Case: 21-1832 Document: 42 Page: 1 Filed: 02/24/2022
United States Court of Appeals
for the Federal Circuit
______________________
ANGELINA BANNISTER,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2021-1832
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0714-20-0517-I-1.
______________________
Decided: February 24, 2022
______________________
ROBERT STEPHENS WEBB, III, Tully Rinckey PLLC,
Austin, TX, argued for petitioner. Also represented by
MICHAEL FALLINGS.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BRIAN
M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH MARIE
HOSFORD.
______________________
Before PROST, CHEN, and HUGHES, Circuit Judges.
Case: 21-1832 Document: 42 Page: 2 Filed: 02/24/2022
2 BANNISTER v. DVA
PROST, Circuit Judge.
In August 2020, petitioner Angelina Bannister was
suspended from her position with the Department of Veterans Affairs (“VA”) for conduct unbecoming a federal employee. In February 2021, the Merit Systems Protection
Board (“Board”) upheld Ms. Bannister’s suspension. Because the Board’s decision as to the underlying suspension
rests on an incorrect statement of law in view of our court’s
recent decision in Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021), we vacate that portion
of the Board’s decision and remand. We affirm, however,
the Board’s determination that Ms. Bannister’s affirmative
defense of whistleblower reprisal failed.
I
Ms. Bannister has been employed by the VA for over
two decades. During the timeframe relevant to this appeal,
the VA employed Ms. Bannister as a staff pharmacist at
the Southeast Louisiana Veterans Health Care System in
the Baton Rouge Outpatient Clinic, Baton Rouge, Louisiana. J.A. 2.
On July 14, 2020, the VA issued Ms. Bannister a notice
of proposed removal under 38 U.S.C. § 714 based on a
charge of conduct unbecoming a federal employee.
J.A. 247–49. The notice alleged (in four specifications) that
Ms. Bannister had repeatedly spoken rudely and inappropriately to various veterans and coworkers, including, for
example, that Ms. Bannister had “yell[ed] and scream[ed]”
at pharmacy personnel in response to being informed that
she had been “assigned to provide curbside triage to pharmacy patients.” J.A. 247–48.
On August 7, 2020, the VA issued a final decision sustaining the charge of conduct unbecoming (but mitigating
the proposed penalty of removal to a 30-day suspension).
J.A. 186–87. Notably, after considering Ms. Bannister’s
“written replies” “along with all the evidence developed and
Case: 21-1832 Document: 42 Page: 3 Filed: 02/24/2022
BANNISTER v. DVA 3
provided to [Ms. Bannister],” the deciding official “found
that the charge as stated in the notice of proposed removal
[was] supported by substantial evidence.” J.A. 186 (emphasis added).
Ms. Bannister subsequently appealed her suspension
to the Board. In relevant part, Ms. Bannister contested
whether the charged conduct occurred, and she alleged as
an affirmative defense that the VA suspended her in reprisal for protected whistleblowing activity. J.A. 2, 13.
The administrative judge found that “the agency proved by
substantial evidence” that Ms. Bannister had “engaged in
conduct materially consistent with the specifications.”
J.A. 12. The administrative judge also determined that
Ms. Bannister’s “affirmative defense fail[ed].” J.A. 21. The
administrative judge’s initial decision became the final decision of the Board on February 4, 2021. J.A. 24, 28.
Ms. Bannister now petitions for review of the Board’s decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
Our review of Board decisions is limited. Whiteman v.
Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A
final decision of the Board must be affirmed unless it is
“(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); see also Potter v. Dep’t of Veterans Affs.,
949 F.3d 1376, 1379 (Fed. Cir. 2020). We review the
Board’s legal determinations de novo and its factual findings for substantial evidence. Archuleta v. Hopper,
786 F.3d 1340, 1346 (Fed. Cir. 2015).
In 2017, Congress enacted 38 U.S.C. § 714 to provide
expedited procedures by which the Secretary of Veterans
Affairs may remove, demote, or suspend employees if the
VA determines that such measures are warranted based on
the covered individual’s performance or misconduct.
Case: 21-1832 Document: 42 Page: 4 Filed: 02/24/2022
4 BANNISTER v. DVA
38 U.S.C. § 714(a)(1); see Brenner v. Dep’t of Veterans Affs.,
990 F.3d 1313, 1317–18 (Fed. Cir. 2021). This case arises
against the backdrop of section 714. Specifically, as relevant here, section 714 provides that on appeal to the Board,
“the administrative judge shall uphold” a decision by
the VA “to remove, demote, or suspend an employee under
subsection (a) if the decision is supported by substantial
evidence.” § 714(d)(2)(A).
This change prompted litigation in our court
concerning whether section 714 permits the agency to
apply a “substantial evidence” standard of proof in making
disciplinary decisions in the first instance. In August 2021,
in Rodriguez v. Department of Veterans Affairs, our court
answered that question, holding that “substantial evidence
may not be used as the standard of proof in disciplinary
actions under section 714.” 8 F.4th 1290, 1303 (Fed. Cir.
2021). Rather, under section 714, “preponderance of the
evidence is the minimal appropriate burden of proof” as to
whether the alleged “misconduct had occurred.”
Id.
at 1301. Our court explained that the references to
“substantial evidence” in section 714 “are all explicitly
directed to the standard of review to be applied by
administrative judges and the Board.”
Id. at 1298.
On appeal to us, Ms. Bannister argues that, under Rodriguez, the VA must now determine “that it is more likely
than not that [Ms. Bannister] engaged in the conduct as
alleged.” Reply Br. 2. 1 In other words, Ms. Bannister
1 At oral argument, the government contended that
Ms. Bannister forfeited her Rodriguez argument because
she raised it for the first time in her reply brief (which was
filed about two months after Rodriguez was decided). Oral
Arg. at 21:05–22:20, No. 21-1832. We disagree. See, e.g.,
In re Micron Tech., Inc., 875 F.3d 1091, 1097 (Fed. Cir.
2017) (“[A] sufficiently sharp change of law sometimes is a
ground for permitting a party to advance a position that it
Case: 21-1832 Document: 42 Page: 5 Filed: 02/24/2022
BANNISTER v. DVA 5
contends that the VA’s final decision sustaining the
charged conduct is legally flawed because the deciding official found the charge proved merely by substantial evidence rather than a “preponderance of the evidence” as
required by Rodriguez. See Reply Br. 1–4.
Indeed, the deciding official in this case, in a decision
that predated Rodriguez, characterized “substantial
evidence” as the applicable standard of proof. J.A. 186.
The deciding official’s use of that standard of proof was in
error. When making its decision, the agency, as Rodriguez
clarified, must prove its charge by a preponderance of the
evidence. Because the deciding official used the incorrect
standard of proof in reaching the final decision here, we
vacate the Board’s decision as to the underlying suspension
and remand to the Board for further proceedings under the
correct legal standard. Presumably those further
proceedings will include the Board requiring the VA’s
deciding official to determine whether the evidence as to
the charge against Ms. Bannister satisfies the requisite
preponderance-of-the-evidence standard of proof.
Ms. Bannister also appeals the Board’s findings concerning her affirmative whistleblowing defense. See Pet’r’s
Br. 13–17; Resp’t’s Br. 37–45. Here, the Board found that
certain “protected disclosures” by Ms. Bannister contributed to her suspension but that other alleged disclosures
were not “protected.” See J.A. 14–19. The Board then
found that Ms. Bannister’s affirmative defense failed nonetheless because, in the Board’s view, the VA met its burden
did not advance earlier in the proceeding when the law at
the time was strongly enough against that position.”).
Here, pre-Rodriguez, our case law did not directly resolve
whether the VA was permitted to prove misconduct under
section 714 merely by substantial evidence. See, e.g., Sayers v. Dep’t of Veterans Affs., 954 F.3d 1370, 1374 n.4
(Fed. Cir. 2020).
Case: 21-1832 Document: 42 Page: 6 Filed: 02/24/2022
6 BANNISTER v. DVA
to establish that it would have taken the same action notwithstanding the protected disclosures. See J.A. 19–21.
We conclude that the Board’s determinations regarding
Ms. Bannister’s whistleblowing defense are supported by
substantial evidence and in accordance with the law. For
example, in determining whether the alleged disclosures
were “protected,” the Board considered emails from
Ms. Bannister containing the alleged disclosures, as well
as related testimony from Ms. Bannister and multiple
other agency employees. J.A. 14–18. Further, in assessing
whether the agency had met its burden, the Board properly
applied the factors set forth in Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
III
For the foregoing reasons, we vacate the Board’s decision as to Ms. Bannister’s underlying suspension, affirm
the Board’s decision as to Ms. Bannister’s affirmative defense, and remand for further proceedings consistent with
this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
Costs to Ms. Bannister.
