                         COUNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     GEORGE HEATH,                                   DOCKET NUMBER
                  Appellant,                         DA-1221-12-0654-C-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 24, 2015
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

           George Heath, Corona, California, pro se.

           Norbert S. Walker, El Paso, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     denied the appellant’s petition for enforcement. For the reasons discussed below,
     we GRANT the petition for review and REMAND the case to the regional office
     for further adjudication in accordance with this Order.


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2        The appellant, who was a GS-09 Animal Health Technician at the agency’s
     William Beaumont Army Medical Center in El Paso, Texas, has, as described
     below, two distinct legal actions active before the Board, one involves the
     agency’s two attempts to remove him, and the other involves this individual right
     of action (IRA) appeal, which is before the Board pursuant to the instant petition
     for enforcement.
¶3        On September 18, 2012, the appellant filed this IRA appeal in which he
     argued that the agency took away his supervisory duties in retaliation for his
     October and November 2011 disclosures of scientific misconduct.           Heath v.
     Department of the Army, MSPB Docket No. DA-1221-12-0654-W-1 (W-1 File).
     The administrative judge denied the appellant’s request for corrective action.
     W-1 File, Tab 39, Initial Decision (Dec. 13, 2012). The appellant filed a timely
     petition for review, which the Board granted, remanding the IRA appeal to the
     regional office based on its determination in Day v. Department of Homeland
     Security, 119 M.S.P.R. 589 (2013), that pursuant to the Whistleblower Protection
     Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, disclosures made
     in the normal course of one’s job duties are not excluded from the definition of a
     protected disclosure, Heath v. Department of the Army, DA-1221-12-0654-W-1,
     Remand Order (Sept. 11, 2013).
¶4        In March 2013, during the adjudication of the appellant’s IRA appeal, the
     agency proposed and effected the appellant’s removal based on misconduct that it
     alleged occurred in February 2013, and the appellant filed a timely appeal. Heath
     v. Department of the Army, MSPB Docket No. DA-0752-13-0408-I-1. A different
     administrative judge reversed the appellant’s removal because the agency violated
     the appellant’s right to due process when the deciding official considered ex parte
     information in his penalty analysis.   MSPB Docket No. DA-0752-13-0408-I-1,
     Tab 71, Initial Decision (Sept. 12, 2013). The agency did not file a petition for
     review.   Instead, the agency issued an October 28, 2013 notice of proposed
                                                                                          3

     removal on the same charges, 2 which it sustained in a January 17, 2014 decision,
     and which the appellant subsequently appealed.         Heath v. Department of the
     Army, MSPB Docket No. DA-0752-14-0233-I-1.              Also on October 28, 2013,
     rather than return the appellant to the status quo ante following the reversal of his
     removal on due process grounds, the agency retroactively placed him on
     administrative leave pending the outcome of the second removal action. Id. 3
¶5        Meanwhile, in this IRA appeal, the administrative judge found on remand
     that the agency took away the appellant’s supervisory duties in reprisal for his
     protected whistleblowing activity, and ordered corrective action.            Heath v.
     Department of the Army, MSPB Docket No. DA-1221-12-0654-B-1 (B-1 File),
     Tab 12, Remand Initial Decision (RID) (Jan. 27, 2014). Because neither party
     filed a petition for review, the remand initial decision became the Board’s final
     decision in this matter on March 3, 2014. RID at 13; see 5 C.F.R. § 1201.113.
     The agency subsequently filed notices of compliance in which it explained that
     because it had removed the appellant on January 17, 2014 (in the removal action
     at issue in MSPB Docket No. DA-0752-14-0233-I-1), it could not restore the
     appellant’s supervisory duties, but it could only ensure that his personnel record
     reflected that he performed them, and, in that regard, the agency provided copies
     of the appellant’s position description and of his performance evaluations for
     2010-2012, indicating that he served as “Vivarium Operations Manager and
     Supervisor,” B-1 File, Tabs 14-15.       The appellant then filed this petition for
     enforcement.


     2
      An agency may cure its violation of an employee’s right to due process and then take a
     second removal action on the same charges. E.g., Lopes v Department of the Navy,
     119 M.S.P.R. 106, ¶ 4 (2012).
     3
       A petition for enforcement of the initial decision in MSPB Docket No. DA-0752-13-
     0408-I-1, in which, among other claims, the appellant challenges his retroactive
     placement on administrative leave following the reversal of his removal, is currently
     pending at the regional office. Heath v. Department of the Army, MSPB Docket
     No. DA-0752-13-0408-C-1.
                                                                                        4

¶6         The administrative judge assigned to the second removal appeal affirmed
     the agency’s action, MSPB Docket No. DA-0752-14-0233-I-1, Tab 20, Initial
     Decision (May 14, 2014), and the appellant filed a timely petition for review. In
     a separate nonprecedential remand order, we grant that petition for review
     because the administrative judge improperly applied the doctrine of collateral
     estoppel to the substantive charges therein. See Heath v. Department of the Army,
     MSPB Docket No. DA-0752-14-0233-I-1, Remand Order (Feb. 24, 2015).

                          DISCUSSION OF ARGUMENTS ON REVIEW
¶7         In the instant petition for enforcement, the appellant argued that the
     agency’s act of ensuring that his performance evaluations reflected his
     supervisory duties does not demonstrate compliance with the remand initial
     decision. Enforcement File (EF), Tab 1. Citing to evidence already in the record,
     see W-1 File, Tab 3, the appellant described a series of agency actions that he
     claimed altered the roles, responsibilities, and lines of authority in his workplace,
     and that he further claimed were “absolutely essential” to his subsequent
     termination, EF, Tab 1 at 5-6. He argued that those actions represent “the Fruit
     of a Poisonous Tree” and asserts that, to be in compliance, the agency would also
     have to change “the erroneous and dishonest false construction of [his]
     performance” that he claimed was also a result of illegal whistleblower
     retaliation.   Id.    The agency responded, and the appellant filed a reply to the
     agency’s response. EF, Tabs 4-5.
¶8         In her status conference summary, the administrative judge explained that,
     because the agency had removed the appellant in a separate action prior to the
     issuance of the remand initial decision, compliance with her order therein to place
     him “as nearly as possible in the same situation he would have been had the
     agency not retaliated against him for whistleblowing,” i.e., the status quo ante,
     could only involve restoring him to his position in the event that he prevailed in
     the appeal challenging his removal, not as a result of this IRA appeal. EF, Tab 7.
                                                                                            5

      Thus, because the appellant was no longer an agency employee, the
      administrative judge informed the parties that she “planned on issuing a decision
      finding that the agency has shown by preponderant evidence that it has complied
      with the Board’s final order” in this matter.            Id.   As noted above, the
      administrative judge subsequently issued an initial decision in which she found
      the agency in compliance with the Board’s final order. EF, Tab 12, Compliance
      Initial Decision (CID).
¶9          In his petition for review, the appellant essentially argues that the proper
      remedy for the reprisal found in this matter requires his exoneration from the
      charges involved in his removal because those charges were illegally obtained
      through the prohibited personnel practices found in this matter.           Petition for
      Review File (PFR) File, Tab 1. Thus, he contends that the agency’s removal of
      his supervisory duties resulted in the charges for which he was subsequently
      removed. Id. The agency responds in opposition. PFR File, Tab 4.
¶10         As noted above, the administrative judge found that the agency took away
      the appellant’s supervisory duties in reprisal for his protected disclosures. RID.
      However, because the appellant’s removal is not the personnel action at issue in
      this IRA appeal, 4 the administrative judge could not have ordered the appellant’s
      restoration in this matter. 5        Cf., Armstrong v. Department of Justice,
      107 M.S.P.R. 375, ¶¶ 13, 34 (2007) (although an appellant who prevails in an
      IRA appeal is generally entitled to status quo ante relief, the Board may not, in an


      4
        The record reflects that, in his Office of Special Counsel (OSC) complaint, the
      appellant asserted that the agency took away his supervisory duties in reprisal for h is
      protected disclosures. See W-1 File, Tab 3 at 94. The record does not reflect that the
      appellant subsequently amended his OSC complaint to include his removal and so he
      has not shown exhaustion as to that action.
      5
        Although the appellant argues that the removal of his supervisory duties was
      instrumental in the charges that resulted in his removal, as noted above, his removal is
      simply not at issue here, only the taking away of his supervisory duties. Such an
      argument would instead be addressed appropriately as an affirmative defense in the
      appellant’s pending removal appeal, MSPB Docket No. DA-0752-14-0233-I-1.
                                                                                            6

      IRA appeal, review an allegedly retaliatory personnel action that the appellant did
      not raise before OSC, and, regardless of the exhaustion issue, intervening events
      may leave the Board without the authority to order the employee’s reinstatement).
      Moreover, we agree with the administrative judge’s observation that the outcome
      of the appellant’s second removal appeal, which the Board has remanded to the
      regional office for further adjudication, controls the result in this matter in that, if
      he prevails in that action and is restored to his position, the agency also would be
      required to restore his prior supervisory duties.          CID at 3; see Heath v.
      Department of the Army, MSPB Docket No. DA-0752-14-0233-I-1, Remand
      Order (Feb. 24, 2015).
¶11         Accordingly, we VACATE the compliance initial decision, and REMAND
      the appellant’s petition for enforcement to the regional office for readjudication
      following the adjudication of the appellant’s remanded removal appeal in Heath
      v. Department of the Army, MSPB Docket No. DA-0752-14-0233-I-1.

                                             ORDER
            For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                              ______________________________
                                                  William D. Spencer
                                                  Clerk of the Board
      Washington, D.C.
