Howard v. Department of the Air Force, 680 F. App'x 961

Sherman Howard, an Air Force auditor, was removed in 2008 based on four charges: misuse of government resources, outside employment during duty hours, threatening bodily harm, and failure to disclose outside employment. The deciding official also relied on Howard’s low work production though it was not listed in the original NPR.
An AJ and the MSPB initially affirmed removal; the Board later agreed the deciding official had relied on the unlisted performance issue and attempted a new reasonableness analysis that excluded performance.
This court’s Ward decision required the Board to perform a harmless-error analysis (and consider due process concerns) when agencies rely on information not included in an NPR; the case was remanded for that analysis.
On remand the Board found a due process violation (the performance aggravator was new information) and held the error was not harmless, cancelled the removal, ordered reinstatement and back pay.
The Air Force issued a new NPR in 2012 including the same four charges plus the lack of production as a listed aggravating factor, then removed Howard in 2013; an AJ and the MSPB (final decision) again upheld the removal.
Howard appealed to this court raising multiple arguments (mandate rule/law of the case, judicial estoppel, lack of substantial evidence on the charges and aggravator, laches, nexus to efficiency of service, whistleblower/retaliation). The court affirmed the Board.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Board violated mandate rule by conducting due process analysis on remand	Howard: Board exceeded remand instructions to perform harmless-error analysis only	Air Force: remand authorized consideration of Ward principles including due process; Board followed remand	Court: No mandate violation; remand permitted addressing due process within Ward/harmless-error framework
Whether judicial estoppel bars second removal	Howard: Air Force’s positions are inconsistent and should be estopped from re-litigating charges	Air Force: second proceeding cured procedural defect; not inconsistent on merits	Court: Judicial estoppel inapplicable; no clear inconsistent success before court and no unfair advantage
Whether substantial evidence supports the four charges and performance aggravator	Howard: evidence insufficient on misuse, threat, failure-to-report, and low production	Air Force: CDI forensic evidence, witness testimony, admissions, and productivity metrics support charges	Court: Substantial evidence supports each charge and the aggravator
Whether removal promotes efficiency of the service (nexus)	Howard: charges unrelated to job duties; removal not necessary for efficiency	Air Force: misconduct and low production harmed work environment, independence, and productivity	Court: Nexus established by substantial evidence; removal promotes efficiency

Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011) (remand requires harmless-error analysis and consideration of due process when agency relies on evidence not in NPR)
Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999) (constitutional entitlement to a proper removal procedure when due process violated)
Banks v. United States, 741 F.3d 1268 (Fed. Cir. 2014) (law-of-the-case/mandate rule limits lower courts to appellate rulings)
New Hampshire v. Maine, 532 U.S. 742 (2001) (factors for judicial estoppel)
Pegram v. Herdrich, 530 U.S. 211 (2000) (describing judicial estoppel’s purpose to prevent inconsistent positions)
Brown v. Dep’t of Navy, 229 F.3d 1356 (Fed. Cir. 2000) (nexus requirement: misconduct must adversely affect agency functions)
Dickey v. Office of Pers. Mgmt., 419 F.3d 1336 (Fed. Cir. 2005) (definition of substantial evidence)
Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938) (substantial-evidence standard)
Briggs v. Pennsylvania Railroad, 334 U.S. 304 (1948) (mandate rule principles)
Toro Co. v. White Consolidated Indus., 383 F.3d 1326 (Fed. Cir. 2004) (mandate rule scope)