Pamintuan v. Navy

• Court: Court of Appeals for the Federal Circuit
• Decided: February 4, 2020
• Docket: 19-2232
• Status: Unpublished

Opinion

Case: 19-2232 Document: 32 Page: 1 Filed: 02/04/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

FRANCISCO CUNANAN PAMINTUAN, Petitioner

v.

DEPARTMENT OF THE NAVY, Respondent ______________________

2019-2232 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-1221-19-0179-W-1. ______________________

Decided: February 4, 2020 ______________________

FRANCISCO CUNANAN PAMINTUAN, Port Hueneme, CA, pro se.

NATHANAEL YALE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before PROST, Chief Judge, LOURIE and CLEVENGER, Circuit Judges. Case: 19-2232 Document: 32 Page: 2 Filed: 02/04/2020

PER CURIAM. Francisco Cunanan Pamintuan petitions for review of a decision of the Merit Systems Protection Board (“Board”) denying Mr. Pamintuan’s request for corrective action un- der the Whistleblower Protection Enhancement Act (“WPA”) against the Department of the Navy (“agency”). See Pamintuan v. Dep’t of the Navy, No. SF-1221-19-0179- W-1, 2019 WL 2121458 (M.S.P.B. May 10, 2019) (“Deci- sion”). We affirm. I Mr. Pamintuan worked as a Supervisory Contract Spe- cialist at the agency’s Naval Base Ventura County and oversaw a team of Contract Specialists. At the time, Mr. Pamintuan had a Contracting Officer warrant, which was necessary for him to perform his job as a supervisor. During the 2015 fiscal year, Mr. Pamintuan’s team was understaffed, had difficulty reaching timeline require- ments, and faced internal pressure to meet the timeline re- quirements. As a result, Mr. Pamintuan directed his subordinates to award contracts without preparing the re- quired documentation, including awarding contracts with- out Pre or Post Negotiation Memorandums (“PNM”). In August 2015, Mr. Pamintuan spoke with a ranking officer, Commander Paul Chan, regarding executing con- tracts without following the proper procedures. Com- mander Chan asked Mr. Pamintuan to prepare a draft email for Commander Chan to send to management offi- cials to explain they were “not PMAP [Process Manage- ment and Audit Program] ready because [they] did not have business documentation printed and in the files.” 1

1 The Administrative Judge (“AJ”) found that PMAP ready referred to Mr. Pamintuan’s department being Case: 19-2232 Document: 32 Page: 3 Filed: 02/04/2020

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App. 2 76. On August 27, 2015, Mr. Pamintuan sent the requested draft email to Commander Chan. Of relevance, this draft email included the language, “I’m tasking . . . [Mr. Pamintuan] that execution is more important and to just catch-up on business documentations later.” Decision, slip op. at 3. On September 2, 2015, Commander Chan sent a re- vised draft to Mr. Pamintuan and Mr. Pamintuan’s direct superior. He never, however, sent the email to manage- ment officials. Of relevance, the email noted that Com- mander Chan “tasked . . . Mr. Franc Pamintuan . . . to execute . . . actions at the risk of business documentations.” Id. at 3–4. Instead of emailing management officials, Com- mander Chan called Renae Kvendru, the Chief of Contract- ing Office. On this call, Commander Chan told Ms. Kvendru that they were not PMAP ready. Ms. Kvendru expressed serious concern. On September 9, 2015, Ms. Kvendru received an anon- ymous email, which Mr. Pamintuan later claimed to have sent. The email noted that “we are being told to award con- tracts with no business documentation being done. [W]e are awarding contracts before we even determaine [sic] fair and reasonable.” Id. at 4–5. Upon receiving the September 9, 2015 email, Ms. Kvendru ordered an onsite investigation. Following the findings of the onsite investigation, a command investiga- tion was conducted. As part of this investigation Mr. Pa- mintuan was interviewed. In his interview, Mr. Pamintuan provided Commander Chan’s September 2,

“ready for an internal inspection of the agency’s business documentation.” Decision, slip op. at 26 n.7. 2 We use “App.” to refer to the “Corrected Appendix for Informal Brief” submitted by the Government. No other appendices were submitted. Case: 19-2232 Document: 32 Page: 4 Filed: 02/04/2020

2015 draft email and stated that this email showed that Commander Chan improperly tasked him to execute ten- ants’ funded actions at the risk of business documentation. To Mr. Pamintuan, this meant “to issue contract awards although the documentations required by regulation to pro- cess the awards were incomplete.” Id. at 6. Commander Chan was also interviewed and stated that he thought that “[d]ocuments were not getting printed out in a timely man- ner to complete the contract file.” App. 76–77. The command investigation ended on November 23, 2015. The accompanying report concluded, among other things, that: The allegation that PWD Ventura PEAD was awarding contracts without properly documenting the business decision was substantiated. The con- tract specialists and contracting officers responsi- ble for preparing the documents have stated they were awarding contracts without first preparing the Pre/Post Negotiation Memorandum (PNM). The allegation that PWD Ventura Public Works Of- ficer (PWO) and Deputy Public Works Officer (DPWO) demanded, encouraged, or condoned the awarding of contracts without determining pricing fair and reasonableness or documenting the busi- ness decision is unsubstantiated. While there was significant leadership pressure to make execution goals even with limited staffing, the evidence did not show that leadership demanded, encouraged, or condoned deliberate evasion of statutory or reg- ulatory requirements. Decision, slip op. at 6. The investigation report also recommended that the agency “[i]ssue appropriate disciplinary action to” Com- mander Chan, Mr. Pamintuan, and others, including the Case: 19-2232 Document: 32 Page: 5 Filed: 02/04/2020

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Deputy Public Works Officer and the FEAD Director. Id. at 6–7. Prior to any disciplinary action, Mr. Pamintuan took a two-year Supervisory Contract Specialist position at Guan- tanamo Bay. In this role he retained return rights to his Supervisory Contract Specialist position at Ventura. His Contracting Officer warrant at Ventura, however, was ad- ministratively terminated because he was leaving for Guantanamo Bay. App. 139. On Mr. Pamintuan’s last day working at Ventura he received a Letter of Reprimand for Inattention to Duty per- taining to his failure to ensure that proper business docu- mentation was completed. Others were disciplined as well. For instance, the Deputy Public Works Officer received a Letter of Reprimand, while Commander Chan and the FEAD Director both had their Contracting Officer war- rants terminated. Mr. Pamintuan exercised his return rights and on Feb- ruary 24, 2017, returned to his Supervisory Contract Spe- cialist position at Ventura. Mr. Pamintuan was unable to return to his former duties, however, because Ms. Kvendru refused to grant him a new Contracting Officer warrant. On March 6, 2017, feeling “shunned, belittled, and treated as a non-entity” because of “deliberate, on-going retaliatory harassment,” Mr. Pamintuan sought retirement effective September 30, 2017. Decision, slip op. at 15. Mr. Pa- mintuan then went on paid leave from March 6, 2017 until his effective retirement date. Following his retirement, Mr. Pamintuan sought un- employment benefits. After being initially denied, Mr. Pa- mintuan appealed to the California Unemployment Insurance Appeals Board (“CUIAB”). The CUIAB found that Mr. Pamintuan was entitled to unemployment bene- fits “because he was subjected to an illegal discriminatory act” and therefore had good cause for leaving. App. 162– 63. Case: 19-2232 Document: 32 Page: 6 Filed: 02/04/2020

Mr. Pamintuan then filed an individual right of action appeal at the Merit Systems Protection Board. After find- ing the jurisdiction requirements satisfied, the AJ found that Mr. Pamintuan (1) “proved by a preponderance of the evidence he engaged in protected activity” when he pro- vided the September 2, 2015 email during the command investigation; (2) “established he experienced covered per- sonnel actions” when he received the Letter of Reprimand, was detailed to Contract Specialist duties, and had his re- instatement request for his Contracting Officer warrant denied; and (3) “established by a preponderance of the evi- dence his protected activity was a contributing factor in the personnel actions.” Decision, slip op. at 10, 13, 18–19. The AJ, however, rejected Mr. Pamintuan’s argument that his ‘involuntary’ retirement was a covered personnel action. Id. at 17–18. The AJ then analyzed the three factors laid out in Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), to determine whether the agency would have taken the same personnel actions if Mr. Pamintuan had not made the protected disclosure. After analyzing these factors and based on the record before it, the AJ found that the agency would have taken the same personnel actions had Mr. Pa- mintuan not made his protected disclosure. The AJ also rejected Mr. Pamintuan’s argument that because he was ordered to execute contracts without PNM, he should not be disciplined. Ultimately, Mr. Pamintuan’s request for corrective action was denied. On June 14, 2019, the initial decision became final and Mr. Pamintuan timely petitioned for our review. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II On petition for review Mr. Pamintuan challenges only portions of the decision. He argues that the AJ (1) incor- rectly incorporated a mitigation analysis into whether the agency met its burden in establishing that it would have Case: 19-2232 Document: 32 Page: 7 Filed: 02/04/2020

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taken the same actions had he not made his protected dis- closure; (2) incorrectly found that his actions were not ex- cused when he was allegedly following orders from his superior; and (3) incorrectly found that his retirement was not a covered personnel action. A Our review is limited and requires us to affirm unless the Board’s decision 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 sub- stantial evidence.” 5 U.S.C. § 7703(c). Whether a decision is in accordance with the law “refers to the application of the wrong legal standard, and the application of the law is reviewed de novo.” Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011). Substantial evidence refers to “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2015) (inter- nal quotations removed). Under the WPA, “[i]f the employee establishes [a] prima facie case of reprisal for whistleblowing, the burden of persuasion shifts to the agency to show by clear and con- vincing evidence that it would have taken ‘the same per- sonnel action in the absence of such disclosure.’” Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012) (quoting 5 U.S.C. § 1221(e)); see also Nelson v. Dep’t of the Army, 658 F. App’x 1036, 1038–39 (Fed. Cir. 2016). To de- termine whether the agency would have engaged in the same personnel action absent the protected disclosure, the Carr factors are analyzed. Whitmore, 680 F.3d at 1368. These factors include, (1) “the strength of the agency’s evi- dence in support of its personnel action;” (2) “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision;” and (3) “any evidence that the agency [took] similar actions Case: 19-2232 Document: 32 Page: 8 Filed: 02/04/2020

against employees who [were] not whistleblowers but who [were] otherwise similarly situated.” Carr, 185 F.3d at 1323. B On petition for review Mr. Pamintuan argues that the AJ incorrectly incorporated a mitigation analysis into whether the agency would have acted the same way absent Mr. Pamintuan’s protected disclosure. He argues it was improper for the AJ to find that the “agency officials had some motive to retaliate against [Mr. Pamintuan], but . . . not find that motive to be significant at the time it took the personnel actions at issue.” Pet’r’s Br. 4. We disagree. The second Carr factor focuses on the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the alleged reprisal. See Carr, 185 F.3d at 1323. Thus, contrary to Mr. Pamintuan’s contentions on petition for review, weighing the strength of the motive of those who influenced the alleged reprisal de- cision is part of the analysis. See, e.g., Swartwoudt v. Dep’t of Homeland Sec., 694 F. App’x 776, 779 (Fed. Cir. 2017) (finding that “[a]gency officials had weak motivation to re- taliate against [petitioner]”). We find that the AJ’s analy- sis is in accordance with the law. C Mr. Pamintuan also argues that the AJ improperly re- jected his “obey-now, grieve-later” defense. See Pet’r’s Br. 6. He argues that Commander Chan’s September 2, 2015 email establishes that Commander Chan ordered him to execute contract actions without PNM. Therefore, Mr. Pa- mintuan argues that he cannot be disciplined because he was following orders. The AJ, however, disagreed that Commander Chan ordered Mr. Pamintuan to execute con- tract actions without PNM. To support her finding, the AJ relied on Commander Chan’s command investigation inter- view and Commander Chan’s revisions to the draft email Case: 19-2232 Document: 32 Page: 9 Filed: 02/04/2020

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that Mr. Pamintuan sent to Commander Chan. The AJ found that at most Commander Chan tasked Mr. Pa- mintuan with “putting aside filing requirements.” Deci- sion, slip op. at 26. Mr. Pamintuan’s argument asks us to reweigh the evi- dence and credit his positions. For instance, he argues that it was improper for the AJ to “simply assume[] Mr. Chan [in his command investigation interview] was truthful.” Pet’r’s Br. 13–14. He suggests that “[i]t is understandable that Mr. Chan wished to fabricate a cover story to protect himself . . . .” Id. at 13. He also argues that the anonymous September 9, 2015 email further shows that Commander Chan ordered him to execute contracts without proper PNM. Our review, however, is based on whether substantial evidence supports the AJ’s finding. See Hansen v. Dep’t of Homeland Sec., 911 F.3d 1362, 1369 (Fed. Cir. 2018) (“[O]ur sole inquiry is whether substantial evidence sup- ports the Board’s finding . . . [and] we do not reweigh evi- dence.”). The AJ’s decision demonstrates that she considered the command investigation (see Decision, slip op. at 25–26) and the revisions that Commander Chan made to the draft email (see id. at 26 n.6). Upon a review of the record, we find that substantial evidence supports the AJ’s finding. D Mr. Pamintuan also argues that the AJ incorrectly found that his retirement was not a covered personnel ac- tion. He argues that the AJ improperly required him to “always stand [remain on the job] and fight” Pet’r’s Br. 21–22 (emphasis and bracketed text in original). He also argues that the AJ failed to give the CUIAB’s finding pre- clusive effect. Contrary to Mr. Pamintuan’s argument, the AJ did not require Mr. Pamintuan to remain at his job indefinitely to Case: 19-2232 Document: 32 Page: 10 Filed: 02/04/2020

fight. Instead, the AJ correctly required Mr. Pamintuan to show that he lacked a meaningful choice in his retirement. See, e.g., Decision, slip op. at 14 (citing Bean v. U.S. Postal Serv., 120 M.S.P.R. 397, ¶ 11 (2013)). Against this stand- ard, the AJ found that Mr. Pamintuan “supplied no evi- dence the agency did anything other than reassign him and treat him as an employee in the reassigned position” and that he did not prove that he “was subject to intolerable working conditions that would have left a reasonable per- son without a choice but to retire.” Decision, slip op. at 18. We do not find fault in the AJ’s analysis. Mr. Pamintuan also argues that the CUIAB decision should have preclusive effect. In addition to disagreeing about the preclusive effect a CUIAB decision should have, the Government suggests that we lack jurisdiction in this case because the CUIAB allegedly found that Mr. Pa- mintuan “was subjected to national origin discrimination by the Navy.” Resp’t’s Br. 10–12. The Government points to Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017), for the proposition that if this case includes a na- tional origin discrimination claim, then this is a “mixed case” over which we lack jurisdiction. Id. at 11–12. While we agree that we would not have jurisdiction if this were a mixed case, we find that, given the particular facts of this case, this is not a mixed case. As Perry notes, “[t]he key to district court review . . . was the employee’s clai[m] that an agency action appealable to the MSPB vio- lates an antidiscrimination statute listed in § 7702(a)(1).” 137 S. Ct. at 1984 (emphasis and internal quotations re- moved). Given the record at hand, we do not find Mr. Pa- mintuan is claiming that the agency violated an antidiscrimination statute listed in § 7702(a)(1). First, Mr. Pamintuan provided in his amended Federal Circuit Rule 15(c) statement that “[n]o claim of discrimina- tion by reason of race, sex, age, national origin, or handi- capped condition [i.e., those listed in § 7702(a)(1)] has been Case: 19-2232 Document: 32 Page: 11 Filed: 02/04/2020

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or will be made in this case” and that “[a]ny claim of dis- crimination by reason of race, sex, age, national origin, or handicapped condition . . . has been abandoned or will not be raised or continued in this or any other court.” Pa- mintuan v. Dept’ of the Navy, No. 19-2232, Amended State- ment Concerning Discrimination Pursuant to Fed. Cir. R. 15(c), ECF No. 24 (Nov. 6, 2019). Moreover, contrary to the Government’s suggestion and given the record pro- vided, we do not find that the CUIAB decision included a finding of national origin discrimination. The CUIAB de- cision notes that it awarded Mr. Pamintuan unemployment benefits based on an “illegal discriminatory act” but does not detail what this act is or if the act would be covered by § 7702(a)(1). See App. 162–163. Further, Sanchez v. Cali- fornia Unemployment Insurance Appeals Board, the case cited in the CUIAB decision (and by the AJ), found an ille- gal discriminatory act where the petitioner faced demotion in retaliation for union-related activities. 685 P.2d 61, 68– 71 (Cal. 1984). Union-related activities, however, are not among the types of discrimination included in § 7702(a)(1). Therefore, an “illegal discriminatory act” found by the CUIAB may be outside those enumerated in § 7702(a)(1). Accordingly, we decline to find that this is a mixed case. Similar to what this court and the Merit Systems Pro- tection Board have found before, we do agree with the Gov- ernment that the CUIAB decision does not have preclusive effect on the Board. See, e.g., Wade v. Dep’t of Labor, 212 F. App’x 995, 997 (Fed. Cir. 2007) (“The CUIAB decision is based on California state law and is not binding upon the Board.”); see also Herring v. U.S. Postal Serv., 40 M.S.P.R. 342, 346 (1989) (“decisions by state unemployment tribu- nals are not given collateral estoppel effect”). We therefore find no error in the AJ’s decision to not give the CUIAB decision preclusive effect. Case: 19-2232 Document: 32 Page: 12 Filed: 02/04/2020

III We have considered the other arguments raised by Mr. Pamintuan and find them unpersuasive. For the foregoing reasons, we affirm the AJ’s denial of Mr. Pamintuan’s re- quest for corrective action. AFFIRMED COSTS The parties shall bear their own costs.