NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICK D. SALERNO,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2017-1145
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-14-0756-B-1.
______________________
Decided: November 17, 2017
______________________
RICK D. SALERNO, Manassas, VA, pro se.
MICHAEL D. SNYDER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM.
______________________
Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.
2 SALERNO v. INTERIOR
NEWMAN, Circuit Judge.
Rick D. Salerno appeals the Final Decision of the Mer-
it Systems Protection Board (MSPB or Board) affirming
the Department of the Interior’s decision to suspend him
for 30 days from his employment with the Bureau of Land
Management (BLM). 1 The suspension was based on
Salerno’s allegedly improper use of a personal credit card
for official purchases.
Mr. Salerno argues that the suspension was in retali-
ation for his having filed a whistleblowing disclosure to
the Office of Special Counsel (OSC). He also alleged other
improprieties in connection with his suspension. The
administrative judge (AJ) to whom the matter was as-
signed denied his request for witnesses or deposition
evidence regarding matters other than the issue of his
credit card use. On appellate review, we conclude that
the evidence before the MSPB supported the 30-day
suspension; that decision is affirmed.
BACKGROUND
Mr. Salerno was employed as a Telecommunications
Specialist with the BLM in Moreno Valley, California. On
January 10, 2013, Mr. Salerno received a letter of repri-
mand, instructing that all work-related purchases must
be made with his government purchase card and that he
must receive prior authorization before making such
purchases, which would include receipt of a fund code for
each purchase. In February of 2013, Mr. Salerno submit-
ted a disclosure to OSC describing asserted violations of
law, rule, or regulation, relating primarily to the BLM’s
alleged non-compliance with communication security laws
and regulations.
1 Salerno v. Dep’t of the Interior, MSPB Docket No.
SF-1221-14-0756-B-1 (Sept. 1, 2016).
SALERNO v. INTERIOR 3
On December 11, 2013, the BLM imposed a 2-day
suspension on Mr. Salerno, stating that he had again
violated the instructions to use only his government
purchase card for official purchases. On January 9, 2014,
Mr. Salerno informed his supervisor that he “chose to
purchase” a radio antenna for the Ridgecrest Chief Rang-
er “using my personal credit card” in order to expedite the
purchase and to have the antenna on hand for his sched-
uled return to Ridgecrest the following week. At the time
of the purchase, Mr. Salerno had neither requested nor
received a fund code, but this was remedied the afternoon
of the purchase, and the charge was promptly transferred
to the government purchase card.
On January 27, 2014, the District Fire Management
Officer proposed to suspend Mr. Salerno for 30 days for
failure to follow instructions relating to official purchases.
Mr. Salerno provided a written reply, explaining the
reason for his action. The 30-day suspension was duly
imposed, and was served beginning May 5, 2014. After
completion of the suspension and his return to service,
Mr. Salerno resigned his position on August 20, 2014.
Mr. Salerno brought an individual right of action
(IRA) appeal to the MSPB, alleging retaliation in violation
of the Whistleblower Protection Act (WPA). The Board,
applying 5 U.S.C. § 1221(e)(1) and the “knowledge/timing”
test, held that Mr. Salerno had made a non-frivolous
allegation that his 2013 disclosure to the OSC was a
contributing factor to the 30-day suspension.
The AJ held a hearing, concentrating on the question
of whether the agency would have taken the same action
in the absence of the protected disclosure. The AJ de-
clined to receive evidence concerning the content of Mr.
Salerno’s whistleblowing disclosure, and denied his re-
quests for discovery related to the security concerns he
had reported to OSC. On this appeal, Mr. Salerno does
not dispute the facts concerning credit card usage, and
4 SALERNO v. INTERIOR
presses the import of his OSC disclosure as well as claims
of a hostile work environment.
The AJ held, after a hearing in which Mr. Salerno and
agency witnesses testified, that the agency had estab-
lished, by clear and convincing evidence, that it would
have taken the same action in the absence of the protect-
ed disclosure. The Board affirmed, and Mr. Salerno
appeals.
DISCUSSION
We review the Board’s decision to determine whether
it was “(1) arbitrary, capricious, an abuse of discretion, or
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); see Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1366 (Fed. Cir. 2012). “Substantial evi-
dence . . . means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Consol. Edison Co. of N.Y. v. NLRB,
305 U.S. 197, 229
(1938).
The AJ received testimony from the BLM supervisors
and deciding officials that they were either unaware of
the OSC disclosure or unaware of its contents. There was
no dispute as to the facts of the asserted lapses concern-
ing advance authorization and use of the government card
for official purchases. Mr. Salerno testified, without
contradiction, that he obtained the requisite authorization
later on the same day as the purchase of the antenna
($58) and promptly instructed the vendor to change the
charge from his personal card to his government card. He
justified his action by the need to expedite ordering the
requisite antenna, in order to have it on hand for his
forthcoming trip to Ridgecrest.
A protected disclosure does not shield employees from
the consequences of wrongful conduct, unless the protect-
SALERNO v. INTERIOR 5
ed disclosure is a factor in the action taken. See 5 U.S.C.
§ 1221(e)(2); Carr v. Soc. Sec. Admin.,
185 F.3d 1318,
1325–26 (Fed. Cir. 1999) (“[T]he WPA is not meant to
protect employees from their own misconduct”; rather,
“the WPA shields an employee only to the extent the
record supports a finding that he would not have been
disciplined except for his status as a whistleblower”)
(internal citations and quotations omitted). The AJ and
Board applied the factors set forth in Carr to determine
whether the agency would have taken the same personnel
action in the absence of the protected disclosure: (1) the
strength of the agency’s evidence in support of its person-
nel action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the
agency takes or has taken similar actions against similar-
ly situated employees who are not whistleblowers. See
Carr, 185 F.3d at 1323; see also Miller v. Dep’t of Justice,
842 F.3d 1252, 1257 (Fed. Cir. 2016) (applying the Carr
factors); Fellhoelter v. Dep’t of Agric.,
568 F.3d 965, 971
(Fed. Cir. 2009) (same).
With respect to the first Carr factor, the parties do not
dispute the facts that led to the January 10, 2013 repri-
mand, the December 11, 2013 two-day suspension, or
those relating to the January 9, 2014 purchase of the
antenna. The Associate District Manager testified that,
in his view, this third violation, although able to be
promptly corrected, showed that early instructions to
comply with the rules had not been effective, and that the
30-day suspension was needed “to get Mr. Salerno's
attention.” SAppx21. The government refers to testimo-
ny that Mr. Salerno was a person of independent mind,
who would do what he believed to be “morally right.”
Gov’t Br. 16.
With respect to the second Carr factor, on whether
there was a motive to retaliate, the AJ deemed credible
the testimony of the supervisor who proposed Mr. Saler-
6 SALERNO v. INTERIOR
no’s suspension, who testified that he was not aware of
Mr. Salerno’s OSC disclosure. SAppx19–20. Mr. Saler-
no’s supervisors also testified that they were not aware
that he had filed an OSC disclosure or its content, alt-
hough it was not disputed that he had so informed his
immediate work leader.
Id. The AJ stated that this
testimony was credible.
Id. at 20–21. A BLM human
resources specialist testified that a 30-day suspension was
the lowest table penalty for a third infraction.
Id. at 17.
The AJ also received testimony concerning uneasy job-site
relationships, and that Mr. Salerno's job performance had
consistently been rated “fully successful.”
Id. at 19.
On the third Carr factor, the AJ heard from the Asso-
ciate District Manager that Mr. Salerno was the only
employee whose failure to follow instructions was not
corrected by a 2-day suspension.
Id. at 35.
Mr. Salerno on appeal stresses the concerns that were
the subject of his whistleblowing, and mentions several
other areas of concern regarding his work environment.
We conclude, however, that the Board did not err in
approving the AJ’s decision to limit the evidence received
to the 30-day suspension. The Board found that the
evidence supported this penalty for a third credit card-
related transgression. This finding is supported by sub-
stantial evidence, and is affirmed. 2
AFFIRMED
No costs.
2 We deny Mr. Salerno’s motions for temporary re-
lief (Docket Entries 18 and 20).
