United States Court of Appeals
for the Federal Circuit
______________________
ANDREW H. BERNARD,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2014-3083
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-11-0222-C-1.
______________________
Decided: June 11, 2015
______________________
GERALD CUNNINGHAM, Law Office of Gerald Cunning-
ham, Pensacola Beach, FL, argued for petitioner.
ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN,
JR., REGINALD T. BLADES, JR.
______________________
Before PROST, Chief Judge, LOURIE, and TARANTO,
Circuit Judges.
2 BERNARD v. AGRICULTURE
TARANTO, Circuit Judge.
Andrew Bernard and his employer, the U.S. Forest
Service (an agency of the U.S. Department of Agricul-
ture), entered into an agreement that settled a case he
had filed against the Forest Service at the Merit Systems
Protection Board. Within a year of resuming his employ-
ment based on the agreement, Mr. Bernard petitioned the
Board to enforce the agreement, which he asserted the
Forest Service was violating. The Board denied enforce-
ment. We conclude that the Board improperly denied Mr.
Bernard discovery of potentially relevant evidence. We
vacate the decision and remand for further proceedings.
BACKGROUND
The Forest Service removed Mr. Bernard, a firefight-
er, from his position as supervisor of a hotshot firefighting
crew in February 2011. Mr. Bernard appealed his remov-
al to the Board, seeking reinstatement, back pay, and
attorney’s fees. The agency and Mr. Bernard settled the
matter in August 2011, executing an agreement under
which the agency replaced Mr. Bernard’s removal with a
14-day suspension, reinstated him in a non-supervisory
role, and provided lump-sum payments for back pay and
fees. Corrected Joint Appendix (J.A.) 629–30. The agency
promised that Mr. Bernard would not be “restricted from
applying for future supervisory positions” and would be
“allowed to go on future fire assignments . . . the same as
any other employee in the fire organization.” J.A. 630.
The parties agreed “[t]o cooperate and communicate in
good faith to implement and to abide by the terms of [the]
agreement.” J.A. 630.
Under the agency’s policy, a firefighting employee, to
receive firefighting assignments, must have an unexpired
Incident Qualification Card (or “red card”), which lists the
specific firefighting positions the employee is qualified to
fill, based on work history and training. Each firefighter
must renew his red card each year, and the red-card
BERNARD v. AGRICULTURE 3
listing limits what assignments the firefighter may re-
ceive. An agency official must annually evaluate and
certify “[e]ach employee’s incident and prescribed fire
position qualifications . . . and a new [red card] must be
issued.” J.A. 52. A card may not be issued until the
employee successfully completes the annual training
course on safety.
In February 2012, five months after his reinstatement
to employment, Mr. Bernard successfully completed the
annual safety course. Other employees who participated
in the course received renewed red cards in early March
2012, but the agency did not issue a red card to Mr.
Bernard. After Mr. Bernard inquired about the status of
his red card, an agency administrator, Christina McKer-
racher, informed him that, although the computerized
system that tracks each employee’s qualifications ap-
peared to reflect his full record of work and training, “[a]
recent audit” of his records found too few hard-copy
documents supporting those entries. J.A. 133.
In response, on March 15, 2012, Mr. Bernard provid-
ed the agency a copy of his 2010 red card. That card,
signed by certifying official Helen Graham, listed Mr.
Bernard as qualified, until 2014, for eleven firefighting
positions. J.A. 62. In April 2012, Ms. Graham wrote Mr.
Bernard a letter stating that as a prerequisite to receiving
a new red card, Mr. Bernard had to provide “acceptable
documentation” sufficient to support three specific posi-
tions that she stated were inadequately documented:
Incident Commander Type 3, Incident Commander Type
4, and Prescribed Fire Burn Boss 2. J.A. 68. Ms. Gra-
ham’s letter did not refer to Mr. Bernard’s 2010 red card,
on which Ms. Graham had certified Mr. Bernard as quali-
fied for those specific positions. J.A. 62. Mr. Bernard
notified the agency of a potential breach of the settlement
agreement, and in late May 2012 he received a red card
certifying him as qualified for seven (of the original elev-
en) positions. J.A. 76.
4 BERNARD v. AGRICULTURE
Mr. Bernard then petitioned the Board to enforce the
settlement agreement under 5 C.F.R. §§ 1201.181–
1201.183. He argued that the agency, by not timely
issuing him a complete (eleven-position) red card, was
retaliating against him and thereby breaching the agree-
ment’s good-faith and equal-opportunity commitments. 1
He argued that the breach caused him to lose $12,400 in
wages and that the agency had not responded to his
requests for a revised red card containing all of his previ-
ously certified qualifications. He also requested “limited
discovery to resolve any major factual disputes” regarding
the charge of retaliation. J.A. 47. After receiving the
agency’s response, Mr. Bernard filed a reply in which he
again asked for discovery, requesting “a brief discovery
period directed to the events of the audit, the two individ-
uals who determined the documents were insufficient,
and the cause of the missing records.” J.A. 204.
The administrative judge denied the petition for en-
forcement, concluding that Mr. Bernard had failed to
meet his burden of proving a breach of the agreement.
J.A. 16–17; see 5 C.F.R. § 1201.183(d) (party seeking to
enforce a settlement agreement has the burden to prove
breach). As to Mr. Bernard’s allegations of retaliation
and bad faith, the administrative judge concluded—
without acknowledging Mr. Bernard’s repeated requests
for discovery—that Mr. Bernard “did not support his bare
allegations with any evidence illustrating bad faith.” J.A.
16.
1 We do not understand Mr. Bernard to allege that
the agency’s actions constitute retaliation under the
Whistleblower Protection Act, see 5 U.S.C. § 1221, but
rather that evidence of retaliation is relevant in determin-
ing whether the agency breached its contractual obliga-
tion of good-faith cooperation, see Kuykendall v. Dep’t of
Veterans Affairs, 68 M.S.P.R. 314, 325 (1995).
BERNARD v. AGRICULTURE 5
The Board affirmed. In addressing Mr. Bernard’s ar-
gument that the administrative judge improperly denied
his discovery requests, the Board concluded that parties
in enforcement proceedings generally do not need to
request permission for discovery and that “the Board
generally only becomes involved in discovery matters if a
party files a motion to compel.” J.A. 4. Because Mr.
Bernard did not file a motion to compel discovery, the
Board concluded, the administrative judge did not err in
ignoring Mr. Bernard’s several requests.
Mr. Bernard appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
Mr. Bernard asks us to set aside the Board’s decision
because the administrative judge was required to respond
to his discovery requests. He also asks that we reverse
the Board’s determination that he failed to prove breach
of the settlement agreement. We agree with Mr. Bernard
as to the first issue. And because the Board’s discovery
error impaired Mr. Bernard’s ability to gather evidence
that may help prove breach, the proper course is to vacate
the Board’s decision and remand for further proceedings.
We review the Board’s decision to determine whether
it is “(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 evi-
dence.” 5 U.S.C. § 7703(c). “An abuse of discretion occurs
where the decision is based on an erroneous interpreta-
tion of the law, on factual findings that are not supported
by substantial evidence, or represents an unreasonable
judgment in weighing relevant factors.” Star Fruits
S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir.
2005).
6 BERNARD v. AGRICULTURE
Mr. Bernard twice asked for discovery, but the admin-
istrative judge never acted on those requests, and he
denied the enforcement petition without receiving evi-
dence Mr. Bernard might have gathered in the discovery
he requested. In affirming the denial of enforcement, the
Board did not conclude, and the agency here does not
contend, that in an enforcement proceeding like this one
the Board may deny a complainant like Mr. Bernard all
discovery, including discovery of potentially relevant
evidence, even if sought through the proper channels.
Rather, the Board concluded, and the agency argues, that
Mr. Bernard clearly had, but simply bypassed, the oppor-
tunity to obtain discovery. In the Board’s view, Mr.
Bernard could have directly asked individuals to sit for
depositions, or to respond to other discovery requests,
and, if he met resistance, moved to compel the requested
discovery. But the Board had no sound foundation, in
general regulations, Board precedents, or case-specific
orders, for its conclusion that it was permissible for the
administrative judge to disregard Mr. Bernard’s clear
requests for discovery. Mr. Bernard did not have a clear
right to engage directly in discovery without obtaining
permission before the administrative judge made his
agreement-compliance decision under the enforcement
procedures, 5 C.F.R. § 1201.183(a)(4).
No regulation makes clear that Mr. Bernard could
proceed directly to take discovery, without permission
from the administrative judge, before the administrative
judge rendered his initial decision on the agency’s compli-
ance. The discovery regulations cited by the Board, 5
C.F.R. §§ 1201.71–1201.75, appear in subpart B of 5
C.F.R. pt. 1201, covering “appellate cases,” see 5 C.F.R.
§§ 1201.11–1201.113. That subpart is distinct from
subpart F governing “Enforcement of Final Decisions and
Orders,” 5 C.F.R. §§ 1201.181–1201.183, under which the
present enforcement proceeding was brought. It is any-
thing but clear that the former is applicable to the latter.
BERNARD v. AGRICULTURE 7
Indeed, the opposite is suggested by the mismatch be-
tween the rules for discovery under § 1201.73, including
timing rules that allow 20 days for response to a discovery
request, § 1201.73(d)(2), and the much tighter schedule
prescribed for enforcement proceedings: e.g., the agency
must respond to an enforcement petition within 15 days,
and the petitioner has only 10 days to reply before the
administrative judge may make a determination of com-
pliance, § 1201.183(a). Thus, the regulations themselves
provide no clear guarantee of direct discovery applicable
to Mr. Bernard’s case.
Nor do Board precedents interpreting the regulations
provide such a clear guarantee. The enforcement-
proceeding precedent on which the Board relied here does
suggest a direct-discovery right, King v. Dep’t of Navy, 98
M.S.P.R. 547, 552 (2005) (“a party does not need the
Board’s approval to engage in discovery”), but King’s
precise meaning on the facts presented—perhaps involv-
ing discovery after an initial compliance order under 5
C.F.R. § 1201.183(a)(5)—is not clear. Moreover, King’s
only cited legal authority is § 1201.73, which, as we have
just noted, appears not to apply to enforcement proceed-
ings. In any event, King does not stand alone. In Ernst v.
Department of Treasury, the Board, following earlier
pronouncements, declared: “An employee is not entitled to
discovery in enforcement proceedings, although the AJ
has the discretion to grant such a request.” 69 M.S.P.R.
133, 139 (1995), aff’d, 92 F.3d 1208 (Fed. Cir. 1996) (Ta-
ble); see Forston v. Dep’t of Navy, 60 M.S.P.R. 154, 158
(1993); Covert v. Dep’t of Navy, 31 M.S.P.R. 376, 382
(1986). The Board in King did not address Ernst and its
predecessors. And since King, the Board has repeated the
Ernst proposition, citing Ernst as establishing that, “in an
enforcement proceeding, an employee is not entitled to
discovery to establish his allegations, although the admin-
istrative judge may grant discovery in his discretion, if
necessary to resolve disputed facts.” Young v. U.S. Postal
8 BERNARD v. AGRICULTURE
Serv., 113 M.S.P.R. 609, 620 (2010). Thus, Board prece-
dent, combined with the regulations, gave Mr. Bernard no
genuine notice that he could take discovery in this en-
forcement proceeding without advance permission from
the administrative judge.
We also cannot find such notice in any orders issued
in Mr. Bernard’s case. The government contends that the
administrative judge in fact granted discovery by way of
an acknowledgment order sent to both parties upon
receipt of Mr. Bernard’s petition for enforcement. J.A. 84
(the “Enforcement Order”). That order does not mention
discovery expressly, but it does state that “the procedures
and filing requirements set forth in the Order acknowl-
edging [Mr. Bernard’s] original appeal [the one that was
settled] are applicable in this case.” J.A. 84 (emphasis
added). The government argues that because the
acknowledgement order in the underlying appeal granted
discovery, see J.A. 279 (the “Appeal Order”), the Enforce-
ment Order’s reference to those procedures did the same.
But this argument fails to justify the administrative
judge’s disregard of Mr. Bernard’s express discovery
requests.
The Board itself did not conclude that the Enforce-
ment Order provided the opportunity for discovery. And
there is good reason for the Board not to have relied on
the reasoning the government now advances. The En-
forcement Order does not provide meaningful notice that
discovery was being authorized. In referring to the Ap-
peal Order for “procedures and filing requirements,” it
makes no mention of discovery specifically. And while
that omission might not matter if the discovery provisions
of the Appeal Order fit the enforcement context, they
plainly do not. Most concretely, there is essentially the
same timing-rules mismatch we identified above in dis-
cussing the regulations.
BERNARD v. AGRICULTURE 9
Thus, the Enforcement Order provides three clear
deadlines: (1) the agency must file its written response to
Mr. Bernard’s petition “within 15 calendar days”; (2) Mr.
Bernard may then file a reply within 10 days of being
served with the agency’s filing; and (3) the evidentiary
record closes the same day Mr. Bernard’s reply is due, i.e.,
“10 calendar days from the date of service of the agency’s
reply to appellant’s petition.” J.A. 85. That schedule
allows 25 days from petition to closure of the record.
Yet the Appeal Order instructed the parties that “ini-
tial [discovery] requests . . . must be served on the other
party within 25 calendar days of the date of this Order,”
and “[r]esponses to initial discovery requests must be
served promptly but no later than 20 days after the date
of service of the other party’s discovery request or the
MSPB order.” J.A. 279 (emphases added). If we strike
out the phrase “the date of this Order” and replace it with
a reference to the date of the Enforcement Order, we
obtain an order under which the record closed before any
response to a discovery request was required. Similar
problems arise from trying to apply the Board’s discovery
regulations for appellate cases, 5 C.F.R. §§ 1201.71–
1201.75, which the Appeal Order designates as the “pro-
cedures [to be] used for discovery,” J.A. 279, and which
establish timelines applicable unless the administrative
judge instructs otherwise, § 1201.73(d). Under the regu-
lations, parties must serve initial discovery requests
“within 30 days after the date on which the judge issues
an order to the respondent agency to produce the agency
file and response”; the responding party has 20 days to
respond to discovery requests; and discovery must be
completed “no later than the prehearing or close of record
conference.” Id.
Perhaps it is possible to translate the terms of the
regulations and Appeal Order into the enforcement set-
ting. We might even construct a scenario in which Mr.
Bernard could have initiated discovery within a few days
10 BERNARD v. AGRICULTURE
of filing his petition, even before getting the agency’s
response to his charge of noncompliance (which would
define the actual dispute), then awaited responses within
the time allowed under the Appeal Order and regulations,
and have had time to digest and use the discovered evi-
dence before his last filing was due and the enforcement
record closed under the Enforcement Order. But such an
effort to force discovery into the Appeal Order schedule is
so strained, and produces a discovery schedule so far from
what the Board regulations indicate to be truly adequate,
that Mr. Bernard cannot be expected to have understood
the Enforcement Order to incorporate the Appeal Order’s
authorization for discovery in the underlying appeal. It is
hardly surprising that the Board did not conclude other-
wise.
At oral argument, the government did not dispute
that the Enforcement Order and Appeal Order deadlines
were a mismatch, Oral Arg. at 22:40–23:00, but it urged
that Mr. Bernard should have taken advantage of the
Enforcement Order’s invitation to the parties to call the
judge by phone if they were confused by any of the stated
procedures, J.A. 84. But Mr. Bernard’s clear and explicit
discovery requests—in two formal filings to the adminis-
trative judge—sufficiently conveyed his belief that discov-
ery was unavailable without an order from the
administrative judge. Under these circumstances, we
conclude that the Board abused its discretion by holding
that the administrative judge was not obliged to respond
to Mr. Bernard’s requests. See Cultor Corp. v. A.E. Staley
Mfg. Co., 224 F.3d 1328, 1332 (Fed. Cir. 2000) (a court
may abuse its discretion by failing to explain its decision
unless “the explanation is apparent” from the record)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
We cannot say that the error was harmless. Mr. Ber-
nard’s allegations of breach-by-retaliation were detailed,
particularized, and far from speculative given the ques-
tions raised and currently unanswered by the record. See
BERNARD v. AGRICULTURE 11
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). By
way of example: Helen Graham, the agency certifying
official, issued Mr. Bernard a red card in 2010 bearing her
signature. The 2010 card indicated that he was qualified
for 11 positions, each qualification to last until 2014. J.A.
62. Ms. Graham was also the official charged with
reevaluating Mr. Bernard’s qualifications in 2012. Yet,
despite her signature on Mr. Bernard’s 2010 red card,
listing 11 unexpired qualifications, Ms. Graham main-
tained that the documentation underlying those unex-
pired qualifications was now deficient. Moreover, while
the agency withheld certification for only some, not all, of
Mr. Bernard’s qualifications, Ms. Graham at one point
stated that his hard-copy file was “empty.” J.A. 143.
Given that issues of motivation are raised under the
settlement agreement’s requirement of good-faith cooper-
ation, we can hardly say that the record in this case
supplies no basis for discovery.
Finally, we reject the government’s argument that all
Mr. Bernard seeks is $12,400 in damages, the Board
cannot award damages, and therefore the Board cannot
award a remedy even if he proves breach. See Lary v.
U.S. Postal Serv., 472 F.3d 1363, 1368 (Fed. Cir. 2006)
(“[T]he Board does not have authority to grant damag-
es . . . .”). The Board did not refuse to reach the merits on
any such basis. Moreover, Mr. Bernard did not limit his
petition to a damages remedy. His red card has admitted-
ly not been fully restored to its pre-2012 status, and the
Board’s enforcement authority is broad enough to facili-
tate such restoration, within the limits of the agency’s
valid policies, see Smith v. Dep’t of Army, 458 F.3d 1359,
1364 (Fed. Cir. 2006). In addition, the Board’s enforce-
ment powers under 5 U.S.C. § 1204(a)(2) may in appro-
priate circumstances include the power to award both
back pay “and other relief.” Lary v. U.S. Postal Serv., 493
F.3d 1355, 1356–57 (Fed. Cir. 2007) (clarifying original
opinion on petition for rehearing). On remand, the Board
12 BERNARD v. AGRICULTURE
may determine whether this case presents such circum-
stances.
CONCLUSION
For those reasons, we vacate the Board’s decision and
remand for further proceedings consistent with this
opinion.
No costs.
VACATED AND REMANDED