Adria Gharati v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ADRIA GHARATI,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2022-2146
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-13-4692-C-1.
______________________
Decided: May 30, 2024
______________________
D ANIEL MEIER , Meier Law Group PLLC, Durham, NC,
for petitioner. Also represented by P ETER L OWN, Peter C.
Lown, P.C., Stockbridge, GA.
SONIA W. MURPHY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by REGINALD
T HOMAS BLADES , J R., BRIAN M. B OYNTON, D OUGLAS G LENN
EDELSCHICK, P ATRICIA M. MCCARTHY .
______________________
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GHARATI v. ARMY 2
Before P ROST , T ARANTO, and HUGHES , Circuit Judges.
P ROST , Circuit Judge.
Ms. Adria Gharati appeals a Merit Systems Protection
Board (“MSPB”) order granting the Department of the
Army’s (“Army”) petition for review and dismissing Ms.
Gharati’s petition for enforcement of the April 21, 2016 in-
itial decision of the Administrative Judge (“AJ”), which be-
came final on May 26, 2016. Gharati v. Dep’t of the Army,
No. AT-1221-13-4692-C-1, 2022 WL 2254009 (M.S.P.B.
June 22, 2022) (“Board Decision”). For the reasons below,
we affirm.
BACKGROUND
In January 2011, Ms. Gharati was hired for a four-year
term position as a Latent Print Examiner/Fingerprint Spe-
cialist with the U.S. Army Criminal Investigation Labora-
tory in Ft. Gillem, Georgia. Appx. 39, 43.1 Shortly after
being hired, she deployed for six months to an agency la-
boratory in Afghanistan. Appellant’s Br. 7. Ms. Gharati
was promoted to a GS-12 Fingerprint Specialist, which en-
titled her to a new four-year term starting on May 20, 2012.
Appx. 2, 44. During Ms. Gharati’s second deployment to
Afghanistan, she became “concerned about the lack of com-
petence of a contract fingerprint examiner” and “possible
destruction of evidence by a contract employee.” Id. at 8.
She reported her concerns to the laboratory manager and
his superiors. During the investigation of these reports,
Ms. Gharati was removed from her assignment in Afghan-
istan, reassigned to Ft. Gillem, Georgia, and constructively
terminated from her position in the Army. Appx. 51‒53;
Appellee’s Br. 2. Ms. Gharati resigned on November 30,
2012. Appx. 55.
1 “Appx.” refers to Petitioner’s Appendix. See Peti-
tioner’s Appendix (Apr. 6, 2023), ECF No. 27.
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GHARATI v. ARMY 3
In August 2013, Ms. Gharati filed an Individual Right
of Action appeal with the MSPB, alleging that the Army
took adverse personnel action against her in retaliation for
protected whistleblower activity that took place in Afghan-
istan. The AJ agreed, finding that Ms. Gharati had estab-
lished that her whistleblower activity was a contributing
factor to the Army’s decision to reassign her to Ft. Gillem
and constructively terminate her. The AJ ordered the
Army “to cancel the reassignment and removal and to ret-
roactively restore [Ms. Gharati] effective November 30,
2012” and “to pay [Ms. Gharati] . . . for the appropriate
amount of back pay.” Appx. 73 (“First AJ Decision”). Nei-
ther party appealed the initial decision, and it became final
on May 26, 2016.
In June 2016, Ms. Gharati filed a petition for enforce-
ment, alleging, among other things, that the Army failed to
comply with the First AJ Decision because it failed to rein-
state her to active employment. First, Ms. Gharati argued
that, because she had 42 months remaining on her four-
year term position when she was constructively termi-
nated, the Army should be required to restore her to that
position to serve out the remaining months. See Board De-
cision, 2022 WL 2254009, at *1. The Army responded that
Ms. Gharati’s four-year term appointment would have
ended by May 20, 2016 (before the First AJ Decision be-
came final) and that it had already paid her back pay for
the unserved remainder of the four-year appointment. See
id.
Second, Ms. Gharati argued that another means of en-
forcing the First AJ Decision would have been to grant her
a permanent position with the Army because “but for the
agency’s unwarranted personnel action” she would have
continued her active employment with the Army and would
have been selected for a permanent position. Appx. 22.
The Army responded that Ms. Gharati had failed to apply
for any of the ten fingerprinting-specialist vacancies be-
tween October 2014 and October 2016 and, thus, “whether
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GHARATI v. ARMY 4
the appellant would have been selected for one of the ten
permanent vacant positions is speculative.” Appx. 23. Ms.
Gharati responded that she did not apply because she felt
her efforts would have been futile, given her ongoing litiga-
tion with the Army concerning her whistleblowing activity.
See Appx. 22. Because “it was to some degree a matter of
speculation as to whether she actually would have been
hired,” the AJ ordered the Army to “reconstruct the selec-
tion process” for the ten fingerprint-specialist vacancies be-
tween October 2014 and October 2016 to determine
whether Ms. Gharati would have been eligible and hired
into one of those positions. Appx. 23‒24. The Army ob-
jected to the reconstruction process, explaining that it
lacked the resources to implement it. Based on this refusal,
the AJ found “it appropriate to draw an adverse inference
that had the agency reconstructed the selection process . . .
and considered [Ms. Gharati’s] application, it would have
determined that [she] would have been selected for the po-
sition.” Appx. 25. The AJ then determined that the Army
failed to comply with the First AJ Decision and ordered the
Army to place Ms. Gharati “in a permanent Latent Print
Examiner position . . . retroactive to the date of hire of the
first vacancy announcement.” Appx. 27 (“Second AJ Deci-
sion”).
The Army filed a petition for review by the full MSPB,
arguing that the Second AJ Decision would operate to place
Ms. Gharati in a better position than she was at the time
of the Army’s wrongful action and that the AJ abused her
discretion by requiring the Army to reconstruct the selec-
tion process. Board Decision, 2022 WL 2254009, at *3. Ms.
Gharati moved to dismiss the petition for review, arguing
that the Army was required, but failed, to include evidence
of its compliance with the interim relief order with its peti-
tion. Appellant’s Br. 14‒15. The MSPB determined that
the Army had complied with the orders in the First AJ De-
cision and that placing Ms. Gharati in a permanent posi-
tion exceeded the relief ordered in the First AJ Decision.
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GHARATI v. ARMY 5
Board Decision, 2022 WL 2254009, at *3‒5. The MSPB
then dismissed Ms. Gharati’s petition for enforcement and
granted the Army’s petition for review. Id. at *6.
Ms. Gharati timely appealed. Both parties waived oral
argument, and the case was submitted on the briefs. We
ordered supplemental briefing, asking each party to ad-
dress specific questions related to Ms. Gharati’s requested
relief to be placed in a permanent position with the Army.
See Order (Dec. 14, 2023), ECF No. 45.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
On appeal, Ms. Gharati argues that the MSPB erred
by: (1) failing to grant her motion to dismiss based on the
Army’s failure to provide a certificate of compliance with
its petition for review; (2) failing to place her, as nearly as
possible, into the situation she would have been in but for
the Army’s wrongful action; and (3) concluding that back
pay was a permissible substitute for employment. We ad-
dress each argument in turn.
We must affirm the MSPB’s decision unless it was
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “The petitioner bears the burden of es-
tablishing error in the Board’s decision.” Harris v. Dep’t of
Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
I
Ms. Gharati first alleges that the MSPB failed to rule
on her motion to dismiss, in which she argued that the
Army’s failure to include a certificate of compliance with its
petition for review requires dismissal. Appellant’s
Br. 14‒15. But the MSPB did rule on Ms. Gharati’s motion
to dismiss. Board Decision, 2022 WL 2254009, at *3 n.3
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GHARATI v. ARMY 6
(denying the motion because the appeal of the Second AJ
Decision did not require a certificate of compliance).
On the merits, the parties agree that “[i]f the appellant
was the prevailing party in the initial decision and the de-
cision granted the appellant interim relief, any petition or
cross petition for review filed by the agency must be accom-
panied by a certification that the agency has complied with
the interim relief order.” 5 C.F.R. § 1201.116(a) (emphasis
added). But, as explained above, there are two initial deci-
sions involved in these proceedings—only the First AJ De-
cision ordered interim relief. Compare Appx. 73‒76, with
Appx. 27‒29. The Army filed a petition for review of the
Second AJ Decision, which did not contain an interim relief
order. See Appx. 27‒34. Therefore, no certificate of com-
pliance was required, and the MSPB did not err in denying
Ms. Gharati’s motion to dismiss.
II
Ms. Gharati next argues that the MSPB erred by not
requiring the Army to appoint her to a permanent position.
When the MSPB finds that an agency has engaged in
wrongful personnel practices, the MSPB “shall order such
corrective action as the Board considers appropriate.” 5
U.S.C. § 1221(e)(1). “If the Board orders corrective action
under this section, such corrective action may include—
that the individual be placed, as nearly as possible, in the
position the individual would have been in had the prohib-
ited personnel practice not occurred . . . .”
§ 1221(g)(1)(A)(i).
The Second AJ Decision ordered the Army to place Ms.
Gharati in a permanent position “retroactive to the date of
hire of the first vacancy announcement.” Appx. 27. Here,
Ms. Gharati argues that the purpose of that order was “to
place [her] as nearly as possible to the circumstances she
would have been in but for the agency’s unwarranted per-
sonnel action.” Appellant’s Br. 17. In Ms. Gharati’s view,
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GHARATI v. ARMY 7
this would require the Army to reinstate her to a perma-
nent position because “but for the Agency’s wrongful ac-
tions she would have been selected for a permanent
position.” Id. at 16. Specifically, Ms. Gharati alleges that
“[g]iven that there were 10 permanent positions that came
available during the relevant time period, [she] is able to
clearly establish that she would have received one of those
positions, and is therefore entitled to be reinstated to one
of those permanent positions.” Id. at 18. But Ms. Gharati
acknowledges that she did not in fact apply for any of these
ten vacancies. Instead, she argues that “she reasonably be-
lieved that she did not have a realistic chance of being se-
lected” due to her ongoing litigation with the Army but
asserts that if she had applied, she would have received one
of those positions. Id. at 17. The MSPB rejected Ms. Gha-
rati’s request for a permanent position, concluding, in part,
that her failure to apply for any of the ten vacancies was
“fatal” to her claim. Board Decision, 2022 WL 2254009, at
*5.
To the extent the MSPB concluded that a potential ap-
plicant’s failure to apply for a position categorically fore-
closes relief concerning such a position, we do not agree.
Indeed, there may be certain circumstances in which ap-
plying to a position may be futile, and a wronged individual
could still be entitled to relief despite not applying for a va-
cant position. For example, in International Brotherhood
of Teamsters, a case brought by the United States under
Title VII against an employer for exhibiting a pattern-or-
practice of race discrimination, the Supreme Court was
tasked with determining how to “make whole” victims of
discrimination. The employer argued that an employee
should be entitled to relief only if “he was an actual victim
of the company’s discriminatory practices” and that an em-
ployee who had not applied for the specific job in question
could not be granted retroactive relief. Int’l Bhd. of Team-
sters v. United States, 431 U.S. 324, 357 (1977). The Court
disagreed and concluded that “failure to apply for a job is
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GHARATI v. ARMY 8
not an inexorable bar to an award of retroactive [relief].”
Id. at 364. “When a person’s desire for a job is not trans-
lated into a formal application solely because of his unwill-
ingness to engage in a futile gesture he is as much a victim
. . . as is he who goes through the motions of submitting an
application.” Id. at 365‒66 (emphasis added).2 In applying
the futile gesture doctrine, courts have looked to whether
the wrongful conduct itself made applying for a particular
position futile, such as where individuals are deterred from
applying to a position because they “are unwilling to sub-
ject themselves to the humiliation of explicit and certain
rejection.” Id. at 365. It is the nonapplicant’s “not always
easy burden of proving that he would have applied for the
job had it not been for [the employer’s wrongful conduct].”
Id. at 368. “When this burden is met, the nonapplicant is
in a position analogous to that of an applicant . . . .” Id.
Here, however, even if we assumed that the futile ges-
ture doctrine could excuse a whistleblower’s failure to
2 Generally, the futile gesture doctrine has been ap-
plied in Title VII and other discrimination contexts. See,
e.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
406 (5th Cir. 1999) (race discrimination); Davoll v. Webb,
194 F.3d 1116, 1132‒33 (10th Cir. 1999) (disability discrim-
ination); Brown v. McLean, 159 F.3d 898, 902‒04 (4th Cir.
1998) (race and sex discrimination); Gutowsky v. Cnty. of
Placer, 108 F.3d 256, 260‒61 (9th Cir. 1997) (sex discrimi-
nation); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d
Cir. 1993) (age discrimination); Terry v. Cook, 866 F.2d
373, 378 (11th Cir. 1989) (political discrimination); United
States v. E. Tex. Motor Freight, Inc., 643 F.2d 304, 307 (5th
Cir. Unit A Apr. 1981) (race discrimination); Grant v. Beth-
lehem Steel Corp., 635 F.2d 1007, 1017 (2d Cir. 1980) (race
discrimination).
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GHARATI v. ARMY 9
apply for a position,3 the MSPB was correct in concluding
that Ms. Gharati “is not entitled to a permanent position.”
Board Decision, 2022 WL 2254009, at *5. Ms. Gharati has
not met her burden under the futile gesture doctrine to
demonstrate that applying for any of the ten vacancies
would have been futile. Besides Ms. Gharati’s subjective
“belie[f] that she did not have a realistic chance of being
selected” for the vacancies because “she was in active liti-
gation with the [Army],” Appellant’s Br. 10, 17, her briefing
(including the supplemental briefing ordered by this court)
fails to demonstrate that it would have been futile for her
to apply. For example, she provides no record citations or
evidence indicating that her application awaited “certain
rejection” due to a wrongful reason. See Int’l Bhd. of Team-
sters, 431 U.S. at 365. In fact, there is reason to doubt
whether applying would have been futile. For instance, she
admits that, upon her resignation, her employment record
at the Army did not contain any mention of her whistle-
blowing activity in Afghanistan. Transcript of Record at
17‒18, Gharati v. Dep’t of the Army, No. AT-1221-13-4692-
C-1 (M.S.P.B. May 2, 2017). Ms. Gharati has not presented
any argument, let alone evidence, that had she applied for
one of the vacancies, anyone reviewing her application
would have been aware of any whistleblowing activity or
whether or why there was a reasonable basis for her to con-
clude that her whistleblowing activity would have fore-
closed her from being selected for one of the vacant
positions, such that applying for the vacancies would have
been futile. On these facts, Ms. Gharati has failed to
demonstrate that applying for these vacancies would have
3 Certainly, the more straightforward course of ac-
tion for Ms. Gharati would have been to apply for one or
more of these positions, and if not selected because of her
whistleblowing activity, to file another reprisal claim. See
Board Decision, 2022 WL 2254009, at *5; Appellee’s Supp.
Br. 3.
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GHARATI v. ARMY 10
been futile and has, therefore, not met her burden as a non-
applicant to show that she is “in a position analogous to
that of an applicant,” such that retroactive relief is still
proper. Int’l Bhd. of Teamsters, 431 U.S. at 368. And since
Ms. Gharati has not demonstrated futility on the record be-
fore us, then she has not shown that “but for the [Army’s]
wrongful actions she would have been selected for a perma-
nent position” as was her burden. Appellant’s Br. 16.
We thus conclude that the MSPB did not err in deter-
mining that Ms. Gharati is not entitled to a permanent po-
sition.
III
Ms. Gharati further argues that “back pay and benefits
are not the same as employment,” which appears to be as-
serted as an additional ground for seeking retroactive re-
lief. Appellant’s Br. 18‒19. We find this argument
unpersuasive. Ms. Gharati was paid for 42 months of back
pay from her resignation date (November 30, 2012)
through what would have been the end of her term contract
(May 20, 2016). Although she does not dispute the calcula-
tion of back pay for this period, Ms. Gharati argues that
pay alone does not make her whole because “her lack of ac-
tual employment in her profession deprived her of many
benefits.” Appellant’s Br. 19.
Ms. Gharati was hired for a term contract and was paid
for the entirety of that term contract. We therefore agree
with the MSPB that, under these circumstances, reinstat-
ing Ms. Gharati “to the term appointment for the 42
months at issue would allow the appellant to benefit twice
from the administrative judge’s order.” Board Decision,
2022 WL 2254009, at *6.
CONCLUSION
We have considered Ms. Gharati’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the MSPB’s grant of the Army’s petition for
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GHARATI v. ARMY 11
review and dismissal of Ms. Gharati’s petition for enforce-
ment.
AFFIRMED
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