NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3203
HOWARD FLOCH,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Howard F. Floch, of Clemmons, North Carolina, pro se.
Scott T. Palmer, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Harold D. Lester, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3203
HOWARD FLOCH,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in PH-1221-08-0451-W-2.
__________________________
DECIDED: October 13, 2009
__________________________
Before NEWMAN, MAYER, and PROST, Circuit Judges.
PER CURIAM.
Howard F. Floch, M.D., appeals the final order of the Merit Systems Protection
Board, which denied his petition for review of the initial decision denying his request for
corrective action related to being terminated from his position as a physician with the
Department of Veterans Affairs (“department”). Floch v. Dep’t of Veterans Affairs, No.
PH-1221-08-0451-W-2 (April 7, 2009). The board concluded that there was no new,
previously unavailable, evidence and that the administrative judge made no error in law
or regulation affecting the outcome. Id.; 5 C.F.R. § 1201.115(d). We affirm.
We must affirm the board’s decision unless we find it to be “(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).
On November 26, 2006, Floch began employment, under a two-year
probationary period, as a physician in the Surgical Service of the Veterans Affairs
Medical Center in Martinsburg, West Virginia. A three-month provisional review, dated
February 21, 2007, found his clinical skills and job performance satisfactory, and his
behavior positive. On March 6, 2007, the same supervisor, Edwin Cohen, M.D., who
issued the three-month review, notified the Chief of Staff as well as the Head of the
Professional Standards Board that issues had arisen concerning Floch’s demeanor and
professional behavior.
On March 24, 2007, Floch was involved in the intubation of a patient who
eventually died. He was relieved from his clinical duties, and the medical center’s Risk
Manager convened an administrative board of investigation. The department’s
Inspector General also conducted an investigation into this incident. After conducting
interviews, the administrative board of investigation recommended disciplinary action.
Upon receipt of the administrative board’s report, the acting Chief of Surgery requested
that a summary review board be convened to review Floch’s performance and evaluate
his retention in the department.
Prior to appearing before the summary review board, Floch filed a complaint with
the Office of Special Counsel (“Special Counsel”) alleging that his termination was
retaliatory for complaints he made about the medical center. He also testified that he
2009-3203 2
believed Cohen’s latter, negative, assessment of his performance was in response to
Floch refusing to support Cohen with respect to complaints about Cohen’s own behavior
and work performance.
The summary review board recommended termination of Floch’s employment,
effective August 24, 2007. His termination was held in abeyance, however, and did not
become effective until February 2, 2008. Through a letter dated March 26, 2008, the
Special Counsel notified Floch that it had investigated his complaint and declined to
take further action. Floch appealed to the board. The administrative judge held a
videoconference hearing on November 19 and 20, 2008. The administrative judge
denied Floch’s request for corrective action, and the board denied his petition for
review. This appeal followed.
Floch argues that the administrative judge erred by (1) asking questions of
witnesses, (2) allowing two attorneys to simultaneously ask Floch questions during his
cross examination, and (3) limiting Floch to three witnesses to attest to his conduct.
First, petitioner points to no rule that prevents an administrative judge at the board from
questioning witnesses, and, by way of analogy, the Federal Rules of Evidence
specifically allow a judge to question witnesses. Fed. R. Evid. 614(b). Second, Floch
concedes that being questioned by two attorneys had no prejudicial effect. Third, we
find no abuse of discretion by the administrative judge, in an effort to avoid cumulative
testimony, in limiting the number of Floch’s witnesses.
Floch also argues that the administrative judge relied solely on the administrative
board of investigation, and arbitrarily ignored the Inspector General’s report. In addition,
he alleges that these two concurrent investigations subjected him to double jeopardy.
2009-3203 3
As an initial matter, double jeopardy is a constitutionally created safeguard for criminal
proceedings and has no relevance to Floch’s claim. With respect to the administrative
judge’s relative reliance on the two reports, we find no reversible error. The Inspector
General’s report specifically states that “[o]ther allegations concerning unprofessional
behavior and inappropriate administrative actions were either not substantiated or are
being reviewed by medical center managers; therefore, they are not discussed in this
report.”
Finally, Floch argues that the department treated him differently than a similarly
situated employee, Johnston, thus evidencing that his termination was retaliatory. In
determining whether an agency has shown by clear and convincing evidence that it
would have taken the same personnel action in the absence of whistleblowing, the court
must consider the following factors: (1) the strength of the evidence supporting the
personnel action; (2) the existence and strength of any motive to retaliate on the part of
the officials who were involved in the decision; and (3) any evidence that similar actions
were taken against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The administrative judge determined that Johnston was not similarly situated
because different professional boards convened and made different recommendations.
We agree. Moreover, based on the administrative judge’s findings related to the other
two Carr factors, there was substantial evidence to conclude that the medical center
would have proposed termination absent Floch’s alleged whistleblowing activities.
Therefore, there is no reversible error.
2009-3203 4
We have carefully considered Floch’s remaining arguments and find them
unpersuasive.
2009-3203 5