Case: 19-1374   Document: 43     Page: 1   Filed: 04/06/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                DIANA Z. KAMMUNKUN,
                       Petitioner

                            v.

            DEPARTMENT OF DEFENSE,
                     Respondent
               ______________________

                       2019-1374
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in Nos. SF-0752-17-0667-I-1, SF-1221-17-0675-W-1.
                 ______________________

                 Decided: April 6, 2020
                 ______________________

     RENN C. FOWLER, Gilbert Employment Law, PC, Silver
 Spring, MD, argued for petitioner. Also represented by
 GARY M. GILBERT; ELBRIDGE W. SMITH, Smith Himmel-
 mann ALC, Honolulu, HI.

     NATHANAEL YALE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for respondent. Also represented by
 JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
 KIRSCHMAN, JR.
                  ______________________
Case: 19-1374    Document: 43      Page: 2    Filed: 04/06/2020




2                                     KAMMUNKUN v. DEFENSE




     Before PROST, Chief Judge, BRYSON and WALLACH,
                     Circuit Judges.
 PROST, Chief Judge.
     Ms. Diana Z. Kammunkun petitions for review of a
 Merit Systems Protection Board (“MSPB”) decision (1) dis-
 missing her action contesting her removal from Federal
 service pursuant to Chapter 75 of Title 5 of the United
 States Code; and (2) denying her individual right of action
 appeal seeking corrective action for whistleblowing re-
 prisal. Kammunkun v. Dep’t of Defense, Nos. SF-1221-17-
 0675-W-1, SF-0752-17-0667-I-1, 2018 WL 4739856, (M.S.P.B.
 Oct. 25, 2018). We have jurisdiction under 28 U.S.C.
 § 1295(a)(9).
     As the government concedes, Ms. Kammunkun’s Chap-
 ter 75 action must be remanded for further proceedings.
 Resp’t’s Br. 52–54.
      The administrative judge dismissed Ms. Kam-
 munkun’s Chapter 75 action because (a) Ms. Kammunkun
 had previously elected to contest her removal with the Of-
 fice of Special Counsel and subsequent individual right of
 action appeal; and (b) the election requirement of 5 C.F.R.
 § 1209.2(d) prevented Ms. Kammunkun from also chal-
 lenging her removal via a Chapter 75 action. The admin-
 istrative judge’s decision became the decision of the MSPB.
     The administrative judge erred in interpreting 5 C.F.R.
 § 1209.2(d), which applies only to employees, as applying
 to Ms. Kammunkun, who was a supervisor. Section
 1209.2(d) states that, “[u]nder 5 U.S.C. 7121(g)(3), an em-
 ployee who believes he or she was subjected to a covered
 personnel action in retaliation for whistleblowing or other
 protected activity” may elect only one of three listed reme-
 dies. 5 C.F.R. § 1209.2(d)(1) (emphasis added). An “em-
 ployee” for purposes of 5 U.S.C. § 7121(g)(3) is defined by 5
 U.S.C.    § 7103(a)(2),    which     specifically    excludes
Case: 19-1374    Document: 43       Page: 3    Filed: 04/06/2020




 KAMMUNKUN v. DEFENSE                                        3



 “supervisor[s].” It is undisputed that Ms. Kammunkun
 was a supervisor. Pet’r’s Br. 3; Resp’t’s Br. 1. Accordingly,
 the election requirement of § 1209.2 does not apply to Ms.
 Kammunkun.
      We therefore vacate the administrative judge’s decision
 with respect to the Chapter 75 action and remand for fur-
 ther proceedings. The parties disagree as to the appropri-
 ate scope of the proceedings on remand. Compare Pet’r’s
 Reply Br. 10–14, with Resp’t’s Br. 54. We leave it to the
 administrative judge to make this determination in the
 first instance.
     We affirm the decision of the administrative judge with
 respect to the individual right of action claim.
   VACATED-IN-PART, AFFIRMED-IN-PART, AND
                REMANDED
                            COSTS
     The parties shall bear their own costs.
