Vick v. Transportation , 545 F. App'x 986 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH VICK,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
______________________
2013-3073
______________________
Petition for review of the Merit Systems Protection
Board in No. DA1221100725-B-1.
______________________
Decided: November 12, 2013
______________________
JOSEPH VICK, of Mansfield, Texas, pro se.
KATY M. BARTELMA, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
______________________
2 VICK v. TRANSPORTATION
Before RADER, Chief Judge, LINN, and WALLACH, Circuit
Judges.
PER CURIAM
Joseph B. Vick (“Vick”) appeals a final decision of the
United States Merit Systems Protection Board (“Board”),
denying his request for corrective action sought in his
Individual Right of Action (“IRA”) against the Depart-
ment of Transportation (“agency”) under the Whistleblow-
er Protection Act (“WPA”). Vick v. Dep’t of Transp., No.
DA-1221-10-0725-B-1 (Dec. 26, 2012) (“Decision on Re-
mand”); Vick v. Dep’t of Transp., DA-1221-10-0725-B-1
(Apr. 20, 2012) (“Decision and Remand Order”); Vick v.
Dep’t of Transp., DA-1221-10-0725-B-1 (June 27, 2011)
(“Initial Decision”). We affirm.
I. BACKGROUND
Vick is a GS-Safety and Occupational Health Special-
ist/Safety Inspector on the Technical Evaluations Team of
the Federal Aviation Administration (“FAA”), in Fort
Worth, Texas. On August 18, 2008, Vick reported approx-
imately seven “Level 1” findings from one of his inspec-
tions. Eric Plura (“Plura”), Vick’s supervisor, questioned
Vick’s classification of findings as Level 1. On August 24,
2008, Vick submitted a complaint to the Office of Inspec-
tor General, alleging that Plura was skewing Level 1
reported health hazards and attacking personally Vick for
reporting Level 1 health hazards. Decision on Remand,
slip op. at 5–6.
On March 27, 2009, Plura told Vick and other em-
ployees that only economy-sized rental cars would be
authorized for official travel, with exceptions only with
prior approval. Id. at 11–12. Following a subsequent
business trip, Vick submitted a travel voucher requesting
reimbursement of his expenses, including the cost of an
intermediate-sized car. On April 9, 2009, Plura returned
VICK v. TRANSPORTATION 3
the voucher to Vick and requested that he edit the vouch-
er to reflect the cost of an economy-sized car. On Septem-
ber 1, 2009, Plura repeated the request, indicating that
Vick could add comments to the voucher to explain the
discrepancy between the actual receipts and the amount
requested for reimbursement. Vick refused. Vick has
explained that he did not resubmit the voucher because
he believed it would have been illegal for him to claim
reimbursement for an economy-sized car when in fact he
rented an intermediate-sized car. Id. at 12.
On February 19, 2010, Plura proposed suspending
Vick for five days based on a charge of failure to follow his
instructions. Vick did not respond, and Plura issued on
April 19, 2010 a letter suspending Vick for five days. Id.
On April 26, 2010, Vick filed a complaint with the Of-
fice of Special Counsel (“OSC”). In his complaint, Vick
claimed to suffer a personnel action—suspension—for
refusing to obey an order. Vick alleged that Plura’s order
required Vick to submit false information and therefore
was unlawful. He further alleged that he was not reim-
bursed for the travel expenses. The OSC did not find
evidence of any violations.
Then, on August 9, 2010, Vick filed an IRA appeal
with the Board, appealing the suspension and filing
claims for prohibited personnel practices and whistleblow-
ing, specifically naming his August 24, 2008 complaint as
the whistleblowing disclosure. He requested consequen-
tial damages in connection with the whistleblowing claim.
His appeal listed a number of personnel actions that
allegedly were retaliation for his protected whistleblowing
activity, including “travel voucher returned,” “sick leave
disapproved,” “AWOL insinuation,” “unlawful order
regarding designated smoke room,” “jury summons,” the
suspension at issue, and “personal leave disapproved.”
Decision on Remand, slip op. at 4.
4 VICK v. TRANSPORTATION
While the appeal was pending, the agency on June 10,
2011 informed the Board that it had reimbursed Vick for
the travel voucher at issue and was in the process of
canceling the suspension and providing Vick with back
pay and the annual pay increase he did not receive due to
the suspension. Initial Decision, slip op. at 2. The agency
argued that the appeal was moot, and the Board agreed,
dismissing Vick’s appeal. Id. at 3–4. Vick filed a petition
for review, contending that because of his claim for conse-
quential damages, his appeal was not moot. Decision and
Remand Order, slip op. at 2. The Board this time agreed
with Vick, remanding the appeal for adjudication of the
whistleblower claim and—if there was jurisdiction over
that claim—Vick’s claims for corrective action, attorneys’
fees, and consequential damages. Id. at 3.
On remand, the Board found jurisdiction over Vick’s
claim with respect only to the five-day suspension, con-
cluding that it did not have jurisdiction over the other
alleged personnel actions because they were not raised
before the OSC as personnel actions. Decision on Re-
mand, slip op. at 5. The Board found Vick’s explanation
for not resubmitting the travel voucher “disingenuous at
best,” id. at 13, and that Vick did not have a valid reason
for failing to follow Plura’s orders, id. at 13–14. Accord-
ingly, the Board concluded that irrespective of Vick’s
alleged protected disclosure, the agency would have
suspended Vick for failing to follow Plura’s instructions to
resubmit the travel voucher. Id. at 13–14. The Board
denied Vick’s claims for corrective action and did not
reach the issues of attorneys’ fees and consequential
damages. Id. at 15. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
II. DISCUSSION
A. Standards Of Review
This court must affirm the Board’s decision unless it
is: “(1) arbitrary, capricious, an abuse of discretion, or
VICK v. TRANSPORTATION 5
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2000). The burden of estab-
lishing reversible error in an administrative decision,
such as the Board’s, rests upon the petitioner. Fernandez
v. Dep’t of Army, 234 F.3d 553, 555 (Fed. Cir. 2000).
We review the Board’s jurisdiction and determina-
tions of law de novo. Coradeschi v. Dep’t of Homeland
Sec., 439 F.3d 1329, 1331 (Fed. Cir. 2006); Perry v. Dep’t
of the Army, 992 F.2d 1575, 1578 (Fed. Cir. 1993). For the
Board to have jurisdiction over an IRA appeal, the appel-
lant must (1) exhaust his administrative remedies before
the OSC; and (2) make non-frivolous allegations (a) that
he engaged in whistleblowing activity by making a pro-
tected disclosure under 5 U.S.C. § 2302(b)(8); and (b) that
the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action as
defined by 5 U.S.C. § 2302(a). Yunus v. Dep’t of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
The Board’s fact findings are reviewed for substantial
evidence. McCollum v. Nat’l Credit Union Admin., 417
F.3d 1332, 1337 (Fed. Cir. 2005). “‘Substantial evidence’
is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 1339 (Fed.
Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)). “The de-
termination of the credibility of the witnesses is within
the discretion of the presiding official who heard their
testimony and saw their demeanor.” Griessenauer v.
Dep’t of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985).
B. The Relevant Law
To prevail on a claim under the Whistleblower Protec-
tion Act of 1989, Pub. L. No. 101–12, 103 Stat. 16 (codified
at various sections of 5 U.S.C.) (“WPA”), an employee
6 VICK v. TRANSPORTATION
must establish by a preponderance of the evidence that he
made a protected disclosure, that subsequent to the
disclosure he was subject to personnel action, and that the
disclosure was a contributing factor to the personnel
action taken against him. Carr v. Social Sec. Admin., 185
F.3d 1318, 1322 (Fed. Cir. 1999). However, if the agency
proves by clear and convincing evidence that it would
have taken the same personnel action in the absence of
the protected disclosure, a violation of the WPA cannot be
found. Id. Relevant factors to consider are “the strength
of the agency’s evidence in support of its personnel action;
the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar
actions against employees who are not whistleblowers but
who are otherwise similarly situated.” Id. at 1323.
C. The Board Did Not Incorrectly Decide Or Fail To
Take Into Account Any Relevant Facts
Vick alleges error with respect to a number of factual
issues. First, he contends that the Board erred by ad-
dressing only his suspension as a potential personnel
action while ignoring other alleged personnel actions,
such as the failure to reimburse him for undisputed travel
expenses, denial of sick leave, an AWOL accusation, and
the smoke room order. Pet’r’s Informal Br. at 1; Pet’r’s
Br. at 2. However, neither the Board nor this court have
jurisdiction over those allegations.
While Vick’s April 26, 2010 complaint to the OSC does
indicate that he was not reimbursed for the travel vouch-
er in question, the complaint raises only his suspension as
the alleged personnel action. 5 U.S.C. § 2302(a)(2)(A)
provides a list of actionable “personnel actions,” including
suspensions under fourteen days (under 5 U.S.C. § 7501)
and “decisions concerning pay, benefits or awards.” Vick’s
submitted complaint included a form for indicating which
of the personnel actions listed in § 2302(a)(2)(A) where
VICK v. TRANSPORTATION 7
applicable to his complaint. Vick indicated only that a
reprimand, suspension, removal or other disciplinary or
corrective action allegedly was taken in response to his
alleged protected activity. Vick left blank, and therefore
did not raise to the OSC, any allegation that the person-
nel action also involved a decision about pay, benefits, or
awards. 1
Because they were not raised to the OSC, the Board
properly concluded that Vick had not exhausted his
administrative remedies before the OSC and therefore
that it—and this court—lack jurisdiction to consider WPA
claims based on any alleged personnel actions other than
the five-day suspension.
Vick also contends that the Board erred by failing to
consider a number of facts with respect to the merits of
his WPA claim relating to the suspension. He alleges
that the Board did not consider that 1) the agency failed
to follow its reimbursement procedures and has failed to
pay late fees, 2) a similarly-situated individual was al-
lowed to rent larger cars, 3) non-whistleblowing employ-
ees were not subject to denial of sick leave, an AWOL
accusation, and the “smoke room order,” 4) and he did
have a valid reason for not complying with Plura’s orders.
With respect to the alleged failure to follow the reim-
bursement procedures, Vick contends, first, that Plura
should have allowed the voucher to be processed so that
at least the undisputed items could be paid and, second,
that Plura lacked the authority in the first instance to
establish a policy limiting Vick to use of only economy-
1 Because we conclude that Vick did not raise the
failure to reimburse as a potential personnel action to the
OSC, we need not reach the agency’s contention that
reimbursements cannot be “pay, benefits, or awards”
under § 2302(a)(2)(A)(ix).
8 VICK v. TRANSPORTATION
sized rental cars. Vick similarly contends that the failure
to pay late fees is evidence of retaliatory motive. Pet’r’s
Informal Br. at 1. To the extent that Vick argued these
facts below, this court presumes—absent specific evidence
to the contrary—that the fact finder reviews all evidence
presented unless he explicitly expresses otherwise. See
Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000)
(citing Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906
(Fed. Cir. 1986)).
Indeed, the Board did specifically find, based on his
“testimony as well as his demeanor,” that “any motive
[Plura] may have had to retaliate against the appellant is
very slight.” Decision on Remand, slip op. at 14. The
Board further found that “[t]he employees to whom the
appellant compared himself were not similarly situated
for several reasons such as lack of the same supervisors
and the absence of any charges against any other employ-
ees.” Id. at 15. Thus, to the extent that Vick argues that
these facts tend to establish that Plura did have a motive
to retaliate or that the agency had not taken similar
actions against similarly-situated, non-whistleblower
employees, we cannot conclude that the Board’s findings
to the contrary lack substantial evidence.
With respect to allegedly similarly-situated individu-
als allowed to rent larger cars, the Board explicitly con-
sidered the relevant facts offered by Vick. Decision on
Remand, slip op. at 14-15. Vick points to Robert Ibbotson
(“Ibbotson”) as a similarly-situated individual who was
allowed to rent intermediate-sized cars. The Board noted
that Ibbotson is 6’4” tall, and Ibbotson testified of an
agreement with his supervisor to rent larger cars due to
his size. Id. Plura testified that exceptions to the general
rental-car policy could be made. Id. That Ibbotson may
have shared the same supervisor as Vick, as Vick con-
tends, does not lead to the conclusion that the Board
lacked substantial evidence to find that Ibbotson is not
similarly situated to Vick.
VICK v. TRANSPORTATION 9
With respect to allegations that other, non-
whistleblowing employees were not subject to denial of
sick leave, an AWOL accusation, and the “smoke room
order,” the Board noted that “[t]he employees to whom the
appellant compared himself were not similarly situated
for several reasons such as lack of the same supervisors
and the absence of any charges against any other employ-
ees.” Id. at 15. Though the Board’s decision did not
explicitly discuss Vick’s contentions with respect to sick
leave, AWOL allegations, and the “smoke room order,” we
have no basis to conclude that the Board did not consider
all of the evidence before it on this point. See Gonzales,
218 F.3d at 1381 (this court presumes—absent specific
evidence to the contrary—that the fact finder reviews all
evidence presented). This court again cannot conclude
that the Board’s finding lacks substantial evidence given
the Board’s findings that the other employees had differ-
ent supervisors or did not have charges against them.
With respect to Vick’s reasons for noncompliance with
Plura’s orders, the Board explicitly did consider whether
Vick had a valid excuse, but found Vick’s explanation
“disingenuous at best.” Decision on Remand, slip op. at
13. That finding is supported by substantial evidence,
including testimony that Vick was instructed to provide a
note on the voucher to explain any discrepancy. Id. The
Board’s decision involved determinations of witness
credibility, including Vick and Jacqueline Francis. Id.
Those determinations are within the Board’s discretion,
and we cannot find any abuse of that discretion based on
this record.
D. The Board Did Not Consider The Wrong Law
Though Vick at least briefly contends that the Board
applied the wrong law, he does not develop that conten-
tion and it is waived. See SmithKline Beecham Corp. v
Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)
(“[M]ere statements of disagreement with a district court
10 VICK v. TRANSPORTATION
as to the existence of factual disputes do not amount to a
developed argument.”). Moreover, it is clear that the
Board consistently applied the WPA and this court’s
precedents as controlling law.
E. Vick’s Due Process Rights Have Not Been Violated
Vick also contends that his due process rights have
been violated in a number of ways: 1) the Board’s denial
of Vick an opportunity to cross examining Jacqueline
Francis and David Medina, 2) the agency’s failure to
reimburse him for the undisputed items on his voucher, to
pay late fees, and to provide reasons for declining to
reimburse him for certain items, 3) Plura’s failure to
provide a Douglas Factor Checklist, 4) Vick’s supervisor’s
failure to provide notice of his appeal rights, and 5) the
agency’s failure to preserve evidence of Vick’s travel
vouchers.
First, he appears to contend that the Board violated
his due process rights by not allowing him to cross exam-
ine Jacqueline Francis and David Medina. Pet’r’s Infor-
mal Br. at 3. However, “[p]rocedural matters relative to
discovery and evidentiary issues fall within the sound
discretion of the board and its officials.” Curtin v. Office
of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). “If
an abuse of discretion did occur with respect to the dis-
covery and evidentiary rulings, in order for petitioner to
prevail on these issues he must prove that the error
caused substantial harm or prejudice to his rights which
could have affected the outcome of the case.” Id. at 1379.
Vick contends that cross examination would have al-
lowed him to develop which, if any, agency travel policy
allowed some employees to rent larger cars while he was
suspended relating to the rental of an intermediate-sized
car. Pet’r’s Reply Br. at 6. Vick does not explain how
development of this fact could have affected the outcome
of his case. Ibbotson and Plura both testified with respect
to the agency’s practice concerning the travel policy and
VICK v. TRANSPORTATION 11
its exceptions, and Vick does not contend he was denied
an opportunity to cross examine either witness. Accord-
ingly, we cannot conclude that his due process was violat-
ed when the Board prevented him from cross examining
these witnesses.
Second, Vick alleges that his due process rights were
violated when the agency failed to follow its reimburse-
ment procedures by not accepting the voucher and paying
at least the undisputed items, by refusing to pay late fees,
and also by refusing to explain why he was not being
reimbursed. But the issue on appeal is whether Vick was
suspended in retaliation for protected whistleblowing
activity, and any failure to follow reimbursement proce-
dures cannot have deprived Vick of his due process rights
with respect to this WPA claim.
Third, Vick complains that he was deprived of due
process when Plura prepared a Douglas Factors Checklist
and failed to provide the list to him both before making
the decision on the suspension and during discovery.
However, nothing with respect to the Douglas Factors
Checklist could have deprived Vick of his due process
rights with respect to this WPA claim.
Fourth, Vick contends that his supervisors did not
apprise him of his rights to appeal. Pet’r’s Br. at 4.
However, he does not develop this argument in any way,
thus waiving the argument. See SmithKline, 439 F.3d at
1320. In any event, the record indicates that he was
informed of his rights to appeal throughout this process.
Fifth, Vick contends that the agency failed to preserve
evidence of his travel vouchers, but he again does not
develop an argument as to how this deprived him of a
meaningful opportunity to purse his WPA claim, and thus
has waived it. See SmithKline, 439 F.3d at 1320.
Vick cites to a number of cases concerning violations
of due process, Pet’r’s Reply Br. at 7–8, none of which are
12 VICK v. TRANSPORTATION
applicable here. Vick cites to both Young v. Dep’t of
Housing and Urban Dev., 706 F.3d 1372, 1376 (Fed. Cir.
2013) and Kelly v. Dep’t of Agr. 225 Fed. Appx. 880, 882,
2007 WL 786351, at *2 (Fed. Cir. 2007). In each case, the
government came into possession of new and material
information through ex parte communications, and the
petitioner was not provided notice or an opportunity to
respond. Diehl v. Dep’t of Army, 118 M.S.P.R. 344, 346-47
(MSPB 2012), the third and final due process case cited by
Vick, addressed “what procedures are due when an agen-
cy indefinitely suspends an employee based upon the
suspension of access to classified information, or pending
its investigation regarding that access, where the access
is a condition of employment.”
Each of these cases concerns the deprivation of due
process as it relates to the petitioner’s notice and oppor-
tunity to respond to or pursue the claim over which the
tribunal had jurisdiction. Here, the court has jurisdiction
over the WPA claim that Vick allegedly was suspended in
retaliation for protected whistleblowing activity. Vick
identifies nothing that indicates he was deprived of mean-
ingful notice of and opportunity to pursue that claim.
Vick also contends that the fact that the agency has
not specified what section of the travel policy was violated
has undermined his “right to appeal.” Pet’r’s Br. at 3. To
the extent that Vick contends that this is a due process
violation, the contention fails. The agency has not con-
tended that Vick violated the travel policy. The issue has
been that Vick refused to follow orders from Plura to
submit travel vouchers.
III. CONCLUSION
For the reasons stated above, this court affirms the
Board’s decision.
AFFIRMED
IV. COSTS
VICK v. TRANSPORTATION 13
Each party shall bear its own costs.