Filed: Dec. 11, 2020
Latest Update: Dec. 12, 2020
Case: 20-1820 Document: 25 Page: 1 Filed: 12/11/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JENNIFER L. MILLER,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-1820
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0714-20-0073-I-1.
______________________
Decided: December 11, 2020
______________________
JENNIFER L. MILLER, Alameda, CA, pro se.
SONIA MARIE ORFIELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JEFFREY
B. CLARK, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN,
JR.
______________________
Before MOORE, BRYSON, and CHEN, Circuit Judges.
Case: 20-1820 Document: 25 Page: 2 Filed: 12/11/2020
2 MILLER v. DVA
PER CURIAM.
Appellant Jennifer L. Miller was removed from her po-
sition as a licensed practical nurse (“LPN”) with the De-
partment of Veterans Affairs (“DVA”) for failing to
maintain her LPN license. She appealed her removal to
the Merit Systems Protection Board (“the Board”), which
upheld her removal. We affirm.
I
Between 2014 and 2019, Ms. Miller was employed as
an LPN at a DVA medical facility. A condition of her em-
ployment as an LPN was that she maintain her LPN li-
cense. In 2018, she was given a courtesy notice by the DVA
that her LPN license was about to expire. She renewed her
license that year on the day before her license was set to
expire.
In August 2019, shortly before Ms. Miller’s license was
set to expire, the DVA again gave her a courtesy notice that
her license was about to expire. This time, Ms. Miller did
not renew her license, and it expired on September 5, 2019.
The DVA subsequently proposed to remove her from her
position because of her failure to maintain her LPN license.
At the time her license expired, Ms. Miller was on
leave-without-pay status. In the notice of proposed re-
moval, the agency proposed to detail her to a non-LPN po-
sition if and when she returned to work. The notice stated:
“Your supervisor will give you a detail assignment when/if
you return to duty. You will be detailed while the proposed
removal is in process, i.e., until the proposed removal has
been decided.”
Ms. Miller never returned to work. Through a repre-
sentative, she made an oral response to the proposed re-
moval and supported that response with documentation.
The agency subsequently removed her, effective October
22, 2019, for failure to maintain her LPN license. In the
removal decision, the deciding official sustained the charge
Case: 20-1820 Document: 25 Page: 3 Filed: 12/11/2020
MILLER v. DVA 3
of failure to maintain a current, full, and unrestricted li-
cense as a licensed practical nurse.
Ms. Miller appealed the removal action to the Board.
She waived her right to a hearing before an administrative
judge, and the case was decided based on the parties’ writ-
ten submissions.
The administrative judge who was assigned to the case
upheld the removal action in a comprehensive opinion. The
administrative judge noted that maintaining LPN licen-
sure was a condition of Ms. Miller’s employment as an LPN
and that it was her responsibility to ensure that she re-
mained licensed throughout her employment with the
DVA.
In her presentation to the administrative judge, Ms.
Miller contended that because she was on leave at the time
her license expired, she was not able to access the agency’s
training resources. The administrative judge found, how-
ever, that Ms. Miller had complete access to the agency’s
computer systems and her workplace prior to the time she
was removed. Moreover, the administrative judge con-
cluded that even if Ms. Miller did not have access to her
workplace during the period prior to the expiration of her
license, the agency could not be held responsible for that
lack of access because Ms. Miller entered leave status at
her own request. The administrative judge also found that
Ms. Miller could have satisfied the requirements for her li-
cense renewal by accessing training resources from outside
the agency.
Before the administrative judge, Ms. Miller claimed
that the agency’s decision to remove her was the product of
discrimination based on a chronic disability. The adminis-
trative judge rejected that claim, finding that Ms. Miller
did not establish that her disability was a factor in her re-
moval. The administrative judge also found that Ms. Mil-
ler failed to prove that the agency’s decision to remove her
constituted unlawful reprisal based on (1) an equal-
Case: 20-1820 Document: 25 Page: 4 Filed: 12/11/2020
4 MILLER v. DVA
employment-opportunity complaint she filed against the
agency in 2018, (2) her use of leave under the Family and
Medical Leave Act, and (3) acts of whistleblowing on her
part.
Ms. Miller petitioned this court for review of the ad-
ministrative judge’s decision. 1
II
At the outset, the government argues that we must dis-
miss the petition in this case because Ms. Miller has not
unequivocally abandoned her discrimination claim, and
thus this is a “mixed case” that is outside the scope of our
jurisdiction. See Perry v. Merit Sys. Prot. Bd., 137 S. Ct.
1975, 1977 (2017). We disagree.
While Ms. Miller lodged a complaint of discrimination
against the agency in 2018, that complaint was not related
to her removal, which occurred a year later. And while she
asserted before the administrative judge in this case that
her removal was the product of disability discrimination
and reprisal for equal employment opportunity activity,
1 Ms. Miller argues that the government’s brief was
untimely filed and that it should be rejected as a result. We
hold that the government’s brief was timely under the rules
of this court. Ms. Miller’s brief was filed on June 23, 2020,
and the certified list of the materials constituting the rec-
ord was received by the court on June 25, 2020. Pursuant
to Fed. Cir. R. 31(e)(2), the government’s brief was due for
filing 21 days after the filing of the certified list, on July 16,
2020. The government’s brief was filed on that day. Ap-
parently, the brief was mailed to Ms. Miller’s prior address.
See App. 124. On August 17, 2020, the government’s brief
was served on Ms. Miller at the proper address. The min-
isterial error in initially serving Ms. Miller at an outdated
address does not justify rejecting the government’s brief.
Case: 20-1820 Document: 25 Page: 5 Filed: 12/11/2020
MILLER v. DVA 5
she has abandoned those claims on appeal and is pressing
only issues over which this court has jurisdiction.
In her statement pursuant to Fed. Cir. R. 15(c), Ms.
Miller represented that no claim of discrimination has been
or will be raised in this case and that any claim of discrim-
ination raised before and decided by the Board “has been
abandoned or will not be raised or continued in this or any
other court.” In addition, in her reply brief Ms. Miller
stated unequivocally that she is waiving her discrimination
claims in this action and that her claim pending before the
Equal Employment Opportunity Commission does not re-
late to her removal. We regard those statements as suffi-
cient to constitute an express waiver of any discrimination
claims relating to her removal action and thus sufficient to
give this court jurisdiction over her petition for review. See
Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307, 1317–18
(Fed. Cir. 2020); Diggs v. Dep’t of Hous. & Urban Dev.,
670
F.3d 1353, 1355 n.2 (Fed. Cir. 2011); Davidson v. U.S.
Postal Serv.,
24 F.3d 223, 224 (Fed. Cir. 1994).
III
On the merits, Ms. Miller has abandoned her claims of
discrimination and retaliation. Instead, she argues that
the removal decision was not supported by substantial ev-
idence and that the administrative judge’s decision was in-
fected by improper procedure.
1. There is no merit to the argument that the removal
decision was unsupported by substantial evidence. The re-
moval action was based on a single ground: Ms. Miller’s
failure to renew her LPN license. There is no dispute that
maintaining LPN licensure is a condition of her employ-
ment and that it was her personal responsibility to ensure
that her license was renewed and not allowed to lapse.
There is also no dispute that Ms. Miller failed to renew her
LPN license prior to its expiration and her removal.
Case: 20-1820 Document: 25 Page: 6 Filed: 12/11/2020
6 MILLER v. DVA
2. Nor is there any force to Ms. Miller’s argument that
the agency somehow interfered with her ability to renew
her license. The administrative judge found that Ms. Mil-
ler’s access to agency computers and other resources was
uninhibited and that, in any event, she could have used
outside resources to complete the tasks necessary to effect
the renewal.
3. Ms. Miller’s procedural arguments are equally de-
void of merit. Her principal focus is on the rebuttal evi-
dence that the DVA presented to the administrative judge
during the Board proceedings. Her first objection is that
the agency’s rebuttal evidence was not before the deci-
sionmaker at the time the agency made the decision to re-
move her. For that reason, she argues, the evidence should
not have been presented to the administrative judge in her
appeal to the Board.
There is no legal requirement that all the evidence an
agency presents in a Board appeal must have been pre-
sented to the agency at the time of the agency action that
is under review. While the Board generally may not uphold
an adverse agency action on a ground different from the
charge levied by the agency as the basis for the action, see
King v. Nazelrod, 43 F.3d 663, 667 (Fed. Cir. 1994), the ev-
idence that can be presented to the Board in support of that
charge is not limited to the evidence recited in the agency’s
notices of proposed and final action, see Licausi v. Office of
Pers. Mgmt.,
350 F.3d 1359, 1364 (Fed. Cir. 2003). Among
other reasons for introducing additional evidence in Board
proceedings, it is frequently the case—as it was here—that
parties raise new issues to the Board, such as affirmative
defenses, and that those new issues give rise to newly rel-
evant evidence. 2
2 Ms. Miller contends that “the Board is limited to
reviewing the grounds invoked by the agency and may not
Case: 20-1820 Document: 25 Page: 7 Filed: 12/11/2020
MILLER v. DVA 7
The agency’s case-in-chief was straightforward. It
consisted of proof that Ms. Miller failed to comply with a
condition of her employment: LPN licensure. As the ad-
ministrative judge noted, the agency’s rebuttal evidence
was directed to Ms. Miller’s affirmative defenses and her
reasons why she should not be faulted for allowing her LPN
license to lapse.
Because the agency’s rebuttal statement consisted of
evidence responding to Ms. Miller’s affirmative defenses
and her replies to the charge, the agency’s rebuttal state-
ment was appropriate rebuttal evidence. Ms. Miller’s rep-
resentative objected to the introduction of the agency’s
rebuttal evidence, even though it was provided for in the
administrative judge’s order canceling the hearing in the
case. Her representative did not, however, seek leave to
offer a substantive response to the agency’s rebuttal state-
ment. We conclude that the procedure employed by the ad-
ministrative judge with respect to the agency’s rebuttal
statement was not improper and did not deprive Ms. Miller
of her rights to due process of law.
‘substitute what it considers to be better basis and evidence
(undisput[ed] new rebuttal evidence in this case) for re-
moval than what was identified by the agency and Notice.’”
Reply Br. 8 (quoting O’Keefe v. U.S. Postal Serv., 318 F.3d
1310, 1315 (Fed. Cir. 2002)). That contention is based on a
misquotation of O’Keefe. The words “and evidence” and the
ensuing parenthetical do not appear in the quoted passage
from O’Keefe. Hence, that case does not stand for the prop-
osition that an agency’s presentation of evidence in Board
proceedings is limited to evidence previously set forth in a
notice of proposed removal. Instead, O’Keefe stands for the
quite different proposition that the Board may not affirm a
removal action on the basis of charges not set out in the
notice of proposed removal.
Case: 20-1820 Document: 25 Page: 8 Filed: 12/11/2020
8 MILLER v. DVA
4. Finally, Ms. Miller complains that the agency ad-
vised her that it would detail her to a non-patient-care po-
sition pending the removal proceedings when she returned
to duty, but that no such detail was ever arranged. Ms.
Miller, however, did not return to work after the issuance
of the notice of proposed removal. Accordingly, by its
terms, the proposal to assign her to a detail never came into
effect. Because Ms. Miller did not take the step that would
have triggered her assignment to a detail during the re-
moval proceedings, the agency did not act improperly by
not assigning her to a detail for that limited period.
In sum, Ms. Miller has not overcome the single dispos-
itive fact in this case: She was required to maintain her
LPN license as a condition of her employment, and she
failed to do so. Because substantial evidence supports the
administrative judge’s ruling on that factual issue and be-
cause Ms. Miller has failed to point to any other infirmities
in the proceedings before the agency or the Board, we sus-
tain the Board’s ruling upholding her removal.
AFFIRMED
