ANDREW H. BERNARD, Petitioner
DEPARTMENT OF AGRICULTURE, Respondent
Petition for review of the Merit Systems Protection Board in No. DE-0752-11-0222-C-1.
VACATED AND REMANDED.
GERALD CUNNINGHAM, Law Office of Gerald Cunningham, Pensacola Beach, FL, argued for petitioner.
ZACHARY JOHN SULLIVAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES, JR.
Before PROST, Chief Judge, LOURIE, and TARANTO, Circuit Judges.
Taranto, Circuit Judge.
Andrew Bernard and his employer, the U.S. Forest Service (an agency of the U.S. Department of Agriculture), entered into an agreement that settled a case he had filed against the Forest Service at the Merit Systems Protection Board. Within a year of resuming his employment based on the agreement, Mr. Bernard petitioned the Board to enforce the agreement, which he asserted the Forest Service was violating. The Board denied enforcement. We conclude that the Board improperly denied
Mr. Bernard discovery of potentially relevant evidence. We vacate the decision and remand for further proceedings.
The Forest Service removed Mr. Bernard, a firefighter, from his position as supervisor of a hotshot firefighting crew in February 2011. Mr. Bernard appealed his removal to the Board, seeking reinstatement, back pay, and attorney's fees. The agency and Mr. Bernard settled the matter in August 2011, executing an agreement under which the agency replaced Mr. Bernard's removal with a 14-day suspension, reinstated him in a non-supervisory role, and provided lump-sum payments for back pay and fees. Corrected Joint Appendix (J.A.) 629-30. The agency promised that Mr. Bernard would not be " restricted from applying for future supervisory positions" and would be " allowed to go on future fire assignments . . . the same as any other employee in the fire organization." J.A. 630. The parties agreed " [t]o cooperate and communicate in good faith to implement and to abide by the terms of [the] agreement." J.A. 630.
Under the agency's policy, a firefighting employee, to receive firefighting assignments, must have an unexpired Incident Qualification Card (or " red card" ), which lists the specific firefighting positions the employee is qualified to fill, based on work history and training. Each firefighter must renew his red card each year, and the red-card listing limits what assignments the firefighter may receive. An agency official must annually evaluate and certify " [e]ach employee's incident and prescribed fire position qualifications . . . and a new [red card] must be issued." J.A. 52. A card may not be issued until the employee successfully completes the annual training course on safety.
In February 2012, five months after his reinstatement to employment, Mr. Bernard successfully completed the annual safety course. Other employees who participated in the course received renewed red cards in early March 2012, but the agency did not issue a red card to Mr. Bernard. After Mr. Bernard inquired about the status of his red card, an agency administrator, Christina McKerracher, informed him that, although the computerized system that tracks each employee's qualifications appeared to reflect his full record of work and training, " [a] recent audit" of his records found too few hard-copy documents supporting those entries. J.A. 133.
In response, on March 15, 2012, Mr. Bernard provided the agency a copy of his 2010 red card. That card, signed by certifying official Helen Graham, listed Mr. Bernard as qualified, until 2014, for eleven firefighting positions. J.A. 62. In April 2012, Ms. Graham wrote Mr. Bernard a letter stating that as a prerequisite to receiving a new red card, Mr. Bernard had to provide " acceptable documentation" sufficient to support three specific positions that she stated were inadequately documented: Incident Commander Type 3, Incident Commander Type 4, and Prescribed Fire Burn Boss 2. J.A. 68. Ms. Graham's letter did not refer to Mr. Bernard's 2010 red card, on which Ms. Graham had certified Mr. Bernard as qualified for those specific positions. J.A. 62. Mr. Bernard notified ...