Seda v. Department of the Army , 505 F. App'x 940 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY WAYNE SEDA,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2012-3173
______________________
Petition for review from the Merit Systems Protection
Board in Nos. PH0752100382-B-1 and PH0752100382-I-1.
______________________
Decided: February 8, 2013
______________________
ANTHONY WAYNE SEDA, of Aberdeen, Maryland, pro
se.
MICHELLE R. MILBER, Trial Attorney, Commercial Lit-
igation 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,
KENNETH M. DINTZER, Assistant Director.
______________________
2 ANTHONY SEDA v. ARMY
Before LOURIE, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
Anthony W. Seda appeals pro se from the final deci-
sion of the Merit Systems Protection Board (the “Board”)
regarding his removal by the Department of the Army
(the “Army”) and the denial of his whisteblower reprisal
affirmative defense. Seda v. Dep’t of the Army, No. PH-
0752-10-0382-B-1 (M.S.P.B. Oct. 19, 2011) (whisteblow-
ing); Seda v. Dep’t of the Army, No. PH-0752-10-0382-I-1
(M.S.P.B. June 22, 2011) (removal). Because the Board’s
decisions were supported by substantial evidence and not
arbitrary and capricious, we affirm.
BACKGROUND
Seda worked for the Social Security Administration
prior to his employment with the Army. He was fired
from that job. Within five years, the Army’s Adelphia
Civilian Personnel Advisory Center (CPAC), Aberdeen
Proving Ground, Maryland, appointed Seda as an except-
ed service Human Resources Specialist. In relation to
this appointment, Seda submitted a Declaration of Feder-
al Employment (the “Declaration”). Question 12 to that
form asked:
During the last five years, have you been fired
from any job for any reason, did you quit after be-
ing told that you would be fired, did you leave
any job by mutual agreement because of specific
problems, or were you debarred from Federal
employment by the Office of Personnel Manage-
ment or any other Federal agency?
J.A. 16. In response to the question, Seda checked the
“No” box. Id.
After being hired by the Army, Seda complained to his
supervisor that the Army had set his salary at a rate not
ANTHONY SEDA v. ARMY 3
commensurate with his qualifications. While investigat-
ing that complaint, the Army discovered that Seda was
fired from his prior federal service and hence that the
statement on his Declaration was a misrepresentation.
The Army then issued a notice of termination during
Seda’s probation period based on the misrepresentation,
effective January 15, 2010.
Prior to that effective date, Seda wrote to his Con-
gressman regarding his complaint that the Army hired
him at the wrong GS level. Seda also complained to the
Office of Special Counsel concerning his removal. The
Army subsequently rescinded its original termination
notice because Seda, as a preference-eligible veteran, had
completed his probationary period. Accordingly, the Army
then issued a second notice of proposed removal dated
February 4, 2010. Seda responded to the second notice,
and the Army thereafter issued a notice of decision to
remove him on March 30, 2010, effective that same day.
Seda appealed to the Board.
The administrative judge (“AJ”) upheld Seda’s remov-
al because the Army had demonstrated by a preponder-
ance of the evidence that Seda provided a false statement
and made a misrepresentation on a Federal employment
form. The Board affirmed that finding, but remanded the
case for consideration of Seda’s defense of whistleblowing
reprisal. On remand, the AJ considered and rejected
Seda’s defense. The AJ found that it was unclear that
any disclosures Seda made to his Congressman, the Office
of Special Counsel, and his supervisor were protected and
that it was clear the Army had removed Seda based solely
upon his misrepresentations. The AJ also assumed,
arguendo, that even if he had made a protected disclosure,
Seda failed to prove that it was a contributing factor in
the decision to remove him. Based on these findings, the
AJ affirmed Seda’s removal. Seda filed a petition for
review by the full Board.
4 ANTHONY SEDA v. ARMY
On review, the Board affirmed the AJ’s decision deny-
ing his whistleblower defense. The Board agreed with the
AJ because none of the officials at the Army were aware
of Seda’s complaints to his Congressman or to the Offfice
of Special counsel prior to the removal action. Seda
appealed to this court. We have jurisdiction pursuant to
and 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Seda spends a significant portion of his briefing dis-
cussing the circumstances surrounding his removal from
his position at the Social Security Administration. He
asserts that he was not removed for misconduct, but for
performance reasons or other factors unrelated to miscon-
duct. However, the propriety of his removal from the
Social Security Administration is not within the scope of
this appeal. It is the fact of his prior termination from the
Social Security Administration, which Seda does not
contest, that is relevant to the falsehood of his later
misrepresentation to the Army. We thus decline to con-
sider Seda’s arguments regarding the details of his em-
ployment by the Social Security Administration.
As Seda does not contest the fact of his prior termina-
tion, the falsehood of his response to question 12 on his
Declaration is likewise not in dispute. As the AJ found,
Seda has not provided a credible explanation regarding
how and why he answered question 12 in the negative.
Instead, the AJ determined that Seda’s intent to deceive
could be inferred from the repeated omission of any
ANTHONY SEDA v. ARMY 5
mention of his employment at and removal from the
Social Security Adminstration on his Declaration and the
two resumes he submitted to the Army. We see no error
in that determination.
Turning to the penalty, Seda argues that the Board
improperly applied the Douglas factors in considering
whether his removal was a reasonable penalty under the
circumstances. Seda contends that given his service
record and lack of any evidence of intent, the removal
penalty was overly harsh. In reviewing an agency’s
penalty decision, the Board is required to ascertain
whether the agency has responsibly balanced the factors
delineated in Douglas v. Veterans Administration, 5
MSPB 313, 5 M.S.P.R. 280, 305–06 (1981).
We conclude that the AJ properly considered and
weighed all of the relevant Douglas factors in determining
that the penalty of removal was reasonable, and this court
“will not disturb a choice of penalty within the agency’s
discretion unless the severity of the agency’s action ap-
pears totally unwarranted in light of
all factors.” Lachance v. Devall, 178 F.3d 1246, 1251
(Fed. Cir. 1999) (quoting Mings v. Dep’t of Justice, 813
F.2d 384, 390 (Fed. Cir. 1987)). The AJ explained the
Douglas factors and then examined whether the Army
official considered them. The AJ noted that the Army
official avowed that she had considered the Douglas
factors and record evidence. In particular, the Army
official considered the charges to be necessary given that
Seda was hired for a human resources position and was
unable to complete his own human resources paperwork.
The Army official also found that removal was consistent
with other penalties for similar misconduct. The Army
official finally noted that the questions and instructions
on the Declaration were clear and that there were no
mitigating circumstances, feasible rehabilitation, or
alternative sanctions. Based on these facts, the AJ con-
cluded that removal was reasonable. We see no reason to
6 ANTHONY SEDA v. ARMY
disturb that determination based on substantial evidence
supporting it.
The only remaining dispositive issue in this case is
whether the Army removed Seda in reprisal for protected
whistleblowing. A federal employee may seek corrective
action from the Board when personnel action has been
taken in retaliation for a WPA-protected disclosure.
Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir.
2006) (citing 5 U.S.C. § 1221(a)). “To prevail in a case of
retaliation for whistleblowing under the WPA, an employ-
ee must show by a preponderance of the evidence that a
protected disclosure was made and that it was a contrib-
uting factor in the personnel action.” Willis v. Dep’t of
Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998).
Seda alleges that the disclosures to his Army supervi-
sor, his Congressman, and the Office of Special Counsel
regarding his compensation and his supervisor’s actions
were protected disclosures and a contributing factor to his
removal. However, the AJ found that disclosures to the
Congressman and the Office of Special Counsel were
merely vague conclusory assertions not rising to the level
of a protected disclosure. Seda has not presented any
evidence or argument to the contrary; thus, we see no
reason to disturb that finding by the AJ. As the Board
also correctly noted, the disclosure to Seda’s supervisor
about her own alleged wrongdoing was not protected. See
Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1350
(Fed. Cir. 2001).
Moreover, regardless whether the disclosures to the
Congressman and the Office of Special Counsel were
protected, Seda has offered no evidence that the alleged
disclosures were a factor contributing to his removal.
Seda has not offered any evidence that any Army officials
were aware of Seda’s complaints to his Congressman or to
the Office of Special Counsel prior to the initiation of the
removal action. On the contrary, Seda’s supervisor
ANTHONY SEDA v. ARMY 7
avowed that she was unaware of the Congressional in-
quiry prior to the notice of proposed removal, and there is
no other evidence that any Army official involved in the
removal knew of the complaints to the Office of Special
Counsel or the Congressman prior to the removal action.
Therefore, there is no evidence in the record that the
disclosure was a contributing factor in Seda’s removal.
In sum, as there is no evidence of either a protected
disclosure or that any such disclosure was a contributing
factor in Seda’s removal, the Board did not err in denying
his defense of whistleblower reprisal.
We have considered Seda’s remaining arguments and
do not find them persuasive. We find no error in the
Board’s well reasoned decisions. Accordingly, we affirm.
AFFIRMED.