1993); ElHelbawy v. Dep’t of
Com., No. 2023-1322,
2023 WL 8494706, at *3 (Fed. Cir.
Dec. 8, 2023) (nonprecedential) (per curiam).
Mr. Sadler also argues that the Board “failed to consider whether [his] disclosures constituted a disclosure of
violations of law, rules or regulation.” Pet’r’s Br. 43. We
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10 SADLER v. ARMY
disagree. He argues that his assignment to develop a software testing program “violat[ed] the DoD directives which
created [his] position,” forcing him to abandon tasks identified in his original position description in violation of various government policy bulletins. Id. at 44–45. These
arguments are likewise without merit. Mr. Sadler has not
shown a colorable violation of any law, rule, or regulation. 4
Accordingly, we conclude the Board did not err in finding that Mr. Sadler failed to nonfrivolously allege in his
first OSC complaint that he engaged in activity protected
by 5 U.S.C. § 2302(b)(8).
II. Second OSC Complaint
We now turn to the Board’s determination that the
agency demonstrated by clear and convincing evidence that
it would have taken the same actions against Mr. Sadler
absent his protected whistleblowing activity (i.e., filing his
first OSC complaint and then appealing his first OSC complaint to the Board). See J.A. 38–39; 5 U.S.C. § 1221(e)(2).
4 To the extent Mr. Sadler now argues that his refusal to complete his assigned tasking was protected activity under Section 2302(b)(9)(D), which protects an
individual who “refus[ed] to obey an order that would require the individual to violate a law, rule, or regulation,”
he did not raise these arguments to the Board and they are
forfeited. See, e.g., Sistek v. Dep’t of Veterans Affs.,
955 F.3d 948, 953 n.1 (Fed. Cir. 2020) (finding argument
forfeited for failure to present it to AJ in the first instance).
Mr. Sadler additionally argues that he “reasonably believed that [Mr.] Stringham’s actions concerning the use of
the contractors violated the [Federal Acquisition Regulations].” Pet’r’s Br. 48. Mr. Sadler concedes that he did not
raise this argument to the Board. See Pet’r’s Reply Br. 22.
We decline to consider it in the first instance. See, e.g., Sistek, 955 F.3d at 953 n.1.
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SADLER v. ARMY 11
In this context, we apply three factors set forth in Carr
v. Social Security Administration,
185 F.3d 1318, 1322
(Fed. Cir. 1999). The three Carr factors are:
1) the strength of the [Army’s] evidence in support
of its action, 2) the existence and strength of any
motive to retaliate on the part of the [Army] officials who participated in the decision, and 3) any
evidence that the [Army] takes similar actions
against employees who are not whistleblowers but
who are otherwise similarly situated.
McIntosh v. Dep’t of Def., 53 F.4th 630, 645 (Fed. Cir. 2022)
(citing Carr,
185 F.3d at 1323). Mr. Sadler disputes the
Board’s finding only as to the first and second Carr factors.
As to the first Carr factor, the Board considered the
Army’s “straightforward and largely uncontroverted” evidence that Mr. Sadler was insubordinate and determined
that “the evidence strongly supports the [Army’s] actions
in imposing discipline for insubordination in the form of
suspension and later removal.” J.A. 39–41. Regarding suspension, the Board’s conclusion is supported at least by the
following undisputed facts: (1) Mr. Sadler refused to provide status updates on his assigned task to his supervisor
Mr. Stringham; (2) Mr. Stringham warned Mr. Sadler that
failure to comply with instructions “could result in formal
disciplinary action,” J.A. 1414 ¶ 9; (3) Mr. Stringham then
gave Mr. Sadler instructions to complete the assigned task
and assigned expected due dates; and (4) Mr. Sadler failed
to comply with those instructions or meet those expected
due dates. Regarding removal, after returning from his
suspension, Mr. Sadler continued to fail to comply with
previous instructions to make progress on his assigned
task. See J.A. 1694 (email from Mr. Sadler indicating there
was “[n]o change” in the status of the assigned task). Based
on this record, we conclude that substantial evidence supports the Board’s finding in favor of the Army as to the first
Carr factor.
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12 SADLER v. ARMY
Mr. Sadler also argues that his actions could not constitute insubordination because the Army failed to respond
to Mr. Sadler’s complaints about his assigned tasks. Our
precedent establishes no such principle. While complaints
may constitute protected whistleblowing, Mr. Sadler’s
complaints here do not excuse his failure to perform his assigned tasks. See n. 4 supra.
Mr. Sadler argues his suspension and removal constituted impermissible double punishment for the same misconduct. See Nguyen v. Dep’t of Homeland Sec., 737 F.3d
711, 716–17 (Fed. Cir. 2013) (explaining the Board has prohibited double punishment in cases where an agency imposed two separate instances of discipline for the same act
of misconduct). His arguments are unavailing. The Army’s
second adverse action (removal) was not based on the same
incident of refusing to comply with instructions as the first
adverse action (suspension). Instead, the second adverse
action was based on Mr. Sadler’s continued refusal to comply with his ongoing instructions to complete the assigned
task. We see no error in the Board’s analysis of the first
Carr factor.
As to the second Carr factor, the Board found it
weighed in favor of the Army because there was “little evidence that the [Army] retaliated against [Mr. Sadler] for
protected activity.” J.A. 41. This determination is likewise
supported by substantial evidence. The Board found
Mr. Sadler engaged in the protected activity of (1) filing a
first complaint with OSC on March 4, 2013, and (2) appealing his first OSC complaint to the Board on June 18, 2013.
J.A. 33. As the Board explained, Mr. Sadler’s supervisors
discussed Mr. Sadler’s insubordination in February 2013,
i.e., before he engaged in any protected activity. The Board
reviewed the timing of the Army’s actions as compared to
the protected activity and concluded there was no evidence
to suggest Mr. Sadler’s supervisors were aware of the protected activity until after they began formal discussions
about suspending him. The Board also found credible
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SADLER v. ARMY 13
testimony that Mr. Stringham and Mr. Mullendore did not
factor Mr. Sadler’s first Board appeal into the decision to
suspend or remove Mr. Sadler. Based on this record, substantial evidence supports the Board’s conclusion that the
second Carr factor weighed in favor of the Army. And to
the extent Mr. Sadler asks us to review the credibility determinations, we see no basis to set them aside. See Bieber
v. Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (“The
credibility determinations of an administrative judge are
virtually unreviewable on appeal.”).
We conclude substantial evidence supports the Board’s
determination that the Army met its burden to show independent causation.
III. Sanctions for Spoliation
Mr. Sadler finally argues the Board abused its discretion in declining to draw adverse inferences against the
Army due to the destruction of Col. Estes’s .pst file (spoliation). 5 The term “spoliation” encompasses destruction of
5 On appeal, Mr. Sadler accuses the Board of
“limit[ing] its decision to Col. Estes’s .pst files and . . . not
address[ing] other matters [Mr.] Sadler raised [in his motion for sanctions].” Pet’r’s Br. 22. It is unclear to which
“other matters” Mr. Sadler refers. To the extent Mr. Sadler is referring to the Army’s failure to produce, or explain
why it did not produce, certain documents in violation of
the Board’s order granting his motion to compel, Mr. Sadler expressly stated to the Board that he “d[id] not seek
sanctions pursuant to 5 C.F.R. ֻ§ 1201.74(c) for failure to
comply with a discovery order.” Appellant’s Rebuttal to
Agency’s Response to Motion for Sanctions ¶ 2, Sadler
v. Dep’t of Army, MSPB No. DE-1221-16-0122-W-1. In his
motion for sanctions, the only information Mr. Sadler complained was destroyed by the Army was Col. Estes’s files.
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14 SADLER v. ARMY
evidence and failure to preserve evidence. See, e.g.,
22 Charles Alan Wright & Kenneth W. Graham, Federal
Practice and Procedure: Evidence § 5178.2 (2d ed.).
The Board’s statutes and regulations do not address
spoliation of evidence or sanctions for spoliation, but the
regulations provide that an administrative judge “may impose sanctions upon the parties as necessary to serve the
ends of justice.” 5 C.F.R. § 1201.43; see
id. § 1201.41. The
Board considers the Federal Rules of Civil Procedure “a
general guide for discovery practice[].” Id. § 1201.72(a).
“Procedural matters relative to discovery and evidentiary
issues fall within the sound discretion of the [B]oard and
its officials.” Higgins v. Dep’t of Veterans Affs.,
955 F.3d
1347, 1356 (Fed. Cir. 2020) (quoting Curtin v. Off. of Pers.
Mgmt.,
846 F.2d 1373, 1378 (Fed. Cir. 1988)).
The parties do not appear to dispute the Board’s findings that the Army had an obligation to preserve the hard
drive containing Col. Estes’s .pst file; that the information
contained in Col. Estes’s .pst file was relevant to Mr. Sadler’s case; and that the Army failed to preserve the .pst file
because the Army wiped and reimaged the hard drive. The
parties instead dispute what state of mind can serve as the
basis for imposing an adverse inference sanction for the destruction of relevant evidence and whether the Board appropriately applied the correct standard.
In denying Mr. Sadler’s motion for reconsideration, the
Board “decline[d] to exercise [its] discretion to draw an
We see no error in the AJ’s decision to decline to address
arguments raised for the first time in Mr. Sadler’s later-filed second supplemental memorandum on the sanctions
issue as to other files. To the extent that the AJ did not
address the destruction of any of Col. Estes’s files other
than the .pst files, that failure was harmless because the
same rationale would apply.
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SADLER v. ARMY 15
adverse inference against the [Army] or impose other sanctions for spoliation” and found unpersuasive Mr. Sadler’s
argument that “per se negligence” was sufficient to warrant
sanctions for spoliation. J.A. 22 (internal citation omitted).
A
Mr. Sadler contends that the Board erred in not applying the negligence standard recognized in our decision in
Kirkendall and instead applying the intent standard of
Rule 37(e) of the Federal Rules of Civil Procedure.
We are unpersuaded by Mr. Sadler’s argument that the
Board failed to follow our decision in Kirkendall. In
Kirkendall, the Board rejected the petitioner’s motion for
sanctions for destruction of evidence, noting only that an
adverse inference was “unwarranted under the circumstances.” 573 F.3d at 1326. We concluded that, under the
Board’s precedent in Natividad v. Dep’t of Agric.,
5 M.S.P.R. 415 (M.S.P.B. 1981), negligent destruction of
evidence can result in an adverse inference sanction.
Kirkendall,
573 F.3d at 1327 (citing Natividad, 5 M.S.P.R.
at 418). We vacated the Board’s decision and remanded because the Board, without explanation and in conflict with
its precedent, applied a stricter standard than negligence.
Id. We did not hold that negligence was the correct standard. See id.
Even at the time of Kirkendall, there was a split in the
circuits as to the requisite state of mind for a court to apply
an adverse inference for destruction of evidence. Some circuits held that the party seeking an adverse inference for
destruction of evidence was required to establish that the
evidence was destroyed “with a culpable state of mind,”
which can be “satisfied by a showing that the evidence was
destroyed ‘knowingly . . . or negligently,’” or on a finding of
gross negligence. Residential Funding Corp. v. DeGeorge
Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) (quoting Byrnie
v. Town of Cromwell,
243 F.3d 93, 109 (2d Cir. 2001) (emphasis added)); see also United States v. Rose, 590 F.2d
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16 SADLER v. ARMY
232, 237 (7th Cir. 1978); United States v. Miranda,
526 F.2d 1319, 1325–28 (2d Cir. 1975). The Board in Natividad relied on the circuit precedent in Rose and Miranda. See Natividad, 5 M.S.P.R. at 428 (first citing Rose,
590 F.2d at 237; and then citing Miranda, 526 F.2d
at 1325–28). Other courts had held that “[m]ere negligence
in losing or destroying records is not enough”—“[t]he adverse inference must be predicated on the bad faith of the
party destroying the records.” Aramburu v. Boeing Co.,
112 F.3d 1398, 1407 (10th Cir. 1997) (emphasis added); see
also Condrey v. SunTrust Bank of Ga.,
431 F.3d 191, 203
(5th Cir. 2005) (explaining that “an adverse inference
against the destroyer of evidence [is permitted] only upon
a showing of ‘bad faith’ or ‘bad conduct.’” (emphases added)
(quoting King v. Ill. Cent. R.R.,
337 F.3d 550, 556 (5th Cir.
2003)). Our own law acknowledged the “culpable state of
mind” standard without deciding whether negligence was
sufficient to meet that standard. See Jandreau v. Nicholson,
492 F.3d 1372, 1375–76 (Fed. Cir. 2007) (citing Residential Funding,
306 F.3d at 107). The 2015 amendments
to Rule 37(e) resolved this split as to the failure to preserve
electronically stored information and developed an “intent
to deprive” standard for such cases. It is unclear what the
standard under the Federal Rules is for spoliation of other
types of evidence.
Under amended Rule 37(e), a court may impose an adverse inference sanction for failure to preserve electronically stored information “only upon finding that the party
acted with the intent to deprive another party of the information’s use in the litigation.” 6 The commentary to the
6 Rule 37(e) states:
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that
should have been preserved in the anticipation or
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SADLER v. ARMY 17
2015 amendments notes that new Rule 37(e)(2) expressly
“rejects cases such as [Residential Funding, 306 F.3d 99]
that authorize the giving of adverse-inference instructions
on a finding of negligence or gross negligence.” FED. R. CIV.
P. 37, Committee Notes on Rules—2015 Amendment.
We need not decide whether the Board is bound to follow the intent standard reflected in the 2015 amendments
to Rule 37(e), but we conclude the Board did not abuse its
discretion or act arbitrarily and capriciously by choosing to
follow the new standard in Rule 37(e). Though the Rules
are not controlling, the Board’s regulations specifically provide that they are “instructive.” 5 C.F.R. § 1201.72. It is
thus appropriate for the Board to follow the instructive
guidance of Rule 37 instead of earlier possibly relevant
Board precedent approving a negligence standard (though
that precedent did not directly address the special problems presented by electronically stored information). And
in contrast to Kirkendall where the Board provided “no
conduct of litigation is lost because a party failed to
take reasonable steps to preserve it, and it cannot
be restored or replaced through additional discovery, the court: . . .
(2) only upon finding that the party acted
with the intent to deprive another party of
the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the
party;
(B) instruct the jury that it may or
must presume the information was
unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
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18 SADLER v. ARMY
explanation” for denying the request for sanctions,
573 F.3d at 1326, here, the Board explained the rationale
behind its decision. See J.A. 21–23.
B
Mr. Sadler additionally argues the Board erred in relying on the 2015 amendments to Rule 37 because those
amendments became effective on December 1, 2015, after
the Army destroyed Col. Estes’s .pst file between 2013 and
early 2015. We disagree. The Board is not bound by
Rule 37(e), but it reasonably looked to the Rule for guidance. In any event, it is not necessary for the amended
Rule to have been in effect when the conduct occurred.
When the Supreme Court amended the Rules in 2015, it
provided “[t]hat the foregoing amendments . . . shall take
effect on December 1, 2015, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” SUPREME COURT OF
THE UNITED STATES, ORDER REGARDING AMENDMENTS TO
THE FEDERAL RULES OF CIVIL PROCEDURE (2015). Mr. Sadler’s proceeding was pending when the amendments took
effect. Mr. Sadler filed his motion for sanctions on November 16, 2016, well after the amendments took effect.
C
The Board also did not err in applying the standard to
the facts of this case. In denying Mr. Sadler’s motion for
sanctions, the AJ first explained that destroying evidence
as part of a regular business practice tends to weaken the
inference that evidence was destroyed knowingly or negligently. See J.A. 2440–41 (citing Beaven v. U.S. Dep’t of
Just., 622 F.3d 540, 554 (6th Cir. 2010)); see also Diaz
v. Dep’t of the Treasury,
656 F. App’x 1000, 1002 (Fed. Cir.
2016) (nonprecedential) (finding the Board did not abuse
its discretion in affirming AJ’s decision not to draw adverse
inferences where petitioner failed to timely request the destroyed evidence and the evidence was destroyed in the ordinary course of business). Here, the hard drive containing
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SADLER v. ARMY 19
Col. Estes’s .pst file was destroyed as part of the Army’s
ordinary procedures. Under such circumstances, we see no
error in the Board denying Mr. Sadler’s request for sanctions under the higher intent standard of Rule 37(e).
In sum, the Board’s decision was in accordance with
law and was not arbitrary and capricious.
CONCLUSION
We have considered Mr. Sadler’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
