Michael J. Johnen v. U.s. Merit Systems Protection Board; United States Department of the Army

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. JOHNEN,
Petitioner,
v.
U.S. MERIT SYSTEMS PROTECTION
BOARD; UNITED STATES
DEPARTMENT OF THE ARMY,
Respondents.
No. 16-73427
MSPB No.
SF-1221-14-0338-W-2
MEMORANDUM*
On Petition for Review of an Order of the
Merits Systems Protection Board
Argued and Submitted December 8, 2017
San Francisco, California
Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,** District Judge.
Petitioner Michael Johnen alleges that the United States Department of the
Army terminated him and barred him from his work site because he had made
complaints that are protected under the Whistleblower Protection Act. In an
FILED
FEB 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.

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opinion filed this date, pertaining to other issues, we dismiss the petition in part
and deny it in part. This disposition concerns only the question whether Petitioner
exhausted administrative remedies with the Office of Special Counsel with respect
to his oral complaint made to supervisors on July 25, 2013, as required by 5 U.S.C.
§ 1214(a)(3), so as to give the United States Merit Systems Protection Board
jurisdiction over his appeal to that body. On de novo review, Daniels v. Merit Sys.
Prot. Bd., 832 F.3d 1049, 1054 (9th Cir. 2016), we grant and remand.
Petitioner’s 2014 written complaint, fairly read, encompassed the oral
complaint that Petitioner had made on July 25, 2013, to Deputy Garrison
Commander Mark Hamelin and General Donna Williams, concerning nepotism.
Petitioner stated that an Army official had engaged improperly in nepotism and had
retaliated against him because he had opposed her actions. We conclude that the
written complaint gave sufficiently detailed and clear notice and, thus, that the
Board erred in holding that it lacked jurisdiction over this claim. When the Board
reconsiders this claim on remand, it also must reconsider the related evidentiary
rulings that precluded evidence concerning the July 25, 2013 oral complaint and
concerning nepotism and other related issues.
Petition DISMISSED as to the United States Merit Systems Protection
Board; as to the United States Department of the Army, petition DENIED in
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part, GRANTED in part, and REMANDED. The parties shall bear their own
costs on appeal.
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