Lone Wolf 1 – Bureaucracy 0

This case (McMillan v. Department of Justice (CAFC No. 2015-3042, 2/16/16)) makes for interesting reading. The facts are extensively laid out in the court’s decision, but here is s brief summary.

McMillan, a GS-13 Criminal Investigator with DEA assigned to the Lima, Peru County Office (LOO), also was an officer in the U.S. Army Reserves. After getting tangled up with the LOO bureaucracy, his request for another extension on his service in Peru was denied. McMillan charges that it amounted to discrimination for his military service, but the DEA argues it was for various performance issues. Here’s what happened.

When McMillan was scheduled to serve a one-week active duty assignment at Southern Command, his military boss asked him to spend that time in part writing up a short intelligence assessment involving the impact of DEA’s expulsion from Bolivia. Pleased that the military assignment tapped his DEA expertise, McMillan approached a co-worker, Walsh, a DEA official who had been stationed in Bolivia for his input. McMillan’s third-level supervisor and the regional director, Stenkamp, was read in by Walsh and McMillan on the project at that point and according to McMillan approved his use of certain DEA documents and information.

McMillan prepared his report and headed off to Southern Command for his one-week tour. Before turning in his report he sent a copy of the draft to Walsh, got back some edits and a “Nice report” comment.

When word got to Stenkamp that McMillan was seeking his “perspective, guidance and expertise” to help with an upcoming meeting with members of the Pentagon’s Joint Staff, Stenkamp did not react well. He fired off a note complaining to McMillan that he had not “run this through your chain” and that he was “NOT to represent yourself in this meeting as associated with DEA….” (p. 5)

It all went down hill from there. Back and forth emails arguing the point, and addressing McMillan’s military and DEA assignments flew. When McMillan returned from military duty, Stenkamp hit him with a very specific note about his DEA role, his military role at Southern Command, and his need to work through the DEA chain of command. (pp. 7-8)

Several weeks later McMillan requested an extension on his assignment in Lima, but Stenkamp denied it. McMillan filed an appeal arguing this was a violation of USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994). The agency argued that it was denying his extension because of his bad attitude and performance issues.

The MSPB went back and forth on the case but eventually ruled that notwithstanding evidence that the agency had based its decision in part on McMillan’s military service, it nevertheless had justified its action with evidence involving performance issues, attitude problems, and “lone wolf” approach.

The appeals court clearly disagrees with DEA and the MSPB. The court pretty much scoffs at the agency’s evidence, pointing out that for a guy who had performance issues, McMillan had some impressive performance ratings—outstanding, clearly exceeding—in the years prior to the wrangling over his military duties. The court held that the agency failed in its burden and it has sent the case back to the Board for a determination of appropriate remedy only. In other words, the court parsed the same evidence that the Board looked at and concluded that McMillan proved his case and the agency totally failed to meet its burden to show that it acted for other valid, non-discriminatory reasons.

The decision makes for an interesting read. The agency came across as mired in bureaucracy in a small unit that prided itself on its collegial, open door attitudes, yet showing no tolerance for McMillan as the result of his military assignment. Agency officials scornfully called him a “lone wolf.”

In short, the lone wolf won. McMillan now just awaits a ruling from the MSPB as to the remedy it will order up for the DEA’s discrimination against him based on his military service.

McMillan v. Department of Justice (2015-3042)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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