Veronica Marquand v. Department of Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VERONICA MARQUAND,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2024-1474
______________________
Petition for review of the Merit Systems Protection
Board in Nos. PH-0752-14-0636-B-1, PH-0752-14-0636-I-1.
______________________
Decided: December 18, 2024
______________________
VERONICA MARQUAND, Hamden, CT, pro se.
STEVEN C. HOUGH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY.
______________________
Case: 24-1474 Document: 46 Page: 1 Filed: 12/18/2024

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MARQUAND v. DEFENSE 2
Before HUGHES, STARK, Circuit Judges, and
SCHROEDER, District Judge.1
PER CURIAM.
Veronica Marquand appeals the final decision of the
Merit Systems Protection Board sustaining her removal
from her position at the Defense Contract Management
Agency. Because the Merit Systems Protection Board’s
decision was in accordance with the law and supported by
substantial evidence, we affirm.
I
On January 21, 2014, the agency issued a notice to
Ms. Marquand, which proposed her removal from
employment as a GS-12 Contract Price/Cost Analyst at the
Defense Contract Management Agency. S.A. 125–28.2 The
proposal was based on her “failure to meet a condition of
employment, specifically, Defense Acquisition Workforce
Improvement Act (DAWIA) Level II Certification.” S.A.
125. Ms. Marquand had not completed two of the core
training courses needed to achieve Level II Certification
before the requisite deadline. S.A. 125–26. On March 25,
2014, the deciding official, Mark Saldon, found that
removal was warranted. S.A. 100–02. Ms. Marquand’s
removal became effective on March 28, 2014. S.A. 102.
Ms. Marquand appealed her removal to the Board. The
administrative judge rejected Ms. Marquand’s claim that
Level II Certification was not a condition of her
employment and affirmed the agency’s removal action.
Marquand v. Dep’t of Def., PH-0752-14-0636-I-1, 2015 WL
1 The Honorable Robert W. Schroeder III, District
Judge, United States District Court for the Eastern
District of Texas, sitting by designation.
2 Citations to “S.A.” refer to the Supplemental
Appendix submitted by the respondent with its briefing.
Case: 24-1474 Document: 46 Page: 2 Filed: 12/18/2024

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MARQUAND v. DEFENSE 3
669205 (M.S.P.B. Feb. 9, 2015); S.A. 48–99 (Initial
Decision). The administrative judge also rejected
Ms. Marquand’s claims of harmful procedural error due
process violations. S.A. 71–99.
Ms. Marquand subsequently petitioned for full Board
review. The Board sustained the administrative judge’s
finding that Ms. Marquand had failed to meet a condition
of employment but found that the administrative judge
abused her discretion by denying Ms. Marquand’s motion
to compel discovery related to disciplinary actions imposed
on employees for similar failures to complete certification.
Marquand v. Dep’t of Def., No. PH-0752-14-0636-I-1,
2016 WL 3648373 (M.S.P.B. July 7, 2016); S.A. 27–47
(Remand Order). Because such information could be
relevant to Ms. Marquand’s affirmative defense, the Board
remanded the case to require the administrative judge to
permit discovery regarding the discipline of similarly
positioned DCMA employees in the five years preceding
Ms. Marquand’s removal. S.A. 46.
Following supplementary discovery, the administrative
judge again sustained Ms. Marquand’s removal.
Marquand v. Dep’t of Def., No. PH-0752-14-0636-B-1,
2017 WL 2835958 (M.S.P.B. June 29, 2017); S.A. 13–26
(Initial Decision on Remand). The administrative judge
found that “removal was the most common action taken” in
similar situations. S.A. 22. The administrative judge also
rejected Ms. Marquand’s due process argument that the
deciding official had engaged in ex parte communications
regarding similarly situated employees to form his decision
to remove her. S.A. 25–26.
Ms. Marquand again sought review by the Board. The
Board denied her petition and adopted the Initial Decision
on Remand as the Board’s final decision. Marquand v. Dep’t
of Def., No. PH-0752-14-0636-B-1, 2023 WL 8672722
(M.S.P.B. Dec. 14, 2023); S.A. 1–12 (Final Decision).
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MARQUAND v. DEFENSE 4
Ms. Marquand timely petitioned for review of the
Board’s Final Order in this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
II
The scope of our review in an appeal from the Board is
limited. We must affirm the Board’s decision unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1353 (Fed. Cir. 2020). “We review the
Board’s factual findings . . . for substantial evidence.”
Rueter v. Dep’t of Com., 63 F.4th 1357, 1364 (Fed. Cir.
2023). “The Board’s decision is supported by substantial
evidence ‘if it is supported by such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Warren v. U.S. Postal Serv., 497 F. App’x 22,
24 (Fed. Cir. 2012) (quoting Brewer v. U. S. Postal Serv.,
647 F.2d 1093, 1096 (Ct. Cl. 1981)). For “[p]rocedural
matters relative to discovery and evidentiary issues” we
“will not overturn the [B]oard on such matters unless an
abuse of discretion is clear and is harmful.” Curtin v. Off.
of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988).
III
On appeal, Ms. Marquand repeats her assertion that
Level II Certification “was never a condition of
employment.” Pet. Inf. Br. at 1. Substantial evidence
unequivocally supports the Board’s finding that Level II
Certification was required, and that Ms. Marquand was on
notice of this requirement. The agency had the authority to
require Ms. Marquand to complete Level II Certification
based on the Defense Acquisition Workforce Improvement
Act, codified in 10 U.S.C. § 1723, and agency directives
including DoD Directive 5000.52, DoD Instruction 5000.66,
and the DoD Desk Guide. S.A. 51–58. And Ms. Marquand
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MARQUAND v. DEFENSE 5
was given adequate notice of the requirement by the
announcement for her position, S.A. 136, and by both her
tentative and final job offers. S.A. 133, S.A. 132 (“DAWIA
Level II certification is required”).
Ms. Marquand also alleges that the agency violated her
due process rights because the deciding official issued a
defective notice that did not inform her of his reasoning for
removal, engaged in ex parte communications, and failed
to consider alternatives to removal. Pet. Inf. Br. at 7–8. The
Board’s findings that Ms. Marquand failed to prove the
factual components of these affirmative defenses is
supported by substantial evidence.
As to the allegedly defective notice, the Board carefully
considered whether the agency had satisfied its obligations
to notify Ms. Marquand of the specific reasons for the
proposed removal and of her right to review the materials
that the agency relied upon and found that it had. S.A. 86–
90. The notice of proposed removal laid out the factual
basis regarding Ms. Marquand’s failure to complete
certification, informed her of her right to reply, and advised
her that the action was being taken pursuant to 5 C.F.R.
§ 752, which enumerates the right to request underlying
materials. S.A. 125–28. Even though the notice did not
specifically mention the right to request materials, the
administrative judge found that Ms. Marquand had failed
to 1) allege how the agency’s failure to specifically advise
her of this right violated her due process rights, S.A. 91,
2) “ask[] anyone to review any of the material relied upon
in support of the agency’s action”, S.A. 90, and
3) demonstrate that the agency prejudiced her rights by
failing to provide her with a copy of the deciding official’s
Douglas factor analysis prepared in support of the notice of
proposed removal. S.A. 93–94.
Substantial evidence also supports the Board’s findings
that the deciding official (1) did not engage in ex parte
communications by discussing her removal with other
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MARQUAND v. DEFENSE 6
agency personnel and (2) that the agency considered
alternatives to removal. The deciding official testified that
he conversed with agency advisors, the proposing officer,
and a labor and employee relations specialist only to
evaluate the legal arguments raised in Ms. Marquand’s
own written response, S.A. 25, and that, although he was
not required to do so, he searched for suitable vacancies
and explicitly informed Ms. Marquand of the lack of
alternative positions in the notice of proposed removal. S.A.
98; see also notice of proposed removal at S.A. 101 (“DCMA
Sikorsky does not currently have any vacant non-
acquisition positions to place you as an alternative to
removal from Federal service.”).
Finally, Ms. Marquand argues that the Board and the
agency committed a great variety of other harmful errors
in the handling of her appeal. But she has not established
reversible error. For example, she alleges that the Board
erred by not giving her additional discovery, but those
decisions lie within the sound discretion of the Board, and
we find no abuse of such discretion. She also claims that
the agency committed a harmful procedural error in failing
to either waive her certification requirement or process her
course fulfillment request (based on work experience). But
the Board properly found that the agency was not required
to approve her requests for fulfillment or waiver. S.A. 79–
86.
We have considered Ms. Marquand’s remaining
arguments and find them unpersuasive.
IV
Because the Board’s decision was supported by
substantial evidence and otherwise in accordance with law,
we affirm.
AFFIRMED
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MARQUAND v. DEFENSE 7
COSTS
No costs.
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