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
04-3232
RICHARD E. BUCKLEY,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
DECIDED: January 21, 2005
__________________________
Before MICHEL, Chief Judge, SCHALL, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Richard E. Buckley petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) that denied his Individual Right of Action
(“IRA”) appeal. Buckley v. Social Sec. Admin., No. SE-1221-02-0402-W-1
(M.S.P.B. Jan. 21, 2004). Mr. Buckley alleged that certain management
personnel at the Social Security Administration (“SSA” or “agency”) retaliated
against him for having engaged in whistleblowing activity, in violation of the
Whistleblower Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103 Stat. 16
(1989) (codified at 5 U.S.C. § 2302(b)(8)). We affirm.
DISCUSSION
I.
During the relevant period of time, Mr. Buckley was employed by the SSA
as a GS-14 Assistant Regional Counsel in the Office of the General Counsel
(“OGC”) for the agency’s Seattle Regional Office. Mr. Buckley filed his IRA
appeal with the Board after the Office of Special Counsel terminated its inquiry
into his whistleblowing allegations without taking action.
In his appeal, Mr. Buckley alleged that he had made whistleblowing
disclosures with respect to several matters. First, he asserted that he made
protected disclosures regarding what he believed to be an ethical violation
concerning the manner in which the agency was handling attorney fee requests
under the Equal Access to Justice Act. Second, Mr. Buckley asserted that he
made protected disclosures relating to the Seattle OGC’s use, in connection with
briefs filed in the United States Court of Appeals for the Ninth Circuit, of a
Certificate of Compliance that was not in compliance with Ninth Circuit Rule 32-1.
Third, Mr. Buckley asserted that he made protected disclosures when he
informed his supervisor that he had failed to receive in timely fashion certain
documents relating to an Equal Employment Opportunity (“EEO”) case that he
was handling. Mr. Buckley further alleged that, in retaliation for these protected
disclosures, the following personnel actions were taken against him: (i) his
supervisor indicated that she intended to discipline him; and (ii) his supervisor
04-3232 2
ordered him not to discuss the EEO case referenced above with anyone but her
and another individual. In his IRA appeal, Mr. Buckley sought corrective action
against the agency.
Following a hearing, the administrative judge (“AJ”) to whom the case was
assigned issued an initial decision in which she denied Mr. Buckley’s request for
corrective action. Buckley v. Social Sec. Admin., No. SE-1221-02-0402-W-1
(M.S.P.B. Apr. 21, 2003). The AJ determined that Mr. Buckley had not
established that he had made protected disclosures or that he had been
subjected to a retaliatory personnel action. The AJ’s initial decision became the
final decision of the Board on January 21, 2004, after the Board denied Mr.
Buckley ‘s petition for review for failure to meet the criteria for review set forth at
5 C.F.R § 1201.115(d). This appeal followed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).1
II.
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 unsupported by substantial evidence. 5 U.S.C. § 7703(c); see
1
We have considered the government’s argument that we lack
jurisdiction over Mr. Buckley’s appeal because his petition for review was not
timely filed. The petition for review was received by the Clerk of the Court on
March 29, 2004, within 60 days of February 2, 2004, the date on which Mr.
Buckley received the Board’s Final Order denying his petition for review. Given
these dates, we conclude that Mr. Buckley’s appeal was timely.
04-3232 3
Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998).
In order to establish the merits of a whistleblowing claim, an appellant
must show by a preponderance of the evidence that a disclosure described in 5
U.S.C. § 2302(b)(8) was a contributing factor in a personnel action that was
taken against the appellant. If the appellant makes such a showing, corrective
action must be ordered unless the agency demonstrates, by clear and convincing
evidence, that it would have taken the same action absent the protected
disclosure. Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1378
(Fed. Cir. 2001).
Mr. Buckley argues generally that the Board erred in ruling that (1) he did
not establish that he made protected discloses; and (2) the agency took no
retaliatory personnel action against him. We do not agree. Having reviewed the
record before us, we see no reason to disturb the Board’s decision, which we
think is both supported by substantial evidence and is also free of legal error.
As far as protected disclosures are concerned, we agree with the Board
that Mr. Buckley failed to demonstrate that he made disclosures which he
reasonably believed evidenced a violation of a law, rule, or regulation. See
Meuwissen v. Dep’t of the Interior, 234 F.3d 9, 12 (Fed. Cir. 2000); Lachance v.
White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Turning to the matter of a
retaliatory personnel action, the AJ determined, based on the testimony of Mr.
Buckley’s supervisor, Lucille Meis, that Mr. Buckley was not subjected to any
retaliatory personnel action. We see no merit in Mr. Buckley’s challenge to the
04-3232 4
AJ’s credibility determination with respect to the testimony of Ms. Meis. An AJ’s
credibility determinations are virtually unreviewable. See Frey v. Dep’t of Labor,
359 F.3d 1355, 1361 (Fed. Cir. 2004).
On appeal, Mr. Buckley also raises a number of arguments relating to the
AJ’s conduct of the proceedings. He argues that the AJ improperly limited the
scope of discovery by denying his motion to compel and his motion for sanctions
in connection with his attempt to depose some 23 government employees. He
also argues that the AJ erred in denying his request for a protective order with
respect to his own deposition. In addition, Mr. Buckley urges that the AJ (i)
improperly commented upon his failure to testify at the hearing; (ii) through her
rulings, deprived him of a fair hearing; and (iii) was biased against him. None of
these contentions has merit.
Discovery, prehearing, and evidentiary rulings are matters within the AJ’s
sound discretion. See Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed.
Cir. 1988). Absent abuse of discretion, such rulings are not disturbed. See
McEnery v. Merit Sys. Prot. Bd., 963 F.2d 1512, 1514 (Fed. Cir. 1992). We see
no abuse of discretion in this case. We also reject Mr. Buckley’s argument that
the AJ inappropriately commented on his failure to testify. At the hearing, the AJ
asked Mr. Buckley about his decision not to testify to satisfy herself that his
decision was knowing and voluntary and to prevent him from improperly testifying
during his cross-examination of Ms. Meis and during his closing argument.2 By
the same token, in her initial decision, the AJ simply noted Mr. Buckley’s failure
2
Before the Board, Mr. Buckley appeared pro se.
04-3232 5
to testify in the course of discussing his failure to present evidence in support of
his whistleblowing claim. Regarding the AJ’s hearing rulings depriving Mr.
Buckley of a fair trial, Mr. Buckley has failed to point to specific harm that he
suffered as result of an allegedly incorrect ruling by the AJ. See Curtin, 846 F.2d
at 1379 (to prevail a petitioner must show that an error “caused substantial harm
or prejudice” to his or her rights “which could have affected the outcome of the
case”). Finally, with respect to his claim of bias, Mr. Buckley has failed to present
facts that would establish “a deep-seated favoritism or antagonism that would
make a fair judgment impossible.” Bieber v. Dep’t of the Army, 287 F.3d 1358,
1362 (Fed. Cir. 2002).
For the foregoing reasons, the final decision of the Board denying Mr.
Buckley’s IRA appeal is affirmed.
Each party shall bear its own costs.
04-3232 6