Brenner v. DVA ( 2021 )

Case: 19-2032 Document: 59 Page: 1 Filed: 03/09/2021
United States Court of Appeals
for the Federal Circuit
______________________
LAWRENCE BRENNER,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2019-2032
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0714-19-0007-I-1.
______________________
Decided: March 9, 2021
______________________
ALAN EDWARD WOLIN, Wolin & Wolin, Jericho, NY, ar-
gued for petitioner.
ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by JEFFREY B. CLARK, ALLISON KIDD-MILLER,
ROBERT EDWARD KIRSCHMAN, JR.; AARON ROBISON, Office of
General Counsel, United States Department of Veterans
Affairs, Sacramento, CA.
______________________
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2 BRENNER v. DVA
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
WALLACH, Circuit Judge.
Petitioner, Lawrence Brenner, seeks review of a final
decision of the Merit Systems Protection Board (“MSPB”)
affirming the U.S. Department of Veterans Affairs’ (“VA”)
decision to remove Mr. Brenner from his position as Gen-
eral Attorney, GS-14, with the VA’s Collections National
Practice Group (“CNPG”) pursuant to 38 U.S.C. § 714, en-
acted as part of the Department of Veterans Affairs Ac-
countability and Whistleblower Protection Act of 2017 (“the
Act”), Pub. L. No. 115–41, 131 Stat. 862. See Brenner v.
Dep’t of Veterans Affairs, No. NY-0714-19-0007-I-1, 2019
WL 1315751 (M.S.P.B. Mar. 18, 2019) (J.A. 7–54). 1
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9). We vacate and remand.
BACKGROUND
I. Statutory Framework
Generally, federal agencies “have two procedural
routes available to them” to remove an employee: 5 U.S.C.
Chapter 75 (for misconduct and poor performance) and
5 U.S.C. Chapter 43 (for poor performance). Harris v. Sec.
& Exch. Comm’n, 972 F.3d 1307, 1315 (Fed. Cir. 2020); see
Sayers v. Dep’t of Veterans Affairs, 954 F.3d 1370, 1378–79
(Fed. Cir. 2020). Further, as of 2017, the VA has a third
1 An administrative judge issued an initial decision
on March 18, 2019, which became final when Mr. Brenner
did not file a petition for review. J.A. 7; see also 5 C.F.R.
§ 1201.113(a) (providing that “[t]he initial decision of the
judge will become the [MSPB]’s final decision [thirty-five]
days after issuance” unless, inter alia, “any party files a
petition for review”). Therefore, we refer to the Initial De-
cision as the MSPB’s Final Decision.
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BRENNER v. DVA 3
procedural route available to it: the Act, as codified at
38 U.S.C. § 714. Each route entails different procedures
and, therefore, different protections for federal employees.
See Sayers, 954 F.3d at 1377–79.
First, “Chapter 75 . . . is concerned with removals and
other disciplinary action.” See Lovshin v. Dep’t of Navy,
767 F.2d 826, 830 (Fed. Cir. 1985) (en banc); see 5 U.S.C.
§ 7512 (listing “[a]ctions covered” by Chapter 75). It has
“been in the civil service law essentially unchanged since
1912[.]” Lovshin, 767 F.2d at 830. It provides for removal
“only for such cause as will promote the efficiency of the
service.” 5 U.S.C. § 7513(a). “This ‘nexus’ limitation re-
quires the agency to show by a preponderance of the evi-
dence that the employee’s misconduct is likely to have an
adverse effect upon the agency’s functioning.” Mings v.
Dep’t of Justice, 813 F.2d 384, 389–90 (Fed. Cir. 1987) (ci-
tation omitted). “An employee against whom an action is
proposed is entitled to” advanced notice of the action, an
opportunity to respond, representation by an attorney or
other representative, and a timely “written decision” with
“the specific reasons” for the agency action. 5 U.S.C.
§ 7513(b). The MSPB may mitigate the penalty imposed
by the agency through a multifactor balancing test, the
Douglas factors, to determine whether the agency struck “a
responsible balance within tolerable limits of reasonable-
ness.” Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306
(1981); see id. at 305–06 (enumerating the Douglas factors,
including: “the nature and seriousness of the offense,” the
employee’s “past disciplinary” and “past work” records, any
“mitigating circumstances,” and “potential for the em-
ployee’s rehabilitation”); see also DeWitt v. Dep’t of Navy,
747 F.2d 1442, 1445 (Fed. Cir. 1984) (affirming the MSPB’s
penalty determination as “based on a responsible balanc-
ing of the factors outlined in Douglas”). We “will not dis-
turb a choice of penalty within the agency’s discretion
unless the severity of the agency’s action appears totally
unwarranted in light of all the factors.” Mings, 813 F.2d
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4 BRENNER v. DVA
at 390. We review actions under Chapter 75 for support by
a “preponderance of the evidence,” as well as for “harmful
error in the application of the agency’s procedures,” for
“prohibited personnel practice[s],” and “accordance with
law.” 5 U.S.C. § 7701(c)(1)(B), (c)(2).
Second, “Chapter 43 . . . is directed to the evaluation of
a federal employee’s work performance.” Lovshin, 767 F.2d
at 830 (emphasis omitted). Under Chapter 43, “an agency
may reduce in grade or remove an employee for unaccepta-
ble performance.” 5 U.S.C. § 4303(a). “[U]nacceptable per-
formance” occurs when “an employee” has “fail[ed] to meet
established performance standards in one or more critical
elements of such employee’s position.” Id. § 4301(3). In or-
der to demote or remove an employee pursuant to Chap-
ter 43, the agency must: (1) “set up [a] performance
appraisal system” that is approved by the Office of Person-
nel Management (“OPM”); (2) “communicate the written
performance standards and ‘critical elements’ of an em-
ployee’s position to the employee at the beginning of the
appraisal period”; (3) “warn of inadequacies in ‘critical ele-
ments’ during the appraisal period”; and (4) “counsel and
afford an opportunity for improvement after proper notice.”
Martin v. Fed. Aviation Admin., 795 F.2d 995, 997 (Fed.
Cir. 1986) (citing Lovshin, 767 F.2d at 834). Because of
these procedural requirements and safeguards, Chapter 43
gives the agency “great[er] flexibility” in its adverse action
than Chapter 75. Lovshin, 767 F.2d at 842; see Lisiecki v.
Merit Sys. Prot. Bd., 769 F.2d 1558, 1565 (Fed. Cir. 1985)
(declining to extend “additional procedural standards not
identified . . . by judicial interpretation or by regulation or
imposed by prior law” to Chapter 43 proceedings because
“Chapter 43 has procedural and substantive safeguards to
protect employees from unfair or illegal treatment”). In
particular, “the agency need not show that [its] adverse ac-
tion stems from conduct that harms the efficiency of the
service.” Sayers, 954 F.3d at 1378; see Lisiecki, 769 F.2d at
1562 (noting that Congress omitted this requirement from
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BRENNER v. DVA 5
Chapter 43 because “[a]s a practical matter, agencies have
found it very difficult to prove [this requirement] to the de-
gree required by courts” (quoting S. REP. No. 95-969, at 43
(1978))); see also S. REP. No. 95-969, at 43 (stating that
Congress “intends that [Chapter 43] should not be gov-
erned by the existing case law” on the “efficiency of the ser-
vice” requirement). Further, the MSPB may not mitigate
an agency’s Chapter 43 action using the Douglas factors.
See Lisiecki, 769 F.2d at 1565 (explaining that “Congress
did not include [MSPB] authority to mitigate a penalty cho-
sen by the agency” under Chapter 43). We review an
agency action under Chapter 43 for support by substantial
evidence, as well as for “harmful error in the application of
the agency’s procedures,” for certain “prohibited personnel
practice[s],” and “accordance with law.” 5 U.S.C.
§ 7701(c)(1)(A), (c)(2).
In addition to Chapters 43 and 75, the VA has a third
procedural mechanism: In 2017, Congress enacted the De-
partment of Veterans Affairs Accountability and Whistle-
blower Protection Act of 2017, Pub. L. No. 115–41, 131
Stat. 862. The Act became effective on June 23, 2017. 131
Stat. at 862. The Act’s purpose is to “provide a singular
expedited procedure for all VA employees to respond and
appeal to proposed removals, demotions, and suspensions
for performance or misconduct.” Sayers, 954 F.3d at 1374
(quotation marks and citation omitted). It is codified, in
part, at 38 U.S.C. § 714 and provides less rigorous stand-
ards and expedited procedures under which the Secretary
of the VA (“the Secretary”) “may remove, demote, or sus-
pend” VA employees “if the Secretary determines the per-
formance or misconduct of the covered individual warrants
such removal, demotion, or suspension.” 38 U.S.C.
§ 714(a)(1); see Sayers, 954 F.3d at 1374 (explaining that
38 U.S.C. § 714 “presents the VA with an expedited, less
rigorous alternative to traditional civil service adverse ac-
tion appeals”); see also 38 U.S.C. § 714(c)(3) (providing that
“[t]he procedures [of 5 U.S.C. Chapter 43] shall not apply
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6 BRENNER v. DVA
to a removal [under 38 U.S.C. § 714]”). The administrative
judge and MSPB “shall uphold the decision of the Secre-
tary . . . if the decision is supported by substantial evi-
dence,” 38 U.S.C § 714(d)(2)(A), (3)(B), and otherwise “in
accordance with law,” 5 U.S.C. § 7701(c)(2)(C); see Sayers,
954 F.3d at 1376 (explaining that Ҥ 714 notably does not
override § 7701(c)(2)(C), which requires the decision to ac-
cord with the law, even if it is supported by the evidence”).
“[I]f the decision of the Secretary is supported by substan-
tial evidence, the administrative judge [and the MSPB]
shall not mitigate the penalty prescribed by the Secretary.”
38 U.S.C § 714(d)(2)(B), (3)(C). On appeal from the MSPB,
we will “set aside any agency action, findings, or conclu-
sions” that is, inter alia, “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” or “un-
supported by substantial evidence.” 5 U.S.C. § 7703(c)(1)–
(3); see 38 U.S.C. § 714(d)(5)(A) (providing for appeal of the
“decision of the [MSPB] under [§ 714(d)(3)] to the . . . Fed-
eral Circuit pursuant to [5 U.S.C. §] 7703”).
II. Procedural History 2
In March 1992, Mr. Brenner joined the VA as an attor-
ney in the Office of the General Counsel (“OGC”) in Brook-
lyn, New York. J.A. 8. In April 2015, he suffered an
accident that resulted in the amputation of his lower right
leg. J.A. 8. The injury had significant impact on Mr. Bren-
ner’s health and daily life and, as a result, he missed ap-
proximately six months of work. J.A. 1352–53. Upon
returning to work in October 2015, Mr. Brenner was reas-
signed to the CNPG. J.A. 9; see J.A. 9 n.4 (noting that
Mr. Brenner’s re-assignment was part of a broader reor-
ganization “to improve the [VA’s] efficiency”). The CNPG
2 For ease of reference, unless otherwise noted, we
cite to the uncontested facts as recited in the MSPB’s Final
Decision. J.A. 7–54. See generally Petitioner’s Br; Re-
spondent’s Br.
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BRENNER v. DVA 7
is a small practice group of GS-13 and GS-14 attorneys that
provide legal counsel and representation in “recoupment of
funds matters, including in bankruptcy and probate, gen-
eral debt recoupment related to government property dam-
age, escheatment, accidental injury to veterans, and
workers’ compensation recovery.” J.A. 9. Mr. Brenner re-
mained with the CNPG until his removal in September
2018. J.A. 9 n.5. 3
Mr. Brenner’s performance as a CNPG Attorney Advi-
sor was measured on six metrics—three critical (Stake-
holder Service, Timeliness, and Professional Responsibility
and Accountability) and three non-critical (Case Develop-
ment and Management, Quality of Communications and
Writing, and Cooperation and Organizational Support).
J.A. 9–10. Performance in each metric could be rated “less
than fully successful,” “fully successful,” or “exceptional.”
J.A. 10. Mr. Brenner received a “fully successful” rating for
fiscal year 2016. J.A. 10. Further, Mr. Brenner’s first-line
supervisor, Anne-Marie Duncan, Deputy Chief Counsel,
CNPG, gave him an “exceptional” rating for both client ser-
vice and legal advice and assistance and a “fully successful”
3 In November 2015, Mr. Brenner “contacted an
[Equal Employment Opportunity] Counselor claiming that
he was reassigned to CNPG because of his age and disabil-
ity.” J.A. 85. In March 2016, the VA hired an attorney to
fill Mr. Brenner’s former position. J.A. 85. Thereafter,
Mr. Brenner filed a complaint with the U.S. Equal Employ-
ment Opportunity Commission (“EEOC”), alleging that the
VA had “denied him the opportunity to [apply and] compete
for [his former] position” with his old office “because of his
age, disability[,] and reprisal.” J.A. 86. The case is cur-
rently pending on appeal before the EEOC’s Office of Fed-
eral Operations. See Oral Arg. at 00:55–01:35,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
2019-2032.mp3.
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8 BRENNER v. DVA
rating for all other metrics. J.A. 1372 (Hearing Tran-
script); see J.A. 1373 (Mr. Brenner testifying that Ms. Dun-
can had also complimented his General Counsel Legal
Automated Workload System (“GCLAWS”) entries and
timeliness). 4 In May 2017, Ms. Duncan again gave
Mr. Brenner a “fully successful” rating for his mid-term
progress review. J.A. 10.
However, on July 5, 2017, Ms. Duncan issued a written
reprimand to Mr. Brenner for failure to complete a drafting
assignment in a timely manner. J.A. 10; see J.A. 369–70
(Reprimand). Mr. Brenner had “identified” an “ongoing is-
sue” with one of the judges “overseeing workers’ compensa-
tion cases,” who denied Mr. Brenner “or any other VA
attorney [leave] to appear for the sole purpose of presenting
[the] VA’s claim unless the VA attorney was licensed in the
State of New Jersey.” J.A. 10 (quoting J.A. 369). On
April 27, 2017, Ms. Duncan asked Mr. Brenner to “research
workers’ compensation law and cases for the State of New
Jersey,” to determine whether other federal agencies were
having the same problem, and “to draft a proposed letter to
the chief judge” overseeing the VA’s worker compensation
cases in New Jersey. J.A. 10–11 (quoting J.A. 369).
Ms. Duncan followed up on May 16, 2017; Mr. Brenner re-
quested an extension of time until May 18, 2017, to finish
the draft. J.A. 11. Ms. Duncan gave him until May 22,
2017. J.A. 11; see J.A. 369. Mr. Brenner did not meet that
deadline, J.A. 11; see J.A. 369, but following a reminder
from Ms. Duncan, submitted a draft on July 24, 2017,
J.A. 21. Thereafter, the draft required additional research
and re-working, with supervisory support. J.A. 21–22; see
J.A. 22 (quoting Ms. Kathleen Oddo, Chief Counsel, CNPG,
4 GCLAWS is “the OGC’s main case-tracking sys-
tem,” recording which attorney is assigned a given case, as
well as “what actions [have been] taken” and when.
J.A. 15.
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BRENNER v. DVA 9
testifying that “[w]hen [Mr. Brenner] sent [the] original
draft, it was not a draft that was appropriate to send, and
[Mr. Brenner] did a lot of work”).
On July 14, 2017, Mr. Brenner submitted a grievance
challenging the Reprimand. J.A. 88. The grievance was
denied. J.A. 89; see J.A. 396 (Final Decision). Then, in Oc-
tober 2017, via email, “Ms. Oddo advised Mr. Brenner that
he required advanced authorization from Ms. Duncan[] be-
fore he could work more than one hour before or after” busi-
ness hours. J.A. 87; see J.A. 87 (noting that Mr. Brenner
was required to “make a written request justifying the
emergency” even though Mr. Brenner “does not receive any
compensation for working” overtime). On December 7,
2017, Mr. Brenner received an overall “unacceptable” rat-
ing for fiscal year 2017. J.A. 11; see J.A. 1000–09 (Mr.
Brenner’s fiscal year 2017 Performance Plan and Ap-
praisal). Shortly thereafter, Mr. Brenner challenged the
rating by filing an informal grievance. J.A. 431–34 (De-
cember 2017 Informal Grievance). The VA informally de-
nied the grievance and, thereafter, Richard Hipolit, Deputy
General Counsel for Legal Policy, OGC, and Mr. Brenner’s
third-line supervisor, formally denied the grievance.
J.A. 436–42 (February 2018 Informal Denial), 1036–38
(March 2018 Formal Denial).
On March 26, 2018, Ms. Oddo proposed Mr. Brenner’s
removal under 38 U.S.C. § 714 for failing to meet perfor-
mance standards. J.A. 70; see J.A. 70–81 (Proposed Re-
moval). Ms. Oddo stated that Mr. Brenner had, for the
“performance appraisal rating period of October 1, 2016,
through September 30, 2017, . . . failed to meet the perfor-
mance standards” for Timeliness (“Charge I”) and Profes-
sional Responsibility and Accountability (“Charge II”), and
“for the performance appraisal rating period that began on
October 1, 2017, . . . [had] failed to meet the performance
standards” for Timeliness (“Charge III”). J.A. 70.
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10 BRENNER v. DVA
In support of Charge I, Ms. Oddo asserted that
Mr. Brenner had “difficulty completing assignments with-
out intervention and follow-up.” J.A. 74. She listed thirty-
one instances, between October 1, 2016, and September 30,
2017, in which Mr. Brenner was expected, in keeping with
a legal services agreement, “to provide a substantive re-
sponse within seven calendar days” to bankruptcy ques-
tions from the VA’s Debt Management Center (“DMC”), but
did not. J.A. 70–73. She also noted the April 2017 letter
drafting assignment for which Mr. Brenner had been rep-
rimanded, J.A. 73, and two other instances, in June and
July 2017, in which Mr. Brenner was asked by other VA
attorneys to provide legal review and advice on the cashing
of a restitution check and bankruptcy court order, respec-
tively, but did not respond until the requesting attorneys
followed up with him weeks later, J.A. 22–23, 74; see
J.A. 721–22, 745–48 (Email Correspondence) (indicating
that the client initially requested, on May 31, 2017, legal
counsel from Ms. Oddo on how to proceed with a restitution
check that had been “been bouncing around the VA for the
last month,” which she then forwarded to Mr. Brenner “for
action” on June 28, 2017, and, to which Mr. Brenner re-
sponded, after the client had followed up, on July 20, 2017);
see also J.A. 749–51 (Email Correspondence) (client re-
quest made to Mr. Brenner on July 27, 2017, to which he
responded by email and phone call on September 6, 2017,
after the client followed up).
In support of Charge II, Ms. Oddo alleged that, in early
September 2017, “after being counseled on [his] failure to
deliver timely legal services,” J.A. 75, Mr. Brenner back-
dated his notes for seven cases in GCLAWS to reflect same-
day legal service, when same-day service had not been pro-
vided, J.A. 27–29. But see J.A. 1450–52 (Mr. Brenner tes-
tifying that he had not made the entries with “the intent
[t]o conceal,” and that, from having made hundreds of other
entries into GCLAWS, he knew that the actual “date of en-
try” would “automatically appear” alongside the date he
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BRENNER v. DVA 11
input). Ms. Oddo also noted that, in May 2017, Mr. Bren-
ner had confused the date of a hearing and arranged for an
attorney admitted to practice in the relevant court to ac-
company him and represent the VA in that hearing on
May 2, 2017, rather than the correct date, May 10, 2017.
J.A. 29. Ms. Duncan was notified of the error on May 4,
2017, not from Mr. Brenner, but from the other attorney’s
supervisor. J.A. 30. While Mr. Brenner apologized for the
error when asked, because he had “failed to notify [his] su-
pervisor” himself, Ms. Oddo alleged that he had failed to
“accept responsibility for [the] mistake.” J.A. 76; see
J.A. 30–31. But see J.A. 1287–88 (noting that Mr. Brenner
had called a CNPG paralegal on May 2, 2017, from court,
asking her to relay a message to Ms. Duncan that he had
made a scheduling error).
In support of Charge III, Ms. Oddo stated that, for the
rating period beginning October 1, 2017, Mr. Brenner did
not timely respond to DMC requests for legal counsel in
thirty-six instances. J.A. 76–79. In two of the instances,
Mr. Brenner did not respond until the DMC and Ms. Dun-
can followed up with Mr. Brenner, and in twenty-two in-
stances, Mr. Brenner did not respond prior to his removal.
J.A. 78–79.
In April 2018, Mr. Brenner submitted a written re-
sponse, through counsel, to the Proposed Removal. J.A. 84;
see J.A. 84–106 (Response to Proposed Removal).
Mr. Brenner asserted that his “removal [could] not be sus-
tained on the merits,” was “excessive,” and did “not pro-
mote the efficiency of the service.” J.A. 84. He argued that
“[a]ny discussion” of the three charges “must begin with a
review of Mr. Brenner’s assignment to the CNPG and the
discrimination, retaliation, hostile work environment[,]
and abuse of authority he has endured since.” J.A. 85.
Mr. Brenner also asserted that he had previously engaged
in protected EEO and whistleblowing activity and attached
copies of his complaints filed with the Office of Special
Counsel (“OSC”) and Office of Accountability and
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12 BRENNER v. DVA
Whistleblower Protection (“OAWP”). J.A. 12. He argued
that the deciding official, Mr. Hipolit, then the Deputy Gen-
eral Counsel for Veterans’ Programs, was required to
recuse himself, given his prior involvement in Mr. Bren-
ner’s case. J.A. 88; see J.A. 88 (noting that Mr. Hipolit had
“sustained a decision concerning the written reprimand,”
“denied Mr. Brenner’s grievance concerning his appraisal,”
and provided an interview and written statement to an
EEO investigator in Mr. Brenner’s EEO case), 1184–85
(Mr. Hipolit testifying that he both “gave a statement” to
the investigator in the EEO case and was the deciding offi-
cial for Mr. Brenner’s removal).
In April 2018, Mr. Hipolit informed Mr. Brenner that
his decision on Mr. Brenner’s proposed removal was held
in abeyance pending his OSC and OAWP cases. J.A. 12.
On September 21, 2018, the OSC and OAWP notified
Mr. Hipolit that the matters had been resolved. J.A. 12.
On September 28, 2018, Mr. Hipolit upheld the proposed
removal under 38 U.S.C. § 714, concluding that Charges I
through III were supported by substantial evidence.
J.A. 12; see J.A. 318–22 (Decision on Proposed Removal).
Mr. Brenner appealed his removal to the MSPB.
J.A. 63. A hearing was held in December 2018. J.A. 1112;
see J.A. 1112–1453 (Hearing Transcript). The MSPB af-
firmed the VA’s removal action. J.A. 7. The MSPB applied
38 U.S.C. § 714, J.A. 12, and concluded that, “[i]n light of
the evidence and testimony described, . . . the [VA had] met
its burden of proof[] by substantial evidence,” J.A. 31; see
J.A. 12 (concluding that “to sustain an adverse action un-
der 38 U.S.C. § 714, the VA must prove its charges by sub-
stantial evidence” (citing 38 U.S.C. § 714(d)(2)(A))), 14–31
(evaluating the presented evidence and testimony). The
MSPB concluded that Mr. Brenner had not proven his af-
firmative defenses of: disability and age discrimination;
reprisal for engaging in protected EEO activity; retaliation
for whistleblowing; “harmful procedural error” by the
“fail[ure] to abide” by VA removal procedures; and “due
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BRENNER v. DVA 13
process violation in light of [Mr. Hipolit’s] refusal to recuse
himself.” J.A. 32 (citation omitted); see J.A. 32–54 (evalu-
ating the evidence and testimony presented on Mr. Bren-
ner’s affirmative defenses). The decision became final in
April 2019. J.A. 54. 5
DISCUSSION
Mr. Brenner argues, inter alia, that (1) the MSPB erred
in concluding that the Act “prohibit[ed] [it] from reviewing
the reasonableness of a penalty,” Petitioner’s Br. at 28 (cap-
italization normalized), and (2) the VA and MSPB “improp-
erly applied the Act to [Mr. Brenner’s] actions that
occurred prior to the Act[,] essentially holding that the Act
was retroactive,” id. at 22 (capitalization normalized). We
address each argument in turn.
I. Standard of Review and Legal Standard
We will uphold a decision of the MSPB 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)(1)–(3). “We review the [MSPB’s] deter-
minations of law for correctness without deference to the
[MSPB’s] decision.” McEntee v. Merit Sys. Prot. Bd., 404
F.3d 1320, 1325 (Fed. Cir. 2005) (citation omitted). We re-
view the MSPB’s findings of fact for substantial evidence.
See Crawford v. Dep’t of the Army, 718 F.3d 1361, 1365
(Fed. Cir. 2013). Substantial evidence is “such relevant
5 When Mr. Brenner filed his Federal Circuit
Rule 15(c) Statement Concerning Discrimination on
June 28, 2019, he abandoned his discrimination claims.
Petitioner’s Fed. Cir. R. 15(c) Statement, ECF No. 4; see
Oral Arg. at 00:47–00:54, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=
2019-2032.mp3.
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14 BRENNER v. DVA
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Shapiro v. Soc. Sec. Admin., 800
F.3d 1332, 1336 (Fed. Cir. 2015) (quotation marks and ci-
tation omitted). “The petitioner bears the burden of estab-
lishing error in the MSPB’s decision.” Jenkins v. Merit Sys.
Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir. 2019) (alteration
omitted).
Under the Act, the VA may “remove, demote, or sus-
pend a covered individual who is an employee of the [VA]
if the Secretary determines the performance or misconduct
of the covered individual warrants such removal, demotion,
or suspension.” 38 U.S.C. § 714(a)(1). “The procedures”
provided in 5 U.S.C. Chapter 43 do “not apply to a removal,
demotion, or suspension under [38 U.S.C. § 714].” Id.§ 714(c)(3). Appeals are subject to an expedited review pro-
cess, with the administrative judge and MSPB “uphold[ing]
the decision of the Secretary . . . if the decision is supported
by substantial evidence,” id. § 714(d)(2)(A), (3)(B), and oth-
erwise “in accordance with law,” 5 U.S.C. § 7701(c)(2)(C);
see Sayers, 954 F.3d at 1376. “[I]f the [VA’s] decision . . . is
supported by substantial evidence,” the administrative
judge and MSPB may “not mitigate the penalty prescribed
by the [VA].” 38 U.S.C. § 714(d)(2)(B), (3)(C).
II. The MSPB Erred in Concluding It Lacked Authority to
Review the VA’s Penalty Determination
The MSPB declined to consider the penalty imposed on
Mr. Brenner. J.A. 13. The MSPB explained that it “ha[d]
no authority to mitigate an action taken under [38 U.S.C.
§ 714] and the reasonableness of an imposed pen-
alty . . . [wa]s immaterial.” J.A. 13 (citing 38 U.S.C.
§ 714(d)(2)(B), (3)(C)); see 38 U.S.C. § 714(d)(2)(B), (3)(C)
(providing that “[n]otwithstanding title 5 or any other pro-
vision of law, if the decision of the Secretary is supported
by substantial evidence, [the MSPB] shall not mitigate the
penalty prescribed by the Secretary”). Mr. Brenner argues
that the MSPB “misconstrue[d] the Act” and that “the Act
Case: 19-2032 Document: 59 Page: 15 Filed: 03/09/2021
BRENNER v. DVA 15
does not prohibit the [MSPB] from reviewing the reasona-
bleness of a penalty.” Petitioner’s Br. 28 (capitalization
normalized). We agree with Mr. Brenner.
The MSPB erred when it concluded it lacked authority
to review the penalty the VA imposed on Mr. Brenner. The
Act prohibits the MSPB from “mitigat[ing] the penalty pre-
scribed by the Secretary.” 38 U.S.C. § 714(d)(2)(B), (3)(C).
The MSPB understood this to mean not only that it “ha[d]
no authority to mitigate an action taken under [38 U.S.C.
§ 714],” but also no authority to consider “the reasonable-
ness of an imposed penalty.” J.A. 13 (citing 38 U.S.C.
§ 714(d)(2)(B), (3)(C); Douglas, 5 M.S.P.R. 280). However,
following the MSPB’s decision in this case, we issued our
opinion in Sayers. See Sayers, 954 F.3d. at 1370. “Our
opinion in Sayers controls and mandates that review of the
penalty must be included in the [MSPB’s] review of [an]
adverse action” under 38 U.S.C. § 714. Harrington v. Dep’t
of Veterans Affairs, 981 F.3d 1356, 1358 (Fed. Cir. 2020)
(citing Sayers, 954 F.3d. at 1379).
In Sayers, we held that “[38 U.S.C.] § 714 requires the
[MSPB] to review whether the Secretary had substantial
evidence for his decision that an employee’s actions war-
ranted the adverse action.” Sayers, 954 F.3d. at 1375; see
38 U.S.C. § 714(d)(2)(A) (“[T]he administrative judge shall
uphold the decision of the Secretary to remove, demote, or
suspend an employee under [38 U.S.C. § 714(a)] if the deci-
sion is supported by substantial evidence.”) (emphases
added). We explained that the MSPB “cannot meaning-
fully review th[e VA’s] decision if it blinds itself to the VA’s
choice of action,” as review of a “decision” encompasses not
just its facts, but also the “decision to impose a certain pen-
alty” based on those facts. Sayers, 954 F.3d. at 1375 (cita-
tion omitted). We reasoned that “[i]n the absence of a
clearer statement than [38 U.S.C.] § 714(d)(2)(B), which
prohibits the [MSPB] from mitigating a penalty supported
by substantial evidence, we should not presume the prohi-
bition of all review of the penalty to ensure its legality.” Id.
Case: 19-2032 Document: 59 Page: 16 Filed: 03/09/2021
16 BRENNER v. DVA
at 1376 (emphases in original); see Lindahl v. Office of Pers.
Mgmt., 470 U.S. 768, 778 (1985) (“We have often noted that
only upon a showing of clear and convincing evidence of a
contrary legislative intent should the courts restrict access
to judicial review.” (internal quotation marks and citation
omitted)).
Indeed, the Act encompasses MSPB review of an
agency’s action for accordance with law, including whether
the Secretary’s “final decision with respect to a removal,
demotion, or suspension under [38 U.S.C. § 714]” provides
“specific reasons” for the chosen penalty. 38 U.S.C.
§ 714(c)(2); see id. § 714(d)(1) (providing for “[e]xpedited re-
view” by “the administrative judge” and MSPB “under
[5 U.S.C. § 7701(b)(1)]”); see also 5 U.S.C. § 7701(c)(2)(C)
(providing that, “[n]otwithstanding” whether the decision
is supported by substantial evidence, “the agency’s decision
may not be sustained” by the MSPB, if “the decision was
not in accordance with law”). Further, the Act expressly
provides that this court review the agency action for ac-
cordance with law, abuse of discretion, and arbitrary and
capricious decision making. See 38 U.S.C. § 714(d)(5)(A)
(providing for appeal of “a decision of the [MSPB]” to “the
[U.S.] Court of Appeals for the Federal Circuit pursuant to
[5 U.S.C. §] 7703”); see also 5 U.S.C. § 7703(c) (providing
that the “Federal Circuit . . . shall review the record and
hold unlawful and set aside any agency action, findings, or
conclusions found to be,” inter alia, “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law”). An agency abuses its discretion where, inter alia,
“the decision . . . represents an unreasonable judgment in
weighing relevant factors.” Star Fruits S.N.C. v. United
States, 393 F.3d 1277, 1281 (Fed. Cir. 2005); see Robin-
son v. Dep’t of Veterans Affairs, 923 F.3d 1004, 1016–17
(Fed. Cir. 2019) (“We will defer to the judgment of the
agency regarding the penalty unless it appears totally un-
warranted in the circumstances such that it constitutes an
abuse of discretion.” (internal quotation marks,
Case: 19-2032 Document: 59 Page: 17 Filed: 03/09/2021
BRENNER v. DVA 17
alterations, and citation omitted)). A decision is arbitrary
and capricious where the agency fails to articulate a “ra-
tional connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)). Therefore, “[t]he plain meaning of [38 U.S.C.]
§ 714, when considered in its entirety, conveys that when
determining whether the decision is supported by substan-
tial evidence, the [MSPB] (or administrative judge) must
necessarily consider the agency’s penalty choice as part of
that review.” Sayers, 954 F.3d at 1376 (internal quotation
marks omitted); see Harrington, 981 F.3d at 1358 (similar).
Further, Sayers’s understanding of the Act is con-
sistent with Congressional intent, balancing “the overall
intent of the Act” to “make it easier and faster for the VA
to penalize employees for misconduct” while “maintain[ing]
due process protections for employees, including the oppor-
tunity to appeal the Secretary’s removal decision.” Sayers,
954 F.3d at 1376–77 (citing 163 CONG. REC. S3268–80
(daily ed. June 6, 2017) (remarks of Sens. Nelson, Rubio,
and Tester)); see, e.g., 163 CONG. REC. at S3276 (remarks of
Sen. Nelson) (“I also believe that it is important to protect
the rights of the employees who may have been wrongly
terminated, especially at the lower levels, by giving them
the opportunity to appeal a supervisor’s decision to fire
them. This bill we are going [to] pass does that.”). Sayers
is also consistent with “basic precepts of administrative
law and judicial review” and the “historical practice of re-
viewing the penalty in adverse action decisions.” Sayers,
954 F.3d at 1377–78. By excluding the penalty imposed
from the scope of review, “an agency could remove an em-
ployee for an extremely trivial offense,” e.g., “theft of a pa-
perclip,” “so long as substantial evidence supports that the
Case: 19-2032 Document: 59 Page: 18 Filed: 03/09/2021
18 BRENNER v. DVA
employee actually stole a paperclip.” Id. at 1378. 6 “[A]llow-
ing the agency to remove an employee for the tiniest inci-
dent of misconduct so long as the agency could present
substantial evidence that the trifling misconduct oc-
curred—could gut due process protections in a way Con-
gress did not intend.” Id. at 1377 (internal quotation
marks omitted). Similarly, “[t]he longstanding acceptance
of penalty review, with or without mitigation authority,
comes with good reason: it avoids absurd, unconstitutional
results.” Id. at 1378.
6 This hypothetical comes from Mogil v. Department
of Veterans Affairs, 769 F. App’x 920 (Fed. Cir. 2019),
where we flagged that the VA’s understanding of 38 U.S.C.
§ 714 as precluding review of the penalty imposed, would
“g[ive] the Secretary essentially unfettered discretion to re-
move an employee for any reason, no matter how minor,
provided substantial evidence shows that the employee
committed the charged misconduct.” Mogil, 769 F. App’x
at 923. We noted that “[i]f, for example, an employee was
caught improperly using a paper clip purchased by the gov-
ernment for personal use, the Secretary could determine
that conduct warrants removal, even if the employee up to
that point received perfect evaluations and had a spotless
disciplinary record,” and the MSPB “would have no author-
ity to hold this penalty unreasonable and remand to the VA
for a new penalty assessment.” Id. We explained that
“[s]uch an interpretation would be a dramatic shift in how
the [MSPB] reviews adverse actions against other federal
employees,” “does not necessarily flow from the elimination
of the [MSPB]’s ability to mitigate a penalty,” and may pre-
sent “potential constitutional concerns with regard to the
Takings Clause and Due Process Clause.” Id. (citation
omitted). We, however, declined to reach the issue because,
in Mogil, “any error in interpreting [38 U.S.C.] § 714 was
harmless.” Id.
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BRENNER v. DVA 19
Here, Mr. Brenner was removed from his position at
the VA pursuant to 38 U.S.C. § 714. J.A. 8. In reviewing
his appeal, the MSPB did not consider the penalty, only
whether the underlying charges were supported by sub-
stantial evidence. J.A. 13–15, 24–26. This was not in ac-
cordance with law. Under 38 U.S.C. § 714, the
administrative judge and MSPB must “review for substan-
tial evidence the entirety of the VA’s removal decision—in-
cluding the penalty—rather than merely confirming that
the record contains substantial evidence that the alleged
conduct leading to the adverse action actually occurred.”
Sayers, 954 F.3d at 1379. Because the MSPB has neither
the authority to “independent[ly] . . . set penalties,”
Lachance v. Devall, 178 F.3d 1246, 1248 (Fed. Cir. 1999),
nor the authority to “mitigate the penalty prescribed,”
38 U.S.C. § 714(d)(2)(B), (3)(C); see Lachance, 178 F.3d
at 1260 (explaining that the MSPB’s mitigation authority
is generally the authority to “mitigate the agency’s original
penalty to the maximum reasonable penalty when it finds
the agency’s original penalty too severe”), if the MSPB con-
cludes that the VA’s removal decision is unsupported by
substantial evidence, the MSPB should remand to the VA
for further proceedings, cf. Smith v. Gen. Servs. Admin.,
930 F.3d 1359, 1370 (Fed. Cir. 2019) (having “vacat[ed] the
[MSPB’s] decision as to the reasonableness of [a] penalty”
under Chapter 75, instructing that, on remand, “the
[MSPB] must consider whether the penalty of removal may
be sustained or whether remand to the agency is necessary
to reassess the appropriate penalty”). 7
7 The Government asserts that “it is difficult to see
how the [MSPB] is to determine whether the Secretary’s
non-factual choice of a particular penalty is supported by
substantial evidence.” Respondent’s Br. 48 (emphasis and
internal quotation marks omitted). The Government’s
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20 BRENNER v. DVA
The Government’s primary counterargument is with-
out merit. The Government acknowledges that Sayers
“states that ‘[t]he plain meaning of § 714, when considered
in its entirety, conveys that . . . the [MSPB] (or administra-
tive judge) must necessarily consider the agency’s penalty
as part of [its] review.’” Respondent’s Br. 44 (quoting Say-
ers, 954 F.3d at 1376) (first alteration in original). The
Government, nonetheless, argues that Sayers is not dispos-
itive here. Id. First, the Government argues that “the por-
tion of . . . Sayers that discusses review of the penalty
appears to be [obiter] dicta” because, in Sayers “the case
was remanded” not for the agency’s failure to consider the
penalty, but “because the agency had” impermissibly “ap-
plied the statute” retroactively. Id. The Government is
mistaken. In Sayers, we could not conclude that the Act
had impermissible retroactive effect without first deter-
mining the Act’s actual “meaning and effect.” Sayers, 954
confusion is unfounded. “The statutory phrase ‘substantial
evidence’ is a ‘term of art’ in administrative law that de-
scribes how ‘an administrative record is to be judged by a
reviewing court.’” T-Mobile S., LLC v. City of Roswell, 574
U.S. 293, 301 (2015) (quoting United States v. Carlo Bian-
chi & Co., 373 U.S. 709, 715 (1963)). “Th[e] [substantial
evidence] standard goes to the reasonableness of what the
agency did on the basis of the evidence before it.” Carlo
Bianchi, 373 U.S. at 715. It asks “whether the evidence
relied upon by the trier of fact was of sufficient quality and
substantiality to support the rationality of [its] judgment.”
Woodby v. Immigration & Naturalization Serv., 385 U.S.
276, 282 (1966); see Burlington, 371 U.S. at 168 (providing
that, under the substantial evidence standard, “[t]he
agency must make findings that support its decision” and
“articulate [a] rational connection between the facts found
and the choice made,” particularly where the agency
chooses between “vastly different remedies with vastly dif-
ferent consequences”).
Case: 19-2032 Document: 59 Page: 21 Filed: 03/09/2021
BRENNER v. DVA 21
F.3d at 1374 (citing 38 U.S.C. § 714); see Martin v. Hadix,
527 U.S. 343, 357–58 (1999) (“The inquiry into whether a
statute operates retroactively demands a commonsense,
functional judgment about whether the new provision at-
taches new legal consequences to events completed before
its enactment.” (internal quotation marks and citation
omitted)). “When an opinion issues for the [c]ourt, it is not
only the result but also those portions of the opinion neces-
sary to that result by which we are bound.” Seminole Tribe
of Fla. v. Florida, 517 U.S. 44, 67 (1996). Thus, Sayers’s
discussion of penalty review is not obiter dicta. See Woods
v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“[W]here
a decision rests on two or more grounds, none can be rele-
gated to the category of obiter dictum.”). In short, “Sayers
controls and mandates that review of the penalty must be
included in the [MSPB’s] review of the adverse action.”
Harrington, 981 F.3d at 1358.
Second, the Government asserts that Sayers’s holding
concerning penalty review does not extend to Mr. Brenner’s
removal because, unlike the petitioner in Sayers who was
removed for misconduct, “[Mr. Brenner] was removed for
poor performance.” Respondent’s Br. 45. This argument is
unpersuasive. It is without basis in the Act, which draws
no distinction between the procedures and protections af-
forded an employee removed for poor performance, miscon-
duct, or some unhappy combination of both. See generally
38 U.S.C. § 714. In particular, it fails to acknowledge that
the Act allows for the MSPB to review the VA’s action for
“accordance with law,” 5 U.S.C. § 7701(c)(2)(C); see
38 U.S.C. § 714(d)(1), and expressly provides for Federal
Circuit review of an agency’s action for accordance with
law, abuse of discretion, and arbitrary and capricious deci-
sion making, see 38 U.S.C. § 714(d)(5)(A); see also 5 U.S.C.
§ 7703(c), regardless of whether the penalty is imposed for
misconduct or poor performance.
Third, the Government argues that we should, instead,
extend our analysis of Chapter 43 in Lisiecki to
Case: 19-2032 Document: 59 Page: 22 Filed: 03/09/2021
22 BRENNER v. DVA
Mr. Brenner’s case in abrogation of Sayers. Respondent’s
Br. 46–47; id. at 45–46 (stating that while Sayers expressly
“rejected the [Government’s] argument that
[§] 714(d)(2)(A)” should be “interpreted the same way that
the [c]ourt interpreted similar language from Chapter 43
in Lisiecki,” the Government “respectfully disagree[s] with
the [c]ourt’s analysis in Sayers”). This argument is mis-
placed. See Deckers Corp. v. United States, 752 F.3d 949,
964 (Fed. Cir. 2014) (“[A] panel of this court—which nor-
mally sits in panels of three, and not en banc—is bound by
the precedential decisions of prior panels unless and until
overruled by an intervening Supreme Court or en banc de-
cision.”). It is also incorrect. “Different concerns governed
Lisiecki,” such that “the reasoning behind Lisiecki cannot
apply given the different procedural protections in [38
U.S.C.] § 714 removals.” Sayers, 954 F.3d at 1379. Specif-
ically, “the reasoning undergirding Lisiecki arises from the
specific circumstances of [C]hapter 43 adverse actions,”
which have both “a narrow focus” and other procedural pro-
tections “not applicable to § 714.” Id.; see id. (noting that
porting Lisiecki’s reasoning into 38 U.S.C. § 714 removals
presents “constitutional concerns” as Chapter 43 “pro-
vide[s] more pre-termination due process”). Accordingly,
the MSPB erred when it concluded that the Act precluded,
rather than required, review of the penalty the VA imposed
on Mr. Brenner.
III. The MSPB Erred in Applying the Act Retroactively
The MSPB concluded that “to sustain an adverse action
under 38 U.S.C. § 714, the VA must prove its charges by
substantial evidence.” J.A. 12 (citing 38 U.S.C.
§ 714(d)(2)(A)). The MSPB then found that the VA had
substantiated Charges I and III—“unacceptable perfor-
mance in [the] critical element” of “Timeliness,” J.A. 14, for
the rating periods “covering October 1, 2016[,] through
September 30, 2017,” J.A. 15, and “beginning October 1,
2017,” J.A. 24, respectively—by substantial evidence,
J.A. 24, 26. The MSPB further found that the VA had
Case: 19-2032 Document: 59 Page: 23 Filed: 03/09/2021
BRENNER v. DVA 23
substantiated Charge II—“unacceptable performance in
[the] critical element [of] Professional Responsibility and
Accountability[] for the rating period covering October 1,
2016[,] through September 30, 2017”—by substantial evi-
dence. J.A. 26. Mr. Brenner argues that the MSPB and
VA “improperly applied the Act . . . retroactive[ly]” to con-
duct that occurred “prior to [enactment of] the Act.” Peti-
tioner’s Br. 22 (capitalization normalized). We agree with
Mr. Brenner.
The MSPB erred in applying the Act retroactively. In
Sayers, “we held that [38 U.S.C.] § 714 does not apply to
proceedings instituted based on conduct occurring before
its enactment.” Harrington, 981 F.3d at 1357; see Sayers,
954 F.3d at 1372 (holding that “Congress did not authorize
[38 U.S.C. § 714’s] retroactive application”). Here, the VA
removed Mr. Brenner pursuant to the Act. J.A. 70 (Pro-
posed Removal) (proposing removal “[u]nder the [a]uthor-
ity of 38 U.S.C. § 714”); see J.A. 318 (Decision on Proposed
Removal) (upholding Proposed Removal “[u]nder the
[a]uthority of 38 U.S.C. § 714”). The MSPB reviewed that
action under the Act. J.A. 8 (summarizing the applicable
law “under the provisions of the [Act]”). These decisions
were based largely on conduct that occurred before the ef-
fective date of the Act. Compare Act, 131 Stat. at 862
(providing an effective date of June 23, 2017), with, e.g.,
J.A. 72–73 (Proposed Removal) (in support of Charge I, cit-
ing thirty-one instances where Mr. Brenner did not reply
to DMC requests in a timely manner, with twenty-five of
the thirty-one requests occurring prior to the effective date
of the Act, and two instances where Mr. Brenner did not
timely respond to VA attorney requests after the effective
date of the Act), 74–76 (in support of Charge II, citing Mr.
Brenner’s scheduling error and failure to immediately re-
port that error in May 2017 before the effective date of the
Act, and Mr. Brenner backdating seven GCLAWS entries
in September 2017, after the effective date of the Act), 76–
79 (in support of Charge III, citing thirty-six instances in
Case: 19-2032 Document: 59 Page: 24 Filed: 03/09/2021
24 BRENNER v. DVA
which Mr. Brenner did not reply to DMC requests in a
timely manner after the effective date of the Act). 8 Accord-
ingly, the MSPB erroneously applied the Act to conduct
that occurred prior to the Act’s effective date.
The Government’s counterarguments are unpersua-
sive. First, the Government argues that Sayers’s holding
8 Further, for Charges I and III, alleging untimeli-
ness, Mr. Hipolit noted before the MSPB, and the Govern-
ment acknowledges here, that Ms. Oddo’s proposed
removal articulated and applied the incorrect standard to
determine whether Mr. Brenner’s responses to the DMC
were, in fact, untimely. Respondent’s Br. 19–20 (citing
J.A. 16, 1193); see J.A. 1192–93, 1195 (Mr. Hipolit, testify-
ing that the VA had applied the incorrect standard to de-
termine timeliness). Specifically, while Ms. Oddo asserted
that Mr. Brenner had not responded in a timely manner
under the DMC’s legal services agreement because Mr.
Brenner had not responded within seven days of receiving
a request for legal advice, J.A. 70–73, 76–79, the DMC’s
legal service agreement with the OGC provides that, “ab-
sent exigent circumstances (e.g., [a] novel or complex issue
or, conversely, a time-sensitive issue), the assigned OGC
office will provide a substantive response within
seven . . .days of receipt of the facts and documents (as ap-
plicable) supporting [a DMC] request [for counsel],” not
within seven days of receipt of the DMC request itself.
J.A. 16 (quoting J.A. 556); see J.A. 552–67 (DMC and OGC
Service Level Agreement). That is, the VA has not proven
that Mr. Brenner was actually untimely. The MSPB none-
theless affirmed. J.A. 24, 26. This was in error. The bur-
den is on the agency to “prove all of the elements” of the
alleged charge. King v. Nazelrod, 43 F.3d 663, 666 (Fed.
Cir. 1994). On remand, the MSPB should, applying the
correct standard, consider whether substantial evidence
supports these charges.
Case: 19-2032 Document: 59 Page: 25 Filed: 03/09/2021
BRENNER v. DVA 25
“regarding retroactivity should not be extended to invali-
date Mr. Brenner’s removal,” Respondent’s Br. 28, because
“Mr. Brenner’s removal resulted from a pattern of poor per-
formance that began before the Act was passed” and “be-
came worse” after the Act was passed, id. at 26–27
(emphasis omitted). This argument is without merit. Un-
der 38 U.S.C. § 714, the Secretary’s “final decision with re-
spect to a removal, demotion, or suspension under
[38 U.S.C. § 714]” must be supported with the “specific rea-
sons therefor.” 38 U.S.C. § 714(c)(2). “Absent the articula-
tion of specific reasons, agency action is ineffective as it
does not comply with statutory requirements.” Lachance,
178 F.3d at 1257–58 (discussing 5 U.S.C. § 7513(b)(4),
which also requires that an agency articulate “specific rea-
sons” for its adverse action). Further, those specific rea-
sons must be supported by substantial evidence. See
5 U.S.C. § 7703(c)(3); 38 U.S.C § 714(d)(2)(A), (3)(B).
Where the specific reasons are repudiated or the evidence
underlying them was impermissibly considered, Sayers,
954 F.3d at 1372 (explaining that 38 U.S.C § 714 does not
“apply retroactively to conduct that took place before its en-
actment”), the MSPB must “scrutinize carefully the appro-
priateness of the penalty imposed,” Quinton v. Dep’t of
Transp., 808 F.2d 826, 829 (Fed. Cir. 1986); see Sayers, 954
F.3d at 1378 (explaining that, where “the [VA] alleges sev-
eral specifications supporting a charge that merits re-
moval, but only meets its burden of showing substantial
evidence for the most minor specifications,” the Secretary’s
charges and decision to remove may be unsupported by
substantial evidence (citation omitted)). Here, the MSPB
impermissibly considered evidence predating the enact-
ment of the Act, irrespective of whether Mr. Brenner’s per-
formance worsened after its enactment.
The Government cannot have it both ways. If the VA
seeks to remove Mr. Brenner for conduct prior to the effec-
tive date of the Act, it must proceed in accordance with
Chapter 75 or Chapter 43. See Lovshin, 767 F.2d at 843
Case: 19-2032 Document: 59 Page: 26 Filed: 03/09/2021
26 BRENNER v. DVA
(allowing for “mixed” Chapter 43 and Chapter 75 cases). If
the VA seeks to remove Mr. Brenner under the expedited
procedures of 38 U.S.C. § 714, it may only consider events
that occurred after the effective date of the Act. See Sayers,
954 F.3d at 1372 (explaining that 38 U.S.C § 714 does not
“apply retroactively to conduct that took place before its en-
actment”). Put simply, Mr. Brenner “is entitled to the legal
protections in place during the period in which the alleged
[poor performance or] misconduct occurred[.]” Id. at 1381.
Second, the Government argues that Sayers’s holding
“regarding retroactivity . . . should not preclude the VA
from removing Mr. Brenner because applying the Act to a
performance-based removal does not significantly change
the administrative procedures . . . applicable in a Chap-
ter 43 removal based on poor performance[.]” Respondent’s
Br. 31. According to the Government, because both Chap-
ter 43 and 38 U.S.C. § 714 “contain[] the substantial evi-
dence test and do[] not allow for mitigation of the penalty,”
any differences between the two are “more akin to the types
of procedural rules discussed in Landgraf,” and thus “do
not raise concerns about retroactivity.” Id.; see Landgraf v.
USI Film Prods., 511 U.S. 244, 275 (1994) (“Changes in
procedural rules may often be applied in suits arising be-
fore their enactment without raising concerns about retro-
activity.”). This argument is unpersuasive.
Mr. Brenner had “a property interest in [his] continued
employment.” Stone v. F.D.I.C., 179 F.3d 1368, 1374 (Fed.
Cir. 1999); see Landgraf, 511 U.S. at 271 (explaining that
the “presumption against statutory retroactivity” applies
to “new provisions affecting . . . property rights”). Even if
we assume that the VA would have removed Mr. Brenner
under Chapter 43 in the absence of 38 U.S.C. § 714, see
Lovshin, 767 F.2d at 842 (explaining that an agency may
also remove an employee for poor performance under Chap-
ter 75 if the “agency can meet the heavy burdens of Chapter
75 and can show substantive compliance with merit princi-
ples”), “[e]mployees enjoy much greater pre-termination
Case: 19-2032 Document: 59 Page: 27 Filed: 03/09/2021
BRENNER v. DVA 27
due process protections under [C]hapter 43 than under [38
U.S.C.] § 714,” Sayers, 954 F.3d at 1379; see Martin, 795
F.2d at 997 (enumerating the Chapter 43 requirements for
removal). These protections are not merely procedural.
They are “the quid pro quo” for the agency’s greater discre-
tion under Chapter 43. Lovshin, 767 F.2d at 842. Section
714 lacks the protections of Chapter 43. See 38 U.S.C.
§ 714(c)(3) (“The procedures under [C]hapter 43 . . . shall
not apply to a removal, demotion, or suspension under this
section.”). Therefore, removal under the “expedited, less
rigorous” procedures of 38 U.S.C. § 714, Sayers, 954 F.3d
at 1374, rather than Chapter 43’s “specific procedures,”
Lovshin, 767 F.2d at 842, for conduct that occurred prior to
the effective date of the Act, “attaches new legal conse-
quences” to that conduct and thereby gives the Act imper-
missible retroactive effect, Landgraf, 511 U.S. at 270.
The VA erroneously applied the Act retroactively. Ac-
cordingly, the MSPB’s affirmance of the VA’s action is not
in accordance with law. 9 We “vacate [Mr. Brenner’s] re-
moval and remand to the [MSPB] for further proceedings”
to consider whether the “VA’s removal decision” under 38
U.S.C. § 714—“including the penalty”—is supported by
9 Because we conclude that the MSPB’s interpreta-
tion of the Act was incorrect, we do not reach Mr. Brenner’s
arguments that the MSPB’s interpretation of the Act vio-
lated his Due Process and Equal Protection rights. Peti-
tioner’s Br. 11–12, 25–28; see Ashwander v. Tenn. Valley
Auth., 297 U.S. 288, 347 (1936) (“[I]f a case can be decided
on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or
general law, the [c]ourt will decide only the latter.”); Sec.
People, Inc. v. Iancu, 971 F.3d 1355, 1361 n.3 (Fed. Cir.
2020) (“If the appellant succeeds on the merits of its non-
constitutional arguments, the constitutional question may
become moot.”).
Case: 19-2032 Document: 59 Page: 28 Filed: 03/09/2021
28 BRENNER v. DVA
substantial evidence on the evidence of record that post-
dates the Act. Sayers, 954 F.3d at 1373, 1378; see Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)
(providing that “remand to the agency for additional inves-
tigation or explanation” is appropriate where “the record
before the agency does not support the agency action, if the
agency has not considered all relevant factors, or if the re-
viewing court simply cannot evaluate the challenged
agency action on the basis of the record before it”). If the
Government wishes to rely on evidence of record that pre-
dates the Act, it must proceed in accordance with Chap-
ter 75 or Chapter 43.
CONCLUSION
We have considered the Government’s remaining argu-
ments and find them unpersuasive. 10 Accordingly, the Fi-
nal Decision of the Merit Systems Protection Board is
VACATED AND REMANDED
COSTS
Each party to bear its own costs.
10 Mr. Brenner also argues that the MSPB erred in
rejecting his defense that Mr. Hipolit should have recused
himself as the deciding official, given his prior knowledge
and involvement in Mr. Brenner’s case as a VA official. Pe-
titioner’s Br. 23. However, “[t]here is nothing inherently
wrong with a deciding official’s having background
knowledge of an employee’s prior work history or perfor-
mance record” and “[n]othing in the [Act] limits the decid-
ing official to being a neutral arbiter or requires that the
deciding official be unfamiliar with the individual, the facts
of the case, or the employee’s prior conduct.” Norris v. Sec.
& Exch. Comm’n, 675 F.3d 1349, 1354 (Fed. Cir. 2012); see
38 U.S.C. § 714. Accordingly, Mr. Hipolit’s involvement
was not a harmful procedural error.