In Re LAWRENCE BRENNER v. Dep’t of Veterans Affs., 990 F.3d 1313 Fed. Cir. 2021 . At the conclusion of that…

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re LAWRENCE BRENNER,
Petitioner
______________________
2024-134
______________________
On Petition for Writ of Mandamus to the Merit Sys-
tems Protection Board in No. NY-0714-19-0007-M-1.
______________________
ON PETITION
______________________
Before T ARANTO, WALLACH , and CHEN, Circuit Judges.
WALLACH , Circuit Judge.
O R D E R
Lawrence Brenner petitions for a writ of mandamus
asking this court to vacate the Merit Systems Protection
Board’s April 2, 2024 remand order and to direct the Board
to issue a new remand decision.
This is the second time this matter has come before the
court. See Brenner v. Dep’t of Veterans Affs., 990 F.3d 1313
(Fed. Cir. 2021). At the conclusion of that appeal, the court
“vacate[d] Mr. Brenner’s removal and remand[ed] to the
[Board] for further proceedings to consider whether the
[agency’s] removal decision under 38 U.S.C. § 714—includ-
ing the penalty—is supported by substantial evidence on
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IN RE BRENNER 2
the evidence of record that postdates the [Department of
Veterans Affairs Accountability and Whistleblower Protec-
tion Act of 2017].” Id. at 1330 (cleaned up).
On remand, the administrative judge (AJ) issued an in-
itial decision reversing the agency’s removal action. Of
particular relevance here, the AJ found that the agency
had applied an incorrect standard of proof in assessing
whether Mr. Brenner had engaged in misconduct. On a
petition for review by the agency, the full Board vacated
and remanded for the AJ to, among other things, consider
whether the agency’s error in applying the incorrect stand-
ard of proof was harmful. This petition followed.
Mandamus is “reserved for extraordinary situations,”
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 289 (1988) (citation omitted). To obtain mandamus,
the petitioner must show: (1) there are no adequate alter-
native avenues for relief, (2) the right to issuance of the
writ is clear and indisputable, and (3) issuance of the writ
is appropriate under the circumstances. Cheney v. U.S.
Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004). Mr. Bren-
ner has not met that demanding standard.
First, Mr. Brenner has not shown that a post-final de-
cision appeal is an inadequate remedy. He argues that the
court “must intervene . . . so that [he] is not compelled to
participate in a totally flawed Board proceeding.” Pet. at
31–32. However, “the burden of participating in the pro-
ceedings at issue” is generally insufficient to justify man-
damus review. Automated Merch. Sys., Inc. v. Lee, 782
F.3d 1376, 1382 (Fed. Cir. 2015); see Bankers Life & Cas.
Co. v. Holland, 346 U.S. 379, 383–84 (1953) (noting that
the possibility of a “myriad of legal and practical problems
as well as inconvenience” does not ordinarily warrant man-
damus).
Second, Mr. Brenner has not shown a clear and indis-
putable right to relief. Mr. Brenner’s challenges to the re-
mand order focus primarily on 5 U.S.C. § 7701(c)(2), which,
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IN RE BRENNER 3
states in relevant part, that the agency’s decision may not
be sustained if the employee “(A) shows harmful error in
the application of the agency’s procedures in arriving at
such decision . . . or (C) shows that the decision was not in
accordance with law” (emphasis added).
Mr. Brenner contends the agency’s decision was “not in
accordance with law” because the agency failed to apply the
correct standard of proof. But this court has held that
“[t]he harmful error provision is part of the law and, thus,
negates a per se rule with respect to any procedural error.”
Handy v. USPS, 754 F.2d 335, 338 (Fed. Cir. 1985). Here,
the Board determined that Mr. Brenner is challenging “the
application of the agency’s procedures in arriving at [its]
decision,” § 7701(c)(2)(A), thus requiring harmful error
analysis. And we are not prepared on limited mandamus
review to disturb the Board’s determination.
Mr. Brenner also contends that the Board “arbitrarily
shifted the burden of proof to petitioner to initially estab-
lish harmful error.” Pet. at 18. But to the extent that the
Board here placed the burden on Mr. Brenner to establish
harmful error, we note that conclusion would find support
in our cases. See Ward v. USPS, 634 F.3d 1274, 1281 (Fed.
Cir. 2011) (“We have repeatedly held employees to this bur-
den to show harmful error in an agency’s procedure[.]”);
Diaz v. Dep’t of Air Force, 63 F.3d 1107, 1109 (Fed. Cir.
1995) (“In analyzing this statutory language, we have pre-
viously held that an employee challenging an agency action
has the burden to prove that a violation of a statutory pro-
cedure was harmful.”); Adams v. Dep’t of Transp., FAA, 735
F.2d 488, 490 n.3 (Fed. Cir. 1984) (“The burden to show
harm is petitioners’[.]”).
We have considered Mr. Brenner’s remaining argu-
ments but find them similarly unpersuasive in demonstrat-
ing a right to the extraordinary remedy of mandamus. Mr.
Brenner may raise any of his arguments on review from a
final Board decision.
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IN RE BRENNER 4
Accordingly,
I T I S O RDERED T HAT :
The petition is denied.
July 16, 2024
Date
F OR THE COURT
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