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Duggan v. Department of Defense

United States Court of Appeals, Ninth Circuit

February 26, 2018

George Duggan, Petitioner,
v.
Department of Defense, Respondent.

          Argued and Submitted December 8, 2017 San Francisco, California

         On Petition for Review of an Order of the Merits Systems Protection Board MSPB No. SF-1221-14-0544-W-2

          Mark Hostetter (argued), Law Office of Mark W. Hostetter, San Jose, California, for Petitioner.

          David 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.

         SUMMARY [**]

         Whistleblower Protection Act

         The 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.

         The 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 disclosures.

         The panel also held that the administrative law judge permissibly excluded disputed evidence.

          OPINION`

          GRABER, Circuit Judge:

         Petitioner 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner 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.

         Cusi 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.

         Later 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 ...


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