NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOHN JOSEPH NAGLE,

Petitioner

v.

UNITED STATES POSTAL SERVICE,

Respondent

______________________ 

2022-1306

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH-0752-20-0313-I-2.

______________________ 

Decided: July 7, 2022

______________________ 

JOHN JOSEPH NAGLE, South Boston, MA, pro se.

 ANDREW JAMES HUNTER, Commercial Litigation 

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

BRIAN M. BOYNTON, DEBORAH ANN BYNUM, PATRICIA M.

MCCARTHY. 

______________________ 

Before REYNA, LINN, and HUGHES, Circuit Judges.

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2 NAGLE v. USPS

PER CURIAM. 

Petitioner John Joseph Nagle appeals the Merit Systems Protection Board’s affirmance of the U.S. Postal Service’s decision to remove Nagle from employment. For the 

following reasons, we affirm.

BACKGROUND

Nagle worked for the United States Postal Service 

(“USPS”) as a full-time regular mail handler and equipment operator. App’x 1–2.1 Around August 2018, the 

USPS instructed Nagle to complete recertification training 

with a Driver Safety Instructor (“DSI”) from the American 

Postal Workers Union (“APWU”), which was required for 

operating a forklift. See App’x 4–5, 45–46. Nagle refused 

to complete the training, and on August 22, 2018, he filed 

a report with the Occupational Safety and Health Administration (“OSHA”) alleging that the USPS had instructed 

him to complete training with an unqualified instructor, 

which constituted a hazardous condition. Id.

On August 23, 2018, the USPS revoked Nagle’s equipment operating license, which prompted him to leave work

in protest. S. App’x 111.2 On Friday, August 24, 2018, 

Nagle was absent from work without leave (“AWOL”). 

S. App’x 112. On Monday, August 27, 2018, Nagle did report to work. But because he refused to undergo the training required for his equipment operator position, the USPS 

reassigned Nagle to operate a high-speed mail sorter. Id. 

Nagle rejected the reassignment and thenceforth chose to 

be AWOL from work. See App’x 5.

1 The citation reference “App’x” herein refers to the 

appendix materials filed by Respondent, the USPS.

2 The citation reference “S. App’x” herein refers to 

the supplemental appendix materials that Nagle submitted with his Reply brief. 

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NAGLE v. USPS 3

On November 8, 2018, the USPS issued Nagle a letter 

of warning, advising him that his absences without leave 

would lead to disciplinary action, which could include discharge. App’x 37–38. On February 1, 2019, the USPS issued Nagle a seven-day suspension due to his AWOL 

absences. App’x 39–40. On March 18, 2019, the USPS issued Nagle a fourteen-day suspension, again due to his refusal to report to work without leave. App’x 41–42. On 

May 23, 2019, the USPS issued Nagle another fourteenday suspension for his continued AWOL status. 

App’x 43–44.

On October 23, 2019, the USPS sent Nagle a

Pre-Disciplinary Interview (“PDI”) letter addressing his 

refusal to report to work. See App’x 29. In the letter, the 

USPS ordered Nagle to (1) report for work on his next 

scheduled workday or provide documentation to support 

his absence; and (2) attend a telephonic pre-disciplinary 

interview on October 29, 2019. See App’x 3, 29. The letter 

warned that failure to comply with its instructions could 

lead to discipline “up to and including discharge from the 

Postal Service.” See App’x 3–4, 29. 

On January 13, 2020, the USPS issued Nagle a Notice 

of Proposed Removal (“NOPR”) based on the following 

three charges of misconduct: (1) failure to comply with 

leave procedure; (2) failure to follow instructions—namely, 

the two instructions set forth in the PDI letter; and 

(3) 75 instances of AWOL spanning from September 3, 

2019, to December 20, 2019. App’x 28–29. 

On February 12, 2020, Nagle met with the deciding official to orally respond to the NOPR, and he maintained

that his actions were fully justified because he had been 

subjected to an unsafe work condition by being ordered to 

report for training. App’x 45. Nagle further contended 

that his absence should be medically excused due to high 

blood pressure. App’x 46. And he argued that the NOPR 

and the USPS’s revocation of his equipment operator 

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4 NAGLE v. USPS

license were both retaliations against him for (1) his filing 

of an OSHA complaint for unsafe work conditions, and (2) 

the fact that he had assisted another mail handler on August 28, 2019, with a complaint before the National Labor 

Relations Board (“NLRB”). App’x 46.

On June 1, 2020, the USPS issued a letter of decision 

upholding the NOPR charges against Nagle and sustaining 

his removal from employment. App’x 45. The USPS determined that Nagle’s claim of an unsafe workplace was unfounded, that his claim of high blood pressure was 

untimely raised and unsupported, and that Nagle’s beliefs 

about whether the USPS had retaliated against him did 

not entitle him to be AWOL or disregard the PDI letter. 

App’x 45–46.

On June 4, 2020, Nagle filed an appeal with the Merit 

Systems Protection Board (“Board”). During proceedings 

before the Board, Nagle repeatedly failed to comply with 

discovery requirements and deadlines, despite the Administrative Judge (“AJ”) hearing multiple motions to compel 

and suspending proceedings multiple times for Nagle’s 

benefit. App’x 57–84. On June 11, 2021, the AJ granted a 

pending request by the USPS for sanctions against Nagle 

for failing to file a prehearing submission, failing to disclose any witnesses he intended to call, and failing to respond to the USPS’s discovery requests in violation of an 

order compelling responses. App’x 93. Specifically, the AJ 

refused to further suspend proceedings and barred Nagle 

from producing additional documents or witnesses not yet 

disclosed. App’x 93–94.

On June 28, 2021, the AJ held a hearing on the merits 

regarding charges 1 and 3 of the NOPR.3 App’x 1. Nagle 

did not dispute that he committed the alleged conduct. 

3 The USPS withdrew charge 2 of the NOPR (failure 

to follow instructions), so that became moot. App’x 95.

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NAGLE v. USPS 5

App’x 5–6. Instead, he argued that the USPS committed 

harmful procedural errors when it (1) assigned DSI from 

the APWU to conduct his training; (2) reassigned him to a 

mail sorting machine when he refused to complete training; and (3) failed to provide him with a pre-disciplinary 

interview before proposing his removal. App’x 6–7. He 

also argued that he was entitled to whistleblower protection because the USPS had retaliated against him for protected disclosures. App’x 8.

On September 27, 2021, the AJ issued an initial decision affirming the USPS’s decision to remove Nagle. 

App’x 1. The AJ rejected Nagle’s contentions of harmful 

procedural error because (1) the USPS presented evidence 

that it was obligated by the terms of an arbitration award 

to hire APWU DSIs to conduct recertification training; 

(2) the USPS had the right to instruct Nagle to work on a 

mail sorting machine after he refused to undergo his forklift recertification training; and (3) the USPS did provide 

Nagle the opportunity for a PDI. App’x 7–8. The AJ also 

rejected Nagle’s whistleblower contentions because 

(1) Nagle failed to show that any officials were aware of his 

protected activity; and (2) the agency sufficiently showed 

that it would have removed him regardless of the protected 

disclosures, due to his 75-day AWOL period. App’x 8–10.

Nagle appeals the AJ’s decision. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9).

STANDARD OF REVIEW

The scope of our review of Board decisions is limited by 

statute, and we must affirm unless we find the Board’s decision to be: (1) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence. 

5 U.S.C. § 7703(c); Bennett v. Merit Sys. Prot. Bd., 635 F.3d 

1215, 1218 (Fed. Cir. 2011). We review the Board’s legal 

determinations de novo. Welshans v. U.S. Postal Serv., 

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6 NAGLE v. USPS

550 F.3d 1100, 1102 (Fed. Cir. 2008). The petitioner bears 

the burden of establishing that the board committed reversible error. Link v. Dep’t of Treasury, 51 F.3d 1577, 

1581 (Fed. Cir. 1995).

DISCUSSION

Nagle raises several arguments on appeal. We address 

each argument in turn, below. 

Nagle’s overall and primary contention on appeal is 

that the AJ erred in determining that he was not entitled 

to corrective action as a protected whistleblower. We discern no error in the AJ’s application of the whistleblower 

laws in this case. Instead, substantial evidence supports 

the AJ’s finding that agency officials had no knowledge of 

Nagle’s protected disclosures. See App’x 9; see also, e.g., 

S. App’x 111–13, 114–16 (declaration testimony by Nagle’s 

supervisor). And substantial evidence supports the AJ’s 

finding that the USPS would have removed Nagle regardless of his protected disclosures, due to his 75-day AWOL 

period. See App’x 9–10 (“He literally walked off the job and 

has not returned.”). Nagle offers no contrary evidence that 

warrants disturbing the AJ’s decision.

Nagle additionally argues that the AJ erred by imposing discovery sanctions on him without further warning. 

He contends that the AJ should have instead suspended 

the case for another 30 days and issued a warning to Nagle 

that he would be sanctioned if he did not comply with discovery orders. Pet.’s Br. 3. The record belies Nagle’s argument. The AJ suspended proceedings multiple times on 

Nagle’s behalf and repeatedly ordered him to comply with 

discovery orders. Thus, we do not agree that the AJ 

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NAGLE v. USPS 7

committed any abuse of discretion by imposing discovery 

sanctions.4

Nagle also argues that the AJ failed to appreciate that 

the USPS withdrew charge 2 of the NOPR. Pet.’s Br. 3–4. 

However, the AJ’s decision makes clear that charges 1 and 

3 independently supported the USPS’s decision to remove 

Nagle. Nagle fails to explain how or why the AJ’s mention 

of charge 2, even if superfluous, resulted in any harmful 

error.

Lastly, Nagle contends that he was deprived of due process, i.e., notice and an opportunity to respond, with respect to the NOPR. Pet.’s Br. 9–10. Again, the record 

belies Nagle’s position. Nagle received several notices of 

potential disciplinary action, including multiple suspensions and a PDI letter setting a date and time for a predisciplinary interview. App’x 28–33, 37–44. 

CONCLUSION

We hold that Nagle fails to show that the AJ’s decision 

was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. We have considered the remainder of 

the arguments raised on appeal and find them unpersuasive. The AJ’s decision is affirmed.

AFFIRMED

COSTS

No costs.

4 “Procedural matters relative to discovery and evidentiary issues fall within the sound discretion of the board 

and its officials.” Curtin v. Off. of Pers. Mgmt., 846 F.2d 

1373, 1378–79 (Fed. Cir. 1988) (citations omitted). “This 

court will not overturn the board on such matters unless 

an abuse of discretion is clear and is harmful.” Id. (citation 

omitted).

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