Case: 21-1896 Document: 53 Page: 1 Filed: 02/24/2022
United States Court of Appeals
for the Federal Circuit
______________________
ERIC TERRELL BRYANT,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2021-1896
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0714-20-0709-I-1.
______________________
Decided: February 24, 2022
______________________
ROBERT STEPHENS WEBB, III, Tully Rinckey PLLC,
Austin, TX, argued for petitioner. Also represented by
MICHAEL FALLINGS.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., TARA K.
HOGAN.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
Case: 21-1896 Document: 53 Page: 2 Filed: 02/24/2022
2 BRYANT v. DVA
PROST, Circuit Judge.
In July 2020, petitioner Eric T. Bryant was removed
from his position with the Department of Veterans Affairs
(“VA”) for conduct unbecoming a federal employee. In Feb-
ruary 2021, the Merit Systems Protection Board (“Board”)
upheld Mr. Bryant’s removal. Because the Board’s deci-
sion as to the underlying disciplinary action rests on legal
errors in view of our court’s recent decisions in Rodriguez
v. Department of Veterans Affairs,
8 F.4th 1290 (Fed. Cir.
2021), and Connor v. Department of Veterans Affairs,
8 F.4th 1319 (Fed. Cir. 2021), we vacate that portion of the
Board’s decision and remand. We affirm, however, the
Board’s determination that Mr. Bryant failed to prove his
affirmative defense of whistleblower reprisal.
I
The VA employed Mr. Bryant as a police officer with
the Veterans Health Administration, Central Alabama
Veterans Health Care System (“CAVHCS”), Tuskegee, Al-
abama. J.A. 1. During the timeframe relevant to this ap-
peal, Mr. Bryant was assigned to CAVHCS’s Columbus
Community Based Out-Patient Clinic (“CBOC”) in Colum-
bus, Georgia. J.A. 3; see J.A. 131.
On June 19, 2020, the VA issued Mr. Bryant a notice of
proposed removal under
38 U.S.C. § 714 based on a charge
of conduct unbecoming a federal employee. J.A. 130–33.
The notice alleged that, in May 2020, while officers of the
Muscogee County Sheriff’s Office were attempting to serve
Mr. Bryant “with a Temporary Family Violence Order of
Protection,” Mr. Bryant made inappropriate statements to
the county officers and displayed a lack of professionalism.
J.A. 130. For example, the notice alleged that Mr. Bryant
had “ma[de] threats” that “caused these [officers] to fear for
their safety,” including a threat that Mr. Byrant “would
make things hard for [the officers]” if they were to “respond
to calls for assistance from the CBOC.” J.A. 131; see
J.A. 130. The notice further stated that Mr. Bryant’s
Case: 21-1896 Document: 53 Page: 3 Filed: 02/24/2022
BRYANT v. DVA 3
conduct was “unacceptable” and “inexcusable” considering
that he was a “[f]ederal [p]olice [o]fficer entrusted with car-
rying a loaded firearm each day.” J.A. 131.
On July 9, 2020, the VA issued a final decision sustain-
ing the charge of conduct unbecoming and removing
Mr. Bryant. J.A. 103–06. In particular, the deciding offi-
cial, Mr. Amir Farooqi, found that the charge “as stated in
the notice of proposed removal was supported by substan-
tial evidence.” J.A. 103 (emphasis added). Mr. Farooqi fur-
ther decided “to [r]emove [Mr. Bryant] from employment
with [the] VA under the authority of
38 U.S.C. § 714,” with-
out mentioning the Douglas factors. 1 J.A. 103; see
J.A. 103–06.
Mr. Bryant subsequently appealed his removal to the
Board, where he contested whether the charged conduct
occurred and whether removal was an appropriate penalty
under the Douglas factors. J.A. 435, 439–40. Mr. Bryant
also alleged as an affirmative defense that the VA removed
him in reprisal for protected whistleblowing activity.
J.A. 435–36. The administrative judge found that “the
agency proved the charge by substantial evidence.” J.A. 7.
The administrative judge further—without performing a
Douglas-factors analysis—upheld the agency’s penalty of
removal under section 714. J.A. 11. In addition, the
administrative judge determined that Mr. Bryant “did not
prove [his] affirmative defense.” J.A. 10. The
administrative judge’s initial decision became the final
decision of the Board on February 26, 2021. J.A. 11, 15.
Mr. Bryant now petitions for review of the Board’s decision.
We have jurisdiction under
28 U.S.C. § 1295(a)(9).
1 “Douglas factors” refers to the twelve factors artic-
ulated in Douglas v. Veterans Administration,
5 M.S.P.B.
313 (1981), for an agency to consider when determining
whether a penalty is appropriate.
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4 BRYANT v. DVA
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 other-
wise not in accordance with law; (2) obtained without pro-
cedures 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 find-
ings 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.
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 rele-
vant 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), and that the administrative
judge and the Board “shall not mitigate the penalty pre-
scribed” by the VA, § 714(d)(2)–(3).
These changes prompted litigation in our court con-
cerning (1) whether section 714 permits the agency to ap-
ply a “substantial evidence” standard of proof in making
disciplinary decisions in the first instance, and (2) whether
under section 714 the agency and the Board need not con-
sider the Douglas factors. In August 2021, in Rodriguez v.
Department of Veterans Affairs, our court answered the for-
mer question, holding that “substantial evidence may not
Case: 21-1896 Document: 53 Page: 5 Filed: 02/24/2022
BRYANT v. DVA 5
be used as the standard of proof in disciplinary actions un-
der section 714.”
8 F.4th 1290, 1303 (Fed. Cir. 2021). Ra-
ther, 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. Also in August 2021, in Connor v. De-
partment of Veterans Affairs, our court answered the latter
question, holding that “[section] 714 did not alter preexist-
ing law, which required the VA and the Board to apply the
Douglas factors to the selection and review of penalties in
VA disciplinary actions.”
8 F.4th 1319, 1326 (Fed. Cir.
2021). In other words, “the VA and Board must continue
to apply the relevant Douglas factors in considering the
reasonableness of the penalty.”
Id.
On appeal to us, Mr. Bryant argues that, under Rodri-
guez, the VA must now determine by a “[p]reponderance of
the [e]vidence” that he “engaged in the conduct as alleged.”
Reply Br. 2. Stated differently, Mr. Bryant 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 Rodri-
guez. See Reply Br. 1–4. Indeed, the deciding official in
this case, in a decision that predated Rodriguez, character-
ized “substantial evidence” as the applicable standard of
proof. J.A. 103. 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 offi-
cial used the incorrect standard of proof in reaching the fi-
nal decision here, we vacate the Board’s decision as to the
underlying removal and remand to the Board for further
proceedings under the correct legal standard. Presumably
those further proceedings will include the Board requiring
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6 BRYANT v. DVA
the VA’s deciding official to determine whether the evi-
dence as to the charge against Mr. Bryant satisfies the req-
uisite preponderance-of-the-evidence standard of proof.
Separately, Mr. Bryant argues that, under Connor, the
Board’s determination upholding Mr. Bryant’s penalty of
removal is “contrary to the law” because the VA and the
Board “failed to properly consider the Douglas factors.” Re-
ply Br. 5. Here, pre-Connor, it appears that neither the
agency nor the Board conducted a Douglas-factors analy-
sis. The deciding official, Mr. Farooqi, testified before the
Board that he “did not” “go into any analysis over the Doug-
las [f]actors.” J.A. 280. Indeed, Mr. Farooqi’s final decision
removing Mr. Bryant didn’t explicitly apply the Douglas
factors, see J.A. 103–06, even though Mr. Bryant had dis-
cussed all twelve factors in his written reply to
Mr. Farooqi, see J.A. 112–15. Likewise, the Board’s deci-
sion didn’t apply the Douglas factors, see J.A. 11, even
though Mr. Bryant had raised that issue in his briefing to
the Board, see J.A. 439–40. The Board’s penalty analysis
is legally erroneous under Connor. 2 8 F.4th at 1326. We
therefore vacate the penalty portion of the Board’s decision
for this independent reason and remand to the Board for
further proceedings under the correct legal standard.
Mr. Bryant also appeals the Board’s findings concern-
ing his affirmative whistleblowing defense. See Pet’r’s
Br. 17–19; Resp’t’s Br. 42–46. Here, the Board found that
the proposing and deciding officials weren’t “aware of” or
“motivated by” Mr. Bryant’s alleged protected activity
“when taking th[e] disciplinary action.” J.A. 9–10. The
2 The government contends that the agency’s and the
Board’s failure to consider the Douglas factors “was at most
harmless error.” Resp’t’s Br. 21; see Resp’t’s Br. 32–42.
But at least because we remand this case under Rodriguez,
we decline to address harmless error as to the Douglas fac-
tors in the first instance.
Case: 21-1896 Document: 53 Page: 7 Filed: 02/24/2022
BRYANT v. DVA 7
Board determined that therefore Mr. Bryant “did not prove
[his] affirmative defense” because he failed to show that his
“whistleblowing activity was a contributing factor [to the]
personnel action.” J.A. 9–10. We conclude that the Board’s
determinations regarding Mr. Bryant’s whistleblowing de-
fense are supported by substantial evidence and in accord-
ance with the law. For example, the Board credited
testimony from the proposing and deciding officials that
they were unaware of Mr. Bryant’s “protected activity”
prior to the removal action. J.A. 9–10. The Board further
considered how long each official had been in his respective
position. J.A. 2, 9–10; see J.A. 272. We discern no basis to
disturb the Board’s conclusion regarding Mr. Bryant’s af-
firmative defense. See, e.g., Kewley v. Dep’t of Health and
Hum. Servs.,
153 F.3d 1357, 1361–62 (Fed. Cir. 1998);
5 U.S.C. § 1221(e)(1).
III
For the foregoing reasons, we vacate the Board’s deci-
sion as to Mr. Bryant’s underlying removal, affirm the
Board’s decision as to Mr. Bryant’s affirmative defense,
and remand for further proceedings consistent with this
opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
Costs to Mr. Bryant.
