Amato v. Department of the Army , 193 F. App'x 957 ( 2006 )


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  •                    NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    06-3096
    DOMENIC L. AMATO,
    Petitioner,
    v.
    DEPARTMENT OF THE ARMY,
    Respondent.
    __________________________
    DECIDED: July 19, 2006
    __________________________
    Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and SCHALL,
    Circuit Judge.
    PER CURIAM.
    Domenic L. Amato ("Mr. Amato") seeks review of the final decision of the
    Merit Systems Protection Board ("Board") denying his request for corrective action
    pursuant to his Individual Right of Action ("IRA").        Amato v. Dep't of the Army,
    No. DC1221020755-W-5 (Merit Sys. Prot. Bd. Apr. 18, 2005) (Final Decision).
    Mr. Amato alleged that his employing agency, the Department of the Army, Southern
    European Task Force in Vincenza, Italy ("SETAF" or "Agency"), subjected him to
    adverse personnel actions in reprisal for disclosures protected under the Whistleblower
    Protection Act ("WPA"). The Board determined that the agency had established by
    clear and convincing evidence that Mr. Amato would have been subject to the alleged
    adverse personnel actions absent his protected disclosures, such that Mr. Amato was
    not entitled to corrective action. Because substantial evidence supports the Board's
    determination, we affirm.
    I
    In order for the Board to have jurisdiction over a WPA claim, an individual must
    make nonfrivolous allegations that he has made a protected disclosure that was a
    contributing factor in an agency's decision to take a prohibited personnel action against
    him. Yunus v. Dep't of Veterans Affairs, 
    242 F.3d 1367
    , 1371 (Fed. Cir. 2001). To
    prevail on the merits, the individual must prove these elements by a preponderance of
    the evidence.   Ellison v. Merit Sys. Prot. Bd., 
    7 F.3d 1031
    , 1034 (Fed. Cir. 1993).
    However, if the agency can establish by clear and convincing evidence that it would
    have taken those actions regardless of the disclosures made, the employee is not
    entitled to relief. Carson v. Dep't of Energy, 
    398 F.3d 1369
    , 1380 (Fed. Cir. 2005).
    After determining that Mr. Amato had made nonfrivolous allegations sufficient to
    establish the Board's jurisdiction, Final Decision, slip op. at 3, the Administrative Judge
    ("AJ") determined that his hearing should be bifurcated, with an initial hearing limited to
    the question of whether Mr. Amato would have been properly subjected to the alleged
    adverse personnel actions absent his protected disclosures.         See Dick v. Dep't of
    Veterans Affairs, 
    290 F.3d 1356
    , 1363 (Fed. Cir. 2003) (hearings on the merits may be
    bifurcated and an AJ has great discretion in determining which issues to consider first)
    06-3096                                  2
    overruled in part by Garcia v. Dep't of Homeland Sec., 
    437 F.3d 1322
     (Fed. Cir. 2006).1
    The AJ determined that the agency had established by clear and convincing evidence
    that Mr. Amato would have been subject to each of the alleged adverse personnel
    actions absent his disclosures and thus denied Mr. Amato's request for corrective
    action. Mr. Amato appealed to the full Board, which declined to review the decision of
    the AJ, such that it became the final decision of the Board. Mr. Amato then appealed to
    this court.
    II
    We must affirm the final decision of the Board unless it is arbitrary, capricious, an
    abuse of discretion or otherwise not in accordance with law. 
    5 U.S.C. § 7703
    (c) (2000);
    Hayes v. Dep't of the Navy, 
    727 F.2d 1535
    , 1537 (Fed. Cir. 1984). To uphold a factual
    finding of the Board, we must determine "whether it has a rational basis supported by
    substantial evidence from the record taken as a whole."         
    Id.
     (citation omitted).   In
    addition, credibility determinations are within the discretion of the AJ and are "virtually
    unreviewable." King v. Dep't of Health and Human Servs., 
    133 F.3d 1450
    , 1453 (Fed.
    Cir. 1998).
    III
    Mr. Amato was initially employed by the agency on January 14, 2000, as a GS-
    12 Civil Military Operations Specialist in its G5 division. On April 1, 2001, Mr. Amato
    1
    In Garcia, this court addressed the jurisdictional requirements of a
    constructive adverse action claim before the Board. In particular, we held that for the
    Board to have jurisdiction over a constructive adverse action claim, the petitioner must
    establish by a preponderance of the evidence that the action was involuntary. Garcia,
    
    437 F.3d at 1325
    . However, we expressly declined to address the nonfrivolous
    allegation standard in the context of WPA cases. See 
    id.
     ("Neither . . . the WPA, nor the
    Board's jurisdiction under the WPA are before us today.")
    06-3096                                  3
    was detailed to the G3 division to a GS-12 Computer Specialist position. In December
    2001, that detail was terminated and Mr. Amato was formally assigned to the same
    position. Mr. Amato left SETAF on May 5, 2002, for a GS-11 Information Technology
    Specialist position at the 52nd Signal Battalion in Vaihingen, Germany, and resigned
    from that position on February 22, 2003.
    Mr. Amato alleges that during his employment with SETAF, the agency engaged
    in seven adverse personnel actions in retaliation for his protected disclosures.
    However, after receiving oral testimony and written statements from Mr. Amato, five of
    Mr. Amato's superior officers, as well as a human relations specialist at SETAF in Italy,
    the AJ determined that each of the alleged retaliatory actions would have taken place
    absent his disclosures.   With regard to each alleged action, the AJ found that the
    agency's witnesses had explained why the action would have occurred absent the
    disclosures. Further, the AJ noted that Mr. Amato had no documentary evidence to
    support his claims, which rested primarily on his assertion that the agency's witnesses
    lied during their testimony. Final Decision, slip op. at 40. However, the AJ credited the
    agency's witnesses, noting that their testimony was consistent, both internally and with
    one another, showed no bias, and was not contradicted by the written record.           In
    contrast, the AJ found that Mr. Amato's claims were unsupported by the written record,
    directly rebutted by the record and the testimony of the agency's witnesses, and in
    some instances, "inherently improbable." 
    Id.
    On appeal, Mr. Amato repeats the same arguments made before the AJ, namely
    that the agency's witnesses lied and produced false documents to support their
    testimony. Mr. Amato further alleges collusion between the witnesses. However, as
    06-3096                                 4
    noted above, the AJ's credibility determinations are virtually unreviewable.     Further,
    Mr. Amato does not produce any documentary evidence supporting his allegations.
    Mr. Amato also appears to argue that the AJ incorrectly applied the law, arguing
    that the AJ failed to consider that his disclosures were protected. However, the AJ
    assumed, for the purposes of the initial hearing, that Mr. Amato had made protected
    disclosures that were a contributing factor in the agency's actions. Nevertheless, the AJ
    determined that the agency had established by clear and convincing evidence that the
    allegedly retaliatory actions would have taken place absent these disclosures.
    Finally, Mr. Amato alleges that the AJ failed to consider the evidence that he
    presented and that the AJ conducted the proceedings in a biased and unfair manner.
    However, we presume that a fact finder has reviewed all of the relevant evidence unless
    he explicitly expresses otherwise. See, e.g., Medtronic, Inc. v. Daig Corp., 
    789 F.2d 903
    , 906 (Fed. Cir. 1986). Further, Mr. Amato has not presented any evidence to
    support his contentions. To the contrary, the AJ conducted a lengthy hearing and wrote
    a thorough, well-reasoned opinion in which he analyzed the oral testimony and written
    statements of each witness, as well as the documentary evidence of record, and
    determined that the agency had established by clear and convincing evidence that it
    would have taken the alleged adverse personnel actions absent Mr. Amato's protected
    disclosures. In short, substantial evidence supports the AJ's determination. As such,
    we affirm.
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