English v. MSPB

Appellate Case: 23-9526 Document: 010110972633 Date Filed: 12/21/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 21, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
LEONARD ENGLISH, JR.,

Petitioner,

v. No. 23-9526
(MSPB No. DE-1221-16-0484-W-1)
MERIT SYSTEMS PROTECTION (Merits Systems Protection Board)
BOARD; SMALL BUSINESS
ADMINISTRATION,

Respondents.

–––––––––––––––––––––––––––––––––––

LEONARD ENGLISH, JR.,

Petitioner,

v. No. 23-9527
(MSPB Nos. DE-1221-16-0135-W-1
MERIT SYSTEMS PROTECTION & DE-1221-16-0136-W-1)
BOARD; SMALL BUSINESS (Merits Systems Protection Board)
ADMINISTRATION,

Respondents.

–––––––––––––––––––––––––––––––––––

LEONARD ENGLISH, JR.,

Petitioner,

v. No. 23-9528
(MSPB No. DE-XXX-XX-XXXX-I-1)
MERIT SYSTEMS PROTECTION (Merits Systems Protection Board)
BOARD; SMALL BUSINESS
ADMINISTRATION,
Appellate Case: 23-9526 Document: 010110972633 Date Filed: 12/21/2023 Page: 2

Respondents.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
_________________________________

Leonard English, Jr., proceeding pro se, petitions for review of final orders by

the Merit Systems Protection Board (MSPB or Board) in two individual right of

action (IRA) appeals and an adverse action appeal. The MSPB rejected

Mr. English’s claims and defenses that his former employer, the Small Business

Administration (SBA), unlawfully retaliated against him by taking personnel actions

because he engaged in protected whistleblowing activities. Exercising jurisdiction

under 5 U.S.C. § 7703(b)(1)(B), we affirm. 1

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1
The SBA argues that it is the sole proper respondent. The MSPB concurs,
declining to file briefs in each matter. We agree that the MSPB is not a proper
respondent because Mr. English’s petitions challenge the MSPB’s merits decisions.
See 5 U.S.C. § 7703(a)(2); Johnen v. U.S. MSPB, 882 F.3d 1171, 1174 (9th Cir.
2018). We therefore dismiss the petitions for review as to the MSPB.

Notwithstanding its position that it is not a proper respondent, the MSPB
moves to transfer No. 23-9528 to the district court because Mr. English presented a
“mixed case” by raising defenses of discrimination based on race, color, sex, age, and
retaliation for prior equal employment opportunity activity in addition to
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BACKGROUND

Starting in 2007, the SBA employed Mr. English as a Surety Bond Guarantee

Specialist in Denver, Colorado. By the time the events underlying these matters

began, in 2014, Mr. English’s first-line supervisor was Jennifer Vigil, Supervisor

Surety Bond Guarantee Specialist (located in Denver), and his second-line supervisor

was Peter Gibbs, Acting Director for Surety Bond Guarantees (located in

Washington, D.C.). Mr. English was a member of a bargaining unit and his

employment was covered by a labor agreement.

On April 18, 2014, Mr. English wrote an e-mail to Ms. Vigil expressing

concerns about the time and attendance of a coworker. Mr. English alleges that this

complaint led to a more-than-two-year campaign of harassment and retaliation

against him by Ms. Vigil and Mr. Gibbs, culminating with his removal from federal

employment in September 2016. We described many of the underlying events in a

discrimination action challenging Mr. English’s removal. See English v. Small Bus.

Admin., 842 F. App’x 193, 195-96 (10th Cir. 2021). In short, between 2014 and 2016

the SBA took several actions against Mr. English, and he pursued numerous internal

and external avenues of complaint, including e-mails to SBA personnel, filings with

the Office of the Inspector General (OIG) and Office of Special Counsel (OSC),

whistleblowing. See Baca v. Dep’t of the Army, 983 F.3d 1131, 1137 (10th Cir.
2020) (recognizing that a “mixed case” must be appealed to the district court). But in
his response to the motion and in his opening brief, Mr. English explicitly waived his
discrimination allegations. We therefore have jurisdiction to review No. 23-9528,
see Baca, 983 F.3d at 1138, and we deny the motion to transfer.
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letters to members of Congress, multiple MSPB appeals, and equal employment

opportunity (EEO) charges.

As relevant here, Mr. English sought corrective action for various disciplinary

decisions in two IRA appeals, and he challenged another disciplinary decision in a

Chapter 75 appeal of an adverse action. 2 The administrative judge (AJ) held a

hearing in one of the IRA appeals (No. 23-9527) and decided the other two appeals

on the briefs. His initial decisions addressed Mr. English’s claims and defenses that

the SBA had retaliated against him for undertaking protected whistleblowing

activities. The AJ found that certain of Mr. English’s actions were protected

activities, but in each instance, the SBA had shown by clear and convincing evidence

that it would have taken the same actions even in the absence of the protected

activities. The AJ thus denied Mr. English’s requests for corrective action in the IRA

appeals and affirmed the SBA’s decision in the adverse action appeal. The Board

denied Mr. English’s petitions for review in all three cases. Mr. English now seeks

review by this court.

STANDARDS OF REVIEW

“A MSPB decision must be upheld unless the reviewing court determines that

it is: ‘(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

2
“Chapter 75 of the [Civil Service Reform] Act governs adverse action taken
against employees for the efficiency of the service . . . based on misconduct.” United
States v. Fausto, 484 U.S. 439, 446 (1988) (internal quotation marks omitted),
superseded by statute on other grounds as discussed in Kaplan v. Conyers, 733 F.3d
1148, 1160-61 (Fed. Cir. 2013).
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with law; (2) obtained without procedures required by law, rule, or regulation having

been followed; or (3) unsupported by substantial evidence.’” Williams v. Rice,

983 F.2d 177, 180 (10th Cir. 1993) (quoting 5 U.S.C. § 7703(c)). “The reviewing

court may not substitute its judgment for that of the MSPB.” Id. (internal quotation

marks omitted). “Under the arbitrary and capricious standard the MSPB’s decision

needs only to have a rational basis in law.” Id. (internal quotation marks omitted).

Under the substantial-evidence standard, “we will only reverse if the agency’s factual

determinations are not supported by such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Baca v. Dep’t of the Army,

983 F.3d 1131, 1140 (10th Cir. 2020) (internal quotation marks omitted). We defer

to the fact finder’s credibility determinations “because he or she is uniquely able to

observe the demeanor of the claimant in a direct and unmediated fashion.” Id.

(ellipsis and internal quotation marks omitted).

Because Mr. English proceeds pro se, we construe his filings liberally.

See Lankford v. Wagner, 853 F.3d 1119, 1121 (10th Cir. 2017). “We make some

allowances for deficiencies, such as unfamiliarity with pleading requirements, failure

to cite appropriate legal authority, and confusion of legal theories.” Id. “But we

cannot take on the responsibility of serving as [his] attorney in constructing

arguments and searching the record.” Id. at 1122 (internal quotation marks omitted).

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DISCUSSION

I. Scope of Proceedings and Burdens of Proof

A. Nos. 23-9526 and 23-9527

Nos. 23-9526 and 23-9527 are Mr. English’s IRA appeals alleging the SBA

retaliated against him for protected whistleblowing activities. No. 23-9526 addresses

(1) Mr. English’s performance rating of 2 for fiscal year 2015; (2) an assessment that

he was absent without leave (AWOL) from April 22 through May 17, 2016; and

(3) Ms. Vigil’s failure to include him in a line-of-succession designation 3 on

March 11, 2016. 4 No. 23-9527 addresses (1) letters of reprimand issued by

Mr. Gibbs on May 18, 2015, and by Linda Rusche, Director of Credit Risk

Management, on July 20, 2015; and (2) line-of-succession decisions issued by

Ms. Vigil on April 22, 2014, January 2, 2015, March 4, 2015, and September 29,

2015.

3
A line-of-succession designation named the employees who were authorized
to act for Ms. Vigil when she was out of the office.
4
Mr. English’s opening brief requests that we consider a fourth alleged action
in No. 23-9526. We decline this request because exhaustion of administrative
remedies is a jurisdictional requirement. See Acha v. Dep’t of Agric., 841 F.3d 878,
883 & n.3 (10th Cir. 2016). Although Mr. English asserts that he identified this issue
in his letter to the OSC, we cannot conclude that he raised the issue “in a way that
would allow the OSC to sufficiently pursue an investigation,” id. at 884, separately
from the AWOL assessment. Moreover, Mr. English has not shown that he presented
the alleged action to the MSPB or that it reviewed the action. This omission alone
would cause us to decline review. See Micheli v. Dir., Off. of Workers’ Comp.
Programs, U.S. Dep’t of Lab., 846 F.2d 632, 635 (10th Cir. 1988) (“[I]n the absence
of exceptional circumstances, a reviewing court will refuse to consider contentions
not presented before the administrative proceeding at the appropriate time.” (internal
quotation marks omitted)).
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In these IRA appeals, Mr. English had the burden to prove by a preponderance

of the evidence that (1) he engaged in a disclosure or activity protected under

5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D); and (2) such disclosure or

activity was a contributing factor in the personnel action(s) taken against him.

See 5 U.S.C. § 1221(e)(1). Once Mr. English met his burden, the MSPB was

required to order corrective action unless the SBA demonstrated by clear and

convincing evidence that it would have taken the same action in the absence of the

protected disclosure or activity. See id. § 1221(e)(2).

B. No. 23-9528

No. 23-9528 is Mr. English’s Chapter 75 appeal of a 30-calendar-day

suspension Ms. Vigil proposed in December 2015 and Mr. Gibbs authorized in

May 2016.

Under Chapter 75, the SBA can impose an adverse action “only for such cause

as will promote the efficiency of the service.” 5 U.S.C. § 7513(a). It was the SBA’s

burden to prove its action met this standard by a preponderance of the evidence.

See id. § 7701(c)(1)(B); 5 C.F.R. § 1201.56(b)(1)(ii). The SBA had to (1) “prove

that the charged conduct occurred”; (2) “establish a nexus between that conduct and

the efficiency of the service”; and (3) “demonstrate that the penalty imposed was

reasonable in light of the relevant factors set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981).” Cerwonka v. Dep’t of Veterans

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Affs., 915 F.3d 1351, 1356 (Fed. Cir. 2019); 5 see also Brenner v. Dep’t of Veterans

Affs., 990 F.3d 1313, 1316 (Fed. Cir. 2021) (“Th[e] ‘nexus’ limitation [in § 7513(a)]

requires the agency to show by a preponderance of the evidence that the employee’s

misconduct is likely to have an adverse effect upon the agency’s functioning.”

(internal quotation marks omitted)).

It was Mr. English’s burden to prove his affirmative defenses in the adverse

action appeal by a preponderance of the evidence. See 5 C.F.R.

§ 1201.56(b)(2)(i)(C). As relevant here, Mr. English introduced defenses of reprisal

for prior Board appeals and whistleblowing disclosures. In addressing these

affirmative defenses, the AJ first considered whether Mr. English established a prima

facie case by a preponderance of the evidence, and then considered whether the SBA

showed by clear and convincing evidence it would have taken the same actions

absent whistleblowing activity.

II. Analysis

A. Line-of-Succession Decisions as “Personnel Actions”

In Nos. 23-9526 and 23-9527, the SBA argues the line-of-succession

designations did not rise to the level of a “personnel action” actionable under

5 U.S.C. § 1221 and urges us to dismiss those parts of the petitions for lack of

jurisdiction. We deny the request.

5
Because until 2012 only the Federal Circuit reviewed MSPB decisions in
non-mixed cases, the MSPB historically relied on that circuit’s precedent. We also
have relied on the Federal Circuit’s opinions as we develop a body of MSPB caselaw.
See Acha, 841 F.3d at 880 n.2.
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“Under the [Whistleblowing Protection Act (WPA)], . . . a very broad class of

personnel actions falls within the board’s jurisdiction.” Johnston v. MSPB, 518 F.3d

905, 912 (Fed. Cir. 2008). “[P]ersonnel action” includes not only such actions as

appointments, promotions, details, and transfers, but also “any other significant

change in duties, responsibilities, or working conditions,” 5 U.S.C.

§ 2302(a)(2)(A)(xii) (internal quotation marks omitted).

Here, the record indicates that employees named in Ms. Vigil’s line of

succession assumed temporary authority to act in her absence in pending matters.

The designee had the ability to approve applications, and Ms. Vigil testified that she

had “a six-and-a-half million dollar signing authority so it is a huge deal that things

are done correctly,” No. 23-9527, Tr. Mar. 30, 2016, Hrg. at 176. It appears that the

line-of-succession responsibilities were recurring and regular, as she testified that she

had an alternate work schedule day off every other week. See id. In addition,

Ms. Vigil viewed removing someone from her line of succession as a punishment.

See id. at 197. On this record, designating an employee in the line of succession

appears to affect working conditions and thus is a personnel action under

§ 2302(a)(2)(A)(xii). See Mahoney v. Donovan, 721 F.3d 633, 636 (D.C. Cir. 2013)

(holding the selective assignment of cases to AJs is a “personnel action” because it

affected working conditions); Johnston, 518 F.3d at 912 (“[C]hanges in work duties

. . . are personnel actions that are within the Board’s jurisdiction if they resulted from

disclosures protected by the WPA.”).

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B. Mr. English’s Disclosures and Activities

Mr. English identified numerous disclosures and activities in setting forth his

prima facie case (in the IRA appeals) and his defenses (in the adverse action appeal).

After carefully considering those disclosures and activities, the AJ decided that some

established a prima facie case of whistleblower retaliation, while others did not

constitute a protected disclosure and/or were not a contributing factor to the relevant

actions. The Board upheld the AJ’s determinations.

Mr. English asserts that each disclosure and activity was protected. In most

instances, however, he fails to address the contributing-factor determinations with

any specificity. Several of his assertions are admittedly assumptions. He broadly

states that the timeline of events satisfies the knowledge-timing test, see 5 U.S.C.

§ 1221(e)(1), but by the statute’s plain terms the knowledge-timing test requires

evidence of knowledge, see id. § 1221(e)(1)(A). Mr. English demonstrates the

agency may have overlooked evidence of knowledge as to only one disclosure

(identified as disclosure (g) in No. 23-9526). But to the extent that the agency may

have erred in considering that disclosure, Mr. English has not shown any error was

harmful. See Valles v. Dep’t of State, 17 F.4th 149, 152 (Fed. Cir. 2021) (holding it

is petitioner’s burden to show an error was harmful). At most, Mr. English shows

that Ms. Vigil knew disclosure (g) existed, and as the agency held with regard to

other disclosures, knowledge of the existence of a communication does not establish

knowledge of any protected disclosure(s) therein.

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Having reviewed each disclosure and activity the AJ discussed in the three

appeals, we cannot conclude that the agency’s evaluations were arbitrary, capricious,

an abuse of discretion, not in accordance with law, obtained by improper procedures,

or unsupported by substantial evidence. We therefore affirm the agency’s

consideration of the disclosures and activities for substantially the reasons stated in

its orders, except we affirm regarding disclosure (g) for failure to show harmful error.

Mr. English’s opening briefs also list other allegedly protected disclosures and

activities that he asserts the agency should have considered but did not. He does not

show, however, that he exhausted any disclosures or activities other than those

discussed in the AJ’s initial orders. Exhaustion of administrative remedies is a

jurisdictional requirement, at least for the IRA appeals. See Acha v. Dep’t of Agric.,

841 F.3d 878, 883 & n.3 (10th Cir. 2016). Nor has he shown that he properly

presented the additional disclosures or activities for consideration by the MSPB. 6

See Micheli v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Lab., 846 F.2d

632, 635 (10th Cir. 1988) (“[I]n the absence of exceptional circumstances, a

reviewing court will refuse to consider contentions not presented before the

6
For example, the AJ issued orders listing the disclosures and activities he
accepted for consideration. It appears that he compiled these lists from careful
review of Mr. English’s filings. Mr. English asserts that he presented other
disclosures and activities to the MSPB, but his citations to the records do not reveal
any objections to the disclosures and activities the AJ accepted for consideration or
formal requests for the AJ to add the disclosures and activities he now complains the
MSPB failed to consider. Notably, when Mr. English did request to add affirmative
defenses in No. 23-9528, the AJ granted the request. See No. 23-9528, R. Vol. 7 at
146, 299.
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administrative proceeding at the appropriate time.” (internal quotation marks

omitted)). Further, some of the other activities were EEO proceedings. Regarding

those activities, (1) EEO proceedings do not fall within the limits of an IRA appeal,

see Young v. MSPB, 961 F.3d 1323, 1329 (Fed. Cir. 2020) (collecting cases), and

(2) in No. 23-9528, Mr. English explicitly waived his discrimination allegations in

response to the MSPB’s motion to transfer to the district court.

C. SBA’s Showing It Would Have Taken the Same Actions

In considering whether the SBA showed by clear and convincing evidence

that it would have taken the same actions in the absence of whistleblowing, the

agency analyzed the factors set forth in Carr v. Social Security Administration,

185 F.3d 1318 (Fed. Cir. 1999) (the Carr factors). In Carr, the Federal Circuit held

that three factors were relevant to this evaluation:

[1] the strength of the agency’s evidence 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 takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.

Id. at 1323.

For the first factor, the agency found the evidence supporting the personnel

actions was “strong,” No. 23-9526, R. Vol. 4 at 444; “quite strong,” No. 23-9527,

R. Vol. 4 at 500 & No. 23-9528, R. Vol. 7 at 455; and even “compelling,”

No. 23-9526, R. Vol. 4 at 444 (internal quotation marks omitted). For the second

factor, it concluded that, at most, the decisionmakers had a “moderate” motive to

retaliate. No. 23-9527, R. Vol. 4 at 500 (stating that “any motive to retaliate was

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slight or moderate”); No. 23-9528, R. Vol. 7 at 455 (stating that “any motive to

retaliate was slight at best for one of the protected disclosures and moderate for the

other disclosure” (footnote omitted)); see also No. 23-9526, R. Vol. 4 at 450

(assessing a “modest motive to retaliate”). Finally, it concluded that the third factor

was neutral because the SBA did not present any evidence of actions taken against

similarly situated employees. The Board deferred to the AJ’s findings that Ms. Vigil,

Mr. Gibbs, and Ms. Rusche were more credible than Mr. English.

Mr. English asserts that all three factors should weigh in his favor. He states

that he had a clean personnel file and he did not violate any laws, policies, or

procedures. At their core, however, his arguments regarding the first and second

Carr factors simply express his disagreement with the agency’s conclusions, based

on his own perceptions. And his attacks on the credibility of Ms. Vigil, Mr. Gibbs,

and Ms. Rusche are unavailing because we must defer to the fact finder’s credibility

determinations. See Baca, 983 F.3d at 1140. In short, Mr. English has not shown

that the agency’s evaluations of the first or second Carr factors were arbitrary,

capricious, an abuse of its discretion, not in accordance with law, or not in

accordance with proper procedure. Further, the voluminous records from these

appeals contain substantial evidence supporting the personnel actions. We therefore

affirm the agency’s assessment of these factors for substantially the reasons stated in

its orders.

Regarding the third Carr factor, Mr. English argues it should weigh in his

favor because “the absence of any evidence concerning Carr factor three may well

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cause the agency to fail to prove its case overall.” No. 23-9526, Pet’r’s Opening Br.

at 64 (underlining and internal quotation marks omitted); see also No. 23-9527,

Pet’r’s Opening Br. at 59; No. 23-9528, Pet’r’s Opening Br. at 65. But “the absence

of any evidence relating to Carr factor three can effectively remove that factor from

the analysis.” Whitmore v. Dep’t of Lab., 680 F.3d 1353, 1374 (Fed. Cir. 2012).

Whether an absence of evidence means the third factor weighs neutrally or against

the agency thus depends on the circumstances. See id. at 1374-75. The MSPB did

not act arbitrarily, capriciously, in abuse of its discretion, or otherwise not in

accordance with law by weighing the factor neutrally in these appeals. See McIntosh

v. Dep’t of Def., 53 F.4th 630, 646 (Fed. Cir. 2022) (“Because no pertinent evidence

was presented on Carr factor three, it is effectively removed from the analysis.”);

Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022) (“Because the

agency need not prove every factor weighs in its favor, the absence of evidence

related to Carr factor three is not fatal to the agency.”).

In all the appeals, the Board held that the AJ did not err in deciding that the

decisionmakers’ motives to retaliate were outweighed by the strength of the evidence

for Carr factor one and the lack of evidence for Carr factor three, and therefore the

SBA proved by clear and convincing evidence that it would have taken the same

actions absent whistleblowing. Mr. English has failed to show these decisions were

arbitrary, capricious, in abuse of discretion, not in accordance with law, obtained by

improper procedures, or unsupported by substantial evidence. We affirm for

substantially the reasons stated in the agency’s orders.

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D. Waived Issues

In his opening brief in No. 23-9528, Mr. English asserts the penalty was

unreasonable, but he does not develop a challenge to the agency’s evaluation of the

Douglas factors. He therefore has waived consideration of this portion of the agency

decision. See Burke v. Regalado, 935 F.3d 960, 1014 (10th Cir. 2019) (“Issues not

raised in the opening brief are deemed abandoned or waived. Relatedly, an appellant

may waive an issue by inadequately briefing it.” (citation and internal quotation

marks omitted)); Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir.

2004) (“Scattered statements in the appellant’s brief are not enough to preserve an

issue for appeal.”). For the same reasons, Mr. English has waived any remaining

issues that he intended to bring before this court in any of the three matters.

CONCLUSION

We dismiss the petitions for review as to the MSPB, affirm the decisions of the

MSPB, grant Mr. English’s motions to proceed without prepayment of costs and fees

in all three matters, and deny the MSPB’s motion to transfer No. 23-9528 to the

district court.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

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