Angelique Von Kelsing v. Department of the Navy

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANGELIQUE VON KELSING,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2024-1723
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0432-21-0291-I-1.
______________________
Decided: October 15, 2024
______________________
ANGELIQUE V ON K ELSING, Gig Harbor, WA, pro se.
I OANA C. M EYER , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by REGINALD
T HOMAS BLADES , J R., BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY .
______________________
Before L OURIE, P ROST , and STARK, Circuit Judges.
Case: 24-1723 Document: 31 Page: 1 Filed: 10/15/2024

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VON KELSING v. NAVY 2
P ER CURIAM .
Angelique Von Kelsing appeals a final order of the
Merit Systems Protection Board (“MSPB”) affirming her
performance-based removal from a position at the Depart-
ment of the Navy (“Navy”). Von Kelsing v. Dep’t of the
Navy, No. SF-0432-21-0291-I-1, 2022 WL 199510 (M.S.P.B.
Jan. 21, 2022) (“Initial Decision”); Von Kelsing v. Dep’t of
the Navy, No. SF-0432-21-0291-I-1 2024 WL 1070872
(M.S.P.B. Mar. 11, 2024) (“Final Order”). For the following
reasons, we affirm.
BACKGROUND
Ms. Von Kelsing was a Program Analyst in the Quality
Assurance Office at the Puget Sound Naval Shipyard and
Intermediate Maintenance Facility from October 2018 un-
til her removal. She was responsible for two major areas:
analysis of Workload and Resource Reports (“WARR”) and
budget analysis. Her supervisor from October 2018 to May
2020 reported deficiencies in the performance of her WARR
duties. For example, in 2019, Ms. Von Kelsing’s supervisor
noted that she “decided to discontinue having the WARR
meetings because she didn’t perceive them as effective”
even though such meetings were part of her performance
duties. S. App’x 59.1 Ms. Von Kelsing’s supervisor also
noted that “[t]he WARR half of her position has been very
difficult for her to grasp.” S. App’x 60. Nevertheless, Ms.
Von Kelsing’s supervisor gave her a rating of 3 out of 5, or
“fully successful,” for the 2019 appraisal year. S. App’x 59–
62; see 5 C.F.R. § 430.208(d)(2)(iii). Her performance re-
view for the 2020 appraisal year reflected similar difficul-
ties with the WARR aspects of her job; still, Ms. Von
Kelsing’s supervisor again gave her a 3 out of 5 “fully suc-
cessful” rating. S. App’x 64–67.
1 “S. App’x” refers to the supplemental appendix in-
cluded with the government’s informal brief.
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VON KELSING v. NAVY 3
In May 2020, Ms. Von Kelsing transferred to a different
division within the Navy and began reporting to new su-
pervisors. She continued to have WARR responsibilities in
this new position. Since Ms. Von Kelsing “was teleworking
on a full-time basis as a result of the COVID-19 pandemic,”
Ms. Von Kelsing’s new supervisors “held a telephone con-
ference” with her, “during which they reviewed [her] posi-
tion description with her in detail, explained” the
“expectations of her performance of those duties, and re-
viewed the training that would be provided to [her] to as-
sist her with performing her duties.” Initial Decision, 2022
WL 199510; S. App’x 6.
Ms. Von Kelsing’s new supervisors observed that she
had not improved on the performance of her WARR duties.
From August to September 2020, her supervisors had sev-
eral discussions with her about strategies for improving on
her WARR duties. S. App’x 68–78. Seeing no improve-
ment, Ms. Von Kelsing’s supervisors placed her on a Per-
formance Improvement Plan (“PIP”). S. App’x 79–84. Ms.
Von Kelsing’s supervisors determined that she failed to im-
prove under the PIP, S. App’x 85–92, and the Navy re-
moved her, S. App’x 93–94.
Ms. Von Kelsing appealed to the MSPB, challenging
the Navy’s removal. The administrative judge (“AJ”) af-
firmed in an initial decision. Relevant here, the AJ found
that the Navy communicated Ms. Von Kelsing’s perfor-
mance standards to her. Although the AJ found that Ms.
Von Kelsing’s supervisors had not provided her a written
“copy” of her performance standards, the AJ found that,
“[b]y April 1, 2020, [Ms. Von Kelsing] knew she would be
assessed against the performance standards set forth in
the [Department of Defense Performance Management and
Appraisal Program (“DPMAP”)], and knew precisely where
to locate a copy of those standards.” Initial Decision, 2022
WL 199510; S. App’x 13. Thus, the AJ found “that the
[Navy] has shown by substantial evidence that it commu-
nicated [Ms. Von Kelsing’s] critical elements and
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VON KELSING v. NAVY 4
performance standards to [her] as required.” Initial Deci-
sion, 2022 WL 199510; S. App’x 14.
Ms. Von Kelsing filed a petition for review before the
full MSPB, which affirmed the initial decision. Final Or-
der, 2024 WL 1070872, at *1. Ms. Von Kelsing timely ap-
pealed to this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
On review of the MSPB’s decision, we must “hold un-
lawful and set aside any agency action, findings, or conclu-
sions found to be—(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
Ms. Von Kelsing argues on appeal that the Navy failed
to properly provide her the governing performance stand-
ards. We understand her to make both a legal and a factual
argument. Legally, she argues that the relevant provisions
require providing a written copy of her performance stand-
ards, stating that, “[i]f I was not provided a copy of my crit-
ical elements and performance standards, then the [Navy]
did not communicate my standards to me.” Informal Reply
Br. 1 (emphasis added). Factually, she argues that “[a]t no
time during the appraisal period did my first line supervi-
sor meet with me to discuss my performance standards.”
Appellant’s Informal Br. 1. We reject both arguments.
The relevant statutory provision requires that, “at the
beginning of each . . . appraisal period,” the agency “com-
municat[e] to each employee the performance standards
and the critical elements of the employee’s position.”
5 U.S.C. § 4302(c)(2). We have interpreted this provision
to prohibit taking adverse action against an employee with-
out prior notice of the performance standards for the spe-
cific appraisal period at issue. Weirauch v. Dep’t of the
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VON KELSING v. NAVY 5
Army, 782 F.2d 1560, 1563 (Fed. Cir. 1986). Importantly,
however, “[p]rovided the substantive rights of the employee
are preserved (that is, communication of the standards be-
forehand and evaluation thereon after an opportunity to
improve),” we have concluded that an agency has met its
obligation to communicate the contents of performance
standards to an employee. Id.
We first address Ms. Von Kelsing’s legal argument that
the Navy should have provided her a written copy of her
performance standards. The applicable statutory provision
merely requires “communicating” the performance stand-
ards and critical elements of the employee’s position with-
out specifying whether this communication must be
written or verbal. 5 U.S.C. § 4302(c)(2). And Ms. Von Kel-
sing identifies no other source of law, nor are we aware of
one, requiring that the communication of performance
standards be in writing. Thus, Ms. Von Kelsing has not
demonstrated that the MSPB legally erred by concluding
that the Navy did not need to provide her a written copy of
her performance standards.2
We next turn to Ms. Von Kelsing’s factual argument
that her supervisor never met or communicated with her
regarding her performance standards. The AJ found that
Ms. Von Kelsing’s supervisors held a meeting with her
“during which they reviewed [her] position description with
her in detail, explained to [her] their expectations of her
performance of those duties, and reviewed the training that
would be provided to [her] to assist her with performing her
2 It also appears that Ms. Von Kelsing did have ac-
cess to a written copy of her performance standards in the
DPMAP database. Initial Decision, 2022 WL 199150; S.
App’x 13 (finding that Ms. Von Kelsing had access to “and
knew precisely where to locate a copy of those standards”).
Ms. Von Kelsing has not shown that this factual determi-
nation lacks substantial-evidence support.
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VON KELSING v. NAVY 6
duties.” Initial Decision, 2022 WL 199510; S. App’x 6. Sub-
stantial evidence supports this finding. E.g., S. App’x 79
(referencing a discussion of Ms. Von Kelsing’s “current per-
formance plan” on May 27, 2020). Ms. Von Kelsing’s argu-
ment otherwise is a dispute with the particular facts the
AJ found, but she fails to establish that no reasonable fact-
finder could have found as the AJ did on this record. See
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229
(1938) (observing that substantial evidence “means such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion”). We thus reject her argu-
ment that the MSPB lacked evidentiary support for its
factual finding that the Navy adequately communicated
her performance standards to her.
CONCLUSION
We have considered Ms. Von Kelsing’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the MSPB’s decision affirming her removal
from her position at the Navy.
AFFIRMED
COSTS
No costs.
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