Groseclose v. Department of Navy

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3072

WILLIAM B. GROSECLOSE,

Petitioner,

v.

DEPARTMENT OF THE NAVY,

Respondent.

William B. Groseclose, of San Luis Rey, California, pro se.

Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on the
brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Kirk T. Manhardt, Assistant Director.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3072

WILLIAM B. GROSECLOSE,

Petitioner,

v.

DEPARTMENT OF THE NAVY,

Respondent.

Petition for review of the Merit Systems Protection Board in SF1221060368-W-1

__________________________

DECIDED: May 13, 2008
__________________________

Before MICHEL, Chief Judge, PROST, Circuit Judge, and HOCHBERG, District Judge. ∗

PER CURIAM.

Mr. William B. Groseclose appeals the final decision of the Merit System

Protection Board (“Board” or “MSPB”) denying his petition for review of the initial

decision of the administrative judge denying his request for corrective action.

Groseclose v. Dep’t of the Navy, No. SF1221060368-W-1 (M.S.P.B. Sept. 19, 2007).

We affirm.

∗
Honorable Faith S. Hochberg, District Judge, United States District Court
for the District of New Jersey, sitting by designation.
 BACKGROUND

Mr. Groseclose is employed as a Supervisory Engineer at the Naval Surface

Warfare Center (“NSWC”), Port Hueneme Division, Land & Sea Test & Evaluation

Department, Integrated Combat Systems Test Division (“ICSTD”), Test Bed Engineering

Branch, San Diego, California, also known as the Point Loma site. He has been

employed by the Navy since February 9, 2003.

While employed by the Navy, Mr. Groseclose made a disclosure to the Inspector

General and other government officials alleging that Donna Bedford, Mr. Groseclose’s

supervisor at the time, participated in unlawful contracting activities that resulted in the

mismanagement of funds, waste, and an abuse of authority. Thereafter, Mr.

Groseclose submitted a complaint to the Office of Special Counsel (“OSC”) dated

October 14, 2004, alleging that several agency actions were taken in reprisal for his

whistleblowing. His OSC investigative file was closed after he filed an Individual Right

of Action (“IRA”) appeal on February 20, 2006, requesting corrective action relating to

his whistleblowing activities. On April 5, 2007, an initial decision by the administrative

judge denied Mr. Groseclose’s request for corrective action because he failed to show

that the actions he cited were taken in retaliation for his whistleblowing. Groseclose v.

Dep’t of the Navy, No. SF1221060368-W-1 (M.S.P.B. Apr. 5, 2007). The Board

subsequently denied his petition for review, thus rendering the initial decision of the

administrative judge final. Groseclose v. Dep’t of the Navy, No. SF1221060368-W-1

(M.S.P.B. Sept. 19, 2007). This appeal followed.

2008-3072 2
 DISCUSSION

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); Walls v. Merit Sys. Prot. Bd.,

29 F.3d 1578, 1581 (Fed. Cir. 1994). “Under this standard, we will reverse the MSPB’s

decision if it is not supported by ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d

1288, 1298 (Fed. Cir. 2002) (citation omitted). “The question before us is not how the

court would rule upon a de novo appraisal of the facts of the case, but whether the

administrative determination is supported by substantial evidence in the record as a

whole.” Id.

On appeal, Mr. Groseclose claims that the administrative judge abused her

discretion by not finding in his favor on several issues, and that several findings are not

supported by substantial evidence. We take his primary arguments in turn.

First, Mr. Groseclose claims that he was denied the opportunity to compete for

the position of Site Director in retaliation for his whistleblowing and that Ms. Bedford

“deviate[d] from normal hiring practices to keep [him] out of” the Site Director position.

As the administrative judge found, however, Mr. Groseclose failed to show that he

properly submitted his resume into the resumix system in order to be considered for the

position, that Ms. Bedford had the ability to manipulate the resumix system, or that Ms.

Bedford was under any obligation to consider his application after the certification list

was compiled. We conclude, therefore, that on this record substantial evidence

2008-3072 3
supports the administrative judge’s finding that Mr. Groseclose failed to establish that he

was obstructed from competing for the position or that his failure to be selected was in

reprisal for a protected disclosure. 1

Second, Mr. Groseclose claims that he was given a low annual performance

evaluation in 2004 in retaliation for his whistleblowing. On appeal, he asserts that it was

an abuse of discretion for the administrative judge to determine that the evaluator, Mr.

Potenza, assigned the contested performance evaluation prior to learning of Mr.

Groseclose’s whistleblowing. The administrative judge heard the testimony of the

witnesses involved and credited the testimony of Mr. Potenza that he first learned of the

disclosures on July 28, 2004, and that he made the performance evaluation

determination and discussed the performance review with Mr. Groseclose prior to that

date. The administrative judge’s determinations of the credibility of witnesses are given

a particularly deferential review. See Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364

(Fed. Cir. 2002) (“The credibility determinations of an administrative judge are virtually

unreviewable on appeal.”). We give such deference here and conclude that substantial

evidence supports the finding that Mr. Potenza made his determination regarding the

contested performance evaluation prior to learning of Mr. Groseclose’s disclosures.

Third, Mr. Groseclose claims that he was assigned collateral Approving Official

(“AO”) responsibilities in retaliation for whistleblowing. The administrative judge

concluded that the assignment of AO responsibilities to Mr. Groseclose was not a

covered personnel action. As the administrative judge noted, the record indicates that

1
In light of this conclusion, we need not reach the questions of whether
protected disclosures were made prior to his non-selection as Site Director or whether
Ms. Bedford knew of the protected disclosures at that time.

2008-3072 4
the other branch head was also assigned collateral duties and the AO duties were not a

significant change in Mr. Groseclose’s working conditions. Additionally, the

administrative judge found that Mr. Potenza credibly testified that Mr. Groseclose was

assigned the AO duties for legitimate reasons, including his meticulous work ethic. We

conclude that substantial evidence supports the administrative judge’s finding that the

assignment of AO duties to Mr. Groseclose was not a covered personnel action.

Fourth, Mr. Groseclose claims that his responsibilities were changed in retaliation

for whistleblowing when the Point Loma site was reorganized from two to three

branches. Mr. Groseclose argues that the fact that the Navy considered, but decided

against, reorganization of the Point Loma site into three branches prior to his

disclosures shows that the later decision to reorganize was made in retaliation to his

disclosures. We conclude that his arguments are insufficient to overturn the

administrative judge’s finding, which was largely based on crediting Mr. Potenza’s

testimony that the disclosures played no part in his reorganization plan and that he had

legitimate reasons for the reorganization.

Finally, we are not persuaded by Mr. Groseclose’s remaining arguments on

appeal, including his claims that the administrative judge failed to consider several

pieces of evidence. For example, regarding the performance evaluation appeal, Mr.

Groseclose claims that “[i]t was an abuse of discretion for the judge to not consider

issues concerning Donna Bedford as the pay unit manager responsible for approving

and then reviewing [his] performance incentive awards and disputes.” An administrative

judge’s failure to discuss every piece of evidence, however, does not mean that said

evidence was not considered, unless expressly stated otherwise. See Medtronic, Inc. v.

2008-3072 5
Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986) (“We presume that a fact finder reviews

all the evidence presented unless he explicitly expresses otherwise.”). There is no

indication that the administrative judge failed to consider the evidence that Mr.

Groseclose cites.

CONCLUSION

For the aforementioned reasons, we affirm the decision of the Board.

COSTS

Each party shall bear its own costs.

2008-3072 6