Smets v. Department of the Navy , 498 F. App'x 1 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JANICE R. SMETS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
2012-3047
__________________________
Petition for review from the Merit Systems Protection
Board in consolidated Case Nos. SF0432100699-I-1 and
SF1221110039-W-1.
___________________________
Decided: November 14, 2012
___________________________
BENNETT M. ROLFE, of Beaumont, California, for peti-
tioner.
SHELLEY D. WEGER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director. Of counsel
SMETS v. NAVY 2
was KATHERINE W. HOWARD, Assistant Counsel, Navel Air
Weapons Division, United States Department of the
Navy, of China Lake, California.
__________________________
Before RADER, Chief Judge, LINN and WALLACH, Circuit
Judges.
PER CURIAM.
The Department of the Navy removed petitioner
Janice Smets from her position as a Contract Specialist.
Ms. Smets filed two appeals with the Merit Systems
Protection Board (“the Board”) challenging the agency’s
decision to remove her. In the first appeal, Ms. Smets
brought an Individual Right of Action appeal (“the IRA
appeal”) alleging that the proposal to remove her was due
to whistleblower retaliation. See 5 U.S.C. § 2302(b)(8). In
the second appeal (“the removal appeal”), Ms. Smets
challenged her removal, and alleged various affirmative
defenses. See 5 U.S.C. § 4303(e)(2). After consideration
by an administrative judge, the Board adopted the admin-
istrative judge’s findings sustaining the removal decision.
Because substantial record evidence supports the Board’s
decision and because the administrative judge’s proce-
dural, evidentiary, and sanctions rulings were not abuses
of discretion, this court affirms.
I.
Janice Smets worked in the field of federal acquisi-
tions for over thirty years. By 2007, she occupied the
position of Contract Specialist, GS-12, with the Air Force.
On January 6, 2008, Ms. Smets transferred to the De-
partment of the Navy and began working as a Supervi-
sory Contract Specialist, GS-14. Ms. Smets did not
satisfactorily complete the one-year probationary period
for her GS-14 promotion. Instead, in October of 2008, she
3 SMETS v. NAVY
became a Contract Specialist, GS-12 position at the Naval
Air Warfare Center, Weapons Division (NAWCWD) office
in Point Mugu, California.
While at the Navy, Ms. Smets was supervised by the
Deputy Director of Contracts at NAWCWD. On August
13, 2009, the Deputy Director issued Ms. Smets’ first
performance review, covering Ms. Smets’ work from July
1, 2008 to July 31, 2009. The review gave Ms. Smets an
“acceptable,” or passing, rating. The Deputy Director
emailed Ms. Smets on the same day to inform her that her
performance was only “marginally” acceptable and needed
to improve in various ways.
On October 6, 2009, and February 16, 2010, Ms.
Smets contacted the Executive Director of NAWCWD
regarding alleged violations of contract and fiscal law by
the Deputy Director. These disclosures are the basis of
Ms. Smets’ whistleblower claims.
The Deputy Director provided Ms. Smets with a 60-
day Performance Improvement Plan (“PIP”) on January
12, 2010. The PIP formally notified Ms. Smets that she
was performing at an “unacceptable level” and that fail-
ure to improve performance consistent with the PIP could
result in removal. The PIP identified areas for improve-
ment, and contained a list of specific tasks for Ms. Smets
to complete. Ms. Smets did not complete any of the tasks
assigned in the PIP. At the end of the PIP period, the
Deputy Director issued a notice proposing Ms. Smets’
removal based on the PIP results.
On April 29, 2010, the Director for Contracts con-
cluded Ms. Smets’ performance during the PIP had been
inadequate and removed her effective May 5, 2010. As
noted earlier, Ms. Smets’ filed both a whistleblower
complaint and a challenge to her removal. An adminis-
trative judge decided both cases on the written record and
SMETS v. NAVY 4
rejected Ms. Smets’ claims. The Board consolidated Ms.
Smets’ appeals and adopted the administrative judge’s
decisions in each appeal. Smets v. Dep’t of Navy, Nos. SF-
0432-10-0699-I-1 and SF-1221-11-0039-W-1, 2011 MSPB
97 (M.S.P.B. Nov. 23, 2011).
II.
The administrative judge initially scheduled a hear-
ing for the removal and IRA appeals for April 26–27,
2011. On the morning of the hearing, Ms. Smets moved to
postpone the hearing and sought reconsideration of the
decision to exclude five witnesses. The administrative
judge denied those motions and granted Ms. Smets’
additional motion for a decision on the written record.
After ruling on Ms. Smets’ motions, the administrative
judge granted the agency’s motion to sanction Ms. Smets,
and prohibited her from supplementing the written record
with any further evidence regarding her disability dis-
crimination defense.
In its initial decision in the IRA appeal on June 7,
2011, the administrative tribunal found that while Ms.
Smets had made protected disclosures under 5 U.S.C.
§ 2302(b)(8), Ms. Smets had failed to prove by a prepon-
derance of the evidence that her disclosures were a con-
tributing factor to her removal. In the alternative, the
administrative judge found that, under Carr v. Social
Security Administration, the Navy had proved by clear
and convincing evidence that Ms. Smets would have been
removed even if she had made no protected disclosures.
185 F.3d 1318, 1322 (Fed. Cir. 1999). In support of this
conclusion, the administrative decision quoted extensively
from various declarations in the record. One declaration
was from an attorney at the Navy Office of General Coun-
sel who was responsible for providing legal advice to
employees at NAWCWD. Smets v. Dep’t of Navy, No. SF-
5 SMETS v. NAVY
1221-11-0039-W-1, slip op. at 20 (M.S.P.B. June 7, 2011)
(“Initial Decision”). The attorney declared that Ms.
Smets’ questions and arguments to him “reflected incom-
petence and an inability to follow the Federal Acquisition
Regulations … and management policy and direction.”
Id. The Deputy Director’s declaration states that “Ms.
Smets completed less than 20% of the number of contract
actions her peers were completing.” Id. at 18.
The administrative judge issued an initial decision in
the removal appeal on June 3, 2011. Like the IRA appeal,
the removal appeal included a whistleblower retaliation
theory, which the judge treated as an affirmative defense
in the context of an appeal under 5 U.S.C. § 4303(e)(2).
As in the IRA appeal, the administrative forum concluded
that the agency had shown by clear and convincing evi-
dence that Ms. Smets would have been removed regard-
less of her disclosures. The administrative judge also
rejected Ms. Smets’ other affirmative defenses, including
age and disability discrimination, as unsupported by any
evidence. The Board adopted the administrative judge’s
disposition of the merits as its own, and also found no
abuse of discretion in the other administrative procedural,
evidentiary, and sanctions rulings.
On appeal, Ms. Smets challenges the Board’s conclu-
sion that she would have been removed regardless of her
disclosures. Ms. Smets also challenges several other
discretionary decisions: the exclusion of five of Ms. Smets’
proposed witnesses, the denial of Ms. Smets’ motion to
postpone the hearing, and the grant of the agency’s mo-
tion for sanctions. This court has jurisdiction under 28
U.S.C. § 1295(a)(9).
III.
A decision of the Board must be affirmed unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
SMETS v. NAVY 6
wise not in accordance with the law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Massa v. Dep’t of Def.,
815 F.2d 69, 72 (Fed. Cir. 1987) (internal quotation marks
omitted).
“Procedural matters relative to discovery and eviden-
tiary issues fall within the sound discretion of the board
and its officials.” Curtin v. Office of Pers. Mgmt., 846 F.2d
1373, 1378 (Fed. Cir. 1988). “If an abuse of discretion
[occurs] with respect to [] discovery and evidentiary
rulings, in order for petitioner to prevail … he must prove
that the error caused substantial harm or prejudice to his
rights which could have affected the outcome of the case.”
Id. at 1379.
Under the Whistleblower Protection Act of 1989, an
employee must show a protected disclosure and a per-
sonal action subsequent to the disclosure. In addition, the
disclosure must be a contributing factor to the personnel
action. Carr, 185 F.3d at 1322. If the employee proves
each of these elements by a preponderance of the evi-
dence, then “the agency must prove by clear and convinc-
ing evidence that it would have taken the same personnel
action in the absence of the protected disclosure.” Id.
As an initial matter, the Navy argues that this court
lacks jurisdiction to review the sanctions order because it
related to the removal appeal. The removal appeal in-
volved both claims of discrimination and challenges to
appealable agency action (i.e., the removal itself). This
court lacks jurisdiction over such “mixed cases” if the
petitioner’s allegations of discrimination are not waived
and are non-frivolous. See Hill v. Dep't of Air Force, 796
7 SMETS v. NAVY
F.2d 1469, 1470–71 (Fed. Cir. 1986). Because of this
restriction on our jurisdiction, petitioners to this court are
required to file a statement indicating whether discrimi-
nation issues persist in their cases. Fed. Cir. R. 15(c).
The Rule 15(c) statement allows petitioners to avoid
mixed-case jurisdictional issues by expressly waiving
discrimination claims. Ms. Smets filed a Rule 15(c)
statement, but instead of waiving her discrimination
claims, Ms. Smets stated that “[n]o claim of discrimina-
tion by reason of race, sex, age, national origin, or handi-
capped condition has been or will be made in this case.”
Id. Of course, the administrative judge’s initial decisions
make clear that Ms. Smets made allegations of discrimi-
nation, but in this case they do not defeat our jurisdiction.
While this court may not review the merits of dis-
crimination claims in mixed cases, “we may perform such
review as is necessary to determine whether a cognizable
claim for discrimination has been presented.” Dedrick v.
Berry, 573 F.3d 1278, 1280 (Fed. Cir. 2009). The Board
held that no evidence supported Ms. Smets’ age and
disability discrimination allegations, and Ms. Smets has
not challenged that determination here. Bare allegations
unsupported by evidence do not amount to a cognizable
claim of discrimination that will deprive this court of
jurisdiction. Therefore, this court will address the merits
of the remaining issues in both appeals.
The Board concluded that the agency proved by clear
and convincing evidence that Ms. Smets would have been
removed anyway even without her disclosures. The
record completely supports this conclusion. For example,
the record contains numerous declarations documenting
Ms. Smets’ “failure to complete work, the impact this had
on customers, her lack of productivity, her false assump-
tions and placing blame on others and her refusal to
follow management’s prerogative and counsel’s advice.”
SMETS v. NAVY 8
Initial Decision at 21. The Board properly adopted these
findings.
Ms. Smets does not identify any errors by the Board,
nor does she point to any evidence that would call the
Board’s conclusions into question. Ms. Smets merely
asserts that the Board’s findings were incorrect. After a
review of the record, this court finds the decision of the
Board to be supported by substantial evidence. Because
this point is dispositive of Ms. Smets’ whistleblower
retaliation theories, it is unnecessary to address Ms.
Smets’ other whistleblowing-related arguments.
Ms. Smets also challenges the administrative judge’s
procedural, evidentiary, and sanctions rulings. This court
finds no abuse of discretion in any of these determina-
tions. Accordingly, the decision of the Board is affirmed.
AFFIRMED