Diana Z. Kammunkun v. Department of Defense

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

DIANA Z. KAMMUNKUN,
Petitioner

v.

DEPARTMENT OF DEFENSE,
Respondent
______________________

2019-1374
______________________

Petition for review of the Merit Systems Protection
Board in Nos. SF-0752-17-0667-I-1, SF-1221-17-0675-W-1.
______________________

Decided: April 6, 2020
______________________

R
ENN C. FOWLER, Gilbert Employment Law, PC, Silver
Spring, MD, argued for petitioner. Also represented by
GARY M. GILBERT; ELBRIDGE W. SMITH, Smith Himmel-
mann ALC, Honolulu, HI.

NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
J
OSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Case: 19-1374 Document: 43 Page: 1 Filed: 04/06/2020

KAMMUNKUN v. DEFENSE
2

Before PROST, Chief Judge, BRYSON and WALLACH,
Circuit Judges.
PROST, Chief Judge.
Ms. Diana Z. Kammunkun petitions for review of a
Merit Systems Protection Board (“MSPB”) decision (1) dis-
missing her action contesting her removal from Federal
service pursuant to Chapter 75 of Title 5 of the United
States Code; and (2) denying her individual right of action
appeal seeking corrective action for whistleblowing re-
prisal. Kammunkun v. Dep’t of Defense, Nos. SF-1221-17-
0675-W-1, SF-0752-17-0667-I-1, 2018 WL 4739856, (M.S.P.B.
Oct. 25, 2018). We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
As the government concedes, Ms. Kammunkun’s Chap-
ter 75 action must be remanded for further proceedings.
Resp’t’s Br. 52–54.
The administrative judge dismissed Ms. Kam-
munkun’s Chapter 75 action because (a) Ms. Kammunkun
had previously elected to contest her removal with the Of-
fice of Special Counsel and subsequent individual right of
action appeal; and (b) the election requirement of 5 C.F.R.
§ 1209.2(d) prevented Ms. Kammunkun from also chal-
lenging her removal via a Chapter 75 action. The admin-
istrative judge’s decision became the decision of the MSPB.
The administrative judge erred in interpreting 5 C.F.R.
§ 1209.2(d), which applies only to employees, as applying
to Ms. Kammunkun, who was a supervisor. Section
1209.2(d) states that, “[u]nder 5 U.S.C. 7121(g)(3), an em-
ployee who believes he or she was subjected to a covered
personnel action in retaliation for whistleblowing or other
protected activity” may elect only one of three listed reme-
dies. 5 C.F.R. § 1209.2(d)(1) (emphasis added). An “em-
ployee” for purposes of 5 U.S.C. § 7121(g)(3) is defined by 5
U.S.C. § 7103(a)(2), which specifically excludes
Case: 19-1374 Document: 43 Page: 2 Filed: 04/06/2020

KAMMUNKUN v. DEFENSE
3
“supervisor[s].” It is undisputed that Ms. Kammunkun
was a supervisor. Pet’r’s Br. 3; Resp’t’s Br. 1. Accordingly,
the election requirement of § 1209.2 does not apply to Ms.
Kammunkun.
We therefore vacate the administrative judge’s decision
with respect to the Chapter 75 action and remand for fur-
ther proceedings. The parties disagree as to the appropri-
ate scope of the proceedings on remand. Compare Pet’r’s
Reply Br. 10–14, with Resp’t’s Br. 54. We leave it to the
administrative judge to make this determination in the
first instance.
We affirm the decision of the administrative judge with
respect to the individual right of action claim.
VACATED-IN-PART, AFFIRMED-IN-PART, AND
REMANDED
C
OSTS
The parties shall bear their own costs.
Case: 19-1374 Document: 43 Page: 3 Filed: 04/06/2020