Case: 24-1723 Document: 31 Page: 1 Filed: 10/15/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
ANGELIQUE VON KELSING, Petitioner
v.
DEPARTMENT OF THE NAVY, Respondent ______________________
2024-1723 ______________________
Petition for review of the Merit Systems Protection Board in No. SF-0432-21-0291-I-1. ______________________
Decided: October 15, 2024 ______________________
ANGELIQUE VON KELSING, Gig Harbor, WA, pro se.
IOANA C. MEYER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M. MCCARTHY. ______________________
Before LOURIE, PROST, and STARK, Circuit Judges. Case: 24-1723 Document: 31 Page: 2 Filed: 10/15/2024
PER CURIAM. Angelique Von Kelsing appeals a final order of the Merit Systems Protection Board (“MSPB”) affirming her performance-based removal from a position at the Depart- ment of the Navy (“Navy”). Von Kelsing v. Dep’t of the Navy, No. SF-0432-21-0291-I-1, 2022 WL 199510 (M.S.P.B. Jan. 21, 2022) (“Initial Decision”); Von Kelsing v. Dep’t of the Navy, No. SF-0432-21-0291-I-1 2024 WL 1070872 (M.S.P.B. Mar. 11, 2024) (“Final Order”). For the following reasons, we affirm. BACKGROUND Ms. Von Kelsing was a Program Analyst in the Quality Assurance Office at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility from October 2018 un- til her removal. She was responsible for two major areas: analysis of Workload and Resource Reports (“WARR”) and budget analysis. Her supervisor from October 2018 to May 2020 reported deficiencies in the performance of her WARR duties. For example, in 2019, Ms. Von Kelsing’s supervisor noted that she “decided to discontinue having the WARR meetings because she didn’t perceive them as effective” even though such meetings were part of her performance duties. S. App’x 59. 1 Ms. Von Kelsing’s supervisor also noted that “[t]he WARR half of her position has been very difficult for her to grasp.” S. App’x 60. Nevertheless, Ms. Von Kelsing’s supervisor gave her a rating of 3 out of 5, or “fully successful,” for the 2019 appraisal year. S. App’x 59– 62; see 5 C.F.R. § 430.208(d)(2)(iii). Her performance re- view for the 2020 appraisal year reflected similar difficul- ties with the WARR aspects of her job; still, Ms. Von Kelsing’s supervisor again gave her a 3 out of 5 “fully suc- cessful” rating. S. App’x 64–67.
1 “S. App’x” refers to the supplemental appendix in- cluded with the government’s informal brief. Case: 24-1723 Document: 31 Page: 3 Filed: 10/15/2024
VON KELSING v. NAVY 3
In May 2020, Ms. Von Kelsing transferred to a different division within the Navy and began reporting to new su- pervisors. She continued to have WARR responsibilities in this new position. Since Ms. Von Kelsing “was teleworking on a full-time basis as a result of the COVID-19 pandemic,” Ms. Von Kelsing’s new supervisors “held a telephone con- ference” with her, “during which they reviewed [her] posi- tion description with her in detail, explained” the “expectations of her performance of those duties, and re- viewed the training that would be provided to [her] to as- sist her with performing her duties.” Initial Decision, 2022 WL 199510; S. App’x 6. Ms. Von Kelsing’s new supervisors observed that she had not improved on the performance of her WARR duties. From August to September 2020, her supervisors had sev- eral discussions with her about strategies for improving on her WARR duties. S. App’x 68–78. Seeing no improve- ment, Ms. Von Kelsing’s supervisors placed her on a Per- formance Improvement Plan (“PIP”). S. App’x 79–84. Ms. Von Kelsing’s supervisors determined that she failed to im- prove under the PIP, S. App’x 85–92, and the Navy re- moved her, S. App’x 93–94. Ms. Von Kelsing appealed to the MSPB, challenging the Navy’s removal. The administrative judge (“AJ”) af- firmed in an initial decision. Relevant here, the AJ found that the Navy communicated Ms. Von Kelsing’s perfor- mance standards to her. Although the AJ found that Ms. Von Kelsing’s supervisors had not provided her a written “copy” of her performance standards, the AJ found that, “[b]y April 1, 2020, [Ms. Von Kelsing] knew she would be assessed against the performance standards set forth in the [Department of Defense Performance Management and Appraisal Program (“DPMAP”)], and knew precisely where to locate a copy of those standards.” Initial Decision, 2022 WL 199510; S. App’x 13. Thus, the AJ found “that the [Navy] has shown by substantial evidence that it commu- nicated [Ms. Von Kelsing’s] critical elements and Case: 24-1723 Document: 31 Page: 4 Filed: 10/15/2024
performance standards to [her] as required.” Initial Deci- sion, 2022 WL 199510; S. App’x 14. Ms. Von Kelsing filed a petition for review before the full MSPB, which affirmed the initial decision. Final Or- der, 2024 WL 1070872, at *1. Ms. Von Kelsing timely ap- pealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION On review of the MSPB’s decision, we must “hold un- lawful and set aside any agency action, findings, or conclu- sions found to be—(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) ob- tained without procedures required by law, rule, or regula- tion having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Ms. Von Kelsing argues on appeal that the Navy failed to properly provide her the governing performance stand- ards. We understand her to make both a legal and a factual argument. Legally, she argues that the relevant provisions require providing a written copy of her performance stand- ards, stating that, “[i]f I was not provided a copy of my crit- ical elements and performance standards, then the [Navy] did not communicate my standards to me.” Informal Reply Br. 1 (emphasis added). Factually, she argues that “[a]t no time during the appraisal period did my first line supervi- sor meet with me to discuss my performance standards.” Appellant’s Informal Br. 1. We reject both arguments. The relevant statutory provision requires that, “at the beginning of each . . . appraisal period,” the agency “com- municat[e] to each employee the performance standards and the critical elements of the employee’s position.” 5 U.S.C. § 4302(c)(2). We have interpreted this provision to prohibit taking adverse action against an employee with- out prior notice of the performance standards for the spe- cific appraisal period at issue. Weirauch v. Dep’t of the Case: 24-1723 Document: 31 Page: 5 Filed: 10/15/2024
VON KELSING v. NAVY 5
Army, 782 F.2d 1560, 1563 (Fed. Cir. 1986). Importantly, however, “[p]rovided the substantive rights of the employee are preserved (that is, communication of the standards be- forehand and evaluation thereon after an opportunity to improve),” we have concluded that an agency has met its obligation to communicate the contents of performance standards to an employee. Id. We first address Ms. Von Kelsing’s legal argument that the Navy should have provided her a written copy of her performance standards.
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Case: 24-1723 Document: 31 Page: 1 Filed: 10/15/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
ANGELIQUE VON KELSING, Petitioner
v.
DEPARTMENT OF THE NAVY, Respondent ______________________
2024-1723 ______________________
Petition for review of the Merit Systems Protection Board in No. SF-0432-21-0291-I-1. ______________________
Decided: October 15, 2024 ______________________
ANGELIQUE VON KELSING, Gig Harbor, WA, pro se.
IOANA C. MEYER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M. MCCARTHY. ______________________
Before LOURIE, PROST, and STARK, Circuit Judges. Case: 24-1723 Document: 31 Page: 2 Filed: 10/15/2024
PER CURIAM. Angelique Von Kelsing appeals a final order of the Merit Systems Protection Board (“MSPB”) affirming her performance-based removal from a position at the Depart- ment of the Navy (“Navy”). Von Kelsing v. Dep’t of the Navy, No. SF-0432-21-0291-I-1, 2022 WL 199510 (M.S.P.B. Jan. 21, 2022) (“Initial Decision”); Von Kelsing v. Dep’t of the Navy, No. SF-0432-21-0291-I-1 2024 WL 1070872 (M.S.P.B. Mar. 11, 2024) (“Final Order”). For the following reasons, we affirm. BACKGROUND Ms. Von Kelsing was a Program Analyst in the Quality Assurance Office at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility from October 2018 un- til her removal. She was responsible for two major areas: analysis of Workload and Resource Reports (“WARR”) and budget analysis. Her supervisor from October 2018 to May 2020 reported deficiencies in the performance of her WARR duties. For example, in 2019, Ms. Von Kelsing’s supervisor noted that she “decided to discontinue having the WARR meetings because she didn’t perceive them as effective” even though such meetings were part of her performance duties. S. App’x 59. 1 Ms. Von Kelsing’s supervisor also noted that “[t]he WARR half of her position has been very difficult for her to grasp.” S. App’x 60. Nevertheless, Ms. Von Kelsing’s supervisor gave her a rating of 3 out of 5, or “fully successful,” for the 2019 appraisal year. S. App’x 59– 62; see 5 C.F.R. § 430.208(d)(2)(iii). Her performance re- view for the 2020 appraisal year reflected similar difficul- ties with the WARR aspects of her job; still, Ms. Von Kelsing’s supervisor again gave her a 3 out of 5 “fully suc- cessful” rating. S. App’x 64–67.
1 “S. App’x” refers to the supplemental appendix in- cluded with the government’s informal brief. Case: 24-1723 Document: 31 Page: 3 Filed: 10/15/2024
VON KELSING v. NAVY 3
In May 2020, Ms. Von Kelsing transferred to a different division within the Navy and began reporting to new su- pervisors. She continued to have WARR responsibilities in this new position. Since Ms. Von Kelsing “was teleworking on a full-time basis as a result of the COVID-19 pandemic,” Ms. Von Kelsing’s new supervisors “held a telephone con- ference” with her, “during which they reviewed [her] posi- tion description with her in detail, explained” the “expectations of her performance of those duties, and re- viewed the training that would be provided to [her] to as- sist her with performing her duties.” Initial Decision, 2022 WL 199510; S. App’x 6. Ms. Von Kelsing’s new supervisors observed that she had not improved on the performance of her WARR duties. From August to September 2020, her supervisors had sev- eral discussions with her about strategies for improving on her WARR duties. S. App’x 68–78. Seeing no improve- ment, Ms. Von Kelsing’s supervisors placed her on a Per- formance Improvement Plan (“PIP”). S. App’x 79–84. Ms. Von Kelsing’s supervisors determined that she failed to im- prove under the PIP, S. App’x 85–92, and the Navy re- moved her, S. App’x 93–94. Ms. Von Kelsing appealed to the MSPB, challenging the Navy’s removal. The administrative judge (“AJ”) af- firmed in an initial decision. Relevant here, the AJ found that the Navy communicated Ms. Von Kelsing’s perfor- mance standards to her. Although the AJ found that Ms. Von Kelsing’s supervisors had not provided her a written “copy” of her performance standards, the AJ found that, “[b]y April 1, 2020, [Ms. Von Kelsing] knew she would be assessed against the performance standards set forth in the [Department of Defense Performance Management and Appraisal Program (“DPMAP”)], and knew precisely where to locate a copy of those standards.” Initial Decision, 2022 WL 199510; S. App’x 13. Thus, the AJ found “that the [Navy] has shown by substantial evidence that it commu- nicated [Ms. Von Kelsing’s] critical elements and Case: 24-1723 Document: 31 Page: 4 Filed: 10/15/2024
performance standards to [her] as required.” Initial Deci- sion, 2022 WL 199510; S. App’x 14. Ms. Von Kelsing filed a petition for review before the full MSPB, which affirmed the initial decision. Final Or- der, 2024 WL 1070872, at *1. Ms. Von Kelsing timely ap- pealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION On review of the MSPB’s decision, we must “hold un- lawful and set aside any agency action, findings, or conclu- sions found to be—(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) ob- tained without procedures required by law, rule, or regula- tion having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Ms. Von Kelsing argues on appeal that the Navy failed to properly provide her the governing performance stand- ards. We understand her to make both a legal and a factual argument. Legally, she argues that the relevant provisions require providing a written copy of her performance stand- ards, stating that, “[i]f I was not provided a copy of my crit- ical elements and performance standards, then the [Navy] did not communicate my standards to me.” Informal Reply Br. 1 (emphasis added). Factually, she argues that “[a]t no time during the appraisal period did my first line supervi- sor meet with me to discuss my performance standards.” Appellant’s Informal Br. 1. We reject both arguments. The relevant statutory provision requires that, “at the beginning of each . . . appraisal period,” the agency “com- municat[e] to each employee the performance standards and the critical elements of the employee’s position.” 5 U.S.C. § 4302(c)(2). We have interpreted this provision to prohibit taking adverse action against an employee with- out prior notice of the performance standards for the spe- cific appraisal period at issue. Weirauch v. Dep’t of the Case: 24-1723 Document: 31 Page: 5 Filed: 10/15/2024
VON KELSING v. NAVY 5
Army, 782 F.2d 1560, 1563 (Fed. Cir. 1986). Importantly, however, “[p]rovided the substantive rights of the employee are preserved (that is, communication of the standards be- forehand and evaluation thereon after an opportunity to improve),” we have concluded that an agency has met its obligation to communicate the contents of performance standards to an employee. Id. We first address Ms. Von Kelsing’s legal argument that the Navy should have provided her a written copy of her performance standards. The applicable statutory provision merely requires “communicating” the performance stand- ards and critical elements of the employee’s position with- out specifying whether this communication must be written or verbal. 5 U.S.C. § 4302(c)(2). And Ms. Von Kel- sing identifies no other source of law, nor are we aware of one, requiring that the communication of performance standards be in writing. Thus, Ms. Von Kelsing has not demonstrated that the MSPB legally erred by concluding that the Navy did not need to provide her a written copy of her performance standards. 2 We next turn to Ms. Von Kelsing’s factual argument that her supervisor never met or communicated with her regarding her performance standards. The AJ found that Ms. Von Kelsing’s supervisors held a meeting with her “during which they reviewed [her] position description with her in detail, explained to [her] their expectations of her performance of those duties, and reviewed the training that would be provided to [her] to assist her with performing her
2 It also appears that Ms. Von Kelsing did have ac- cess to a written copy of her performance standards in the DPMAP database. Initial Decision, 2022 WL 199150; S. App’x 13 (finding that Ms. Von Kelsing had access to “and knew precisely where to locate a copy of those standards”). Ms. Von Kelsing has not shown that this factual determi- nation lacks substantial-evidence support. Case: 24-1723 Document: 31 Page: 6 Filed: 10/15/2024
duties.” Initial Decision, 2022 WL 199510; S. App’x 6. Sub- stantial evidence supports this finding. E.g., S. App’x 79 (referencing a discussion of Ms. Von Kelsing’s “current per- formance plan” on May 27, 2020). Ms. Von Kelsing’s argu- ment otherwise is a dispute with the particular facts the AJ found, but she fails to establish that no reasonable fact- finder could have found as the AJ did on this record. See Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938) (observing that substantial evidence “means such relevant evidence as a reasonable mind might accept as ad- equate to support a conclusion”). We thus reject her argu- ment that the MSPB lacked evidentiary support for its factual finding that the Navy adequately communicated her performance standards to her. CONCLUSION We have considered Ms. Von Kelsing’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm the MSPB’s decision affirming her removal from her position at the Navy. AFFIRMED COSTS No costs.