Rodriguez v. DVA ( 2021 )

Case: 19-2025 Document: 58 Page: 1 Filed: 08/12/2021
United States Court of Appeals
for the Federal Circuit
______________________
ARIEL RODRIGUEZ,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2019-2025
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0714-18-0735-I-1.
______________________
Decided: August 12, 2021
______________________
JAMES SOLOMON, Solomon, Maharaj & Kasimati, P.A.,
Tampa, FL, argued for petitioner.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent. Also represented by REGINALD
THOMAS BLADES, JR., ROBERT EDWARD KIRSCHMAN, JR.,
RICHARD POWERS, JOSHUA MARC SALZMAN.
______________________
Before LOURIE, BRYSON, and O’MALLEY, Circuit Judges.
BRYSON, Circuit Judge.
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2 RODRIGUEZ v. DVA
In August 2018, petitioner Ariel R. Rodriguez was re-
moved from his position with the Department of Veterans
Affairs (“DVA”) pursuant to 38 U.S.C. § 714. The Merit
Systems Protection Board upheld his removal. We reverse
and remand.
I
Prior to his removal, Mr. Rodriguez was employed as a
Supervisory Consumer Affairs Specialist with the Patient
Advocate’s Office at the DVA’s Bay Pines, Florida, facility.
On March 13, 2018, a veteran patient visited the Patient
Advocate’s Office seeking assistance regarding a co-pay-
ment on a medical bill. Mr. Rodriguez and the patient en-
gaged in a confrontation that escalated to the point that
Mr. Rodriguez summoned VA Police Service officers. Dur-
ing the confrontation, Mr. Rodriguez yelled at the patient
and used profanity. After the police officers arrived, they
directed Mr. Rodriguez to leave the reception area and ul-
timately had to escort him back to his office. However, Mr.
Rodriguez subsequently returned to the reception area,
where he again confronted the patient.
The DVA initiated an investigation of the incident, dur-
ing which Mr. Rodriguez was temporarily relieved of his
supervisory responsibilities in the Patient Advocate’s Of-
fice. During his suspension, Mr. Rodriguez contacted Car-
rie Adams, one of his subordinates, and asked her to modify
the witness statement she had submitted regarding Mr.
Rodriguez’s confrontation with the patient.
The DVA investigation was directed to allegations of
verbal abuse, a code of conduct violation, and lack of candor
by Mr. Rodriguez in connection with the March 13, 2018,
incident. As part of the investigation, Mr. Rodriguez sub-
mitted a voluntary witness statement. He was later given
an opportunity to amend that statement but declined to do
so.
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RODRIGUEZ v. DVA 3
The DVA investigator made a series of findings. First,
he found that Mr. Rodriguez engaged in patient abuse by
yelling and using profanity directed at the patient and
leaning over an office desk toward the patient in a threat-
ening manner. Second, he found that Mr. Rodriguez vio-
lated the DVA Code of Conduct through his disruptive
behavior with the patient and with the police officers who
were summoned to deal with the incident. In particular,
the investigator found that Mr. Rodriguez failed to follow
the lead officer’s instruction to return to his office, that the
police had to escort Mr. Rodriguez to his office, and that
Mr. Rodriguez returned to the reception area in order to re-
engage with the patient. Third, the investigator found un-
substantiated the allegation that Mr. Rodriguez had at-
tempted to coerce one of the police officers into changing
his account of the incident. Fourth, the investigator found
substantiated the allegation that Mr. Rodriguez had at-
tempted to coerce Ms. Adams into changing her account of
the incident. Specifically, the investigator found that Mr.
Rodriguez had made statements to Ms. Adams that left her
in fear of retaliation if she did not change her testimony.
Fifth, the investigator found that Mr. Rodriguez had dis-
played a lack of candor in his written and verbal accounts
of the incident and in denying that he had made the state-
ments reported by Ms. Adams, including the statement
that no harm would come to her if she helped him.
The investigator consulted the table of penalties in the
DVA handbook and concluded that in light of the nature of
the offenses and the presence of aggravating factors, the
appropriate penalty was removal. The investigator identi-
fied the following aggravating factors: (1) Mr. Rodriguez
was a supervisor; (2) his position as an advocate for pa-
tients was a sensitive one, and his conduct had the effect of
compromising the trust associated with that position; (3)
he had previously been disciplined for job-related miscon-
duct; (4) he was a member of the Director’s Office and was
responsible for ensuring that his conduct was beyond
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4 RODRIGUEZ v. DVA
reproach; and (5) he was given two opportunities during
the incident to de-escalate the situation but failed to do so.
On June 18, 2018, Teresa E. Kumar, the Associate Di-
rector of Patient Services at the Bay Pines facility, pro-
vided Mr. Rodriguez with a Notice of Proposed Removal
based on three charges: (1) disruptive behavior toward a
veteran patient; (2) conduct unbecoming a federal supervi-
sor, consisting of his attempt to influence Ms. Adams’s tes-
timony regarding the incident; and (3) lack of candor, based
on the fact that Mr. Rodriguez’s account of the altercation
deviated substantially from the accounts of the other wit-
nesses to the incident.
Ms. Kumar stated in the Notice of Proposed Removal
that she had determined that Mr. Rodriguez’s conduct war-
ranted removal “because the Agency cannot tolerate abu-
sive conduct toward any patient and not only were you
inappropriate with a Veteran patient but after others in-
tervened to de-escalate the conflict you escalated it a sec-
ond time.” J.A. 38. She added that there was a substantial
nexus between Mr. Rodriguez’s misconduct and his job re-
sponsibilities as an advocate for veterans. In addition, she
noted that in his role as a supervisor Mr. Rodriguez was
expected “to model the highest level of professional con-
duct” and that as a member of the Director’s Office staff he
was “held to even a higher standard of proper conduct and
professionalism.” Id. Finally, she noted that in December
2017, Mr. Rodriguez had been disciplined for a separate vi-
olation in connection with his employment.
On August 24, 2018, after Mr. Rodriguez was given an
opportunity to reply to the Notice of Proposed Removal, Su-
zanne M. Klinker, the Director of the DVA’s Bay Pines
Healthcare System, issued a decision removing Mr. Rodri-
guez effective August 30, 2018. Ms. Klinker sustained all
three charges against Mr. Rodriguez, finding that they
were all “supported by substantial evidence.” J.A. 263. She
added that in making her decision she had “reviewed the
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RODRIGUEZ v. DVA 5
reasons and analysis the proposing official provided in par-
agraph 2 of the Notice of Proposed Removal” regarding the
justifications for the level of discipline set forth in the pro-
posed removal, and that she “agree[d] with” and
“adopt[ed]” the reasoning of the proposing official in reach-
ing her decision that Mr. Rodriguez should be removed. Id.Mr. Rodriguez appealed his removal to the Merit Sys-
tems Protection Board. Following a hearing in March
2019, the administrative judge who was assigned to the
case upheld the removal action. The administrative judge
stated that in order to sustain an adverse decision before
the Board under 38 U.S.C. § 714, the DVA “must establish
by substantial evidence that there is a factual basis for the
charged conduct.” J.A. 2. In addition, the administrative
judge noted that in a proceeding under section 714, the
Merit Systems Protection Board cannot mitigate the pen-
alty imposed by the DVA, an authority that the Board en-
joys under the general disciplinary procedures set forth in
chapter 75 of Title 5. J.A. 2; see 38 U.S.C. § 714(d)(2)(B).
The administrative judge analyzed the three charges
against Mr. Rodriguez and found that all three were sup-
ported by substantial evidence. J.A. 2–8. Mr. Rodriguez
argued to the administrative judge that 38 U.S.C. § 714 vi-
olates the Appointments Clause of the Constitution be-
cause it deprives a Board administrative judge of the
opportunity to remedy improper decisionmaking by the
agency. The administrative judge declined to address that
issue, however, on the ground that the Merit Systems Pro-
tection Board may not consider whether a statute is uncon-
stitutional. J.A. 8–9.
The administrative judge rejected Mr. Rodriguez’s
claim that he was denied due process because the DVA’s
deciding official “only skimmed portions” of his written re-
sponse to the charges levied against him. J.A. 9 (altera-
tions omitted). Mr. Rodriguez’s contention in that regard
was based on the deciding official’s poor recollection of Mr.
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6 RODRIGUEZ v. DVA
Rodriguez’s written reply arguments during her deposition
several months after Mr. Rodriguez’s removal. The admin-
istrative judge noted that the deciding official testified that
she had read the entirety of Mr. Rodriguez’s written reply,
and he found that “any gaps in her memory concerning its
contents long afterward do not constitute a sufficient basis
to conclude that statutory and constitutional due process
requirements were not met.” J.A. 9–10.
Finally, the administrative judge addressed two proce-
dural arguments made by Mr. Rodriguez. First, Mr. Rodri-
guez argued that the DVA had misapplied section 714 by
concluding that the statute authorized the DVA to disci-
pline an employee as long as substantial evidence supports
a finding of misconduct. While recognizing that the sub-
stantial evidence standard governs the Board’s review of
the DVA’s actions under section 714, Mr. Rodriguez
pointed out that the statute requires that the DVA itself
must “determine[] the performance or misconduct of the
covered individual warrants . . . removal, demotion or sus-
pension.” 38 U.S.C. § 714(a)(1). That standard, Mr. Rodri-
guez argued, requires the DVA to find that the misconduct
in question was proved by at least a preponderance of the
evidence. The administrative judge rejected that argument
and concluded instead that the DVA was entitled to apply
the “substantial evidence” test in deciding to remove an
employee, “the same evidentiary standard . . . as pertains
to the Board in adjudicating such appeals.” J.A. 14.
Mr. Rodriguez’s second asserted procedural error was
that the DVA failed to consider what are referred to as the
Douglas factors when sustaining Mr. Rodriguez’s removal.
See Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1980).
The administrative judge concluded that because section
714 provides that the Board may not mitigate the penalty
selected by the DVA, it would not make sense to require
the agency official to “consider factors in mitigation under
Douglas.” J.A. 15. In a footnote, the administrative judge
stated that even if he were to conclude that the Board may
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RODRIGUEZ v. DVA 7
consider the reasonableness of the agency’s penalty, he
“would find that the removal penalty in the present case is
not ‘grossly disproportionate’ to the sustained misconduct.”
J.A. 15 n.7.
Mr. Rodriguez petitioned this court to review the ad-
ministrative judge’s decision. 1
II
Mr. Rodriguez lists eleven issues in the “Issues Pre-
sented” section of his brief, but in the argument section of
his brief he has failed to present arguments regarding sev-
eral of those issues. Because issues not addressed in the
argument section of a party’s opening brief are considered
waived, see Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366,
1379 (Fed. Cir. 2019), and SmithKline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006), we will
address only the issues Mr. Rodriguez has presented in the
argument section of his brief.
A
We first address Mr. Rodriguez’s argument that the ad-
ministrative judge misinterpreted 38 U.S.C. § 714 when he
ruled that “substantial evidence” is the proper standard for
the DVA to apply in determining whether an employee has
engaged in misconduct that justifies discipline. On that is-
sue, we agree with Mr. Rodriguez.
Section 714 was enacted in 2017 to provide an expe-
dited set of procedures by which the Secretary of Veterans
Affairs may remove, demote, or suspend DVA employees “if
1 At the time of the administrative judge’s decision,
the Merit Systems Protection Board lacked a quorum of at
least two of its three members. Mr. Rodriguez elected to
petition for review by this court directly from the adminis-
trative judge’s decision rather than first seeking review of
the administrative judge’s decision by the Board.
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8 RODRIGUEZ v. DVA
the Secretary determines the performance or misconduct of
the covered individual” warrants such measures. 38 U.S.C.
§ 714(a)(1); see Brenner v. Dep’t of Veterans Affs., 990 F.3d
1313, 1317–18 (Fed. Cir. 2021).
Section 714 made several changes to the procedures
previously applied in disciplinary actions taken against
DVA employees. First, section 714 provides for expedited
review of disciplinary actions covered by the statute. 38
U.S.C. § 714(d)(1), (d)(4). Second, it provides that on any
appeal to the Merit Systems Protection Board, the admin-
istrative judge and the Board will review the Secretary’s
action under the “substantial evidence” standard; in cases
covered by section 714, the DVA is not required to prove its
case before the Board by a preponderance of the evidence,
as is the case for employee disciplinary actions brought un-
der chapter 75 of Title 5. Compare 38 U.S.C. § 714(d)(2)(A),
(d)(3)(B), with 5 U.S.C. §§ 7513, 7701(c)(1)(B). 2 Third, sec-
tion 714 removes from the Board’s administrative judges
and the Board itself the authority to mitigate the penalties
imposed by the Secretary. 38 U.S.C. § 714(d)(2)(B),
(d)(3)(C); see Sayers v. Dep’t of Veterans Affs., 954 F.3d
1370, 1374–76 (Fed. Cir. 2020).
The government argues that the references to “sub-
stantial evidence” in section 714 are not limited to the
standard of review to be employed by administrative
judges and the Board in reviewing section 714 disciplinary
decisions. Instead, the government contends that the “sub-
stantial evidence” standard also defines the burden of proof
2 Agency actions based on unacceptable employee
performance under chapter 43 of Title 5 are subject to re-
view by the Merit Systems Protection Board under the sub-
stantial evidence standard. See 5 U.S.C. §§ 4303,
7701(c)(1)(A).
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RODRIGUEZ v. DVA 9
for the agency to make those disciplinary decisions in the
first instance.
The DVA has taken that position not only in litigation,
but also in its internal guidance governing employee disci-
plinary matters. In a publication dated June 27, 2017, the
DVA stated that for actions taken under section 714, “Sub-
stantial Evidence is the Standard of Proof,” and that “‘Sub-
stantial Evidence’ means relevant evidence that a
reasonable person, considering the record as a whole,
might accept as adequate to support a conclusion, even
though other reasonable persons might disagree, or evi-
dence that a reasonable mind would accept as adequate to
support a conclusion.” DVA, Human Resources Manage-
ment Letter No. 05-17-06, § 6.gg–hh, available at https://
www.afge.org/contentassets/a91c998d3be44362a75c5c67c
60852f7/full-policy-document-s.-1094-implementation.pdf.
In this case, the deciding official, Ms. Klinker, appears
to have applied the “substantial evidence” standard when
resolving the disputed facts and selecting a penalty. Alt-
hough she did not discuss the appropriate standard of proof
in any detail, she stated that she had found that all three
charges against Mr. Rodriguez “were supported by sub-
stantial evidence.” J.A. 263. 3
3 In a vacuum, it might be possible to interpret the
deciding official’s statement that the charges against Mr.
Rodriguez were supported by “substantial evidence” to
mean, in the lay sense of that term, that the charges were
supported by a great deal of evidence. The problem, how-
ever, is that the DVA has made quite clear in its Human
Resources Management Letter No. 05-17-06 that it consid-
ers the proper burden of proof in section 714 cases to be
“substantial evidence” and that it uses that term in its legal
sense to mean evidence that a reasonable person might ac-
cept as adequate to support a conclusion. In light of that
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10 RODRIGUEZ v. DVA
The administrative judge was more explicit in finding
that “substantial evidence” is the appropriate standard of
proof for the DVA to employ under section 714. As noted,
the administrative judge observed that section 714 had
changed the standard of review for administrative judges
and the Board in cases covered by that statute from a pre-
ponderance of the evidence to substantial evidence. The
administrative judge concluded that there was no reason
to require a different standard from the agency when mak-
ing its initial disciplinary determination. On appeal to this
court, the government defends the administrative judge’s
determination that substantial evidence is the appropriate
standard of proof for the DVA to apply in employee disci-
plinary actions instituted under section 714.
We disagree. 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. Those references do not address the standard of
proof to be applied by the DVA in making disciplinary de-
terminations, nor does the remaining text of section 714
explicitly address the standard of proof in proceedings be-
fore the DVA. There is therefore no force to the govern-
ment’s reliance on the plain language of section 714 to
support its argument that substantial evidence is the
proper standard of proof for the DVA to apply in discipli-
nary actions governed by that statute.
To the contrary, the language of section 714 implies
that the proper standard is the preponderance of the evi-
dence. Section 714 provides that an employee may be re-
moved, demoted, or suspended “if the Secretary determines
the performance or misconduct of the covered individual
explicit endorsement of the “substantial evidence” test as
the burden of proof, it would be pure speculation to suppose
that the deciding official used that term in a lay sense to
mean something entirely different.
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RODRIGUEZ v. DVA 11
warrants” such action. In the case of a disciplinary action
based on misconduct, the requirement that the Secretary
“determine[]” that the misconduct in question warrants
disciplinary action implies that the Secretary must find
that it is likely, i.e., more likely than not, that the employee
has engaged in the misconduct that justifies the proposed
discipline.
More fundamentally, the government’s argument is in-
consistent with the well-established distinction between a
burden of proof and a standard of review. 4 “Preponderance
of the evidence” is a burden of proof, while “substantial ev-
idence” is a standard of review. As explained by Professor
Jaffe in a frequently cited article, the argument that “sub-
stantial evidence” is appropriate for use as a burden of
proof “merges the function of factfinder with that of review-
ing court: it argues that the factfinder is to find for the
Government if he concludes that this finding should not be
reversed by a court. But that is not the task of the fact-
finder, nor is it the attitude that he is to take toward his
task.” Louis L. Jaffe, Administrative Law: Burden of Proof
and Scope of Review, 79 Harv. L. Rev. 914, 915 (1966).
Courts have consistently drawn the same distinction.
As the Supreme Court stated in Woodby v. INS, 385 U.S.
276, 282 (1966), “[t]he elementary but crucial difference be-
tween burden of proof and scope of review is, of course, a
commonplace in the law.” The D.C. Circuit summarized
the distinction between the two standards succinctly in
Whitney v. SEC, 604 F.2d 676 (D.C. Cir. 1979), where the
court wrote:
[T]he burden of proof and the scope of review in ad-
ministrative law cases, as in ordinary judicial pro-
ceedings, are separate matters. The former is the
4 We use “burden of proof” and “standard of proof”
interchangeably in this opinion.
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12 RODRIGUEZ v. DVA
measure of belief which legally must exist in the
mind of the trier of fact in order to sustain a find-
ing. The scope of review, of course, marks the
bounds of a reviewing court’s authority to set aside
factual findings, and review is customarily limited
to ascertaining whether there is enough evidence
of the legally correct sort to save the findings from
irrationality.
Id. at 681 (footnote omitted); see also Collins Secs. Corp. v.
SEC, 562 F.2d 820, 823 n.12 (D.C. Cir. 1977) (“[T]he ‘sub-
stantial evidence’ standard does not in any way dictate the
appropriate burden of persuasion to be applied in a pro-
ceeding before the agency.”).
Preponderance of the evidence has long been recog-
nized as the traditional burden of proof in civil administra-
tive proceedings. See Herman & MacLean v. Huddleston,
459 U.S. 375, 389–90 (1983) (preponderance of the evidence
is the normal burden of proof in civil proceedings); Stead-
man v. SEC, 450 U.S. 91, 101 n.21 (1981) (“The use of the
‘preponderance of evidence’ standard is the traditional
standard in civil and administrative proceedings.” (quot-
ing Sea Island Broad. Corp. of S.C. v. FCC, 627 F.2d 240,
243 (D.C. Cir. 1980))).
In Charlton v. FTC, 543 F.2d 903 (D.C. Cir. 1976), the
court addressed an issue similar to the one before us and
held that “substantial evidence” is not the proper burden of
proof in a disciplinary proceeding before an agency. In that
case, the FTC had determined that the appropriate burden
of proof in a disciplinary action was substantial evidence.
The court firmly rejected that view. Describing substantial
evidence as “a totally incorrect standard of proof in passing
on Charlton’s blameworthiness,” the court ruled that the
agency “faltered grievously” in holding that its decision on
a disciplinary action could be based on substantial evidence
rather than a preponderance of the evidence. Id. at 906–
07.
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RODRIGUEZ v. DVA 13
The Charlton court explained that on judicial review of
agency action, administrative findings must be sustained
when supported by substantial evidence on the record as a
whole, but “that rule implicates only the reviewing court;
the yardstick by which the agency itself is to initially as-
certain the facts is something else again. . . . [I]n American
law a preponderance of the evidence is rock bottom at the
factfinding level of civil litigation. Nowhere in our juris-
prudence have we discerned acceptance of a standard of
proof tolerating ‘something less than the weight of the evi-
dence.’” Id. at 907 (footnote omitted); see also SSIH Equip.
S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365, 379–83 (Fed.
Cir. 1983) (Nies, J., concurring).
In Steadman v. SEC, 450 U.S. 91 (1981), the Supreme
Court grappled with the poorly worded language of section
7(c) of the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 556(d), which provided that a “sanction may not be im-
posed or rule or order issued except on consideration of the
whole record or those parts thereof cited by a party and
supported by and in accordance with the reliable, proba-
tive, and substantial evidence.” Despite the use of the term
“substantial evidence,” the Court declined to interpret the
statute as adopting “substantial evidence” as the burden of
proof for proceedings governed by section 7(c). Relying on
the words “in accordance with,” the Court held that the
agency’s decision must be “‘in accordance with’ the weight
of the evidence, not simply supported by enough evidence
‘to justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is
one of fact for the jury.’” Steadman, 450 U.S. at 98–99
(quoting Consolo v. FMC, 383 U.S. 607, 620 (1966)). Thus,
even in the face of the statute’s explicit use of the term
“substantial evidence,” the Supreme Court refused to sub-
stitute that standard for “the traditional preponderance-of-
the-evidence standard” as the burden of proof. Id. at 102.
In arguing that “substantial evidence” is the proper
burden of proof for the DVA to apply in making disciplinary
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14 RODRIGUEZ v. DVA
determinations in section 714 cases, the government relies
on a footnote in Sayers v. Department of Veterans Affairs,
954 F.3d 1370, 1374 n.4 (Fed. Cir. 2020). In that footnote
we observed, correctly, that “nothing in [section 714] com-
pels the VA to apply a substantial evidence standard for
removal rather than a preponderance standard.” Id. In
dictum, we then added that “nothing [in the statute] pre-
vents the VA from doing so,” and that because the statute
“leaves the proper standard to the VA’s discretion, the VA
did not err by choosing substantial evidence review.” Id.To the extent the government argues that we are bound
by Sayers’s suggestion that the DVA is free to apply sub-
stantial evidence as the burden of proof in section 714
cases, we disagree. The footnote containing that sugges-
tion is dictum, as it was not necessary to our analysis of
section 714 and our conclusion that the statute could not
be applied retroactively to Dr. Sayers. See Sayers, 954 F.3d
at 1382.
There are strong reasons that section 714 should not be
interpreted to endorse the use of substantial evidence as a
burden of proof. To adopt substantial evidence as the ap-
plicable burden of proof in section 714 disciplinary cases
would mean that the deciding official would be required to
find that the employee had engaged in the charged miscon-
duct as long as substantial evidence supports the charge,
i.e., as long as a reasonable person might accept the evi-
dence as adequate to support that conclusion. That is to
say, the deciding official could (indeed, would be required
to) find against the employee with regard to the charged
misconduct even though the deciding official did not per-
sonally agree with that conclusion. That scenario would be
at odds with the requirement that the deciding official, as
the delegee of the Secretary, “determine” that the employee
engaged in the misconduct justifying discipline, as re-
quired by section 714. It would also be contrary to the tra-
ditional principle that in order for an agency to take
disciplinary action against an individual based on
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RODRIGUEZ v. DVA 15
predicate facts, it must find those facts; absent clear au-
thority to the contrary, it is not enough for an agency to
conclude merely that a reasonable person could make such
a finding.
During oral argument, the government responded to
questions on this point by saying, essentially, that it was
unrealistic to suppose that a deciding official would impose
punishment when the official did not conclude that it was
more likely than not that the employee had committed the
charged misconduct. In effect, the government argued that
the distinction between the preponderance test and the
substantial evidence test is inconsequential in this context.
The problem with the government’s argument is that if
there is no meaningful difference in practice between the
preponderance test and the substantial evidence test, then
there is no reason for the government to object to the use
of preponderance of the evidence as the burden of proof in
section 714 cases. On the other hand, if there is a mean-
ingful difference between the two, then that difference
would surface in the setting in which the deciding official
did not believe the misconduct had occurred, or was unsure
whether it had been proved, but believed that a reasonable
person could have found that the misconduct took place. In
that setting, we conclude that using substantial evidence
as the burden of proof would not only violate the terms of
section 714, but would be contrary to the well-established
principle that preponderance of the evidence is the mini-
mal appropriate burden of proof in administrative proceed-
ings. 5
5 In certain circumstances, courts have held that the
burden of proof in administrative proceedings is higher
than a preponderance of the evidence. See, e.g., Herman &
MacLean, 459 U.S. at 389 (proof by clear and convincing
evidence is applied in cases in which “particularly
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16 RODRIGUEZ v. DVA
There may be exceptional circumstances in which a
lower burden of proof than preponderance of the evidence
could legitimately be applied. Examples might include
cases in which the issue is whether a person should be
given a top-secret clearance despite serious concerns about
the person’s background. But those circumstances would
be rare and would typically require an explicit directive to
use a burden of proof lower than preponderance in order to
justify departing from the traditional standard. Section
714 does not present such unusual circumstances, and it
does not contain any language stating explicitly, or even
implicitly, that the burden of proof in disciplinary actions
should be substantial evidence.
The deciding official in this case characterized “sub-
stantial evidence” as the applicable burden of proof. And it
is clear that the administrative judge approved of the
agency’s use of substantial evidence as the burden of proof,
because the administrative judge concluded that the level
of proof required of the agency should be the same as the
standard of review by the Board. We therefore reverse the
administrative judge’s ruling on the burden of proof issue
and remand for further proceedings on that issue. Presum-
ably those further proceedings will include requiring the
DVA’s deciding official to determine whether the evidence
as to each of the charges against Mr. Rodriguez satisfied
the preponderance of the evidence standard of proof.
B
Mr. Rodriguez also contends that the administrative
judge erred by refusing to review the penalty determina-
tion made by the DVA and in particular refusing to review
the agency’s failure to apply the Douglas factors.
important individual interests or rights are at stake.”); see
also Woodby, 385 U.S. at 282.
Case: 19-2025 Document: 58 Page: 17 Filed: 08/12/2021
RODRIGUEZ v. DVA 17
The administrative judge noted that although the
Board has the authority to mitigate penalties in chapter 75
appeals, section 714 expressly deprives the Board of that
authority. As a result, the administrative judge concluded,
section 714 had the effect of depriving the Board of any
power to review penalties imposed in DVA disciplinary ac-
tions. We rejected that position in Sayers and in other post-
Sayers decisions, all of which were issued after the admin-
istrative judge’s decision in this case. See Brenner, 990
F.3d at 1322–27; Harrington v. Dep’t of Veterans Affs., 981
F.3d 1356, 1358–59 (Fed. Cir. 2020).
The government argues that even though the Board
may review the penalty determination, the Board is not re-
quired to analyze the factors enumerated in Douglas when
reviewing the choice of penalty, nor is the DVA required to
analyze those factors when selecting the penalty. We re-
jected that argument in Connor v. Dep’t of Veterans Affs.,
No. 21-1064 (Fed. Cir. Aug. 12, 2021), where we held that
the Board must consider the relevant Douglas factors when
reviewing a disciplinary action under section 714. We echo
our holding in Connor.
Although section 714 provides that the Board may not
mitigate penalties imposed under that statute, this court
has made clear that the absence of mitigation authority
does not deprive the Board of the authority to review pen-
alties for substantial evidence. Further, the power to mit-
igate penalties by imposing a penalty that the Board
regards as proper is distinct from the power to review and
strike down the DVA’s imposition of penalties that are ar-
bitrary, capricious, an abuse of discretion, or not in accord-
ance with law. See Brenner, 990 F.3d at 1323–24 (citing 5
U.S.C. § 7703(c)).
We explained in Brenner that an agency abuses its dis-
cretion when its decision “represents an unreasonable
judgment in weighing relevant factors,” and a decision is
arbitrary and capricious “where the agency fails to
Case: 19-2025 Document: 58 Page: 18 Filed: 08/12/2021
18 RODRIGUEZ v. DVA
articulate a rational connection between the facts found
and the choice made.” 990 F.3d at 1324 (internal quotation
marks omitted). As noted in Sayers, the Board’s decision
in Douglas itself was based on the principle set forth by the
Supreme Court in Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402 (1971): For a reviewing tribunal to find
a decision not arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, that decision must
have been based “on a consideration of the relevant factors
and whether there has been a clear error of judgment,” id.
at 416. See Douglas, 5 M.S.P.R. at 301. Accordingly, be-
cause the Board must review the DVA’s penalty selection
in a section 714 case, that review must ensure that the
DVA considered the relevant factors bearing on the penalty
determination.
In prior cases, we have endorsed the Board’s and agen-
cies’ use of the relevant Douglas factors to assist their se-
lection of penalties in employee discipline cases under
chapter 75. See, e.g., Higgins v. Dep’t of Veterans Affs., 955
F.3d 1347, 1353 (Fed. Cir. 2020) (“To take adverse action
against an employee, an agency must . . . demonstrate that
the penalty imposed was reasonable in light of the relevant
factors set forth in Douglas v. Veterans Administration.”
(cleaned up)); Smith v. Gen. Servs. Admin., 930 F.3d 1359,
1369 (Fed. Cir. 2019) (“The penalty chosen by the agency
must represent a responsible balancing of the relevant
Douglas factors.”); Kumferman v. Dep’t of the Navy, 785
F.2d 286, 291 (Fed. Cir. 1986) (“It is not reversible error if
the Board fails expressly to discuss all of the Douglas fac-
tors. . . . The Board need only determine that the agency
considered the factors significant to the particular case.”
(citation omitted)). Accordingly, as we explained in Con-
nor, because our chapter 75 case law demands considera-
tion of the relevant Douglas factors in misconduct cases,
and because section 714 also covers misconduct, the Board
must consider the relevant Douglas factors when reviewing
a disciplinary action under section 714.
Case: 19-2025 Document: 58 Page: 19 Filed: 08/12/2021
RODRIGUEZ v. DVA 19
As an alternative argument, the government contends
that even if the administrative judge erred by holding that
section 714 bars any Board review of the penalty imposed
against Mr. Rodriguez, the error was harmless. In support
of that argument, the government points to the adminis-
trative judge’s statement that even if he were to conclude
that the Board has the authority to review the reasonable-
ness of the penalty in a section 714 case, he “would find
that the removal penalty in the present case is not ‘grossly
disproportionate’ to the sustained misconduct.” J.A. 15 n.7.
The problem with the government’s argument is that a
penalty may be overturned not only because it is unreason-
able on its face by being “unconscionably disproportionate”
to the offense, see, e.g., Parker v. U.S. Postal Serv., 819 F.2d
1113, 1116 (Fed. Cir. 1987), but also because the deciding
official did not weigh the relevant factors bearing on the
appropriateness of the penalty, including the relevant
Douglas factors, see, e.g., Higgins, 955 F.3d at 1353. See
also Koester v. U.S. Park Police, 758 F. App’x 925, 929–31
(Fed. Cir. 2019) (“We review arbitration decisions [under
the same standards as if reviewing a decision from the
Board]. . . . There is no reason to believe that the arbitra-
tor failed to consider or independently assess any relevant
Douglas factor. Moreover, the Park Police’s removal pen-
alty is not so harsh and grossly or unconsciously dispropor-
tionate to the offense that it amounts to an abuse of
discretion for the arbitrator to have considered it reasona-
ble.”).
The administrative judge’s statement may satisfy the
requirement that the penalty not be unreasonable on its
face, but it does not satisfy the second requirement, that
the penalty be selected according to proper procedures, i.e.,
by considering the relevant Douglas factors. For that rea-
son, the administrative judge’s ruling on the penalty deci-
sion cannot be upheld.
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20 RODRIGUEZ v. DVA
C
In addition to his statutory claims, Mr. Rodriguez
raises several constitutional challenges to his removal.
1
1. Mr. Rodriguez contends that he was denied due pro-
cess because of the manner in which his case was handled
within the DVA. To the extent he claims that the DVA’s
use of the substantial evidence standard of proof consti-
tuted a due process violation, that claim is moot, as we have
held that substantial evidence may not be used as the
standard of proof in disciplinary actions under section 714.
Mr. Rodriguez next contends that he was effectively de-
nied a right to reply to the charges against him because the
deciding official, Ms. Klinker, merely “skimmed” his writ-
ten response to those charges. Petitioner’s Br. 46–48. Mr.
Rodriguez bases his contention on Ms. Klinker’s inability
to recall details of Mr. Rodriguez’s response while she tes-
tified before the administrative judge. The administrative
judge addressed that issue and found that “any gaps in her
memory concerning [the response’s] contents long after-
ward do not constitute a sufficient basis to conclude that
statutory and constitutional due process requirements
were not met.” J.A. 10.
The administrative judge presided over the videocon-
ference hearing and had an opportunity to assess Ms.
Klinker’s credibility both generally and as to this issue. Be-
cause the administrative judge was far better situated than
we are to assess Ms. Klinker’s testimony, we decline to sec-
ond-guess the administrative judge’s finding that the gaps
in Ms. Klinker’s memory concerning the contents of Mr. Ro-
driguez’s written response do not support his claim that
Ms. Klinker failed to consider his written response and
that he was therefore effectively denied the right to re-
spond to the charges against him.
Case: 19-2025 Document: 58 Page: 21 Filed: 08/12/2021
RODRIGUEZ v. DVA 21
Mr. Rodriguez also argues that Ms. Klinker’s written
decision was not sufficiently detailed to satisfy due process
requirements. While the substantive portion of Ms.
Klinker’s removal decision was short, it referenced and
adopted the pertinent provisions of the notice of proposed
removal, which contained substantial detail regarding the
charges against Mr. Rodriguez and the justifications for re-
moving him. See J.A. 263 (referencing J.A. 37–39). The
materials generated by the DVA and provided to Mr. Ro-
driguez were sufficient both to give him notice of the
charges against him and to explain the decision to remove
him. Accordingly, we reject Mr. Rodriguez’s due process
claims predicated on alleged flaws in the proceedings be-
fore the DVA.
2. Mr. Rodriguez next argues that the delegation of the
Secretary’s removal and disciplinary authority to Ms.
Klinker was improper because, “if the Board has been
stripped of their ability to mitigate a severe penalty or
overturn decisions they believe incorrect on a preponder-
ance standard, then it forces the members of the Board—
who are appointed by the President with the advice and
consent of the Senate—to rubber stamp decisions by mere
employees and/or inferior officers that they believe are
wrongly decided.” Petitioner’s Br. 31.
On its face, that argument appears to be an objection
to the delegation of authority from the Secretary of Veter-
ans Affairs to Ms. Klinker, the Director of the Bay Pines
VA Medical Center. The implication of the argument is
that if the Secretary had personally fired Mr. Rodriguez in-
stead of delegating that task to Ms. Klinker, the limits on
the Board’s reviewing authority would not be unlawful.
Contrary to Mr. Rodriguez’s argument, however, the Con-
stitution permits principal officers to delegate duties and
functions to other officers and employees, see Touby v.
United States, 500 U.S. 160, 169 (1991), and the Secretary’s
delegation of removal and disciplinary authority to the
head of a DVA medical center is a lawful delegation, see 38
Case: 19-2025 Document: 58 Page: 22 Filed: 08/12/2021
22 RODRIGUEZ v. DVA
U.S.C. § 512(a). 6 Thus, there is no merit to Mr. Rodriguez’s
contention that it is somehow improper for the Board to de-
fer (by dint of the substantial evidence standard) to re-
moval decisions by agency employees other than the
Secretary.
Embedded within Mr. Rodriguez’s one-sentence objec-
tion to the delegation of authority to Director Klinker is the
suggestion that by making the Board’s review of the DVA’s
adverse actions subject to the substantial evidence stand-
ard, instead of the preponderance-of-the-evidence stand-
ard, section 714 has impermissibly limited the Board’s role
in removal proceedings. See Petitioner’s Br. 31. 7 That
6 See also VA Directive/Handbook 5021, § I-3.5.a
(Apr. 15, 2002) (“[F]ield facility directors are responsible
for: . . . . (2) Delegating to supervisors appropriate author-
ity for the direction and discipline of employees under their
jurisdiction and assuring proper supervisory training.”); id.
at § I-3.6.b(5)(b) (“The official who may issue a letter of de-
cision must be at a higher level than the proposing official,
and at or above the director level in a field facility . . . . The
Secretary or designee retains the authority to make the fi-
nal decision on adverse actions involving employees occu-
pying positions centralized to the Secretary.”).
7 As part of his contention that the Board’s use of
substantial evidence review forces the Board to “rubber
stamp” decisions of the DVA’s deciding official, Mr. Rodri-
guez separately complains that employees are “only given
the constitutional right to cross-examine witnesses after
the removal decision is effectively final because the Board
must uphold the deciding official’s conclusion even though
it was made on an incomplete record.” Petitioner’s Br. 35.
To the extent that sentence constitutes a constitutional ob-
jection to the limits on the post-termination proceeding be-
fore the Board, it is undeveloped. Indeed, that claim is not
Case: 19-2025 Document: 58 Page: 23 Filed: 08/12/2021
RODRIGUEZ v. DVA 23
suggestion, however, is not supported by authority or fur-
ther developed as an argument in Mr. Rodriguez’s brief.
An issue that is merely alluded to and not developed as
an argument in a party’s brief is deemed waived. See Aru-
nachalam v. Int’l Bus. Mach. Corp., 989 F.3d 988, 999 (Fed.
Cir. 2021); CardSoft v. Verifone, Inc., 769 F.3d 1114, 1119
(Fed. Cir. 2014); SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). In this case,
Mr. Rodriguez’s passing complaints about the substantial
evidence standard of review in section 714 are insuffi-
ciently developed as a constitutional claim and are unsup-
ported by the citation to any authority. That claim is
therefore waived.
In any event, there are problems with the challenge to
the Board’s use of the substantial evidence standard to
which Mr. Rodriguez has not provided answers. Although
Mr. Rodriguez suggests that there was a flaw in the pro-
ceedings before the Board, the post-termination hearing
held before the administrative judge was a full adversarial
hearing at which Mr. Rodriguez was given an opportunity
to call and cross-examine witnesses. Mr. Rodriguez offers
no explanation for why such a post-termination hearing is
constitutionally invalid simply because the governing stat-
ute requires the decisionmaker to apply substantial evi-
dence as the standard for reviewing the agency’s action.
Mr. Rodriguez also does not explain why his objection
to section 714’s substantial evidence standard would not be
equally applicable to the substantial evidence standard ap-
plied in proceedings under chapter 43 of Title 5. While the
preponderance standard applies to post-termination hear-
ings in adverse action appeals under chapter 75, see 5
U.S.C. § 7701(c)(1)(B), that standard does not apply to
even among the eleven issues listed in the “Statement of
the Issues” portion of Mr. Rodriguez’s brief. See id. at 1–3.
Case: 19-2025 Document: 58 Page: 24 Filed: 08/12/2021
24 RODRIGUEZ v. DVA
appeals under chapter 43, which deals with adverse actions
based on unacceptable performance. Chapter 43 appeals,
like appeals under section 714, are expressly made subject
to substantial evidence review in proceedings before the
Board, see id. § 7701(c)(1)(A); 38 U.S.C. § 714(d)(2)(A),
(d)(3)(B). If the use of the substantial evidence standard in
post-termination proceedings violates due process, then
the constitutionality of chapter 43 would also be called into
doubt.
In Sayers, we acknowledged that chapter 43 offers em-
ployees pre-termination protections, in the form of a warn-
ing and an opportunity to improve, that are not afforded
under section 714. For that reason, among others, we held
in Sayers that section 714 requires the Board to review “the
entirety of the VA’s removal decision—including the pen-
alty—rather than merely confirming that the record con-
tains substantial evidence that the alleged conduct leading
to the adverse action actually occurred.” 954 F.3d at 1379.
We did not, however, suggest that the Board’s use of the
substantial evidence standard in either chapter 43 or sec-
tion 714 proceedings was constitutionally suspect. To the
contrary, we concluded that Board review of section 714
penalty determinations, even under a substantial evidence
standard, was sufficient to put to rest the petitioner’s due
process concerns regarding section 714. Sayers, 954 F.3d
at 1379; 8 see also Brenner, 990 F.3d at 1324–25.
8 The petitioner in Sayers raised a due process objec-
tion to the use of substantial evidence as the standard for
reviewing DVA decisions, while also objecting to the ad-
ministrative judge’s ruling that the Board lacked authority
to review the deciding official’s penalty determination.
Brief of Petitioner, Sayers v. Dep’t of Veterans Affs., No. 18-
2195, 2019 WL 1723794, at *2 (Fed. Cir. Apr. 12, 2019).
The court found that permitting review of the penalty de-
termination put to rest the constitutional concerns raised
Case: 19-2025 Document: 58 Page: 25 Filed: 08/12/2021
RODRIGUEZ v. DVA 25
While it is true that different procedures are used in
the periods leading up to removal decisions under chapter
43 and section 714, the critical point in the removal pro-
cesses in both contexts is the agency’s ultimate “decision,”
5 U.S.C. § 4303(b)(1)(D), or “determin[ation],” 38 U.S.C.
§ 714(a)(1), that the employee’s performance or conduct is
unacceptable. The Board reviews those conclusions for
substantial evidence in both contexts, and we have never
suggested that the post-termination procedures employed
in the chapter 43 context are constitutionally suspect. Mr.
Rodriguez has not pointed to any distinction between chap-
ter 43 and section 714 that would justify reaching the con-
clusion that the Board’s use of the substantial evidence
standard in chapter 43 proceedings is permissible, but the
use of the same standard in section 714 proceedings is not.
In sum, while Mr. Rodriguez makes passing assertions
questioning the constitutionality of the Board’s use of the
substantial evidence standard in section 714 proceedings,
he does not support those assertions with any analysis or
citation of authority. Mr. Rodriguez’s assertions, therefore,
are not sufficiently developed, and we decline to address
them on their merits.
2
Mr. Rodriguez next raises a series of challenges to his
removal that are based on the Appointments Clause of Ar-
ticle II of the Constitution.
1. Mr. Rodriguez first argues that this case is governed
by Helman v. Department of Veterans Affairs, 856 F.3d 920(Fed. Cir. 2017), in which we held a prior version of 38
U.S.C. § 713 unconstitutional. In that statute, Congress
had provided that DVA Senior Executive Service
in that case; the court did not suggest that the use of the
substantial evidence standard of review was problematic.
See Sayers, 954 F.3d at 1379.
Case: 19-2025 Document: 58 Page: 26 Filed: 08/12/2021
26 RODRIGUEZ v. DVA
employees could obtain review of adverse agency actions by
administrative judges, but not thereafter by either the
Board or a court. We held that limiting review of such
agency actions to administrative judges violated the Ap-
pointments Clause. Helman, 856 F.3d at 929. Congress
subsequently amended section 713 to provide for review of
such agency actions by the Board and by this court. See
Department of Veterans Affairs Accountability and Whis-
tleblower Protection Act of 2017, Pub. L. No. 115-41, 131
Stat. 862.
Unlike the version of section 713 that was struck down
in Helman, section 714 does not restrict review by the
Board or this court. The rationale of Helman therefore
lends no support to Mr. Rodriguez’s Appointments Clause
claim. See Helman, 856 F.3d at 929 (“By contrast, § 713
prohibits any review of the administrative judge’s decision,
thereby vesting this authority entirely in an administra-
tive judge. . . . This is unconstitutional under the Appoint-
ments Clause.”).
Pointing to our reference in Helman to “the authority
to render a final decision overturning another officer’s de-
cision,” 856 F.3d at 929, Mr. Rodriguez argues that the au-
thority to affirm or overturn a removal decision by the
Secretary of Veterans Affairs can be granted only to officers
of the United States, i.e., the members of the Merit Sys-
tems Protection Board. He argues that section 714 violates
that principle by imposing a “substantial evidence” stand-
ard of review on the Board and stripping the Board of its
authority to review agency penalty decisions, thereby mak-
ing the deciding official’s decision effectively unreviewable.
The result, he contends, is that members of the Board, who
are principal officers of the United States, are forced “to
rubber stamp decisions by mere employees and/or inferior
officers that they believe are wrongly decided.” Petitioner’s
Br. 31.
Case: 19-2025 Document: 58 Page: 27 Filed: 08/12/2021
RODRIGUEZ v. DVA 27
There are four problems with that argument. First and
foremost, Mr. Rodriguez’s argument misapprehends the
purpose underlying the Appointments Clause. That
Clause is designed to prevent unappointed officials from
wielding too much authority. See United States v. Arthrex,
Inc., 141 S. Ct. 1970, 1979 (2021) (The power exercised by
officers of the United States “acquires its legitimacy and
accountability to the public through a clear and effective
chain of command down from the President, on whom all
the people vote.” (internal quotation marks omitted)); Fin.
Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140
S. Ct. 1649, 1657 (2020) (“[T]he Appointments Clause helps
to preserve democratic accountability.”). The Clause was
not intended to protect appointed officials from congres-
sionally mandated changes to their statutory responsibili-
ties (particularly in a case such as this one involving
responsibilities that Congress conferred on the Board in
the first place). Congress’s decision to alter the standard
of review of adverse actions by the DVA does not violate the
Appointments Clause unless it results in an unappointed
official, such as the administrative judge in Helman, exer-
cising powers that may be exercised only by officers of the
United States.
In this case, there was no unappointed official exercis-
ing such powers. While Ms. Klinker was not appointed by
the President and thus is not a principal officer, she exer-
cises authority to discipline DVA employees, such as Mr.
Rodriguez, pursuant to her delegation from the Secretary
of Veterans Affairs, as noted above. See U.S. Telecom Ass’n
v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004) (“When a statute
delegates authority to a federal officer or agency, subdele-
gation to a subordinate federal officer or agency is pre-
sumptively permissible absent affirmative evidence of a
contrary congressional intent.”).
Deciding officials such as Ms. Klinker routinely exer-
cise delegated authority to make disciplinary decisions in
individual cases, regardless of their status as officers or
Case: 19-2025 Document: 58 Page: 28 Filed: 08/12/2021
28 RODRIGUEZ v. DVA
employees, without being found to have acted in violation
of the Appointments Clause. See, e.g., Hardy v. Merit Sys.
Prot. Bd., 13 F.3d 1571 (Fed. Cir. 1994); Hubbard v. United
States, 225 Ct. Cl. 542, 543 (1980); Monahan v. United
States, 354 F.2d 306 (Ct. Cl. 1966). The authority to issue
instructions to subordinates and to discipline subordinates
for failing to follow those instructions is inherent in the role
of any supervisor. Mr. Rodriguez cites no authority and
makes no argument as to why the imposition of discipli-
nary sanctions against individual employees constitutes
the exercise of authority that may be wielded only by a
principal or inferior officer of the United States, and we de-
cline to so hold.
Second, Mr. Rodriguez overstates the extent to which
section 714 reduces the Board’s authority in reviewing dis-
ciplinary actions. As we initially stated in Sayers and reit-
erate today, while section 714 withdraws from the Board
the authority to mitigate penalties by substituting penal-
ties for those chosen by the agency, it does not prevent the
Board from reviewing penalty decisions and requiring the
agency to reconsider penalty decisions in appropriate
cases.
Third, the limitations on the scope of review exercised
by the Board do not leave deciding officials with unchecked
authority to make disciplinary decisions. As noted above,
the substantial evidence test has long been applied by the
Board when reviewing decisions of agency deciding officials
under chapter 43 of Title 5. Yet that standard of review
has never been considered to create an Appointments
Clause issue in those cases.
Fourth, Mr. Rodriguez has made no showing in this
case as to whether Ms. Klinker, the deciding official, was
appointed by the Secretary of Veterans Affairs or instead
by some subordinate official. If she was appointed by the
Secretary, her appointment would qualify her to serve as
an inferior officer under the Appointments Clause. By
Case: 19-2025 Document: 58 Page: 29 Filed: 08/12/2021
RODRIGUEZ v. DVA 29
statute, the director of a DVA medical center is appointed
by the Secretary of Veterans Affairs, 38 U.S.C. § 7401(4).
That is relevant because Mr. Rodriguez does not argue that
disciplinary actions can be imposed only by principal offic-
ers of the United States, and he does not argue that Ms.
Klinker fails to qualify as an inferior officer.
There is therefore no record before us on which we
could find an Appointments Clause violation in this case
even if we were to assume that disciplinary authority may
be exercised only by principal or inferior officers of the
United States.
2. Citing Lucia v. SEC, 138 S. Ct. 2044 (2018), Mr. Ro-
driguez makes a passing reference to the question whether
the Board’s administrative judges have been properly ap-
pointed for purposes of the Appointments Clause. Before
the administrative judge, Mr. Rodriguez alluded to that
question, but he did not argue that the administrative
judge should take any action based on that claim. See J.A.
1601 n.4. And even in this court, Mr. Rodriguez merely
states that “if [the court] finds the Administrative Judge
was not properly appointed,” “it must remand the case.”
Petitioner’s Br. 32.
But Mr. Rodriguez has not made a record that enables
us to determine whether the authority exercised by the
Board’s administrative judges violates the Appointments
Clause. In particular, Mr. Rodriguez failed to offer evi-
dence as to how the Board’s administrative judges gener-
ally, and the administrative judge in this case in
particular, were appointed. 9 Moreover, Mr. Rodriguez has
9 Beyond that, Mr. Rodriguez has not specified
whether his contention is that the Board’s administrative
judges are principal officers of the United States, and thus
required to be appointed by the President subject to confir-
mation by the Senate, or are inferior officers, who may be
Case: 19-2025 Document: 58 Page: 30 Filed: 08/12/2021
30 RODRIGUEZ v. DVA
not addressed the substantial degree of supervision and
control exercised by the Board over the assignments and
decisions of the Board’s administrative judges, 10 a factor
the Supreme Court has regarded as important in determin-
ing whether particular responsibilities can be performed
only by principal officers or inferior officers of the United
States. See Arthrex, 141 S. Ct. at 1981–84; Edmond v.
United States, 520 U.S. 651 (1997); Freytag v. Comm’r of
Internal Revenue, 501 U.S. 868 (1991). We therefore do not
address whether, in light of the adjudicative responsibili-
ties of the Board’s administrative judges, the manner in
which they were appointed fails to satisfy the Appoint-
ments Clause. 11
appointed by the head of a department. In a footnote in the
Helman case, we alluded to the Board’s process for hiring
administrative judges at that time, but we reserved judg-
ment as to whether the administrative judges were “em-
ployees” for purposes of the Appointments Clause. 856
F.3d at 928 n.3. Even if the Board’s administrative judges
are considered officers, rather than employees, the ques-
tion whether they are principal officers, as opposed to infe-
rior officers, is of critical importance in light of the
difference in the method of appointing such officers, and
thus the difference in the ease of correcting any constitu-
tional flaw in their appointments.
10 See, e.g., 5 U.S.C. § 7701(a), (b)(1), (e); 5 C.F.R.
§§ 1201.114–118.
11 The question whether the Board’s administrative
judges are properly considered principal officers or inferior
officers of the United States and whether they were
properly appointed for purposes of the Appointments
Clause is currently pending before another panel of this
court in McIntosh v. Department of Defense, No. 19-2454
(Fed. Cir. filed Sep. 26, 2019). The McIntosh case was
stayed pending the Supreme Court’s decision in Arthrex,
Case: 19-2025 Document: 58 Page: 31 Filed: 08/12/2021
RODRIGUEZ v. DVA 31
3. Mr. Rodriguez notes that the Board lacks a quorum
at present. As a result, he contends, the Board’s adminis-
trative judges exercise unconstitutional authority because
of the absence of any possibility of review of their decisions
by the Board. The absence of a quorum, however, is a tem-
porary circumstance, not a structural defect resulting from
statutory limitations on Board review of administrative
judges’ initial decisions.
By statute, a federal employee receiving an adverse de-
cision from an administrative judge has the choice of either
seeking immediate judicial review of that decision, or seek-
ing review by the Board, followed by an opportunity for ju-
dicial review. See 5 U.S.C. §§ 7701(e)(1), 7703(a)(1). Those
two options are still open to employees and were open to
Mr. Rodriguez, who chose to seek immediate judicial re-
view from the administrative judge’s decision. 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 con-
vert a constitutionally valid review process into a violation
of the Appointments Clause. See United States v. Eaton,
169 U.S. 331, 343 (1898) (holding that a subordinate
“charged with the performance of the duty of the superior
for a limited time, and under special and temporary condi-
tions” is not “thereby transformed into the superior and
permanent official.”). The delay caused by the absence of a
quorum on the Board does not render the statutory adjudi-
cative scheme constitutionally suspect any more than
would be true in the event of a lengthy delay in the
141 S. Ct. 1970, which was issued on June 21, 2021. The
McIntosh case is likely to be decided before the completion
of the remand proceedings in this case.
Case: 19-2025 Document: 58 Page: 32 Filed: 08/12/2021
32 RODRIGUEZ v. DVA
resolution of Board appeals caused by a severe backlog in
cases pending before the Board. 12
We reverse the decision of the Merit Systems Protec-
tion Board upholding Mr. Rodriguez’s removal, and we re-
mand this case to the Board for further proceedings
consistent with this opinion.
REVERSED AND REMANDED
COSTS
No costs.
12 If the absence of a quorum were to continue for a
significant additional period with no prospect that new
Board members would be appointed, the absence of a
quorum might give rise to an Appointments Clause issue.
However, two nominees for the three-person Board (a
quorum) have now been named, and there is therefore a
reasonable prospect that the absence of the availability of
prompt Board review will soon be resolved—perhaps before
this case is readjudicated on remand.