NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELLIOTT E. FISHER,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2015-3207
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-12-0268-I-2.
______________________
Decided: March 10, 2016
______________________
ELLIOTT E. FISHER, Apache Junction, AZ, pro se.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES,
JR.
______________________
Before LOURIE, BRYSON, and REYNA, Circuit Judges.
2 FISHER v. HHS
PER CURIAM.
Elliott E. Fisher (“Fisher”) appeals from the final de-
cision of the Merit Systems Protection Board (the “Board”)
denying his petition for review and affirming the initial
decision that affirmed the agency’s action of removal.
Fisher v. Dep’t of Health & Human Servs., No. DE-0752-
12-0268-I-2 (M.S.P.B. June 25, 2015) (“Final Order”); see
Fisher v. Dep’t of Health & Human Servs., No. DE-0752-
12-0268-I-2 (M.S.P.B. Jan. 26, 2015) (“Initial Decision”).
Because the Board did not err in denying the petition for
review, we affirm.
BACKGROUND
Beginning in March 2009, the Indian Health Service
(“IHS”) employed Fisher as a psychiatric licensed practi-
cal nurse at the Desert Visions Youth Wellness Center,
which treats adolescent patients with mental health and
substance abuse problems. Final Order at 2; Initial
Decision at 2. In November 2009, Fisher became con-
cerned by a patient’s behavior and, believing her to be
suicidal, requested an ambulance to transport the patient
to another facility for an extended psychiatric evaluation.
Final Order at 3; see also Initial Decision at 20. However,
Dr. Beckstead, the supervising physician on duty, can-
celled the emergency transport after asking Fisher a few
questions about the patient. Pet’r’s Br. 9. Fisher believed
that Dr. Beckstead by that behavior failed to perform his
sworn duty to follow patient assessment protocols. Id.
Fisher met with his supervisors in October 2011 and
allegedly disclosed Dr. Beckstead’s conduct in refusing to
follow protocol by cancelling transport for the suicidal
patient in 2009. Final Order at 6; Initial Decision at 16.
In November 2011, Fisher filed a formal complaint re-
garding the 2009 incident with the state psychology
licensing board (the Arizona Board of Psychologist Exam-
iners). Final Order at 6.
FISHER v. HHS 3
In January 2012, IHS placed Fisher on administrative
leave pending an investigation into allegedly inappropri-
ate patient and staff interactions, and proposed a 14-day
suspension of Fisher. Final Order at 2. Before the sus-
pension was implemented, however, IHS informed Fisher
that he was being assigned to a detail at a different
location, effective February 8, 2012, and that refusal to
comply with that assignment could result in his removal.
Id. Fisher responded that he would not comply, and IHS
notified him on February 13 that he was considered
absent without leave (“AWOL”). Initial Decision at 4. On
February 21, IHS decided to suspend him for 14 days,
from February 27 to March 11, as a result of the patient-
interaction infractions. Id. at 5. Before the suspension
went into effect, however, on February 24, IHS issued a
notice of proposed removal for failure to comply with the
detail assignment. Id.
Fisher filed an individual right of action (“IRA”) ap-
peal challenging his detail assignment to a facility he
considered he was not qualified to work in as inappropri-
ate retaliation for a protected disclosure. Fisher v. Dep’t
of Health & Human Servs., No. DE-1221-13-0778-W-1
(M.S.P.B. Dec. 12, 2014). The Board dismissed his IRA
appeal for lack of jurisdiction, finding that, although he
had made a nonfrivolous allegation of a protected disclo-
sure, he failed to nonfrivolously allege that his disclosure
was a contributing factor to the detail assignment, e.g.,
how the internal investigation led to the detail or could
have been a pretext for gathering information to retaliate.
Fisher did not appeal from that decision.
Fisher also filed the instant appeal at the Board chal-
lenging his removal. The administrative judge (“AJ”)
determined that Fisher had met his burden to show that
he had made a protected whistleblower disclosure. Initial
Decision at 20–21. Based on Fisher’s communications to
the deciding official, in which he asserted retaliation, and
the time period between the disclosure and the removal,
4 FISHER v. HHS
the AJ found that Fisher had also met his burden to show
that the protected disclosure was a contributing factor to
the removal action under the Board’s previously-
elaborated “knowledge/timing” test. Id. at 21–22. How-
ever, the AJ found that the agency had shown by clear
and convincing evidence that it would have removed
Fisher even absent the disclosure, and that the penalty
for his failure to comply with the detail assignment was
reasonable. Id. at 22–26.
Fisher filed a petition for review, which the full Board
denied. Final Order at 2. The Board found that Fisher
failed to show error in the AJ’s findings that Fisher’s
position was subject to the detail assignment; that the
Board lacks jurisdiction to review the basis for the detail;
and that the agency proved that Fisher was AWOL. Id. at
5–6. The Board further found that Fisher did not provide
sufficient reason for the Board to reevaluate the AJ’s
credibility determinations. Id at 6–7. The Board noted
the AJ’s analysis of the Carr factors, see Carr v. Soc. Sec.
Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999), and af-
firmed the AJ’s finding that the penalty of removal was
within the limits of reasonableness. Final Order at 8–9.
The Board also rejected Fisher’s challenges to the AJ’s
rulings regarding witness testimony. Id. at 9–10. The
Board thus declined the petition for review and affirmed
the AJ’s initial decision.
Fisher appealed from the Board’s final decision to this
court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We must affirm the decision of the Board unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, 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).
FISHER v. HHS 5
When evaluating whether an agency has shown by
clear and convincing evidence that it would have taken a
personnel action against a whistleblower even absent the
protected disclosure, the Board considers:
the strength of the agency’s evidence in support of
its personnel action; the existence and strength of
any motive to retaliate on the part of the agency
officials who were involved in the decision; and
any evidence that the agency takes similar actions
against employees who are not whistleblowers but
who are otherwise similarly situated.
Carr, 185 F.3d at 1323. The Board’s review of the penalty
imposed is limited to determining whether the agency
considered all relevant factors and exercised its manage-
ment discretion within tolerable limits of reasonableness.
Douglas v. Veterans Admin., 5 M.S.P.B. 313, 333 (1981).
Fisher argues that the suspension, detail, and remov-
al were all in retaliation for his protected disclosure, and
challenges the credibility determinations underlying the
AJ’s factual findings. Pet’r’s Br. 4–6, 10–12; Reply Br.
10–12. Fisher asserts that the deciding official for the
removal action did not explicitly analyze, and thus did not
properly consider, any mitigating Douglas factors when
imposing the penalty. Pet’r’s Br. 13; Reply Br. 10. Fisher
also argues that he was denied due process of progressive
discipline and administrative hearings, and thus the
penalties were not reasonable. Pet’r’s Br. 12–14, 18;
Reply Br. 4, 8–9. Fisher also disputes the propriety of the
suspension in response to his patient interactions and the
detail assignment to a different facility. Pet’r’s Br. 15;
Reply Br. 3–7, 11–12. Fisher further challenges the AJ’s
findings on the timing of his protected disclosure, Pet’r’s
Br. 10–12, 17; Reply Br. 7, and insists that the new evi-
dence he presented with the petition for review should
have been considered, Pet’r’s Br. 10–11.
6 FISHER v. HHS
The government refutes all of Fisher’s arguments. It
responds that there was clear and convincing evidence to
show that the agency would have removed Fisher even
absent any protected disclosure. Also, there were suffi-
cient analyses of the Douglas factors evident in the notic-
es of suspension and removal; federal employees subject
to removal are not necessarily entitled to a hearing; and
the suspension prior to the removal indicated progressive
discipline and thus supported the reasonableness of the
penalty. Resp’t’s Br. 14–16. The government argues that
the Board correctly held that it could not hear a challenge
to the basis for the detail because it did not involve a
reduction in pay or grade. Id. at 11–12. The government
finally contends that any alleged errors relating to the
date of disclosure are not relevant to this appeal because
the AJ ultimately found that Fisher had met his burden
to show that he made a protected disclosure and that it
was a contributing factor to his removal. Id. at 8–9.
We agree that the Board did not err in finding that
the agency proved that it would have removed Fisher
even absent the protected disclosure and that the removal
was reasonable. The instant appeal is limited to that
removal action, and does not involve a review of the
merits of the suspension or the detail assignment. As
noted by the Board, many of Fisher’s assertions focus on
the removal action as retaliation; however, the removal
itself was premised upon his failure to report to his new
detail assignment. The Board considered the Carr factors
and concluded that the agency had proved with clear and
convincing evidence that the IHS would have removed
Fisher for being AWOL even if he had never made the
protected disclosure. The date of disclosure and other
factual determinations that Fisher challenges are not at
issue here because the AJ found in his favor that he had
met his burden to show that it was a protected disclosure
and that it was a contributing factor to the removal
action. His arguments about due process and mitigating
FISHER v. HHS 7
factors primarily relate to his detail and suspension for
unrelated conduct, and thus are insufficient to establish
error in the Board’s decision affirming his removal.
CONCLUSION
We have considered Fisher’s remaining arguments
and find them unpersuasive. We conclude that the
Board’s decision is not arbitrary or capricious, is not
contrary to law, and is supported by substantial evidence.
Accordingly, the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.