Spence v. DVA ( 2020 )

Case: 20-1787 Document: 25 Page: 1 Filed: 10/08/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JO H. DUBOSE SPENCE,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-1787
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-20-0069-W-1.
______________________
Decided: October 8, 2020
______________________
JO H. DUBOSE SPENCE, Woodbridge, VA, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JEFFREY
B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E.
WHITE, JR.
______________________
Before TARANTO, CHEN, and STOLL, Circuit Judges.
Case: 20-1787 Document: 25 Page: 2 Filed: 10/08/2020
2 SPENCE v. DVA
TARANTO, Circuit Judge.
Jo H. Dubose Spence worked for the Department of
Veterans Affairs (DVA) as a lawyer. In 2018, DVA, after
taking several other actions against her for unacceptable
performance, removed Ms. Spence from her job. Under 5
U.S.C. § 7701, Ms. Spence filed an appeal to the Merit Sys-
tems Protection Board, challenging the removal as an “ad-
verse action” under 5 U.S.C. chapter 75. The Board
rejected her challenge, including an affirmative defense—
raised under 5 U.S.C. § 7701(c)(2)(B)—that her removal
was the result of whistleblower reprisal, both for protected
disclosures in violation of 5 U.S.C. § 2302(b)(8) and for pro-
tected relief-seeking activity in violation of
§ 2308(b)(9)(A)(i), (B), (C), or (D). The Board’s Removal Ap-
peal decision is not before us. Because Ms. Spence included
certain discrimination claims in her Removal Appeal, and
wished to press them on judicial review, the forum for re-
view of the Removal Appeal decision was a district court.
See Perry v. Merit System Prot. Bd., 137 S. Ct. 1975, 1979–
80 (2017); Kloeckner v. Solis, 568 U.S. 41, 56 (2012). Her
challenge in district court is pending.
Separately from her adverse-action appeal, Ms. Spence
pressed whistleblower-reprisal claims by seeking correc-
tive action for certain alleged DVA personnel actions, first
filing with the Office of Special Counsel and then filing an
Individual Right of Action (IRA) appeal to the Board, under
5 U.S.C. §§ 1214, 1221, 7701. The Board, which has au-
thority to hear IRA appeals under 5 U.S.C. § 7701, rejected
Ms. Spence’s challenge. As to nearly all of the challenge,
the Board ruled that the whistleblower-reprisal claims in
the IRA Appeal were barred, under the doctrine of issue
preclusion, by the Board’s rejection of whistleblower-re-
prisal defenses in the Removal Appeal. The Board’s IRA
Appeal decision is properly before us on Ms. Spence’s ap-
peal under 5 U.S.C. § 7703(b)(1)(B). We affirm, except in
one respect, as to which we vacate and remand.
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SPENCE v. DVA 3
I
A
In late 2016, while working as a lawyer for DVA, Ms.
Spence was assigned new supervisors. Resp. Appx. 26. By
mid-2017, a number of performance and conduct issues
arose, and Ms. Spence also began the communications and
complaints that gave rise to her later whistleblower
charges. For example, during 2017, she faced criticism for
her litigation choices, id. at 28–29, and she was “given a
written counseling for conduct unbecoming a Federal em-
ployee,” Pet. Appx. B. In November, she filed an informal
complaint with DVA’s Office of Resolution Management.
Pet. Appx. G, 11; Resp. Appx. 2. At the end of 2017, Ms.
Spence received a performance rating lower than her rat-
ing for 2016. Resp. Appx. 38.
The pattern continued in 2018. For example, Ms.
Spence received a written performance counseling from her
supervisor, who warned Ms. Spence that she was not meet-
ing certain critical as well as non-critical performance
standards. Id. In mid-May 2018, Ms. Spence filed a com-
plaint with DVA’s Office of Inspector General. Id. at 61;
Pet. Appx. G, 11. At the end of May, DVA (acting through
Ms. Cornish) proposed to suspend Ms. Spence for three
days, and in mid-June, DVA (acting through Mr. Fleck) de-
cided to impose the suspension; Ms. Spence initiated a
grievance proceeding, but in October, DVA (acting through
Mr. Hogan) upheld the suspension. Pet. Appx. G, 14.
On September 11, 2018, Ms. Spence received a notice
of proposed removal for “unacceptable performance.” Resp.
Appx. 41. The proposing official (Ms. Cornish) stated that
Ms. Spence was “not taking actions needed and supervisory
intervention [wa]s more than rare” and identified specific
instances, surveyed nine of Ms. Spence’s cases and found
“only one meets” the standard for quality, and observed
that Ms. Spence “fail[ed] to assist client stakeholders,” forc-
ing clients to request advice again from another lawyer. Id.Case: 20-1787 Document: 25 Page: 4 Filed: 10/08/2020
4 SPENCE v. DVA
at 41–45. Later in September, Ms. Spence filed a complaint
with the Office of Special Counsel challenging various per-
sonnel actions including her brief suspension and her pro-
posed removal. See id. at 61. On October 25, 2018, the
deciding official (Mr. Fleck) agreed with the charge of un-
acceptable performance and removed Ms. Spence from her
job. See id. at 45.
B
When Ms. Spence appealed her removal to the Board,
she challenged the basis of the removal and asserted three
affirmative defenses: (1) discrimination based on her race,
sex, and age, or reprisal for her Equal Employment Oppor-
tunity complaints alleging discrimination; (2) whistle-
blower reprisal; and (3) harmful procedural error. Resp.
Appx. 54–63. On April 26, 2019, after discovery and an ev-
identiary hearing on the merits, the Board—through an in-
itial decision of an administrative judge that became the
Board’s final decision—affirmed Ms. Spence’s removal. Id.at 22–63; Spence v. Dep’t of Veterans Affairs, No. DC-0714-
19-0123-I-1, 2019 WL 1904397 (M.S.P.B. Apr. 26, 2019).
The Board determined that the agency had met its burden
on the charge of unacceptable performance, crediting the
supervisors’ testimony over Ms. Spence’s. Resp. Appx. 46–
53. The Board also rejected Ms. Spence’s affirmative de-
fenses. In particular, and of importance to the present ap-
peal, the Board made detailed determinations rejecting Ms.
Spence’s whistleblower contentions, following the estab-
lished framework (not challenged by Ms. Spence) for adju-
dicating such contentions even when presented as defenses
in adverse-action appeals. See Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1364 (Fed. Cir. 2012) (explaining that, for a
defense based on 5 U.S.C. § 2308(b)(8), “the former em-
ployee must prove by a preponderance of the evidence that
he or she made a protected disclosure . . . that was a con-
tributing factor to the employee’s termination,” and “[i]f
the employee establishes this prima facie case of reprisal
for whistleblowing, the burden of persuasion shifts to the
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SPENCE v. DVA 5
agency to show by clear and convincing evidence that it
would have taken ‘the same personnel action in the ab-
sence of such disclosure.’ 5 U.S.C. § 1221(e)”).
In rejecting the whistleblower defense, the Board con-
cluded that the disclosures at issue—Ms. Spence’s commu-
nications to superiors that questioned the hiring of new
attorneys when Ms. Spence’s workload was light—were not
disclosures protected by 5 U.S.C. § 2308(b)(8). Resp. Appx.
58. The Board reasoned that Ms. Spence had not shown
that the DVA actions that were the subject of the commu-
nications “violated” a “law, rule, or regulation,” id., or that
she had a reasonable belief that the new hiring and her
light caseload evinced “gross mismanagement or waste of
funds,” id. at 59. The Board credited testimony that the
workload of lawyers in Ms. Spence’s position “often ebbed
and flowed” and that Ms. Spence’s workload remained light
because she often refused work. Id. at 60–61.
The Board next concluded that Ms. Spence had “en-
gaged in protected activity under 5 U.S.C. § 2302(b)(9)(C)
when she filed a complaint with the Inspector General (IG)
regarding the attorney hires in May 2018 and a similar
complaint with the Office of Special Counsel (OSC) in Sep-
tember 2018.” Resp. Appx. 61. Nevertheless, the Board
found that those complaints did not support the whistle-
blower-reprisal defense. First, the Board found, those com-
plaints were not a contributing factor in the removal
proposal or removal decision, because Ms. Cornish was not
aware of either complaint before proposing removal and
Mr. Fleck did not know, until after the removal decision,
that it was Ms. Spence who filed the May 2018 complaint
or what the substance of the September 2018 complaint
was. Id. at 61–62. Second, the Board found, even if it
viewed those complaints as contributing factors that
shifted the burden to DVA to show “by clear and convincing
evidence that it would have taken the removal action even
absent the appellant’s protected activity,” DVA made that
showing. Id. at 62.
Case: 20-1787 Document: 25 Page: 6 Filed: 10/08/2020
6 SPENCE v. DVA
The Board’s Removal Appeal decision became final on
May 31, 2019. Id. at 63. That decision is not before us but
is the subject of Ms. Spence’s challenge in the U.S. District
Court for the District of Columbia. Spence v. Dep’t of Vet-
erans Affairs, No. 1:19-cv-01947 (D.D.C. June 28, 2019).
C
After the removal was proposed but before she was re-
moved, Ms. Spence filed a complaint with the Office of Spe-
cial Counsel charging that DVA took “personnel actions”
constituting whistleblower reprisal in violation of 5 U.S.C.
§ 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). See Resp. Appx.
61; Pet. Appx. K, 13. About eleven months later, in August
2019, after the Board’s Removal Appeal decision had be-
come final, the Office of Special Counsel sent Ms. Spence a
letter stating that it had “terminated its inquiry into [her]
allegations of” whistleblower reprisal. Pet. Appx. F. In Oc-
tober 2019, Ms. Spence filed her IRA Appeal with the Board
under 5 U.S.C. §§ 1214(a)(3), 1221(a), and 7701.
The administrative judge issued an IRA Jurisdictional
Order in November 2019, requiring that Ms. Spence estab-
lish jurisdiction. See Resp. Appx. 2. Ms. Spence responded,
and so did DVA, which argued that the Board’s Removal
Appeal decision precluded Ms. Spence’s appeal. Id. On De-
cember 10, 2019, the administrative judge granted DVA’s
opposed request to stay discovery. Pet. Appx. I. Two days
later, the administrative judge issued an “Order to Show
Cause” on “jurisdiction,” particularly asking for relevant
evidence and argument on issue preclusion. See Resp.
Appx. 3; Pet. Appx. J. Ms. Spence responded by detailing
the disclosures (allegedly within § 2308(b)(8)), protected re-
lief-seeking activities (allegedly within § 2308(b)(9)(A)(i),
(B), (C), or (D)), and personnel actions that define her IRA
Appeal claims, and how she had administratively ex-
hausted her claims. Pet. Appx. G.
In January 2020, the administrative judge dismissed
Ms. Spence’s IRA Appeal. Resp. Appx. 1–13; Spence v.
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SPENCE v. DVA 7
Dep’t of Veterans Affairs, No. DC-1221-20-0069-W-1, 2020
WL 550440 (M.S.P.B. Jan. 27, 2020). The administrative
judge concluded that, as to nearly all of Ms. Spence’s alle-
gations in the IRA Appeal, the earlier Removal Appeal de-
cision’s rejection of Ms. Spence’s whistleblower-reprisal
defense barred her current challenge under the doctrine of
issue preclusion, which generally bars a party’s relitigation
of an issue that was actually litigated and decided in an
earlier adjudicatory proceeding if the adverse determina-
tion was essential to the judgment in the earlier proceeding
and the claimant had a full and fair opportunity to litigate
the issue in that proceeding. Resp. Appx. 7. 1 The admin-
istrative judge also observed that one matter raised in the
IRA Appeal was not resolved by issue preclusion but could
not sustain Ms. Spence’s whistleblowing claim. Id. at 12.
As to the allegations of protected disclosures within
§ 2308(b)(8), the administrative judge reasoned that all but
one of the asserted communications had been asserted as
bases for a whistleblower-reprisal finding in the Removal
Appeal and, after full and fair process, had been adjudi-
cated insufficient to support such a finding as an essential
part of the judgment, meeting all the requirements for
1 In a conclusion not challenged by Ms. Spence here,
see Pet. Br. 6, the administrative judge explained that the
Board’s Removal Appeal decision was the kind of adjudica-
tory decision that can support issue preclusion (if the just-
noted requirements are met) even while on review in the
D.C. District Court because that court will not retry the is-
sue de novo but review the Board’s decision on whistle-
blower reprisal deferentially and on the Board’s record.
Resp. Appx. 9; see Butler v. West, 164 F.3d 634, 639 n.10
(D.C. Cir. 1999) (explaining that whistleblower part of
mixed discrimination-whistleblower case is decided using
deferential on-the-record review); Barnes v. Small, 840
F.2d 972, 979 (D.C. Cir. 1988) (same).
Case: 20-1787 Document: 25 Page: 8 Filed: 10/08/2020
8 SPENCE v. DVA
issue preclusion. Id. at 8, 10. The administrative judge
then observed that one email (dated June 13, 2018), con-
cerning the hiring of other attorneys, is part of the IRA Ap-
peal but was not part of the Removal Appeal. Id. at 10.
But, the administrative judge concluded, issue preclusion
barred liability based on that email too, because the claim
as to this email required a subsidiary determination on
whether the assertedly protected disclosure in that email
met statutory requirements, and the Board had already de-
cided that it did not when adjudicating whether the mate-
rially same content was a protected disclosure in other
emails that were part of the Removal Appeal. Id. at 11. In
any event, even apart from issue preclusion, the adminis-
trative judge concluded, there was no nonfrivolous basis for
characterizing the June 13, 2018 email as reflecting a rea-
sonable belief in a violation of law, rule, or regulation or
other wrongdoing, rather than unprotected policy disagree-
ments. Id. at 11–12.
As to the allegations of reprisal for protected relief-
seeking activity under § 2308(b)(9)(A)(i), (B), (C), or (D), the
administrative judge observed that the IRA Appeal in-
volved three complaints Ms. Spence had filed. One was the
September 2018 complaint, which, the administrative
judge explained, was protected activity under the relevant
paragraphs of § 2308(b)(9) but had already been held insuf-
ficient to support the whistleblowing defense in the Re-
moval Appeal as not a contributing factor in the removal
decision (the only one of the challenged personnel actions
that post-dated the September 2018 complaint). Id. A sec-
ond complaint at issue in the IRA Appeal was the May 2018
complaint, which, the administrative judge explained, like-
wise was protected activity for IRA purposes under
§ 2308(b)(9), had been ruled on in the Removal Appeal, and
could not support liability. Specifically, the May 2018 com-
plaint could not have been a factor in the earlier December
2017 personnel evaluation; and while time alone did not
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SPENCE v. DVA 9
preclude the May 2018 complaint from being a factor in de-
cisions made after it was filed, the Board had already found
in the Removal Appeal decision that, before the removal,
Ms. Cornish did not know of the May 2018 complaint and
Mr. Fleck did not know that Ms. Spence had filed it. Id. at
13.
Although the Board concluded on those bases that is-
sue preclusion thus resolved the claims based on the Sep-
tember 2018 and May 2018 complaints, it recognized that
the IRA Appeal involved a third complaint, filed in Novem-
ber 2017, which had not been at issue in the Removal Ap-
peal. Nevertheless, the administrative judge explained,
that complaint concerned discrimination, not whistleblow-
ing, and so was plainly outside the portions of § 2308(b)(9)
identifying the protected relief-seeking activities for which
an IRA Appeal was authorized under § 1221. Id. at 12.
For those reasons, the administrative judge concluded
that the Board lacked “jurisdiction.” Id. at 1, 13. The ad-
ministrative judge’s decision became the Board’s final de-
cision on March 2, 2020. Id.; see also 5 U.S.C. § 7701(e).
Ms. Spence timely appealed. We have jurisdiction under 5
U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
II
We review the Board’s issue-preclusion ruling de novo.
Morgan v. Dep’t of Energy, 424 F.3d 1271, 1274 (Fed. Cir.
2005); Rose v. Dep’t of Defense, 705 F. App’x 983, 985 (Fed.
Cir. 2017). We review the Board’s denial of discovery and
an evidentiary hearing on the merits to determine whether
they were “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Under the Administrative Procedure
Act, in our review “due account shall be taken of the rule of
prejudicial error,” 5 U.S.C. § 706, which requires that Ms.
Case: 20-1787 Document: 25 Page: 10 Filed: 10/08/2020
10 SPENCE v. DVA
Spence show that any error she identifies was not harm-
less. See Shinseki v. Sanders, 556 U.S. 396, 406 (2009).
Challenging the Board’s dismissal without an eviden-
tiary hearing and its denial of discovery, Ms. Spence con-
tends that the Board wrongly decided her IRA Appeal as a
matter of Board “jurisdiction.” In this context, we have
long held that the Board’s “jurisdiction” requires a “non-
frivolous allegation” that the appellant made disclosures or
engaged in other protected activity within 5 U.S.C.
§ 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), that the disclo-
sures or protected activity were contributing factors in
identified “personnel actions,” and that the assertions were
duly exhausted before the Office of Special Counsel. See
Cahill v. Merit System Prot. Bd., 821 F.3d 1370, 1373 (Fed.
Cir. 2016); Morgan, 424 F.3d at 1273; Yunus v. Dep’t of Vet-
erans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Ms.
Spence argues that a decision on issue preclusion is not a
decision about the required non-frivolous allegations and
hence should not be deemed a matter of jurisdiction.
In this court, DVA recognizes that the jurisdictional la-
bel may well have been inaccurate. Resp. Br. 15–16. We
need not decide here whether allegations barred by issue
preclusion are frivolous for purposes of Board “jurisdic-
tion.” It is enough to say that the jurisdictional character-
ization could not be harmful error, at least in this case,
unless Ms. Spence was entitled to discovery or an eviden-
tiary hearing (which she was not given) before the Board
could decide that her IRA Appeal failed. Except for the ab-
sence of discovery or an evidentiary hearing, Ms. Spence
has not identified any way that the jurisdictional charac-
terization caused any harm to her in the result, compared
to what it would have been had the Board declared that it
had jurisdiction but then proceeded, under a “merits deci-
sion” characterization, Resp. Br. 15–16, to conduct the ex-
act analysis it in fact undertook in deciding that the IRA
Appeal contained no allegation that could succeed given
the Removal Appeal decision.
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SPENCE v. DVA 11
As to the allegations that the Board addressed, we con-
clude that Ms. Spence has identified no error in the Board’s
determination, made without discovery or an evidentiary
hearing, that the allegations were insufficient, mostly be-
cause of issue preclusion. All but one of the allegations dis-
cussed by the Board were held insufficient based on issue
preclusion premised on determinations made in the Re-
moval Appeal decision—either about the identical email
communications or complaints themselves or about the
identical content. The only issue decided by the Board in
this IRA Appeal without invoking issue preclusion was the
insufficiency of the November 2017 complaint because it
was a discrimination complaint and therefore outside
§ 1221’s authorization of IRA Appeals. We see no error in
that determination. Accordingly, the remainder of our dis-
cussion concerns issue preclusion as a basis for finding all
the other IRA Appeal allegations insufficient, even without
discovery or an evidentiary hearing.
We have long recognized that the Board may apply or-
dinary principles of issue preclusion to its own prior deci-
sions. See Morgan, 424 F.3d at 1274–75; Thomas v. Gen.
Servs. Admin., 794 F.2d 661, 664 (Fed. Cir. 1986); cf. B &
B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148–
49 (2015) (even courts often should give issue-preclusive ef-
fect to final agency decisions). Issue preclusion applies not
only to ultimate determinations in a prior adjudication but
to subsidiary determinations if sufficiently “essential” to
the ultimate determinations. See B & B Hardware, 575
U.S. at 148; Papst Licensing GMBH & Co. KG v. Samsung
Elecs. America, Inc., 924 F.3d 1243, 1250 (Fed. Cir. 2019).
We have no contention here that Ms. Spence lacked a full
and fair opportunity to litigate the issues in the Removal
Appeal or that the Removal Appeal decision may not be
given preclusive effect while it is being reviewed in district
court. See supra n.1; 13 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 4433 (3d ed. 2020)
(“The Supreme Court long ago seemed to establish the rule
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12 SPENCE v. DVA
that a final judgment retains all of its res judicata conse-
quences pending decision of the appeal, apart from the vir-
tually nonexistent situation in which the ‘appeal’ actually
involves a full trial de novo. The lower courts have taken
the rule as settled ever since.” (footnotes omitted)).
The only question, therefore, is whether for each alle-
gation the Board discussed and rejected based on issue pre-
clusion, the Board erred in concluding that success in the
IRA Appeal would require a determination on an issue that
was resolved against Ms. Spence in the Removal Appeal
decision as an essential element of that decision. We see
no error in the Board’s conclusion on the allegations it ad-
dressed. For none of the allegations addressed was discov-
ery or an evidentiary hearing needed before the Board
could reach its conclusion.
The legal standards, and most of the determinative re-
prisal issues, do not differ between the two Board appeals.
As to the disclosures, 11 of the 12 emails were specifically
found not to be protected disclosures in the Removal Ap-
peal decision. For the new (twelfth) email, the content of
that email was materially the same as content in the eleven
emails already litigated in the Removal Appeal. The deter-
mination as to the eleven necessarily determined the un-
protected character of the same content in the twelfth. As
to the protected activity, the May and September 2018 com-
plaints were specifically found in the Removal Appeal de-
cision not to have been contributing factors in the removal
at issue, based on findings that the proposing and deciding
officials for the removal (Ms. Cornish and Mr. Fleck) did
not know that Ms. Spence had filed those complaints until
after their last actions at issue. In this court, Ms. Spence
has not challenged the Board’s conclusion that all of those
determinations were “essential,” under issue-preclusion
standards, to the Removal Appeal decision’s rejection of the
whistleblower affirmative defense. And with one excep-
tion, which involves something the Board did not discuss,
Ms. Spence has not undermined the Board’s conclusion
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SPENCE v. DVA 13
that the foregoing determinations defeat her current IRA
Appeal claims.
The one exception derives from the fact that the only
DVA action challenged in the Removal Appeal was the re-
moval, while the IRA Appeal allegations include other DVA
“personnel actions.” In particular, the three-day suspen-
sion—proposed in May 2018, adopted in June 2018, and af-
firmed in the grievance proceeding in October 2018—is one
of the personnel actions challenged in this IRA Appeal. Ms.
Spence’s enumeration of the disclosures, protected activity,
and personnel actions at issue here (in response to the Or-
der to Show Cause) is fairly read as challenging all three
aspects of the suspension. See Pet. Appx. G, 13–15. While
the first two aspects (proposal and adoption) involved the
same two officials as the removal, and the Removal Appeal
decision’s determinations about those officials’ knowledge
defeats the suspension challenge as to those aspects of the
suspension, the October 2018 decision on the internal DVA
grievance challenge was made by a third official, Mr. Ho-
gan. Id. Mr. Hogan’s knowledge of Ms. Spence’s com-
plaints was not determined in the Removal Appeal, which
did not involve a challenge to the three-day suspension.
In the IRA Appeal, Ms. Spence raised this issue to the
Board and specifically stated that, without discovery
(which the Board had stayed), or an evidentiary hearing,
she could not say what Mr. Hogan knew about her May and
September 2018 complaints and at what time. Id. at 11,
14. Yet the Board did not address this portion of Ms.
Spence’s IRA Appeal. In this court, Ms. Spence has raised
this issue in her brief on appeal, see Pet. Br. 20–21, but
DVA has not addressed it. We are in no position to find the
Board’s omission to be harmless error. See Becker v. Office
of Personnel Mgmt., 853 F.3d 1311, 1315 (Fed. Cir. 2017)
(harmless-error inquiry asks if “the outcome of the case
could have been affected”); Curtin v. Office of Personnel
Mgmt., 846 F.2d 1373, 1378–79 (Fed. Cir. 1988) (same). In
these circumstances, a partial remand is warranted.
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14 SPENCE v. DVA
In sum: As to the allegations of violations of
§ 2308(b)(8), we affirm the Board’s decision. As to the alle-
gations of violations of § 2308(b)(9)(A)(i), (B), (C), or (D),
which involve three specific complaints, we affirm the
Board’s decision with respect to the November 2017 com-
plaint, and we also affirm with respect to the May 2018 and
September 2018 complaints insofar as the challenged per-
sonnel actions were taken by Ms. Cornish and Mr. Fleck.
But we vacate the Board’s decision to the extent it dis-
misses the allegations, under § 2308(b)(9)(A)(i), (B), (C), or
(D), of personnel actions taken by others in reprisal for the
May 2018 and September 2018 complaints, and we remand
for further proceedings in that limited respect. It may be
that the only matter within the scope of this remand is the
matter of Mr. Hogan and his role in the suspension, but we
leave it to the Board to determine whether Ms. Spence has
properly preserved (in her December 2019 definition of her
IRA Appeal claims and on appeal in this court) any other
challenge to personnel actions taken by DVA officials other
than Ms. Cornish and Mr. Fleck in reprisal for the May
2018 and September 2018 complaints. The remand is lim-
ited to such challenges; we are not authorizing expansion
of the enumeration of disclosures, protected activity, or per-
sonnel actions presented by Ms. Spence in December 2019.
We also leave it to the Board to decide in the first instance
what further proceedings are needed.
III
The decision of the Board is affirmed in part and va-
cated in part, and the matter is remanded to the Board for
further proceedings.
The parties will bear their own costs.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED