and Submitted December 8, 2017 San Francisco, California
Petition for Review of an Order of the Merits Systems
Protection Board MSPB No. SF-1221-14-0544-W-2
Hostetter (argued), Law Office of Mark W. Hostetter, San
Jose, California, for Petitioner.
R. Pehlke (argued), Trial Attorney; Allison Kidd-Miller,
Assistant Director; Robert E. Kirschman Jr., Director; Chad
A. Readler, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Before: Susan P. Graber and N. Randy Smith, Circuit Judges,
and Michael H. Simon, [*] District Judge.
panel denied a petition for review in an action brought by a
senior auditor at the Defense Contract Audit Agency
("DCAA") under the Whistleblower Protection Act
against the Department of Defense, alleging that the
Department took several adverse personnel actions against him
in retaliation for his protected disclosures at the DCAA.
panel held that substantial evidence supported the Merit
Systems Protection Board's ultimate determination that
the DCAA's personnel actions were not in retaliation for
petitioner's whistleblowing. Specifically, the panel
assumed for purposes of its analysis that petitioner
established a prima facie case that all seven of his
communications were protected disclosures. The panel adopted
the Federal Circuit's test, outlined in Carr v.
Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999), for determining whether the agency - the
DCAA - carried its burden of proving by clear and convincing
evidence that it would have taken the same personnel actions
against petitioner in the absence of his protected
panel also held that the administrative law judge permissibly
excluded disputed evidence.
GRABER, Circuit Judge:
George Duggan brought this action under the Whistleblower
Protection Act against the Department of Defense, alleging
that the Department took several adverse personnel actions
against him in retaliation for his protected disclosures
about misconduct at the Defense Contract Audit Agency
("DCAA"). Following an unsuccessful appeal to the
Merit Systems Protection Board ("Board"),
Petitioner timely seeks review. We must set aside the
Board's decision on the merits if it is: "(1)
arbitrary, capricious, an abuse of discretion, 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); Coons v. Sec'y of U.S. Dep't of
Treasury, 383 F.3d 879, 888 (9th Cir. 2004). For the
reasons that follow, we deny the petition.
AND PROCEDURAL BACKGROUND
works as a Senior Auditor at the DCAA. The events leading to
the present dispute began in October 2012, when DCAA hired
Vivian Cusi as its Fremont Branch Manager. Cusi supervised an
audit team that included Petitioner.
visited the audit team for the first time on January 22,
2013. She approached Petitioner's cubicle to introduce
herself. According to the supervising auditor, David Downer,
who accompanied Cusi, Petitioner was "hostile" and
"disrespectful"; he shook Cusi's hand only
"reluctantly" and "questioned her
presence." Downer further described Petitioner as
"angry" and "unfriendly" when he first
met Cusi. Downer also characterized the encounter as
"quite alarming, " in contrast to the uneventful
introductions to other members of the team.
that day, Cusi and Downer convened a meeting with the audit
team. Witnesses testified that Petitioner dominated the
meeting and prevented the group from addressing the items on
the agenda. In addition, Petitioner questioned Cusi's
experience, speaking in an "aggressive, "
"angry, " and "disruptive" tone. Because
of Petitioner's ...