Richard E. Buckley v. Social Security Administration

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