                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             FEB 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

MICHAEL J. JOHNEN,                               No. 16-73427

              Petitioner,                        MSPB No.
                                                 SF-1221-14-0338-W-2
 v.

U.S. MERIT SYSTEMS PROTECTION                    MEMORANDUM*
BOARD; UNITED 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

Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,** District Judge.

      Petitioner Michael Johnen alleges that the United States Department of the

Army terminated him and barred him from his work site because he had made

complaints that are protected under the Whistleblower Protection Act. In an


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
opinion filed this date, pertaining to other issues, we dismiss the petition in part

and deny it in part. This disposition concerns only the question whether Petitioner

exhausted administrative remedies with the Office of Special Counsel with respect

to his oral complaint made to supervisors on July 25, 2013, as required by 5 U.S.C.

§ 1214(a)(3), so as to give the United States Merit Systems Protection Board

jurisdiction over his appeal to that body. On de novo review, Daniels v. Merit Sys.

Prot. Bd., 832 F.3d 1049, 1054 (9th Cir. 2016), we grant and remand.

      Petitioner’s 2014 written complaint, fairly read, encompassed the oral

complaint that Petitioner had made on July 25, 2013, to Deputy Garrison

Commander Mark Hamelin and General Donna Williams, concerning nepotism.

Petitioner stated that an Army official had engaged improperly in nepotism and had

retaliated against him because he had opposed her actions. We conclude that the

written complaint gave sufficiently detailed and clear notice and, thus, that the

Board erred in holding that it lacked jurisdiction over this claim. When the Board

reconsiders this claim on remand, it also must reconsider the related evidentiary

rulings that precluded evidence concerning the July 25, 2013 oral complaint and

concerning nepotism and other related issues.

      Petition DISMISSED as to the United States Merit Systems Protection

Board; as to the United States Department of the Army, petition DENIED in


                                           2
part, GRANTED in part, and REMANDED. The parties shall bear their own

costs on appeal.




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