Richard C. Bartel v. Department of the Air Force
Background
- Richard C. Bartel, an Air Safety Investigator, was detailed to a 12‑month Aviation Safety Manager position in Afghanistan in Feb 2012 but was returned to his permanent post after ~3 months and retired in July 2012.
- Bartel filed an IRA (individual right of action) whistleblower appeal alleging disclosures about Osprey maintenance problems and fraudulent overtime reporting led to premature termination of his deployment and an involuntary retirement.
- An administrative judge denied relief as to the cancelled Afghanistan assignment; on Board review that determination was affirmed but the Board remanded for consideration of the alleged involuntary retirement.
- On remand the AJ asked Bartel to show his retirement was involuntary; Bartel submitted written allegations but the AJ declined to hold a hearing, finding he failed to nonfrivolously allege objectively intolerable working conditions.
- The Board denied Bartel’s petition for review of the remand decision, holding he failed to meet the narrow coercive‑involuntariness standard and therefore bore the burden to prove retirement was involuntary; because he did not, the agency had no obligation to rebut with evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bartel’s retirement was involuntary (appealable personnel action) | Bartel: working conditions after return from Afghanistan were oppressive (limited duties, essentially idle), so retirement was coerced. | Agency: retirement presumed voluntary; Bartel did not nonfrivolously allege intolerable conditions; no personnel action to redress. | Held: Bartel failed to nonfrivolously allege coercive involuntariness; no hearing required; retirement deemed voluntary. |
| Whether AJ should have referred retirement claim to OSC | Bartel: AJ should have referred the claim to OSC and then held a hearing. | Agency/AJ: OSC already addressed the matter; no basis to refer; remand only required a hearing if necessary. | Held: No referral required; OSC had addressed issue; AJ correctly declined to refer. |
| Whether AJ erred by not holding a hearing on remand | Bartel: requested evidentiary hearing after remand. | AJ: hearing only required if nonfrivolous allegation made; record did not show such allegations. | Held: No error—written submissions did not meet nonfrivolous threshold, so hearing not required. |
| Whether additional discovery was necessary on remand | Bartel: AJ should have coordinated discovery during remand. | AJ/Board: prior proceedings already allowed discovery; Bartel did not identify needed additional information. | Held: No additional discovery was required; Bartel failed to show what discovery would have produced. |
Key Cases Cited
- Conforto v. Merit Systems Protection Board, 713 F.3d 1111 (Fed. Cir. 2013) (defines narrow "coercive involuntariness" standard for involuntary retirement claims)
- Lu v. Department of Homeland Security, 122 M.S.P.R. 335 (MSPB 2015) (appellant bears burden to prove protected disclosure and that it contributed to personnel action)
- Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677 (MSPB 2014) (involuntary resignation/retirement can be an appealable personnel action in IRA appeals)
- Putnam v. Department of Homeland Security, 121 M.S.P.R. 532 (MSPB 2014) (resignation/retirement presumed voluntary absent nonfrivolous allegations rebutting voluntariness)