Johnen v. U.S. Merit Systems Protection Board, No. 16-73427 (9th Cir. 2018)
Annotate this CasePetitioner alleged that the Army terminated him and excluded him from his work site because he had made complaints that were protected under the Whistleblower Protection Act of 1989. The Ninth Circuit dismissed the petition for review of the Board's adverse decision, holding that the Army was the only proper respondent; petitioner received due process; and the Board's decision on the merits was supported by substantial evidence and was procedurally proper. Accordingly, the court denied in part and granted in part as to the petition for review of the Army's adverse decision, remanding for further proceedings.
Court Description: Merit Systems Protection Board. The panel dismissed a petition for review as to the United States Merit Systems Protection Board; and denied in part, granted in part, and remanded the petition for review as to the United States Department of the Army in a case brought by a former civilian employee at Fort Hunter Liggett, a military base in California alleging that the Army terminated him and excluded him from his work site because he had made complaints that were protected by the Whistleblower Protection Act of 1989. The Board affirmed the administrative law judge’s finding that the petitioner failed to make a prima facie case that his complaint to the Department of Defense Inspector General was a contributing factor in the Army’s decision to terminate him and exclude him from a work site. The panel held that the Army was the only proper respondent in this case where petitioner brought a “mixed case” by challenging both jurisdictional or procedural matters and the merits of an adverse personnel action. The panel further held that because petitioner was seeking review of the Board’s decision on the merits of his termination and exclusion, the Board was not the proper respondent; and only the agency that took the action – the Army – was properly “the” respondent. JOHNEN V. MSPB 3 The panel also held that the petitioner received due process. The panel rejected petitioner’s argument that the Board violated his due process rights by deciding his appeal when only two Board members, instead of the usual three, held office. Finally, the panel held that the Board’s decision on the merits was supported by substantial evidence and was procedurally proper. In a separate memorandum disposition, the panel granted the petition in part and remanded the case for consideration of an additional issue.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.