Case: 19-2454 Document: 93 Page: 1 Filed: 11/09/2022
United States Court of Appeals
for the Federal Circuit
______________________
ELFINA MCINTOSH,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
MERIT SYSTEMS PROTECTION BOARD,
Intervenor
______________________
2019-2454
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-17-0803-I-4.
______________________
Decided: November 9, 2022
______________________
PHILIP SHENG, Davis Polk & Wardwell LLC, Menlo
Park, CA, argued for petitioner. Also represented by
COREY M. MEYER, New York, NY.
GALINA I. FOMENKOVA, 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., ALLISON KIDD-
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2 MCINTOSH v. DEFENSE
MILLER.
STEPHEN FUNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for intervenor. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, BRYSON, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
The Department of Defense removed Elfina McIntosh
from her position. Ms. McIntosh alleged she was removed
for protected whistleblowing activity. The Merit Systems
Protection Board sustained the removal and concluded that
the Department would have removed her even absent her
protected whistleblowing activity. She now challenges the
Board’s decision, arguing (1) that the Board’s administrative judges are improperly appointed principal officers under the Appointments Clause and (2) that substantial
evidence does not support the Board’s decision on her removal. We affirm.
I
Elfina McIntosh was employed by the Department of
Defense Education Authority as a Program and Budget Analyst. In her role as a Contracting Officer’s Representative
(COR), Ms. McIntosh was responsible for approving travel
expenses for two government contracts. Generally, contractor employees would submit a travel request to the Program Manager, Heather McIntosh-Braden (no relation to
Ms. McIntosh), who would then forward them to Ms. McIntosh for review. Ms. McIntosh would ensure the requests
complied with Federal Travel Regulations and approve or
reject them.
Ms. McIntosh received a promotion around October
2016. Following her promotion, Ms. McIntosh’s superiors
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MCINTOSH v. DEFENSE 3
noted that her “demeanor degraded” and her “work ethic
deteriorated.” J.A. 887. The agency raised two repeated
problems with Ms. McIntosh’s job performance: refusal to
approve invoices and refusal to provide contract information to her coworkers as directed.
First, in December 2016, Ms. McIntosh refused to approve a travel authorization request that was submitted to
her on the same day as the scheduled travel because she
believed she would need to change the start date for it to
be contractually appropriate. Her supervisor, Wayne Boswell, stated that this was an emergency circumstance and
that the request should be approved to prevent negative
impacts on the armed forces. He stated that if she would
not approve it, he would. Ms. McIntosh maintained that it
would be inappropriate for Mr. Boswell to do so because he
was not the designated COR, even though he was the Director of the Office of Financial Readiness.
This was not the only instance of Ms. McIntosh refusing to approve invoices, as she also refused to approve invoices if she herself had not authorized the travel, even if
the travel had been authorized by others, like Mr. Boswell,
Ms. McIntosh-Braden, or the Contracting Officer Louis
Gilden. Mr. Boswell explained to Ms. McIntosh that the
contracting officer had informed him that he, as the Director, and Ms. McIntosh-Braden, as the Program Manager,
could also approve travel requests. On February 8, 2017,
Mr. Boswell informed Ms. McIntosh that her refusal to review and approve invoices amounted to a “refus[al] to perform [her] job requirements.” J.A. 1074. That same day,
Ms. McIntosh filed a grievance against Mr. Boswell, alleging that he had directed her to approve invoices she had
not authorized.
Second, Ms. McIntosh was asked, but repeatedly refused, to provide detailed information about one of her assigned contracts to Mr. Boswell, Ms. McIntosh-Braden, and
her coworker, Andy Cohen, who had been asked to review
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4 MCINTOSH v. DEFENSE
the contract processes. Ms. McIntosh objected because “the
documents and information at issue were sensitive and
could only be shared on a need-to-know basis.” J.A. 15. Ms.
McIntosh also asserted that Mr. Cohen was not a COR on
the contract and so was not authorized to receive any information about it. Mr. Boswell, as the Director, gave his authorization. Ms. McIntosh filed more formal grievances on
these incidents, alleging that she was being forced to disclose unauthorized information and was harassed and belittled by Mr. Cohen and Mr. Boswell.
The agency investigated Ms. McIntosh’s grievances, interviewing several of her co-workers and supervisors.
Ms. McIntosh did not respond to the investigator’s request
for an interview. Based on its investigation, the agency denied Ms. McIntosh’s grievances on June 27, 2017, determining that the agency “did not create a hostile work
environment or violate any law, rule, or regulation, as alleged.” J.A. 258–59.
In February 2017, Mr. Boswell asked Ms. McIntosh to
send him her annual leave plan because she had significant
use-or-lose leave left over from 2016. In response,
Ms. McIntosh sent Mr. Boswell an email with “Tentative
Leave Dates” that “may be changed or modified,” including
March 27–April 3, 2017. J.A. 176.
On March 22, 2017, Ms. McIntosh sent Mr. Boswell an
email with the subject line “Sick Leave, 3-22” and no other
text. J.A. 1030. Mr. Boswell wished her a speedy recovery
but also found her absence curious because they had scheduled her performance review for that day, before Mr. Boswell’s imminent retirement. Mr. Boswell sought guidance
from Employee Relations, who advised that he could require Ms. McIntosh to submit medical documentation from
a licensed doctor that should “[i]nclude a statement that
the medical problem rendered her incapacitated for the
performance of her duties[.]” J.A. 1031. Mr. Boswell requested the documentation.
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MCINTOSH v. DEFENSE 5
Ms. McIntosh again emailed in sick on March 23 and
24. She was also absent from work from March 27–April 4,
2017. She asserted that she had been granted that leave
after she sent Mr. Boswell the email with her tentative
leave dates. But Mr. Boswell asserted in his sworn statement that, while he received that email, Ms. McIntosh
never submitted an actual leave request, nor did Mr. Boswell approve all the dates at issue. He also provided email
documentation that showed he had tried to contact Ms.
McIntosh about the tentative leave dates because he had
no active request for the leave in the attendance system.
Ms. McIntosh returned to work on April 5, by which
time Mr. Boswell had retired and Mr. Cohen had become
her supervisor. Upon her return, Ms. McIntosh submitted
a letter from her doctor that said she “should be excused
from work due to illness from 3/22/2017 through
3/24/2017.” J.A. 1035. Mr. Cohen, who had since been promoted to replace Mr. Boswell, consulted Employee Relations and determined that the documentation was not
administratively acceptable. He requested further documentation and gave her 15 days to procure it. Ms. McIntosh never provided the added documentation.
Upon returning to work on April 5, Ms. McIntosh went
to meet with John T. Hastings, her second-level supervisor,
to discuss her grievances. He directed her to meet with
Mr. Cohen, but she refused, reiterated her grievances, and
requested reassignment. She then emailed the contracting
officers of the two contracts she managed and told them to
remove her as COR immediately.
On the morning of April 6, Mr. Cohen sought to speak
with Ms. McIntosh, but she told him that he should email
her instead and left. She then went to Mr. Hastings’s office
to speak with him. After he asked her to wait a few moments as he finished a task, he turned to her. She responded, “[n]ever mind, I’ll handle it myself. I’m not doing
COR duties anymore.” J.A. 495. She then left and, on her
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6 MCINTOSH v. DEFENSE
way out, left three binders containing COR files on the desk
of Mr. Hastings’s executive assistant. She told Mr. Hastings that they were COR files and later emailed Mr. Cohen
to alert him that the files were in Mr. Hastings’s office for
his retrieval. Ms. McIntosh then emailed several people to
let them know she was leaving early because she was “in a
hostile work environment” and that, for her safety, she
“ha[d] advised Mr. Hasting[s] that I am going home.” J.A.
1047–48. She left at 8:47 am.
Mr. Cohen placed Ms. McIntosh on paid administrative
leave on April 7, 2017 and issued a Notice of Proposed Removal on May 19, 2017. The Notice contained 22 specifications across four charges: 1) inappropriate conduct, 2)
failure to follow supervisory instructions, 3) absences without leave (AWOL), and 4) lack of candor. The deciding official, Ms. McIntosh’s third-level supervisor, Dr. Elizabeth
Van Winkle, sustained the removal, concluding that Ms.
McIntosh’s “lack of dependability and refusal to work with
team members” meant that management had lost “confidence in [her] ability to perform [her] duties.” J.A. 123–24.
Ms. McIntosh’s removal became effective on August 18,
2017.
Ms. McIntosh appealed her removal to the Board. The
administrative judge sustained 18 of the agency’s 21 remaining specifications, across all four charges. 1 She found
that Ms. McIntosh largely did not dispute the actions supporting the charges and that the sworn statements from
Ms. McIntosh’s supervisors, as well as emails and contemporaneous documents in the record, were more persuasive
than Ms. McIntosh’s evidence.
The administrative judge also considered Ms. McIntosh’s whistleblower defense that the agency was
1 The agency withdrew one of the specifications. J.A.
1010.
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MCINTOSH v. DEFENSE 7
retaliating for the grievances she had filed alleging that
Mr. Boswell, Ms. McIntosh-Braden, and Mr. Cohen had violated federal contracting rules. She concluded that Ms.
McIntosh had met her burden, based on the knowledgetiming test, of showing that her grievances, filed in early
2017, could be a contributing factor in the May 2017 removal decision. But the administrative judge determined
that, under the Carr factors, the agency had established by
clear and convincing evidence that it would have removed
Ms. McIntosh even absent her disclosures, given the
“strength of the evidence against the appellant and the seriousness of the charges.” J.A. 42–44 (citing Carr v. Soc.
Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999)). Finally,
the administrative judge concluded that the agency’s penalty of removal was reasonable and promoted the efficiency
of the service.
The administrative judge’s decision became final on
July 20, 2019. Ms. McIntosh appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II
Under 5 U.S.C. § 7703(c), we may reverse a Board decision only if 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.” Sistek v. Dep’t of Veterans Affs.,
955
F.3d 948, 953 (Fed. Cir. 2020). The petitioner bears the burden of establishing reversible error.
Id.
We review the Board’s legal decisions de novo and its
findings of fact for substantial evidence. Salmon v. Soc.
Sec. Admin., 663 F.3d 1378, 1380 (Fed. Cir. 2011); Bolton
v. MSPB,
154 F.3d 1313, 1316 (Fed. Cir. 1998). Substantial
evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Simpson v. Off. of Pers. Mgmt.,
347 F.3d 1361, 1364 (Fed.
Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
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8 MCINTOSH v. DEFENSE
197, 229 (1938)). We defer to the Board’s penalty determination “unless the penalty exceeds the range of permissible
punishments specified by statute or regulation, or unless
the penalty is ‘so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.’” Villela v. Dep’t of the Air Force,
727 F.2d 1574, 1576
(Fed. Cir. 1984) (quoting Power v. United States,
531 F.2d
505, 507 (Ct. Cl. 1976)).
III
A
Ms. McIntosh first argues that, under the Appointments Clause, the Board’s administrative judges are principal officers and are therefore required to be appointed by
the President and confirmed by the Senate. Because the
administrative judge here was not appointed by the President and confirmed by the Senate, Ms. McIntosh contends
that her final decision is invalid. Appellant’s Br. 47. We
disagree.
The Appointments Clause provides that only the President, with the advice and consent of the Senate, can appoint principal officers. U.S. Const. art. II, § 2, cl. 2; United
States v. Arthrex, Inc., 141 S. Ct. 1970, 1979 (2021). For
inferior officers, the Clause permits Congress to vest appointment power “in the President alone, in the Courts of
Law, or in the Heads of Departments.” U.S. Const. art. II,
§ 2, cl. 2.
The Supreme Court has explained that “[w]hether one
is an ‘inferior’ officer depends on whether he has a superior,” and “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were
appointed by Presidential nomination with the advice and
consent of the Senate.” Edmond v. United States, 520 U.S.
651, 662–63 (1997). Edmond emphasized three factors for
distinguishing principal and inferior officers: (1) whether
an appointed official has the power to review and reverse
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MCINTOSH v. DEFENSE 9
the officers’ decision; (2) the level of supervision and oversight an appointed official has over the officers; and (3)
whether an appointed official has the power to remove the
officers without cause. See
id. at 664–65; see also Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd.,
684 F.3d
1332, 1338 (D.C. Cir. 2012).
In United States v. Arthrex, Inc., the Supreme Court
determined that the administrative patent judges of the
Patent Trial and Appeal Board (PTAB), who are appointed
by the Secretary of Commerce and issue decisions on behalf
of the Executive Branch, were improperly appointed principal officers because they had the “‘power to render a final
decision on behalf of the United States’ without any . . . review by their nominal superior or any other principal officer in the Executive Branch.” 141 S. Ct. at 1981 (quoting
Edmond,
520 U.S. at 665). Ms. McIntosh contends that the
same problem exists with the Merit Systems Protection
Board’s administrative judges.
The Board’s structure and, in particular, how its administrative judges are appointed and issue decisions, is
different from the PTAB. The MSPB itself is made up of
three members who are appointed by the President with
the advice and consent of the Senate, making them principal officers. 5 U.S.C. § 1201. The Board’s administrative
judges, who are appointed under the Board Chairman’s
general authority under
5 U.S.C. § 1204(j), adjudicate
cases and issue initial decisions under the Board’s appellate jurisdiction. See
5 U.S.C. § 7701(b)(1) (“The Board may
hear any case appealed to it or may refer the case to an . . .
employee of the Board designated by the Board to hear
such cases . . . .”). An administrative judge’s initial decision
becomes the final decision of the Board unless a party appeals or the Board reopens the case on its own motion.
Id.
§ 7701(e)(1). Thus, unlike the PTAB, an administrative
judge’s decision is subject to review by a principal officer,
in this case, the three member MSPB.
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10 MCINTOSH v. DEFENSE
Still, Ms. McIntosh argues that the Board’s administrative judges qualify as principal officers because “an appointed official . . . does not have the power to review and
reverse [their] decision[s] in cases that are not appealed to
the Board.” Appellant’s Br. 49 (citing 5 U.S.C. § 7701(a)-
(b)) (emphasis added). Ms. McIntosh is incorrect. Under
5
U.S.C. § 7701(e)(1)(B), the Board, whose members are principal officers appointed by the President with the advice
and consent of the Senate, see
5 U.S.C. § 1201, may “reopen[] and reconsider[] a case on its own motion.”
5 U.S.C.
§ 7701(e)(1)(B) (emphasis added). Review is not limited
only to cases in which a party appeals to the full Board.
Even “[o]ne member of the Board may grant a petition or
otherwise direct that a decision be reviewed by the full
Board.”
Id. And the Board has discretion to determine
whether “unusual or extraordinary circumstances” warrant reopening the appeal.
5 C.F.R. § 1201.118. In contrast,
no principal officer had the power to review the final decisions of administrative patent judges before the constitutional remedy in Arthrex. See Arthrex,
141 S. Ct. at 1981.
Federal employees retain the unilateral ability to petition for the Board’s review of an administrative judge’s initial decision, 5 U.S.C. § 7701(e)(1)(A);
5 C.F.R.
§ 1201.114(c), and so need not rely on the Board’s discretion to obtain review. Upon review, the Board may “reverse, modify, or vacate” the administrative judge’s
decision.
5 C.F.R. § 1201.117. Moreover, “the board is free
to substitute its judgment for that of one of its presiding
officials.” Connolly v. U.S. Dep’t of Just.,
766 F.2d 507, 512
(Fed. Cir. 1985). The statutes and related regulations show
that the Board maintains significant review authority over
administrative judges’ decisions, and the first and second
prongs of Edmond weigh in favor of concluding that the
Board’s administrative judges are not principal officers.
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MCINTOSH v. DEFENSE 11
B
Ms. McIntosh next argues that the Board Chairman
“lack[s] unfettered removal authority” to remove the
Board’s administrative judges, suggesting that they are
principal officers under the third Edmond prong. Appellant’s Br. 50 (quoting Arthrex, Inc. v. Smith & Nephew,
Inc., 941 F.3d 1320, 1332 (Fed. Cir. 2019), vacated,
141 S.
Ct. 1970). While true that the Board’s administrative
judges can only be removed “for such cause as will promote
the efficiency of the service,”
5 U.S.C. § 7513(a), that fact
alone is insufficient to render them principal officers. Indeed, in Arthrex, the same for-cause removal restriction applied to administrative patent judges, but the Supreme
Court ultimately held that the administrative patent
judges could properly be considered inferior officers, even
with the restriction on removal, as long as their decisions
were subject to review by a principal officer. Arthrex, 141
S. Ct. at 1985–87. To remedy the unconstitutional statutory structure in Arthrex, the Supreme Court held unenforceable the provision of the America Invents Act that
shielded administrative patent judges’ decisions from Director review.
Id. at 1987. This enabled the Director to “review[] the decisions of the PTAB on his own.”
Id. The Court
left in place the removal restrictions under
5 U.S.C. § 7513,
because, “regardless [of] whether . . . at-will removal by the
Secretary would cure the constitutional problem, review by
the Director better reflects the structure of supervision
within the PTO and the nature of [administrative patent
judges’] duties.”
Id. The Court emphasized that “the Director need not review every decision of the PTAB. What matters is that the Director have the discretion to review
decisions rendered by [administrative patent judges].”
Id.
at 1988 (emphasis added).
Here, unlike the U.S. Patent and Trademark Office Director or the Secretary of Commerce, principal officers who
previously lacked the authority to review administrative
patent judges’ decisions, see Arthrex, 141 S. Ct. at 1978, the
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12 MCINTOSH v. DEFENSE
Board, a body of properly appointed principal officers, already has the discretion and authority to review administrative judges’ decisions sua sponte, see supra section III.A.
The Board’s statutory structure mirrors that of the PTAB
following the Arthrex remedy: the Board has the unfettered
authority to review decisions rendered by administrative
judges, and so even if the administrative judges are protected by the § 7513 removal standard, they are “subject to
the direction and supervision of an officer nominated by the
President and confirmed by the Senate,” just as administrative patent judges are following the Arthrex remedy. Arthrex,
141 S. Ct. at 1988. We hold that the Board’s
administrative judges are not principal officers.
C
Third, Ms. McIntosh argues that the administrative
judge’s decision violates the Appointments Clause because
no Board was in place throughout her case, meaning “whatever review authority or removal authority the Board has
over [administrative judges] is non-existent and inapplicable as applied to Ms. McIntosh.” Appellant’s Reply Br. 26.
But Ms. McIntosh could have still petitioned for Board review and had her decision reviewed once a quorum was established, as explained at the end of the administrative
judge’s decision. Furthermore, this court recently considered this argument in another Board appeal and rejected
it:
The absence of a quorum . . . is a temporary
circumstance, not a structural defect resulting from statutory limitations on Board review of administrative judges’ initial
decisions . . . . To be sure, the temporary absence of a quorum means that, at present, if
an employee seeks review by the Board, the
review will be delayed. But the delay, while
unfortunate, does not convert a
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MCINTOSH v. DEFENSE 13
constitutionally valid review process into a violation of the Appointments Clause.
Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1309
(Fed. Cir. 2021). We note that Board members have since
been nominated and confirmed, and a quorum has been restored. Press Release, U.S. Merit Sys. Prot. Bd., MSPB
Welcomes Acting Chairman Cathy A. Harris (June 6, 2022),
https://mspb.gov/publicaffairs/press_releases/Cathy_Harris_Press_Release_1930967.pdf.
D
Finally, Ms. McIntosh argues in her Reply Brief that
even if the Board’s administrative judges are inferior officers and not principal officers, they are still not properly appointed by the “President,” a “court[] of law,” or a “head[]
of department[]” as required by the Appointments Clause.
Appellant’s Reply Br. 28. The government argues that she
has doubly forfeited this challenge by not raising it before
the Board or in her opening brief.
Ms. McIntosh did not preserve this argument because
challenging the appointment of an inferior officer is a separate ground for reversal that she failed to raise in her
opening brief. “Our law is well established that arguments
not raised in the opening brief are” forfeited. Smithkline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
Cir. 2006) (citation omitted). We have found similar belated Appointments Clause challenges forfeited following
our initial decision in Arthrex. See Customedia Techs., LLC
v. Dish Network Corp.,
941 F.3d 1173, 1174 (Fed. Cir. 2019)
(concluding that Appointments Clause challenges not
raised in the opening brief are forfeited).
Even if the administrative judges are inferior officers,
any issues with their appointment have since been remedied. A quorum of the reconstituted Board, who qualify as
“heads of departments” under the Appointments Clause,
issued a Ratification Order on March 4, 2022 that ratified
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14 MCINTOSH v. DEFENSE
the prior appointments of administrative judges, “approv[ing] these appointments as our own under Article II
of the Constitution.” U.S. Merit Systems Protection Board
Ratification Order (Mar. 4, 2022), available at
https://www.mspb.gov/foia/files/AJ_Ratification_Order_3-
4-2022.pdf.
In sum, the Board’s administrative judges are not principal officers under the Appointments Clause because the
Board retains the unfettered authority to review their decisions under 5 U.S.C. § 7701(e)(1)(B), meaning they are
“subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate.” Arthrex,
141 S. Ct. at 1988. Ms. McIntosh’s Appointments
Clause challenge thus fails, and we turn to the merits.
IV
On the merits, Ms. McIntosh argues that substantial
evidence does not support the agency’s four charges against
her, or that the administrative judge committed legal error
in affirming said charges. We address each charge in turn.
A
Specification 1 of Charge 1 alleges that Ms. McIntosh
engaged in inappropriate conduct when she emailed contractors unilaterally removing herself from her COR duties. Ms. McIntosh contends that no evidence supports the
administrative judge’s conclusion, despite sworn statements from Ms. McIntosh’s superiors that she had not been
authorized to remove herself from those duties and lacked
the authority to do so unilaterally. Ms. McIntosh does not
dispute that she sent the emails but defends that she sent
them in response to an email from Mr. Boswell with the
subject “Financial Readiness Leadership” that said, “effective 3 April [sic], Andy Cohen will . . . assume all duties in
overseeing program management and COR responsibilities” relating to the two contracts Ms. McIntosh oversaw.
J.A. 171–72. She claims she read this email as stripping
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MCINTOSH v. DEFENSE 15
her of her COR duties. This reading strains credulity. As
the administrative judge noted, Mr. Boswell emailed several people across the contracting group to advise them
that he was retiring and that Mr. Cohen would be taking
over his duties as Director—“[n]othing in that email addresses any change in the assigned COR or otherwise indicates that [Ms. McIntosh] was relieved of her duties
concerning those contracts.” J.A. 6 & n.3. Substantial evidence supports the administrative judge’s conclusion about
this specification.
Ms. McIntosh also challenges Specification 2 of Charge
1, which alleges that she engaged in inappropriate conduct
when she left three binders of sensitive COR files on the
public desk of Mr. Hastings’s executive assistant, refused
to speak to Mr. Hastings, and directed Mr. Cohen to retrieve the files. Ms. McIntosh does not dispute that the
binders contained sensitive information but asserts that
she left them with Mr. Hastings’s assistant in an office in
the Pentagon, “an undoubtedly secure place.” Appellant’s
Br. 39. Mr. Hastings provided a sworn statement that the
documents should have been left with Mr. Cohen, Ms.
McIntosh’s supervisor, who was responsible for overseeing
the contracts at issue. The administrative judge weighed
this sworn statement, corroborated by a contemporaneous
memorandum written by Mr. Hastings, against Ms. McIntosh’s unsworn statement and determined that Mr. Hastings’s evidence was entitled to more weight, especially
because Ms. McIntosh had failed to make this argument in
her reply to the agency’s proposal notice. The administrative judge concluded that, “[a]s it is undisputed that the
documents contained sensitive or proprietary information
regarding contracts within Mr. Cohen’s division,” preponderant evidence supported the specification. J.A. 10–11.
Given that Ms. McIntosh knew the files were sensitive and
repeatedly refused to share them with others on that basis,
she should have known she could not leave them with
someone who was not authorized to view them. Ms.
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16 MCINTOSH v. DEFENSE
McIntosh asks us to reweigh the evidence on appeal, which
we cannot do. Rickel v. Dep’t of the Navy, 31 F.4th 1358,
1366 (Fed. Cir. 2022). Substantial evidence supports the
administrative judge’s conclusion about Charge 1, Specification 2.
B
As to Charge 2, failure to follow supervisory instructions, Ms. McIntosh argues that, under 5 U.S.C.
§ 2302(b)(9)(D), the agency was forbidden from taking a
personnel action against her for “refusing to obey an order
that would require the individual to violate a law, rule, or
regulation.” In her view, her refusal to give COR documents to Mr. Cohen, because he was not the COR assigned
to the contract and therefore not authorized to receive that
information, was a protected action.
This argument is new on appeal—before the Board,
Ms. McIntosh cited only to a case that discussed how disclosing confidential information about “processes, operations, style of work, or apparatus” of contract offerors could
violate a criminal code. J.A. 906 (citing Kent v. GSA, 56
M.S.P.R. 536, 546–647 (1993)). But she never specifically
pointed to that criminal code or any “law, rule, or regulation” that she was allegedly asked to violate in complying
with Mr. Boswell’s instructions to share the information
with Mr. Cohen and Ms. McIntosh-Braden. See J.A. 258
(Agency’s Response to Grievances finding Ms. McIntosh
failed to provide clarification about the allegations and that
Mr. Cohen “was in a need-to-know position”). Ms. McIntosh
now cites the COR Handbook in support—specifically, a
section that says CORs cannot use “following the boss’s orders” as an excuse to approve unauthorized contract
changes. Appellant’s Br., 9, 33 (citing Dep’t of Def., COR
Handbook 57 (2012). But that Handbook was not in the record below, and this argument was never made to the Board,
and so it is forfeited. Even if it were not, showing the COR
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MCINTOSH v. DEFENSE 17
files to Mr. Cohen as instructed would not have been an
unauthorized contract change.
Ms. McIntosh also cites to the COR Appointment Memoranda, which state that a COR must “protect[] privileged
and sensitive procurement information.” J.A. 471. Even if
the COR Appointment Memoranda qualified as a “rule” she
was asked to violate under 5 U.S.C. § 2302(b)(9)(D), it was
“not a clear and direct violation” of the memoranda to provide the contracting information to Mr. Cohen. The Department of Defense Instruction governing COR appointments
states that “COR files will be available for review by the
contracting officer, internal review officials, or other officials as authorized by the contracting officer.” J.A. 227 (emphasis added). Mr. Cohen was authorized by the Director,
Mr. Boswell, to review the documents and so he qualified
as an internal review official. It was not reasonable for Ms.
McIntosh to think she could not disclose the documents to
Mr. Cohen. Substantial evidence supports the administrative judge’s finding that Ms. McIntosh failed to follow supervisory instructions.
C
The agency charged Ms. McIntosh with multiple specifications of being absent without leave (AWOL). Ms. McIntosh argues that she was not AWOL on March 22–27, 2017,
as alleged by Specifications 1–3 of Charge 3, but that the
agency impermissibly converted her granted sick leave to
AWOL status. “To support a charge of AWOL, the agency
must show both that the appellant was absent and that either the absence was not authorized or that a request for
leave was properly denied.” Cooke v. U.S. Postal Serv., 67
M.S.P.R. 401, 404 (1995), aff’d,
73 F.3d 380 (Fed. Cir.
1995).
Substantial evidence supports the administrative
judge’s conclusion that Ms. McIntosh was AWOL. She does
not dispute that she was not at work from March 22–24,
2017. Following her cursory email stating, “Sick Leave, 3-
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18 MCINTOSH v. DEFENSE
22,” Mr. Boswell sought guidance from Employee Relations, as directed by the regulation, as to what steps he
could take to verify her absence, given that it was taken
the day they had scheduled her last performance review
before his retirement. And Mr. Cohen, as Ms. McIntosh’s
supervisor, was within his authority to request additional
information, after he, in consultation with Employee Relations, found her initial medical note “not administratively
acceptable.” J.A. 24, 518. Mr. Cohen gave her 15 days to
acquire this new documentation, and she never provided it.
Thus, her sick leave was never authorized, and substantial
evidence supports the administrative judge’s sustaining of
these specifications.
For the first time on appeal, Ms. McIntosh raises the
agency’s leave regulations, which state:
Ordinarily, a medical certificate is not required for
[sick leave] absences of 3 days or less. When there
is reason to believe that an employee is misusing
sick leave, a medical certificate may be required for
all absences chargeable to sick leave, regardless of
the duration. This restriction can be imposed only
when the employee has first been specifically informed of the requirement in advance. . . . Failure
to comply with these requirements may be the basis for denying sick leave and carrying an employee
in an AWOL status. When appropriate, disciplinary action may be taken for noncompliance. . . .
Contact the Personnel Center, Employee Relations
Section, for advice and guidance concerning leave
usage.
Dep’t of Def., DoDEA Regulation 5360.9 (Apr. 2, 1999),
available at https://www.dodea.edu/Offices/PolicyAndLegislation/upload/5630_9.pdf. Ms. McIntosh argues
that she was never informed of this medical certification
requirement in advance, in violation of the regulation.
Ms. McIntosh never raised this regulation below, and so
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MCINTOSH v. DEFENSE 19
her argument is forfeited. Even if it were not, Mr. Cohen
consulted Employee Relations, as directed by the regulation, and gave notice to Ms. McIntosh that he was seeking
more medical certification. Even with the 15 days he gave
her to obtain it, she never provided it.
Ms. McIntosh also challenges the administrative
judge’s sustaining of Specifications 4–10 of the agency’s
AWOL charges, regarding her absences on March 27–31
and April 3–4, 2017. She does not dispute that she was absent those days but contends that her “Tentative Leave
Dates” email from February 2017 included those dates and
that Mr. Boswell orally approved them before later revoking his approval. Appellant’s Br. 35–36. But, as the Board
noted, Ms. McIntosh presented no evidence that she submitted an actual leave request or that it was approved—
while Mr. Boswell provided a sworn statement that she
never submitted an actual leave request and that he never
approved the dates at issue. J.A. 26–28. He also provided
contemporaneous email documentation showing that he
had informed Ms. McIntosh that there was no active leave
request in the system. Substantial evidence supports the
administrative judge’s sustaining of these specifications as
well.
D
As to Charge 4, lack of candor, Ms. McIntosh argues
that the charge cannot be sustained because there is no evidence that she had any intent to deceive the agency when
she emailed agency officials telling them she had advised
Mr. Hastings that she was leaving for the day on April 6,
2017. But a lack of candor charge does not require an intent
to deceive. See Ludlum v. Dep’t of Just., 278 F.3d 1280,
1284 (Fed. Cir. 2002) (“Falsification involves an affirmative
misrepresentation, and requires intent to deceive. Lack of
candor, however, is a broader and more flexible concept
. . . . It may involve a failure to disclose something that, in
the circumstances, should have been disclosed in order to
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20 MCINTOSH v. DEFENSE
make the given statement accurate and complete.” (citation
omitted)). The administrative judge weighed Ms. McIntosh’s inconsistent statements that she had either advised
Mr. Hastings that she was leaving, or that she had advised
him and that he concurred, against Mr. Hastings’s sworn
statement that he was never informed of, nor did he approve, her leaving that day. The administrative judge concluded that Ms. McIntosh’s email “appears clearly
designed to imply that she had notified someone in the
agency when, in fact, the preponderant evidence indicates
that she left work without any authorization.” J.A. 31–32.
It is not for us to reweigh evidence on appeal. Substantial
evidence supports the administrative judge’s conclusion
that Ms. McIntosh lacked candor.
Because we conclude that each of the agency’s charges
are supported by substantial evidence, we defer to the judgment of the agency and conclude that the penalty of removal was not an abuse of discretion. Quinton v. Dep’t of
Transp., 808 F.2d 826, 829 (Fed. Cir. 1986).
E
Turning to Ms. McIntosh’s whistleblower reprisal defense, she contends that the agency failed to prove by clear
and convincing evidence that she would have been removed
regardless of the grievances she had filed. In determining
whether the agency has met this burden, we consider the
three Carr factors: 1) the strength of the agency’s evidence
in support of its action, 2) the existence and strength of any
motive to retaliate on the part of the agency officials who
participated in the decision, and 3) any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323. The agency “need not produce
evidence with regard to each of these factors, nor must each
factor weigh in favor of the agency,” but we instead consider the record as a whole and balance the factors to determine whether substantial evidence supports the
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MCINTOSH v. DEFENSE 21
agency’s action. Robinson v. Dep’t of Veterans Affs.,
923
F.3d 1004, 1019–20 (Fed. Cir. 2019).
Ms. McIntosh mostly contends that the administrative
judge’s Carr analysis was too brief, and therefore legally
insufficient. Appellant’s Br. 44. Ms. McIntosh also complains that the administrative judge did not address the
third Carr factor.
On the first Carr factor, the administrative judge noted
that, most significantly, the agency had established its four
charges by preponderant evidence—“serious charges,
many with multiple specifications, and were often repeated.” J.A. 43. We have already concluded that substantial evidence supports the administrative judge’s
determinations on these charges. Therefore, the evidence
and the first Carr factor strongly support the agency’s decision to remove Ms. McIntosh.
As for the second Carr factor, the administrative judge
determined that the deciding official, Dr. Van Winkle, had
no retaliatory motive because she was never the subject of
any of Ms. McIntosh’s complaints. The administrative
judge also determined that Mr. Cohen had no motivation
to retaliate because Ms. McIntosh “provide[d] no evidence
of any disclosure she made that [he] engaged in activity in
violation of any law, rule or regulation or that he engaged
in gross mismanagement, a gross waste of funds,” or other
violations. J.A. 43. Ms. McIntosh did file a grievance, however, alleging that Mr. Cohen acted in a hostile and belligerent manner toward her. While the administrative judge
thought these allegations did not show any motivation for
Mr. Cohen to retaliate, we take a different view. A personal
complaint about Mr. Cohen’s behavior could give rise to a
personal motive to retaliate. We do agree, however, that
Dr. Van Winkle likely had no motivation to retaliate, given
that she was never the subject of any grievances and because Ms. McIntosh admitted that the two had never interacted. Therefore, the evidence for this factor is neutral.
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22 MCINTOSH v. DEFENSE
Finally, under the third Carr factor, Ms. McIntosh did
not identify any “similarly situated” individuals before the
Board, except in support of discrimination claims she has
waived on appeal. See J.A. 715–17, 896–901, 911–17. The
agency also did not identify any “similarly situated” individuals. J.A. 434. Because no pertinent evidence was presented on Carr factor three, it is effectively removed from
the analysis. Rickel, 31 F.4th at 1366 (citing Whitmore v.
Dep’t of Labor,
680 F.3d 1353, 1374 (Fed. Cir. 2012)).
Considering the record as a whole and balancing the
factors, we conclude that substantial evidence supports the
administrative judge’s determination that, “[b]ased on the
strength of the evidence against the appellant and the seriousness of the charges,” J.A. 43–44, the agency has met
its burden of showing it would have removed Ms. McIntosh
even absent her grievances.
V
We have considered Ms. McIntosh’s remaining arguments but find them unpersuasive. Because the Merit Systems Protection Board’s administrative judges are not
principal officers, and because substantial evidence supports the Board’s decision on Ms. McIntosh’s removal, we
affirm.
AFFIRMED
COSTS
No costs.
