Ralph D. Arellanes, Sr. v. Department of Defense

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RALPH D. ARELLANES, SR.,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2023-1806
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-15-0021-C-1.
______________________
Decided: July 25, 2025
______________________
J. K AIN D AY , Munger, Tolles & Olson LLP, Washington,
DC, argued for petitioner. Also represented by VINCENT
L ING, Los Angeles, CA.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
REGINALD T HOMAS BLADES , J R., BRIAN M. B OYNTON,
P ATRICIA M. M CCARTHY ; SARA ACHINGER , Office of the Gen-
eral Counsel, Defense Threat Reduction Agency, Ft. Bel-
voir, VA.
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ARELLANES v. DEFENSE 2
______________________
Before L OURIE, REYNA , and CUNNINGHAM , Circuit Judges.
CUNNINGHAM , Circuit Judge.
Ralph D. Arellanes petitions for review of a Merit Sys-
tems Protection Board (“Board”) final order, which denied
his petition for review and affirmed the administrative
judge’s compliance initial decision. Arellanes v. Dep’t of
Def., No. DE-0752-15-0021-C-1, 2023 WL 2137362, at *1
(M.S.P.B. Feb. 21, 2023) (“Final Order”). For the reasons
discussed below, we vacate and remand.
I. BACKGROUND
For nearly thirty years, Mr. Arellanes worked at the
Defense Threat Reduction Agency with the Department of
Defense (the “Agency”). J.A. 93. Around the summer of
2014, Mr. Arellanes experienced conflict with his supervi-
sor, which ultimately led to the Agency’s September 30,
2014 removal of Mr. Arellanes for conduct unbecoming a
federal employee. Final Order at *1; J.A. 93, 95–98, 1424–
25. Prior to his removal, also around the summer of 2014,
Mr. Arellanes began inquiring into and gathering infor-
mation for an application for disability retirement.
J.A. 532, 1487, 1610–11.
Two days after his September 30, 2014 removal,
Mr. Arellanes filed a timely Board appeal to challenge his
removal, raising the affirmative defenses of “age, race, and
ethnicity discrimination, failure to accommodate his disa-
bility, and reprisal for whistleblowing and equal employ-
ment opportunity (EEO) activity.” Final Order at *1;
J.A. 47–52, 891.
Around this same time, in October 2014, Mr. Arellanes
formally applied for disability based on his carpal tunnel,
trigger finger surgeries, a broken back, and “chronic, con-
stant, [and] excruciating pain” in his “hands, fingers,
wrists, shoulders, back, and legs.” Final Order at *1 & n.2
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ARELLANES v. DEFENSE 3
(citation omitted); J.A. 1487–88, 1495–96, 1610. On Janu-
ary 23, 2015, the Office of Personnel Management (“OPM”)
approved his application for disability retirement benefits
effective October 1, 2014. Final Order at *1, *4 n.5;
J.A. 1504, 1508.
On March 31, 2015, in his initial decision, the admin-
istrative judge rejected Mr. Arellanes’s affirmative de-
fenses and affirmed the Agency’s removal decision. Final
Order at *1; J.A. 868–911. Mr. Arellanes subsequently
filed a petition for review challenging the administrative
judge’s initial decision. Final Order at *1; J.A. 1108–30.
On August 10, 2015, the Board granted his petition for re-
view and vacated the administrative judge’s initial decision
in part, finding that Mr. Arellanes established a prima fa-
cie case of whistleblower reprisal by showing that he made
a protected disclosure that was a contributing factor in his
removal. Final Order at *1; J.A. 1195–98 ¶¶ 10–14. The
Board then remanded the case to the administrative judge
to determine whether the Agency met its burden to prove
that it would have removed Mr. Arellanes even absent his
whistleblowing activities. Final Order at *1; see also
J.A. 1198–1200 ¶¶ 15–18.
On December 7, 2015, on remand, the administrative
judge reversed Mr. Arellanes’s removal decision, finding
that the Agency did not meet its burden of showing that it
would have removed Mr. Arellanes absent his protected
disclosure. Final Order at *2; J.A. 1422–41 (“2015 Remand
Decision”). The administrative judge subsequently ordered
the Agency to cancel Mr. Arellanes’s removal, retroactively
restore Mr. Arellanes to his position effective Septem-
ber 30, 2014, and provide Mr. Arellanes with back pay and
benefits. Final Order at *2; J.A. 1432. The 2015 Remand
Decision became final on January 11, 2016, after neither
party petitioned for review. Final Order at *2; J.A. 1435.
Consequently, the Agency canceled Mr. Arellanes’s re-
moval and issued a new SF-50 indicating that he retired on
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ARELLANES v. DEFENSE 4
disability effective September 30, 2014. Final Order at *2;
J.A. 1482–83. However, the Agency “took no further action
to implement the relief ordered by the administrative
judge.” Final Order at *2. Mr. Arellanes filed a petition
for enforcement, arguing that the Agency failed to comply
with the 2015 Remand Decision, including failing to pro-
vide him with back pay and benefits. Final Order at *2;
J.A. 1447–63.
On August 4, 2016, the administrative judge denied
Mr. Arellanes’s petition for enforcement. Final Order
at *2; J.A. 25–34 (“2016 Compliance Initial Decision”). The
administrative judge concluded that because Mr. Arellanes
was granted disability retirement effective retroactively to
the date of his removal, the doctrine of judicial estoppel
barred Mr. Arellanes from seeking relief. J.A. 26–27. Al-
ternatively, the administrative judge found that Mr. Arel-
lanes was not ready, willing, and able to work. J.A. 27.
Mr. Arellanes petitioned the Board for review of the 2016
Compliance Initial Decision. Final Order at *3; J.A. 1536–
47.
On February 21, 2023, the Board denied Mr. Arel-
lanes’s petition for review and affirmed the 2016 Compli-
ance Initial Decision.1 Final Order at *1. The Board first
declined to apply judicial estoppel to preclude Mr. Arel-
lanes’s reinstatement and back pay. Id. at *3–4. Next, the
Board concluded that the Agency complied with the 2015
Remand Decision to reinstate Mr. Arellanes and pay him
appropriate back pay and benefits. Id. at *4–7. The Board
found that Mr. Arellanes did not meet his burden to show
that he was ready, willing, and able to perform his duties
of his former position for the period in which he requested
back pay. Id. at *7. Furthermore, the Board determined
1 The Board also modified the 2016 Compliance Ini-
tial Decision to address Mr. Arellanes’s claim for interim
relief, which is not on appeal. See Final Order at *1, *3.
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ARELLANES v. DEFENSE 5
that the Agency complied with the 2015 Remand Decision
in reinstating Mr. Arellanes because the Agency could not
provide further relief in light of OPM’s grant of disability
retirement benefits effective October 1, 2014. Id.
Mr. Arellanes timely petitioned for review in this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. STANDARD OF REVIEW
Our review of Board decisions is limited. Norris
v. SEC, 675 F.3d 1349, 1352 (Fed. Cir. 2012). “We may
only set aside agency actions, findings, or conclusions that
we find to be ‘(1) arbitrary, capricious, an abuse of discre-
tion, 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 ev-
idence.’” Id. (quoting 5 U.S.C. § 7703(c)).
III. D ISCUSSION
Mr. Arellanes argues that the Board erred by applying
the wrong legal standards in adjudicating his requests for
reinstatement and back pay. Appellant’s Br. 29. Specifi-
cally, Mr. Arellanes argues that the Board failed to apply
remedial principles in considering his requests for rein-
statement, id. at 32–53, and erred when it denied Mr. Arel-
lanes back pay. Id. at 53–67. We address each argument
in turn.
A.
Mr. Arellanes argues that in considering his requests
for reinstatement, the Board failed to adhere to the basic
remedial principle that an aggrieved party must be re-
turned to the position he would have been in but for the
harm. Appellant’s Br. 32–39. Specifically, Mr. Arellanes
claims that the Board was required to consider whether
Mr. Arellanes would have chosen to formally apply for dis-
ability retirement in October 2014 even if he had not been
removed on September 30, 2014, because “[a]n employee
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ARELLANES v. DEFENSE 6
who is terminated in retaliation for whistleblowing must
be compensated for all harm flowing from that termina-
tion.” Id. at 32. We agree.
Where a legal injury is an economic one, the general
rule is that “[t]he injured party is to be placed, as near as
may be, in the situation he would have occupied if the
wrong had not been committed.” Albemarle Paper Co.
v. Moody, 422 U.S. 405, 418–19 (1975) (quoting Wicker
v. Hoppock, 73 U.S. (6 Wall.) 94, 99 (1867)). This “funda-
mental principle of corrective remedies” has been “used
throughout the law, though sometimes with modifica-
tions.” Pirkl v. Wilkie, 906 F.3d 1371, 1378 (Fed. Cir. 2018)
(collecting cases). Thus, the agency must restore that per-
son to the status quo ante—that is, “restoration of the sit-
uation, as nearly as possible, to that which [he] would have
obtained but for” the wrongful action. Kerr v. Nat’l Endow-
ment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984) (quot-
ing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941));
see also id. at 733 n.3.
We see no reason that this fundamental principle of
corrective remedies would not apply in the context of “cor-
rective action” ordered under the Whistleblower Protection
Act (“WPA”). See Whistleblower Protection Act of 1989,
Pub. L. No. 101-12, 103 Stat. 16 (codified as amended by
Whistleblower Protection Enhancement Act of 2012, Pub.
L. No. 112-199, 126 Stat. 1465 in scattered sections of 5
U.S.C.). Congress has provided employees the right to seek
corrective action from the Board when a prohibited person-
nel action is taken in retaliation for certain whistleblowing
activities, including disclosures under 5 U.S.C.
§ 2302(b)(8). See 5 U.S.C. § 1221(a); Marano v. Dep’t of
Just., 2 F.3d 1137, 1139–40 (Fed. Cir. 1993). The Board
must order corrective action if the employee’s protected dis-
closure “was a contributing factor in the personnel action
which was taken . . . against such employee . . . .” 5 U.S.C.
§ 1221(e)(1); Marano, 2 F.3d at 1140. If the Board orders
such corrective action, such corrective action may include
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ARELLANES v. DEFENSE 7
placing the individual “as nearly as possible, in the position
the individual would have been in had the prohibited per-
sonnel practice not occurred.” 5 U.S.C. § 1221(g)(1)(A)(i).
The text of the WPA thus incorporates make-whole princi-
ples. Moreover, we have previously interpreted the WPA
as expressing Congress’s intent to “provide protected em-
ployees with make-whole relief.” Perlick v. Dep’t of Veter-
ans Affs., 104 F.4th 1326, 1330 (Fed. Cir. 2024) (emphasis
added) (concluding under 5 U.S.C. § 1221(g)(1)(A)(i)–(ii),
Congress expanded recovery available to protected whistle-
blowers). We see no basis for concluding that corrective
remedies granted under the WPA should depart from this
fundamental principle.
Here, the Board failed to adhere to this principle in as-
sessing Mr. Arellanes’s reinstatement request. Although
the Board recognized this fundamental principle of correc-
tive remedies in making the assessment, Final Order at *4
(citing Kerr, 726 F.2d at 733), the Board treated Mr. Arel-
lanes’s disability retirement as an “intervening separation”
that precluded any additional relief. Id. at *7. The Board
reasoned that “[i]n light of OPM’s grant of disability retire-
ment benefits effective October 1, 2014, and [its] finding
that the appellant failed to establish he was ready, willing,
and able to work at any point following his removal, we find
that there is no further relief the [A]gency can provide un-
der the unique circumstances of this case.” Id. The Board
further determined that “there is no . . . finding that
[Mr. Arellanes] retired on disability shortly after his re-
moval solely due to the [A]gency’s final decision to remove
him.” Id. at *7 n.9. Absent from the Board’s analysis is
any discussion addressing the argument that, but for his
September 30, 2014 removal, Mr. Arellanes would not have
chosen to formally apply for disability retirement in Octo-
ber 2014. Thus, the Board’s analysis regarding whether
the Agency’s cancellation of his removal placed Mr. Arel-
lanes “as nearly as possible in the status quo ante,” Kerr,
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ARELLANES v. DEFENSE 8
726 F.2d at 733, prior to his removal is flawed and incom-
plete.
We have applied similar reasoning when addressing
remedies available to wrongfully terminated employees
under the Back Pay Act. In Martin v. Department of the
Air Force,2 the appellant was injured while working a job
with a non-governmental employer during the same time
period that he was challenging his removal from employ-
ment with the Air Force. 184 F.3d 1366, 1367 (Fed. Cir.
1999). The Board relied on this injury to deny the appel-
lant back pay under the Back Pay Act for the period when
he was receiving state workers’ compensation benefits. Id.
at 1368–69. We reversed, holding that “denying an em-
ployee back pay for a period of disability without looking at
the cause of the disability is unreasonable.” Id. at 1371.
Given the purpose of the Back Pay Act is to “make the em-
ployee whole,” we explained that equity “require[s] that if
such an employee is unable to work because . . . of the un-
lawful discharge, the period of disability should be included
in a back pay period.” Id. at 1372. Like the Back Pay Act,
the WPA expresses Congress’s intent to provide make-
whole relief to protected employees. Perlick, 104 F.4th
at 1330. The court’s reasoning in Martin thus supports the
conclusion that the Board was required to consider
whether Mr. Arellanes’s retirement arose “because of [his]
unlawful discharge.” Martin, 184 F.3d at 1372.
Because the Board did not consider whether Mr. Arel-
lanes would have formally applied for disability retirement
in October 2014 even if he had not been removed on Sep-
tember 30, 2014, we vacate and remand to the Board.
2 Martin is still good law even after Loper Bright.
See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412
(2024). Regardless, we declined to defer to the agency’s in-
terpretation of the Back Pay Act in Martin. See Martin,
184 F.3d at 1370–71.
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ARELLANES v. DEFENSE 9
Whether there is a possibility of reinstatement is for the
Board to decide in adherence to the legal principles we ar-
ticulate above. On remand, the Board should consider and
weigh the evidence as to whether Mr. Arellanes would have
formally applied for disability retirement in October 2014
but for his September 30, 2014, removal.
B.
Mr. Arellanes argues that the Board erred when it de-
nied Mr. Arellanes’s request for back pay using a burden
shifting framework that “placed (1) an initial burden of
production on the [Agency] and (2) the ultimate burden of
persuasion on Mr. Arellanes.” Appellant’s Br. 55; see also
id. at 54–60. Mr. Arellanes further claims that no record
evidence suggests that he was unready, unwilling, or una-
ble to work after August 23, 2016. Id. at 61–65. Mr. Arel-
lanes thus asks us to conclude that he is entitled to back
pay starting on August 23, 2016, and to remand for the
Board to adjudicate the availability of back pay from Sep-
tember 30, 2014, through August 22, 2016. Id. at 67. For
the reasons stated below, we conclude that the Board did
not err in its burden placement and remand for further con-
sideration of the issue of back pay.
i.
We first address whether the Board erred by shifting
the ultimate burden of proof onto Mr. Arellanes to prove
his entitlement to back pay. In enforcement proceedings,
“the [a]gency bears the burden of proving compliance with
a final Board order,” Carson v. Dep’t of Energy, 398 F.3d
1369, 1377 (Fed. Cir. 2005), by a “preponderance of the ev-
idence.” 5 C.F.R. § 1201.183(d). However, an employee is
not entitled to back pay for any period of time in which the
employee was not “ready, willing, and able to perform” his
duties because of “incapacitating illness or injury,” or “for
reasons other than those related to, or caused by, the un-
justified or unwarranted personnel action.” 5 C.F.R.
§ 550.805(c)(1)–(2).
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ARELLANES v. DEFENSE 10
The Board concluded that Mr. Arellanes was not enti-
tled to back pay and benefits. Final Order at *4–7. The
Board reasoned that Mr. Arellanes “has the burden of proof
to show that he was ready, willing, and able to work during
the period for which he requests back pay.” Id. at *4. After
giving Mr. Arellanes the opportunity to show that he was
ready, willing, and able to perform the duties of his prior
position, the Board concluded that “his submissions fail to
resolve the conflicts between his prior statements and
other record evidence showing that he was not ready, will-
ing, and able to perform the duties of his prior position at
the time of his removal or since.” Id. at *7. Therefore, the
Board held that the Agency complied with the 2015 Re-
mand Decision. Id.
In addressing which party has the ultimate burden of
proof, the Board relied on our predecessor court’s decision
in Piccone v. United States, 407 F.2d 866, 876 (Ct. Cl.
1969). See Final Order at *4. There, the plaintiff sued the
government, seeking back pay, alleging his separation
from the Navy was unlawful. Piccone, 407 F.2d at 871.
The court held that “the plaintiff must ultimately sustain
the burden of proving, as part of his claim, that he was
ready, willing and able to perform at all times since” the
date from which he sought back pay. Id. at 876 (emphasis
added). “In order to confine this burden within reasonable
limits,” the court held that the government was required
“to demonstrate that it has some concrete and positive evi-
dence, as opposed to a mere theoretical argument, that
there is some substance to its affirmative defense and is
not a mere fishing expedition or a method of discouraging
employees from seeking back pay on meritorious claims.”
Id. (citation omitted and cleaned up).
In this case, the Board did not err in placing the ulti-
mate burden of proof on Mr. Arellanes. Although Mr. Arel-
lanes is correct that the Agency bore the burden of proving
compliance with the 2015 Remand Decision, see Carson,
398 F.3d at 1377, Mr. Arellanes still was required to prove
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ARELLANES v. DEFENSE 11
that he was ready, willing, and able to perform his duties
as of the date from which he sought back pay. See Groves
v. United States, 47 F.3d 1140, 1146 (Fed. Cir. 1995) (ap-
plying Piccone and noting that the employee “had to prove
that he was ready, willing, and able to serve”); Cunning-
ham v. United States, 549 F.2d 753, 760 (Ct. Cl. 1977) (“It
is clearly the [employee’s] burden to prove that she was
ready, willing and able to discharge the duties of the posi-
tion from which she was illegally separated . . . before she
can recover back pay.”) (collecting cases). Thus, the Board
did not err in placing the ultimate burden of proof on
Mr. Arellanes to show that he was ready, willing, and able
to perform his duties.
ii.
Next, we address whether Mr. Arellanes is entitled to
back pay. Mr. Arellanes argues that “even under the
Board’s burden-shifting framework and assuming the bur-
den shifted to Mr. Arellanes, the [c]ourt should at least re-
verse the denial of back pay starting August 23, 2016.”3
Appellant’s Br. 67.
We cannot determine on the record before us whether
the Board’s failure to consider whether Mr. Arellanes
would have chosen to retire absent his removal infected the
Board’s decision on whether Mr. Arellanes was “ready,
willing, and able” to work for the disputed time period be-
ginning on August 23, 2016. 5 C.F.R. § 550.805(c)(1)–(2);
see, e.g., J.A. 1603 ¶ 12 (declaration of Mr. Arellanes)
(“[Mr. Arellanes] was not accommodated in 2014. The
Agency thus, in addition to wrongfully terminating [his]
employment in retaliation of [his] whistleblowing activity,
forced [him] into disability retirement.”). For this reason,
3 Mr. Arellanes does not appear to dispute the una-
vailability of back pay from September 30, 2014, to Au-
gust 22, 2016. See Appellant’s Br. 65–67.
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ARELLANES v. DEFENSE 12
we vacate and remand so that the Board can determine in
the first instance whether Mr. Arellanes is eligible for back
pay for the period beginning on August 23, 2016.
IV. CONCLUSION
For the reasons above, we vacate the Board’s decision
and remand for further proceedings consistent with this
opinion.
VACATED AND REMANDED
COSTS
Costs to petitioner.
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