                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MICHAEL J. JOHNEN,                           No. 16-73427
                  Petitioner,
                                              MSPB No.
                 v.                      SF-1221-14-0338-W-2

 U.S. MERIT SYSTEMS
 PROTECTION BOARD; UNITED                        OPINION
 STATES DEPARTMENT OF THE
 ARMY,
                Respondents.


          On Petition for Review of an Order of the
             Merits Systems Protection Board

          Argued and Submitted December 8, 2017
                 San Francisco, California

                      Filed February 26, 2018

   Before: Susan P. Graber and N. Randy Smith, Circuit
      Judges, and Michael H. Simon,* District Judge.

                      Opinion by Judge Graber




    *
      The Honorable Michael H. Simon, United States District Judge for
the District of Oregon, sitting by designation.
2                         JOHNEN V. MSPB

                            SUMMARY**


                Merit Systems Protection Board

    The panel dismissed a petition for review as to the United
States Merit Systems Protection Board; and denied in part,
granted in part, and remanded the petition for review as to the
United States Department of the Army in a case brought by
a former civilian employee at Fort Hunter Liggett, a military
base in California alleging that the Army terminated him and
excluded him from his work site because he had made
complaints that were protected by the Whistleblower
Protection Act of 1989.

    The Board affirmed the administrative law judge’s
finding that the petitioner failed to make a prima facie case
that his complaint to the Department of Defense Inspector
General was a contributing factor in the Army’s decision to
terminate him and exclude him from a work site.

    The panel held that the Army was the only proper
respondent in this case where petitioner brought a “mixed
case” by challenging both jurisdictional or procedural matters
and the merits of an adverse personnel action. The panel
further held that because petitioner was seeking review of the
Board’s decision on the merits of his termination and
exclusion, the Board was not the proper respondent; and only
the agency that took the action – the Army – was properly
“the” respondent.


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     JOHNEN V. MSPB                         3

    The panel also held that the petitioner received due
process. The panel rejected petitioner’s argument that the
Board violated his due process rights by deciding his appeal
when only two Board members, instead of the usual three,
held office.

   Finally, the panel held that the Board’s decision on the
merits was supported by substantial evidence and was
procedurally proper.

    In a separate memorandum disposition, the panel granted
the petition in part and remanded the case for consideration
of an additional issue.


                        COUNSEL

Wendy Musell (argued), Stewart and Musell LLP,
Emeryville, California, for Petitioner.

Jimmy S. McBirney (argued), Trial Attorney; Allison Kidd-
Miller, Assistant Director; Robert E. Kirschman Jr., Director;
Chad A. Readler, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent Department of the Army.

Stephen Fung (argued), Attorney; Jeffrey A. Gauger,
Reviewing Attorney; Katherine M. Smith, Deputy General
Counsel; Bryan G. Polisuk, General Counsel; Office of the
General Counsel, Merit Systems Protection Board,
Washington, D.C.; for Respondents.

Lisa Powell (argued), United States Office of Special
Counsel, Oakland, California; Malvina Winston, Attorney;
4                         JOHNEN V. MSPB

Louis Lopez, Associate Special Counsel; Carolyn N. Lerner,
Special Counsel; United States Office of Special Counsel,
Washington, D.C.; for Amicus Curiae United States Office of
Special Counsel.



                              OPINION

GRABER, Circuit Judge:

    Petitioner Michael Johnen alleges that the United States
Department of the Army terminated him and excluded him
from his work site because he had made complaints that are
protected under the Whistleblower Protection Act of 1989
(“Act”). He seeks review of an adverse decision of the Merit
Systems Protection Board. In this opinion, we address three
issues: (1) whether the Board is a proper respondent;
(2) whether the Board deprived Petitioner of due process by
issuing a two-person decision; and (3) whether the Board’s
ruling on the merits—that Petitioner failed to make a prima
facie case that his complaint to the Department of Defense
Inspector General (“DODIG”) was a contributing factor in the
Army’s decision to terminate him and exclude him from a
work site—is supported by substantial evidence and free of
procedural error. We hold: (1) the Army is the only proper
respondent; (2) Petitioner received due process; and (3) the
Board’s decision on the merits is supported by substantial
evidence and is procedurally proper.1



    1
       In a separate memorandum disposition, filed this date, we grant the
petition in part and remand the case for consideration of an additional
issue.
                     JOHNEN V. MSPB                         5

   FACTUAL AND PROCEDURAL BACKGROUND

    Beginning in 2008, Petitioner worked as a civilian
Supervisory Engineering Technician for the U.S. Army
Installation Management Command, Directorate of Public
Works, at Fort Hunter Liggett, a military base in California.
On October 26, 2012, he filed a complaint with DODIG. As
relevant here, Petitioner alleged that he had been the subject
of an investigation during which Army employees had made
false statements about him. He further alleged in his DODIG
complaint that he had encountered nepotism within the Army.
The army terminated Petitioner’s employment on August 21,
2013, purportedly because the Directorate of Public Works
was overstaffed; two days later, he was excluded from the site
for 180 days because of the termination.

    Shortly thereafter, Petitioner filed a complaint with the
Office of Special Counsel, alleging as relevant here that his
termination and exclusion from his work site were retaliation
for his DODIG complaint, a form of whistleblowing. After
a hearing, an administrative judge denied Petitioner’s request
for corrective action. On the merits, the administrative judge
found that the DODIG complaint did not contribute either to
the Army’s decision to terminate Petitioner or to its decision
to exclude him from the site. Petitioner appealed that
decision to the Board, which affirmed. Petitioner filed a
timely petition for review with this court, naming both the
Army and the Board as respondents.
6                    JOHNEN V. MSPB

                       DISCUSSION

    A. The Board as a Respondent

    We first consider whether Petitioner properly named both
the Board and the Army as respondents. Title 5 U.S.C.
§ 7703(a)(2) provides:

             The Board shall be named respondent in
       any proceeding brought pursuant to this
       subsection, unless the employee . . . seeks
       review of a final order or decision on the
       merits on the underlying personnel action
       . . . , in which case the agency responsible for
       taking the personnel action shall be the
       respondent.

(Emphases added.)       Petitioner brings procedural and
jurisdictional challenges, but he also disputes the Board’s
determination on the merits of the underlying personnel
action. We have not yet considered who is the proper
respondent in a “mixed” case—that is, one in which the
employee challenges both jurisdictional or procedural matters
and the merits of an adverse personnel action.

    Congress clearly intended for only one party to be “the”
respondent in any given petition to review a Board decision.
Moreover, the text following the word “unless” clearly makes
the pivot point an employee’s challenge to the merits of a
personnel decision. Here, because Petitioner is seeking
review of the Board’s decision on the merits of his
termination and exclusion, the Board is not the proper
respondent. Only the agency that took the action—here, the
Army—is properly “the” respondent.
                          JOHNEN V. MSPB                                7

    Our conclusion on that issue accords with the Federal
Circuit’s holding that the employing agency is the proper
respondent when a petition for review involves both
jurisdictional and merits issues.2 Amin v. Merit Sys. Prot.
Bd., 951 F.2d 1247, 1252 (Fed. Cir. 1991). We are persuaded
by the Federal Circuit’s reasoning. A fundamental purpose
of the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111, was to transfer adjudicatory authority from the
old Civil Service Commission to the Board. Amin, 951 F.2d
at 1251–52. If the Board had to serve as the respondent in a
case in which the merits of an underlying personnel action
were at issue, the Board “would be placed in a position
adversarial to employees whose rights it was established to
adjudicate,” thus undermining the Board’s role as a neutral
adjudicatory body. Id. at 1252; accord Spruill v. Merit Sys.
Prot. Bd., 978 F.2d 679, 686 (Fed. Cir. 1992).

   We hold that the Army is the only proper respondent here.
Accordingly, we dismiss the petition with respect to the
Board.

    B. Two-person Decision

   Petitioner next argues that the Board violated his due
process rights by deciding his appeal when only two Board
members, instead of the usual three, held office; there was a
vacancy on the Board at the time of the relevant decision.
We review that legal question de novo. Gilbert v. Nat’l
Transp. Safety Bd., 80 F.3d 364, 367 (9th Cir. 1996).


    2
     For many years, the Federal Circuit had sole jurisdiction to review
Board decisions. Whistleblower Protection Enhancement Act of 2012,
Pub. L. No. 112-199, 126 Stat. 1465; Daniels v. Merit Sys. Prot. Bd.,
832 F.3d 1049, 1054 (9th Cir. 2016), cert. denied, 137 S. Ct. 1242 (2017).
8                    JOHNEN V. MSPB

    Relevant statutory authority states that the “Board is
composed of 3 members.” 5 U.S.C. § 1201. But the statute
also suggests that the Board can function without all three
members. See id. § 1203 (“[W]hen the offices of Chairman
and Vice Chairman are vacant, the remaining Board member
shall perform the functions vested in the Chairman.”).
Applicable regulations interpreting those statutory provisions
also contemplate action by a Board with fewer than three
members. See 5 C.F.R. §§ 1200.2(b) (“If the office of the
Chairman is vacant . . . , then the Vice Chairman performs the
Chairman’s duties.”), 1200.3(e) (“This section applies only
when at least two Board members are in office.”). Petitioner
has pointed to no legal authority suggesting that a two-
member Board may not act. For those reasons, the Board’s
decision stands despite the vacancy.

    C. Merits as to Termination and Exclusion

    Finally, we consider the merits of the decision with
respect to the DODIG complaint. We must set aside the
Board’s decision on the merits if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We also adopt the Federal Circuit’s standard of
review with respect to credibility determinations, to which
that court gives great deference. Briley v. Nat’l Archives &
Records Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001).

   After exhausting remedies before the Office of Special
Counsel, an employee who seeks further review must make
“non-frivolous allegations that (1) he engaged in
whistleblowing activity by making a protected disclosure
                      JOHNEN V. MSPB                         9

under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a
contributing factor in the agency’s decision to take or fail to
take a personnel action as defined by 5 U.S.C. § 2302(a).”
Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1051 (9th Cir.
2016) (internal quotation marks omitted), cert. denied, 137 S.
Ct. 1242 (2017). An employee may establish a prima facie
case by circumstantial, as well as direct, evidence. 5 U.S.C.
§ 1221(e)(1); Whitmore v. Dep’t of Labor, 680 F.3d 1353,
1367 (Fed. Cir. 2012). If an employee has established a
prima facie case, an agency may “demonstrate[] by clear and
convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.” 5 U.S.C.
§ 1221(e)(2); see Kahn v. Dep’t of Justice, 618 F.3d 1306,
1316 (Fed. Cir. 2010) (declining to proceed to the clear-and-
convincing-evidence test because the petitioner had not
established a prima facie case).

    Here, it is undisputed that the DODIG complaint was a
protected disclosure. And the termination and exclusion were
personnel actions. The key question was whether there was
a relationship between the complaint and the personnel
actions, more specifically, whether the complaint was a
“contributing factor” to the personnel actions. 5 U.S.C.
§ 1221(e)(1).

    Substantial evidence supports the Board’s determination
that the DODIG complaint did not motivate the Army’s
decision to terminate and exclude Petitioner. The Board
relied on the administrative judge’s finding that the two
decision-makers did not know about Petitioner’s DODIG
complaint when they terminated and excluded Petitioner.
The Board also relied on the finding that the decision-makers
lacked constructive knowledge, in that no one who was aware
of the DODIG complaint influenced the decision-makers.
10                   JOHNEN V. MSPB

Nor was the timing of the termination and exclusion close
enough to the time when the DODIG complaint was filed so
as to imply a connection. Finally, the Board relied on other
factors, including the Army officials’ lack of a retaliatory
motive and the administrative judge’s credibility conclusions.
The administrative judge found the Army’s witnesses to be
“highly credible, noting that each clearly and concisely
answered the questions posed to them,” whereas Petitioner
testified to “unsupported assumptions and engage[d] in
unwarranted speculation.”

     Petitioner argues that the Board ignored certain items of
circumstantial evidence that, he claims, show that the
decision-makers did know about his DODIG complaint. But
it is evident from the Board’s lengthy and detailed opinion
that the Board considered all the evidence and simply found
it wanting.

   Petition DISMISSED as to the United States Merit
Systems Protection Board; as to the United States
Department of the Army, petition DENIED in part,
GRANTED in part, and REMANDED. The parties shall
bear their own costs on appeal.
