Rommie Requena v. Department of Homeland Security ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROMMIE REQUENA, DOCKET NUMBER
Appellant, DA-1221-16-0488-W-3
v.
DEPARTMENT OF HOMELAND DATE: December 6, 2022
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Benjamin E. Wick, Esquire and Holly V. Franson, Esquire, Denver,
Colorado, for the appellant.
Grant Gardner, Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which denied corrective action in this
individual right of action (IRA) appeal. For the reasons discussed below, we
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
GRANT the petition for review, DENY the cross petition for review, VACATE
the initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is a former Chief Customs and Border Protection Officer with
the agency’s Customs and Border Protection at the Port of Laredo, Texas. She
filed this IRA appeal alleging that, in reprisal for her protected disclosure and
activity, the agency changed her job duties, created a hostile working
environment, proposed her removal, reduced her in rank to a Supervisory
Customs and Border Protection Officer, and suspended her for 30 days. Requena
v. Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-1,
Initial Appeal File (IAF), Tab 1 at 6, 60-61, Tab 5 at 4-16; Requena v.
Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-3,
Appeal File (W-3 AF), Tab 11 at 9, Tab 46 at 20. The appellant identified her
protected disclosure as a May 8, 2012 email and meeting with her supervisors in
which she alleged that their proposed changes to asset seizure records constituted
falsification and could result in the loss of criminal prosecutions. IAF, Tab 5
at 6; W-3 AF, Tab 11 at 4-5, Tab 46 at 20 n.22. She asserted that her protected
activity consisted of complaints she filed with the Office of Special Counsel
(OSC) in February 2014. IAF, Tab 5 at 6, 9; W-3 AF, Tab 11 at 7, Tab 46 at 20
n.22. The agency based the reduction in rank and 30-day suspension on charges
of Misuse of the Treasury Enforcement Communications System
(13 specifications) and Misuse of Position (1 specification). IAF, Tab 8 at 15-24.
¶3 During the proceedings before the administrative judge the appellant filed
an October 10, 2016 motion to compel the discovery of evidence. IAF, Tab 17.
The motion set forth the “reasons” in support of each discovery request and
included a copy of a September 9, 2016 discovery request, as well as the agency’s
September 29, 2016 answer to that request and the appellant’s October 5, 2016
3
letter to the agency seeking to resolve the dispute. Id. at 8-73, 83-93. The
administrative judge denied the motion to compel, finding it premature because
the parties were working cooperatively to reduce or eliminate discovery conflicts.
IAF, Tab 20 at 2. He indicated that he would “reopen a very brief window of
time to reassert [the] motions to compel, if necessary, when the appeals are
refiled.” Id. at 3. In a subsequently issued initial decision dismissing the appeal
without prejudice, the administrative judge noted that, “upon refiling, all
previously filed submissions will be made part of the refiled appeal,” and that
“[u]pon refiling, any document submitted in this appeal should not be
resubmitted.” IAF, Tab 22 at 3 & n.2.
¶4 On February 28, 2017, after the appeal had been dismissed without
prejudice and refiled, the appellant again filed a motion to compel seeking
complete responses to specific interrogatory numbers and d ocument request
numbers from the discovery request she had previously filed in the initial appeal.
Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-
0488-W-2, Appeal File (W-2 AF), Tab 5 at 4-5. The appellant asserted that the
agency still had not provided complete discovery responses despite agreeing to do
so, incorporated by reference the arguments she had raised in her October 10,
2016 motion to compel, and attached email and other correspondence with the
agency regarding discovery. Id. at 4, 5 n.4, 13-31, 39-60. The administrative
judge denied that motion to compel as not in compliance with 5 C.F.R. § 1201.73,
finding that “[b]ased on the record before me, I fin d the appellant failed to
include a copy of the original discovery request and also failed to provide a
statement showing that the information she seeks is discoverable.” W -2 AF,
Tab 12 at 2. The appellant filed a timely objection to the ruling. Id., Tab 13.
¶5 On September 25, 2017, however, the administrative judge granted the
appellant’s motion for sanctions against the agency because it had failed to
comply with a September 11, 2017 Board Order to produce certain documents
that were not subject to a recognized privilege. W-3 AF, Tab 30 at 4. The
4
sanction limited the agency to presenting three witnesses at the hearing because
of its “repeated inability to comply with Board orders.” Id. In the
aforementioned September 11, 2017 Order, the administrative judge had noted
that, although he had afforded the agency an opportunity to establish that a
recognized privilege applied to each document at issue and to cure any incorrectly
asserted privilege, the agency had made only conclusory claims and thus failed to
meet its burden. W-3 AF, Tab 23 at 1-2. He therefore ordered the agency to
provide all documents to the appellant by September 13, 2017. Id. at 2. The
agency responded to that order by requesting that the administrative judge certify
the issue for interlocutory appeal. W-3 AF, Tab 24 at 4-8. The agency asserted
that it had produced privilege logs as required by the administrative judge, yet he
refused to conduct an in camera inspection of the records despite the agency’s
offer to do so. Id. at 6-7. The administrative judge denied the request to certify
an interlocutory appeal, finding that the privilege logs were poorly formatted,
disjointed, unusable, and failed to allege facts that could establish that a privilege
existed for any document. W-3 AF, Tab 42 at 1-2. He therefore held that an in
camera inspection was unnecessary and ruled that there were no important
questions of law or policy requiring an interlocutory appeal such that an
immediate ruling would materially advance the completion of the proceeding or
avoid undue harm to a party or members of the public. Id. at 2-4.
¶6 The administrative judge found that the Board had jurisdiction over this
IRA appeal. 2 W-2 AF, Tab 12 at 1-2; W-3 AF, Tab 46, Initial Decision (ID) at 1,
20-21. After a hearing, however, he denied corrective action. ID at 2, 57. The
2
The administrative judge issued a separate initial decision dismissing for lack of
jurisdiction the appellant’s adverse action appeal challenging her suspension and
demotion, which had been joined with this appeal, upon finding that the appellant
elected to seek corrective action from OSC before filing the adverse action appeal with
the Board. W-3 AF, Tab 30 at 2 n.3; Requena v. Department of Homeland Security,
DA-0752-16-0012-I-3, Initial Decision at 2, 7-14 (Oct. 3, 2017). The appellant’s
petition for review of that initial decision has been separately addressed by the Board.
5
administrative judge found that the May 8, 2012 disclosure was not protected
because the appellant did not show that she reasonably believed that her
disclosure evidenced wrongdoing covered b y 5 U.S.C. § 2302(b)(8). ID at 21-24.
In this regard, the administrative judge found that a reasonable person would not
infer any illegal purpose or violation of agency policy based upon the agen cy’s
attempt to correct an improper accounting of seizure activity that occurred at the
Port of Laredo. ID at 24, 27-29. He found that the agency did not attempt to
make the change in secret, as the appellant had alleged, the agency was engaging
in an interactive process to fix a reporting problem, and the agency instructed the
appellant to add a management note to the changed seizure forms that explained
why the change was being made and included the original information on the
forms. ID at 24-27. The administrative judge held that the disclosure did not
evidence an abuse of authority or gross mismanagement, and instead reflected a
policy disagreement on how to make changes to seizure records to properly
account for seizure totals at the Port of Laredo. ID at 29-34.
¶7 The administrative judge further found that the appellant engaged in
protected activity by filing three OSC complaints that were a contributing factor
in the proposed removal, the reduction in rank, and the 30-day suspension. ID
at 35-37. Nevertheless, he found that the agency proved by clear and convincing
evidence that it would have taken those actions in the absence of her protected
activity. ID at 37. The administrative judge held that there was strong evidence
to support the actions, there was weak evidence that the agency was motivated to
retaliate against the appellant for her protected activity, and there was little
evidence that the agency failed to discipline non-whistleblowers who engaged in
the same type of misconduct. ID at 37-57.
6
ANALYSIS
The appellant’s petition for review is granted.
¶8 The appellant asserts that the administrative judge abused his discretion in
denying her motion to compel. 3 Petition for Review (PFR) File, Tab 5 at 38. The
appellant contends that she understood, when filing her February 28, 2017 motion
to compel, that “the discovery requests and statement on discoverability had been
included in her prior pleadings,” and she incorporated them by reference into her
later-filed motion in order to promote efficiency. Id. at 39. She claims that the
erroneous denial of her motion to compel prejudiced her because the information
she sought was relevant to her appeal. Id. at 40.
¶9 Administrative judges have broad discretion in discovery matters, and
absent a showing of an abuse of discretion, the Board will not substitute its
judgment for that of the administrative judge. McLaughlin v. U.S. Postal Service,
55 M.S.P.R. 192, 201 (1992). Further, an administrative judge may generally
waive a Board regulation for good cause shown. 5 C.F.R. § 1201.12. Under
5 C.F.R. § 1201.73(c)(1)(i), a motion to compel shall include a copy of the
original request and a statement showing that the information sought is
discoverable. Nevertheless, the appellant had already submitted these documents
3
The appellant also asserts that the administrative judge improperly relied upon
evidence submitted by the agency after the hearing and thereby did not afford her an
opportunity to question witnesses regarding that evidence. PFR File, Tab 5 at 24 -26.
At the end of the hearing, the administrative judge kept the record open and permitted
the agency to submit this evidence. Hearing Transcript, Volume 2 at 482-87. The
appellant raised no objection to that procedure and had an opportunity to respond to the
evidence after the agency submitted it to her. Id.; see W-3 AF, Tab 39 at 12 n.4,
Tab 40. Under these circumstances, she has shown no error in the administrative
judge’s reliance on this evidence. See Langford v. Department of the Treasury,
73 M.S.P.R. 129, 138 (1997) (finding that an appellant cannot wait until after an
adjudication is complete to object for the first time to an administrative judge’s
hearing-related rulings); cf. Schucker v. Federal Deposit Insurance Corporation,
401 F.3d 1347, 1357-58 (Fed. Cir. 2005) (vacating and remanding a Board decision
when the administrative judge, in an appeal based on the written record, refused t o
consider rebuttal evidence without providing an explanation for that refusal, such as a
party’s failure to object to a deadline set by the administrative judge).
7
into the record and referenced them in her renewed motion to compel, and the
administrative judge had specifically notified the parties that any docum ent
previously submitted in the appeal should not be resubmitted upon refiling. IAF,
Tab 22 at 3 & n.2.
¶10 At least some of the discovery requests appear, on their face, to be
reasonably calculated to lead to the discovery of admissible evidence. 5 C.F.R.
§ 1201.72(a); see Mc Grath v. Department of the Army, 83 M.S.P.R. 48, ¶ 7
(1999) (holding that what constitutes relevant information in discovery is to be
liberally interpreted, and resolving any uncertainty in favor of the movant absent
undue delay or hardship). For example, the appellant requested that the agen cy
identify any and all actions taken as a result of her disclosure and protected
activity, as well as the date on which any employee learned of her disclosure and
protected activity, the name of such employee, and how the employee learned of
those matters. W-2 AF, Tab 5 at 5; IAF, Tab 17 at 44. She also requested a
description of each and every occasion on which agency employees
communicated with each other regarding the appellant’s disclosure and protected
activity. IAF, Tab 17 at 44. She requested the production of documents relating
or referring to her disclosure and OSC complaints, as well as her reduction in
rank. Id. at 47-48. The information requested appears reasonably calculated to
lead to the discovery of admissible evidence regarding, among other things,
whether the disclosure or protected activity was a contributing factor in a
personnel action and any motive to retaliate. See Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶¶ 5, 14 n.8 (2016).
¶11 Under these circumstances, we find that the administrative judge abused his
discretion in denying the appellant’s motion to compel based on a determination
that the motion did not include a copy of the original discovery request and a
statement showing that the information sought was discoverable. See Baird v.
Department of the Army, 517 F.3d 1345, 1348, 1351 (Fed. Cir. 2008) (finding that
the administrative judge abused his discretion in refusing to compel discovery
8
that should have been produced earlier, even though the discovery request was
made during the hearing); cf. McLaughlin, 55 M.S.P.R. at 201 (finding no error in
the administrative judge’s waiver of the requirements of 5 C.F.R. § 1201.73(c)
based upon the agency’s compelling interest in deposing the appellant).
¶12 Because the administrative judge is in the best position to rule on discovery
matters, we vacate the initial decision and remand the appeal. See Seattle Times
Co., et al. v. Rhinehart et al., 467 U.S. 20, 36 (1984) (“The trial court is in the
best position to weigh fairly the competing needs and interests of the parties
affected by discovery.”); 5 C.F.R. § 1201.41(b)(4) (authorizing administrative
judges to rule on discovery motions); cf. In re Uriarte, 93 M.S.P.R. 183, ¶ 10
(2002) (finding that the administrative judge was in the best position to resolve
the question of whether the appellant had satisfied the test for obtaining a
protective order, as well as the resolution of related discovery requests). The
administrative judge shall therefore rule on the merits of the appellant’s motion to
compel. If the administrative judge’s ruling on that motion leads to the
production of additional relevant evidence in support of the appellant’s claims,
the appellant shall be entitled to a further hearing. See Baird, 517 F.3d
at 1351-52; Mc Grath, 83 M.S.P.R. 48, ¶ 20. The administrative judge shall then
issue a new initial decision taking into consideration any e vidence and arguments
advanced after ruling on the motion to compel, insofar as they raise matters not
already fully decided. 4 See Mc Grath, 83 M.S.P.R. 48, ¶ 20; Johnson v.
Department of the Treasury, 8 M.S.P.R. 170, 175-76 (1981).
4
The appellant asserts that the administrative judge made erroneous factual and legal
findings that were material to the initial decision. PFR File, Tab 5 at 26-33. On
remand, the administrative judge shall take into consideration these allegations, as well
as the agency’s response to the allegations, in making his findings. See Fox v. U.S.
Postal Service, 81 M.S.P.R. 522, ¶ 17 (1999) (directing the administrative judge to
address on remand arguments raised by the appellant on review); Spithaler v. Office of
Personnel Management, 1 M.S.P.R. 587, 589 (1980) (requiring an initial decision to
identify all material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests).
9
¶13 Finally, the appellant asserts that the administrative judge should have
granted her renewed motion for sanctions, which would have precluded the
agency from asserting its affirmative defense to her whistleblower claim. PFR
File, Tab 5 at 41-43. The appellant contends that the imposed sanction of
limiting the agency to three witnesses “did not remedy the harm that Appellant
suffered as a result of the Agency’s failure to comply with its discovery
obligations in this appeal,” and that the documents sought “may contain direct
evidence of whistleblower retaliation.” Id. at 41-42.
¶14 In response to the appellant’s renewed motion for sanctions, which she filed
after the administrative judge had imposed the sanction of limiting the number of
agency witnesses, W-3 AF, Tab 26 at 9-11, the administrative judge found that
the appellant had failed to justify additional sanctions and denied the motion, ID
at 2 n.2. An administrative judge may impose sanctions upon a party for failure
to comply with an order, provided that the sanction is necessary to serve the ends
of justice. 5 C.F.R. § 1201.43(a). Sanctions should be imposed only when a
party has failed to exercise basic due diligence in complying with an order or has
exhibited negligence or bad faith in its efforts to comply. Armstrong v.
Department of Justice, 107 M.S.P.R. 375, ¶ 25 (2007), overruled on other
grounds by Edwards v. Department of Labor, 2022 MSPB 9. In determining
whether sanctions are appropriate, good faith efforts short of full compliance
must be considered. Id. The imposition of sanctions is a matter within the
administrative judge’s sound discretion, and absent a showing that such discretion
has been abused, his determination will not be found to constitu te reversible
error. Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011), aff’d per
curiam, 498 F. App’x 1 (Fed. Cir. 2012).
¶15 The appellant does not identify on review the nature of the information she
sought below, nor does she explain how the sanction she seeks is necessary to
serve the ends of justice. Moreover, the documents in question appear related to
a discovery dispute involving claims of privilege raised by the agency, which
10
offered to submit the disputed documents to the administrative judge for an in
camera review or produce them subject to a protective order. W -3 AF, Tab 24
at 6, Tab 34 at 4- 9. The administrative judge, however, did not conduct an in
camera review or enter a protective order. Based on all of the above
circumstances, the appellant has not shown a failure by the agency to exercise
basic due diligence or bad faith warranting the sanction she suggests, nor has she
otherwise shown an abuse of discretion by the administrative judge in denying her
motion. The cases relied upon by the appellant are distinguishable from this
appeal. See Armstrong, 107 M.S.P.R. 375, ¶¶ 25, 27-28, 32 (finding no abuse of
discretion by the administrative judge in barring the agency from asserting its
IRA affirmative defense when it failed to produce documents despite the
administrative judge having entered a protective order and denied its request for
an extension of time to assert a privilege claim); Montgomery v. Department of
the Army, 80 M.S.P.R. 435, ¶¶ 3-5, 9-10, 16-17 (1998) (finding no abuse of
discretion in imposing sanctions when the agency failed to produce documents for
an in camera inspection and respond to repeated telephone messages from the
administrative judge).
The agency’s conditional cross petition for review is denied .
¶16 The agency asserts that, if the Board grants the appellant’s petition for
review, the Board should also find that the administrative judge’s imposition of
sanctions by limiting the number of witnesses it could call at the hearing was
unsupported and severely prejudicial. PFR File, Tab 9 at 13, 15-16. The agency
contends that, although it produced a privilege log as requ ired by the
administrative judge, presented arguments on the privileges it asserted, and
offered the records for an in camera review or subject to a protective order, the
administrative judge did not review the records in camera, make substantive
rulings, or permit it to correct any deficiencies in its submission, but instead
sanctioned it for asserting legally cognizable privileges. Id. at 15.
11
¶17 As set forth above, the imposition of sanctions is a matter within the
administrative judge’s sound discretion. Smets, 117 M.S.P.R. 164, ¶ 11.
Although the agency states why it believes the administrative judge’s actions
were erroneous and makes a general statement that it was prejudiced by those
actions, it does not articulate what the excluded witnesses would have testified to
or explain how their testimony would affect the result reached in this case. Thus,
the agency has not established that any alleged abuse of discretion or error by the
administrative judge was prejudicial. See Butler v. Department of the Air Force,
73 M.S.P.R. 313, 318 (1997); Best v. Department of the Navy, 59 M.S.P.R. 670,
673 (1993); Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984);
see also Jones v. Department of Health & Human Services , 119 M.S.P.R. 355,
¶ 18 (holding that the Board will not find reversible error in an administrative
judge’s discovery rulings absent an abuse of discretion that prejudiced the party’s
substantive rights), aff’d, 544 F. App’x 976 (Fed. Cir. 2013).
¶18 Accordingly, we deny the agency’s cross petition for review.
ORDER
¶19 For the reasons discussed above, we VACATE the initial decision and
REMAND this case to the regional office for further adjudication in accordance
with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.