NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3393
AARON R. BURDGE,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
DECIDED: August 16, 2005
__________________________
Before MICHEL, Chief Judge, SCHALL, and PROST, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Aaron R. Burdge petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that dismissed, for failure to state a claim upon which relief
could be granted, his appeal of his termination from the Department of the Navy
(“agency”). Burdge v. Dep’t of the Navy, No. SE-1221-03-0101-W-1 (M.S.P.B. June
17, 2004) (“Final Decision”). Mr. Burdge brought his appeal under the individual right of
action (IRA) appeal provisions of the Whistleblower Protection Act, 5 U.S.C. § 1221.
We affirm.
DISCUSSION
I.
Mr. Burdge was employed as a Criminal Investigator, GS-1811-11, at the Naval
Criminal Investigative Service office on Whidbey Island, Washington. Burdge v. Dep’t of
the Navy, No. SE-1221-03-0101-W-1, slip op. at 2 (M.S.P.B. Apr. 22, 2003) (“Initial
Decision”). On August 18, 2002, during his probationary period, Mr. Burdge was
terminated from his position based upon an agency determination that he had
demonstrated poor judgment in the exercise of his law enforcement authority through
the unnecessary use of the blue lights on a government-owned vehicle and the
inappropriate display of his badge and weapon.
Following his termination, Mr. Burdge lodged an IRA claim with the Office of
Special Counsel (“OSC”). In seeking corrective action from OSC, Mr. Burdge alleged
that his termination had been in retaliation for protected disclosures he made
concerning an allegedly unlawful search and seizure and the taking, for personal use, of
a document during the search. Specifically, Mr. Burdge charged that on June 15, 2002,
Mr. Burdge and his Field Training Agent, Special Agent Donald Johnston, conducted an
investigation of the medically unattended death of the spouse of a service member (the
“Sparks investigation”). Mr. Burdge alleged that, during the investigation, Special Agent
Johnston engaged in an unconstitutional search of a personal computer hard drive at
the Sparks residence, printed a copy of a document found on the hard drive, and
retained the copy for personal use.
After OSC closed its file in the matter without taking action, Mr. Burdge filed an
appeal with the Board under the individual right of action (“IRA”) appeal provisions of
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the Whistleblower Protection Act.
II.
Before the Board, Mr. Burdge asserted that he had made a protected disclosure
with respect to the Sparks investigation. In that regard, Mr. Burdge testified that
sometime between June 15,2002, and June 20, 2002, he had two conversations about
the Sparks investigation with Mark Pendell, who was the Acting Supervisory Special
Agent at the Whidbey Island office. According to Mr. Burdge, during the first
conversation, he presented the facts relating to the search conducted by Special Agent
Johnston in the form of a hypothetical question, without indicating that an actual case
was involved. Mr. Burdge further testified that he asked Mr. Pendell if the permissive
search form used by the agency during the Sparks investigation would allow the agency
to search a personal computer and seize items found on it. According to Mr. Burdge,
Mr. Pendell responded that seizing items from a computer would not be a problem
pursuant to a permissive search. Mr. Burdge alleges that during a second conversation
with Mr. Pendell, he specifically related what had occurred during the June 12, 2002
search. Initial Decision, slip op. at 9-10.
Before the Board, Special Agent Pendell testified that he recalled a discussion
with Mr. Burdge that was of a general nature and did not involve the specifics of the
Sparks investigation. Id. at 10. Special Agent Pendell also testified that Mr. Burdge had
not alleged that the search conducted during the Sparks investigation was illegal, and
he stated that if such an allegation had been made, he would have reported it up the
chain of command to the agency’s Northwest Field Office. Id.
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In an initial decision, the administrative judge (“AJ”) to whom the appeal was
assigned rejected Mr. Burdge’s claim that he had made protected disclosures. Initial
Decision, slip op. at 12-13. The AJ stated:
I find Special Agent Pendell’s version of his discussion with the
appellant to be more credible than the appellant’s. Both Special Agent
Campbell and Special Agent Johnston testified that Pendell had a
reputation as a stickler and this is consistent with Pendell’s own testimony
that he would have investigated and reported any claim of an unlawful
search. Further, Special Agent Pendell has no motive to lie about his
discussion with the appellant. He was not implicated in the alleged
disclosure and nothing in this record suggests that his relationship with
Special Agent Johnston was anything more than collegial. In addition,
Special Agent Pendell was quite adamant in his denial that anyone had
ever claimed the search was unlawful.
Id., slip op. at 10-11.
The AJ dismissed the appeal for failure to state a claim upon which relief could
be granted, finding that Mr. Burdge had failed to establish that he had made a protected
disclosure.1 Id., slip op. at 13. The AJ’s initial decision became the final decision of the
Board on June 17, 2004, after the Board denied Mr. Burdge’s petition for review for
failure to meet the criteria set forth at 5 C.F.R. § 1201.115(d). Final Decision. This
appeal followed. We have jurisdiction pursuant to 28 U.S.C. §1295(a)(9).
III.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
1
Such a disclosure is a requirement for an IRA claim. See Yunus v. Dep’t
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
04-3393 4
unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health
& Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
On appeal, Mr. Burdge argues that the AJ’s credibility determinations are not
supported by substantial evidence because the AJ “misinterpreted” the testimony of
Special Agent Pendell. However, the AJ’s credibility determinations are virtually
unreviewable. 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.” (citing Pope v. United States Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir.
1997) ("As an appellate court, we are not in [a] position to re-evaluate these credibility
determinations, which are not inherently improbable or discredited by undisputed
fact."))). In this case, we see no reason to disturb the AJ’s assessment of Mr. Pendell’s
credibility. What Mr. Burdge is essentially asking us to do is to disregard the factual
findings and credibility determinations of the Board and to substitute our own weighing
of the evidence. It is not our function to do that. See Bieber, 287 F.3d at 1364. We
conclude that the AJ’s findings of fact are supported by substantial evidence.
Accordingly, the final decision of the Board dismissing Mr. Burdge’s appeal is affirmed.
Each party shall bear its own costs.
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