Bernard v. Dep't of Agric., No. 14-3083 (Fed. Cir. 2015)
Annotate this CaseThe Forest Service removed Bernard, a firefighter, from his position as supervisor. Bernard appealed. The agency and Bernard settled: the agency reinstated him in a non-supervisory role and provided back pay, promising that Bernard would not be restricted from applying for supervisory positions and would be given future fire assignments “the same as any other employee.” To receive assignments, an employee must have an Incident Qualification Card (red card), listing specific firefighting positions the employee is qualified to fill. A renewal card requires completion of annual training. Five months after his reinstatement, Bernard successfully completed the course. Other participants received renewal cards, but the agency did not issue a card to Bernard, indicating that an audit of his records found too few hard-copy documents supporting the entries. Bernard provided a copy of his 2010 card, signed by a certifying official, listing Bernard as qualified, until 2014, for 11 firefighting positions. After the agency requested additional documentation, Bernard notified it of a potential breach of the settlement, and received a card certifying him for seven positions. Bernard petitioned the Merit Systems Protection Board. An administrative judge found that Bernard had not established a breach, and— without acknowledging repeated requests for discovery—that Bernard “did not support his bare allegations with any evidence illustrating bad faith” and retaliation. The Federal Circuit vacated. The Board improperly denied discovery of potentially relevant evidence.
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