NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MANUEL LOSADA,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
______________________
2014-3047
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-10-0800-M-1.
______________________
Decided: February 4, 2015
______________________
MANUEL LOSADA, of Orlando, Florida, pro se.
A. BONDURANT ELEY, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 LOSADA v. DEFENSE
Before DYK, PLAGER, and MOORE, Circuit Judges.
DYK, Circuit Judge.
Manuel Losada seeks review of a decision of the Merit
Systems Protection Board (“the Board”). The Board
affirmed the Department of Defense Education Activity’s
(“DoDEA” or “the agency”) removal of Losada for miscon-
duct. Because the Board did not err in finding by clear
and convincing evidence that Losada would have been
removed even absent a protected disclosure, we affirm.
BACKGROUND
In June 2010, Losada was removed from his position
as a Guidance Counselor at Naples Elementary School
(“NES”), a school for military dependents overseas which
is operated by DoDEA. Losada was removed for (1)
unauthorized disclosure of confidential information based
on four disclosures of confidential information to a report-
er for Stars and Stripes magazine (the “unauthorized
disclosure charge”); and (2) failure to follow procedures
governing the reporting of child abuse (the “failure to
follow procedures charge”).
The circumstances surrounding Losada’s removal are
set forth in our opinion on Losada’s prior appeal. See
Losada v. Dep’t of Defense, 484 F. App’x 529, 530–31
(Fed. Cir. 2012). Briefly, in March and April 2010, Losa-
da disclosed confidential information about identifiable
students and teachers to a reporter for Stars and Stripes.
Id. at 530. And in a March 17, 2010, email (“the email”)
to the Office of Special Counsel (“OSC”), Losada described
an incident of suspected child abuse that he had not
reported in accordance with DoDEA regulations. Id.
In our prior decision, we affirmed the Board’s finding
that DoDEA had proven the unauthorized disclosure
charge with respect to the four disclosures to Stars and
LOSADA v. DEFENSE 3
Stripes. Those disclosures were not protected under the
Whistleblower Protection Act (“WPA”), 5 U.S.C.
§ 2302(b)(8)(A), because they “generally described ‘child-
on-child’ incidents, which do not constitute ‘child abuse’
and are thus not protected disclosures . . . .” 484 F. App’x
at 532 (citations omitted). We remanded with respect to
the email that Losada sent to OSC. The subject line of
the email was “child hurt yesterday at NES by an adult.”
Id. The email described an incident which Losada be-
lieved constituted child abuse. Id. at 533. We directed
the Board to determine on remand (1) whether the email
constituted a protected disclosure under the WPA that
was a “contributing factor” in the personnel action against
Losada, and, if so, (2) whether DoDEA met its burden of
showing “by clear and convincing evidence that it would
have taken the same personnel action in the absence of
such a disclosure.” 5 U.S.C. § 1221(e); 484 F. App’x at
533.
On remand, the administrative judge (“AJ”) found
that the email was a protected disclosure under the WPA
and was also a contributing factor to the agency’s removal
decision. Nevertheless, the AJ determined that the
agency demonstrated by clear and convincing evidence
that it would have taken the same personnel action in the
absence of Losada’s email disclosure because Losada
would have been removed based solely on the disclosure of
confidential information to Stars and Stripes and the
failure to report suspected child abuse. 1 The full Board
denied Losada’s petition for review and affirmed the
1 We need not decide whether the first charge (the
disclosure to Stars and Stripes) standing alone supports a
finding that DoDEA “would have taken the same person-
nel action in the absence of such a disclosure.” 5 U.S.C.
§ 1221(e)(2).
4 LOSADA v. DEFENSE
initial decision, finding that “the agency demonstrated
that it properly considered all the relevant aggravating
and mitigating circumstances in determining to impose
removal based on the sustained charges.” App. 30.
Losada seeks review of the Board decision. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of the Board’s decision is limited in scope.
We may only set aside an agency’s “action, findings, or
conclusions” if they are “(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).
The question is whether the agency properly estab-
lished “by clear and convincing evidence that it would
have taken the same personnel action in the absence of [a
protected] disclosure.” 5 U.S.C. § 1221(e)(2).
In Department of Homeland Security v. MacLean, No.
13-894, slip op. at 1 (Jan. 21, 2015), decided during the
pendency of this appeal, the Supreme Court addressed
the WPA’s exception for disclosures that are “specifically
prohibited by law.” 5 U.S.C. § 2302(b)(8)(A). Under this
exception, disclosures which would otherwise be protected
under the WPA are not protected if they are “specifically
prohibited by law.” Id. The Court held that this excep-
tion applies only to statutes, rather than to agency rules
or regulations. MacLean, slip op. at 11.
Under MacLean, if the basis for the failure to follow
procedures charge were the disclosure to OSC via email in
violation of DoDEA’s regulations, that would not support
a finding “by clear and convincing evidence that [DoDEA]
would have taken the same personnel action in the ab-
sence of such a disclosure.” 5 U.S.C. § 1221(e). But that
LOSADA v. DEFENSE 5
was not the case. The DoDEA regulation does not prohib-
it whistleblower disclosure, but rather requires additional
disclosure via particular channels. The agency charge
alleged:
You failed to promptly report the suspected abuse
to the local Family Advocacy Program [FAP] of-
ficer and to your immediate supervisor, as is re-
quired by DoDEA Regulation 2050.9. In fact, you
never reported the incident to you[r] first line su-
pervisor. 2
App. 15. The AJ noted that “[s]ignificantly . . . the agency
did not charge or seek to discipline the appellant for
misconduct because he disclosed this information to OSC.”
App. 17 (emphasis in original). And the Board further
explained that “[t]he administrative judge found that the
agency in this case did not discipline the appellant be-
cause he disclosed suspected child abuse, but rather
because, after witnessing the incident, he did not timely
report the information to agency officials as required by
agency procedures . . . .” App. 26. Therefore, as the
agency, the AJ, and the Board made clear, the basis of the
second charge was that Losada did not disclose the sus-
pected child abuse via the proper channels, rather than
the sending of the email to OSC.
We see nothing in MacLean to suggest that agency
employees cannot be disciplined for failing to adhere to
applicable agency regulations requiring them to report
misconduct through agency procedures in addition to
2 DoDEA Regulation 2050.9 requires the reporting
of suspected child abuse to the local Family Advocacy
Program (“FAP”) officer or the employee’s immediate
supervisor. Losada, 484 F. App’x at 529 & n.2 (citing
DoDEA Regulation 2050.9).
6 LOSADA v. DEFENSE
their whistleblower disclosures through other channels.
Here, substantial evidence supports the Board’s finding
that DoDEA proved by clear and convincing evidence that
it would have removed Losada on the basis of the disclo-
sures to Stars and Stripes and the failure to report sus-
pected child abuse to the proper channels.
The Board also sufficiently addressed Losada’s con-
tentions with respect to the retaliatory motive of the
deciding agency officials, a factor relevant to whether an
agency would have taken the same personnel action in the
absence of a protected disclosure. See Carr v. Soc. Sec.
Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). Although
the AJ may have improperly discounted this factor be-
cause the DoDEA officials responsible for the personnel
action were not named in the email and testified that they
did not act under a retaliatory motive, the Board suffi-
ciently addressed this issue and amended the initial
decision to find that the officials had “more than a mini-
mal motive to retaliate” against Losada. And the Board
nonetheless found that clear and convincing evidence
supported Losada’s removal. App. 28.
We have considered Losada’s remaining arguments,
and they are without merit.
AFFIRMED
COSTS
No costs.