NOTE: This disposition is nonprecedential.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

______________________

RENN C. FOWLER, Gilbert Employment Law, PC, Silver 

Spring, MD, argued for petitioner. Also represented by 

GARY M. GILBERT; ELBRIDGE W. SMITH, Smith Himmelmann ALC, Honolulu, HI. 

 NATHANAEL YALE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by 

JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD 

KIRSCHMAN, JR. 

______________________

Case: 19-1374 Document: 43 Page: 1 Filed: 04/06/2020
2 KAMMUNKUN v. DEFENSE

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) dismissing 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 reprisal. 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 Chapter 75 action must be remanded for further proceedings. 

Resp’t’s Br. 52–54. 

The administrative judge dismissed Ms. Kammunkun’s Chapter 75 action because (a) Ms. Kammunkun 

had previously elected to contest her removal with the Office 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 challenging her removal via a Chapter 75 action. The administrative 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 employee 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 remedies. 5 C.F.R. § 1209.2(d)(1) (emphasis added). An “employee” 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 further proceedings. The parties disagree as to the appropriate 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

COSTS

The parties shall bear their own costs.

Case: 19-1374 Document: 43 Page: 3 Filed: 04/06/2020