NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARRY AHURUONYE,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2018-2163
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-15-0295-M-1.
______________________
Decided: December 7, 2018
______________________
BARRY AHURUONYE, Hyattsville, MD, pro se.
JIMMY MCBIRNEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
ELIZABETH MARIE HOSFORD, JOSEPH H. HUNT, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before PROST, Chief Judge, O’MALLEY and HUGHES,
Circuit Judges.
2 AHURUONYE v. INTERIOR
PER CURIAM.
Barry Ahuruonye appeals from a final decision of the
Merit Systems Protection Board (“the Board”). After
remand from this court, the Board denied Ahuruonye’s
request for corrective action relating to a proposed five-
day suspension. 1 Although Ahuruonye claims his pro-
posed suspension constituted whistleblower retaliation,
the Board concluded that the U.S. Fish and Wildlife
Service in the Department of the Interior (“the Depart-
ment”) established that it would have proposed Ahu-
ruonye’s five-day suspension despite his whistleblowing
activity. Ahuruonye v. Dep’t of Interior, No. DC-1221-15-
0295-M-1 (M.S.P.B. June 1, 2018) (Decision). Because we
find that the Board did not abuse its discretion in decid-
ing that the Department rebutted Ahuruonye’s claim of
whistleblower retaliation and conclude that the Board’s
findings are supported by substantial evidence, we affirm.
BACKGROUND
As noted above, this is not the first time this particu-
lar whistleblowing charge has been before us. We consid-
ered this claim and an earlier Board order denying it in
the context of Appeal No. 2017-1503. Ahuruonye v. Dep’t
of the Interior, 690 F. App’x 670 (Fed. Cir. 2017). In his
earlier appeal, Ahuruonye appealed from five separate
Board orders. We concluded that, as to four of the five
(none of which are at issue here), the Board’s orders were
neither arbitrary and capricious, obtained in contraven-
tion of procedures required by law, nor unsupported by
substantial evidence. We, thus, affirmed those decisions.
1 Although the suspension never went into effect,
Ahuruonye’s government employment has since been
terminated and the parties agree that both the Board and
this court have jurisdiction to consider the merits of
Ahuruonye’s objection to the proposed suspension.
AHURUONYE v. INTERIOR 3
Because we found the Board’s order on the present claim
inadequate to allow for appropriate appellate review,
however, we remanded for further findings. Id. at 675–
77, 680.
We incorporate by reference our earlier decision, spe-
cifically its discussion of the factual background relating
to this case, the procedural history of the Board’s consid-
eration of it, and the legal standards we and the Board
must apply to whistleblower retaliation claims. As it
relates to this action, our focus in our earlier decision was
on the Board’s conclusion that Ahuruonye’s claim should
be denied because the Department had shown it would
have proposed the suspension regardless of any protected
disclosures. We concluded that the Board’s findings were
lacking. Id. at 676. In determining whether the Depart-
ment satisfied its burden, we explained that the Board
was required to consider all relevant factors, including:
(1) the strength of the Department’s evidence in support
of its action; (2) the existence of any motive to retaliate on
the part of the Department officials involved in the deci-
sion; and (3) any evidence regarding the Department’s
treatment of non-whistleblower, similarly situated em-
ployees. Id. As to the latter two factors, we found that
the Board “said nothing direct, certainly nothing signifi-
cant, to support the finding that the Department would
have proposed the suspension regardless of the disclo-
sures.” Id. And, we specifically noted that the Board
needed to give “some express attention” to whether the
supervisor proposing the suspension was motivated by
retaliatory animus before concluding that the suspension
would have been proposed despite the disclosures. Id. at
677. As to factor one, we found the Board’s analysis
wanting because it simply reiterated the supervisor’s
statements “without actually making factual determina-
tions as to what happened.” Id. We, therefore, remanded
for further proceedings. Id. at 680.
4 AHURUONYE v. INTERIOR
On remand, the Board allowed the parties to submit
additional evidence and argument on the issue of whether
the Department would have proposed Ahuruonye’s sus-
pension despite his disclosures. Appendix at 6. 2 Ahu-
ruonye contested this ruling, contending that our prior
findings were now “the law of the case” and, therefore, the
Board could not revisit them. Appendix at 6. On Decem-
ber 22, 2017, the Board denied Ahuruonye’s motion,
finding that additional evidence was proper on issues not
settled by our court—namely, those questions as to which
we found the Board’s explanations inadequate. Appendix
at 6. On January 10, 2018, Ahuruonye sought reconsid-
eration of his opposition to supplemental evidence, which
the Board again rejected, “find[ing] no reasons to reverse
[the] previous decision.” Appendix at 6.
The Board again denied Ahuruonye’s request for cor-
rective action. Because Ahuruonye already had estab-
lished that he made protected disclosures under 5 U.S.C.
§ 2302(b)(8) and that the officials who proposed his sus-
pension were aware of those disclosures, the Board fo-
cused on whether the agency could establish by clear and
convincing evidence that it would have proposed the
suspension despite those disclosures. After reviewing the
evidence of record, including emails and declarations from
the Department, the Board concluded that the Depart-
ment satisfied this burden. Appendix at 7–15. The Board
specifically addressed, at our direction, whether the
proposed suspension was based on the proposing official’s
motivation to retaliate against Ahuruonye. Given Ahu-
ruonye’s poor work performance, disregard for instruc-
2 Ahuruonye provided an Appendix with his Infor-
mal Brief. Portions of the Informal Brief are cited as
“Petitioner’s Informal Brief,” whereas portions of the
Appendix are cited as “Appendix,” utilizing the CM/ECF
System assigned page numbers.
AHURUONYE v. INTERIOR 5
tions, and prior warnings and reprimands for similar
infractions, the Board concluded that the proposed sus-
pension was not based on any such improper motivation.
Appendix at 16–18. Finally, the Board reviewed evidence
of other similarly situated, non-whistleblower employees
and determined that the proposed five-day suspension
was consistent with the Department’s actions in those
instances. Appendix at 18–19.
Ahuruonye timely appealed the Board’s decision. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
On appeal, Ahuruonye argues that the Board:
(1) failed to “apply the appropriate law and standard of
pro[of] and disregarded the mandate that found that
Bartnicki has motive to retaliate;” (2) ignored a prior
decision of the Board that the emails that constituted the
basis of Charge Two were protected disclosures, which he
argues collaterally estopped the Board from considering
those disclosures further; (3) “failed to consider evidence
that the proposing supervisor, Penny Bartnicki, proceeded
to approve the illegal grant action that was the basis of
Charge #2;” and (4) failed to rule on his motion to strike
supplemental evidence. Petitioner’s Informal Brief at 1;
Reply Brief at 1.
A. Standard of Review
Our jurisdiction to review Board decisions is limited.
By statute, we must affirm the Board’s decision unless it
is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review the Board’s legal
determinations de novo and its findings of fact for sub-
stantial evidence. McCollum v. Nat’l Credit Union Ad-
min., 417 F.3d 1332, 1337 (Fed. Cir. 2005). Substantial
6 AHURUONYE v. INTERIOR
evidence is evidence that a reasonable mind might accept
as adequate to support a conclusion. Simpson v. Office of
Pers. Mgmt., 347 F.3d 1361, 1364 (Fed. Cir. 2003).
Regarding “[p]rocedural matters relative to discovery
and evidentiary issues,” we defer to “the sound discretion
of the board and its officials,” and we “will not overturn
the board on such matters unless an abuse of discretion is
clear and is harmful.” Curtin v. Office of Pers. Mgmt., 846
F.2d 1373, 1378 (Fed. Cir. 1988). That is, the appellant
“must prove that the error caused substantial harm or
prejudice to his rights which could have affected the
outcome of the case.” Id. at 1379. The Board’s credibility
determinations, moreover, “are ‘virtually unreviewable on
appeal.’” Briley v. Nat’l Archives & Records Admin., 236
F.3d 1373, 1377 (Fed. Cir. 2001) (quoting Rogers v. Dep’t
of Defense Dependents Sch., 814 F.2d 1549, 1554 (Fed.
Cir. 1987)).
B. The Board Applied the Proper Law
As explained in our earlier decision, a whistleblower
claimant, like Ahuruonye, must establish by a preponder-
ance of the evidence that a given disclosure is a protected
disclosure within 5 U.S.C. § 2302(b) and that the protect-
ed disclosure was a contributing factor in the agency’s
decision to take the challenged action. 5
U.S.C. § 7701(c)(1)(B); Whitmore v. Dep’t of Labor, 680
F.3d 1353, 1367 (Fed. Cir. 2012). Once the claimant
satisfies this showing, the Department may only defeat
the whistleblowing charge if it “demonstrates by clear and
convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.” 5
U.S.C. § 1221(e)(2); Whitmore, 680 F.3d at 1367. In
determining whether the Department would have taken
the same action without the whistleblowing disclosures,
the Board must consider all of the evidence, including:
“(1) the strength of the agency’s reason for the personnel
action excluding the whistleblowing, (2) the strength of
AHURUONYE v. INTERIOR 7
any motive to retaliate for the whistleblowing, and (3) any
evidence of similar action against similarly situated
employees for the non-whistleblowing aspect alone.” Kalil
v. Dep’t of Agric., 479 F.3d 821, 824 (Fed. Cir. 2007).
This is the law that the Board applied here. Specifi-
cally, the Board explained that “[t]he appellant estab-
lished that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8), and that the agency officials who proposed
his suspension were aware of the disclosure.” Appendix
at 6. Finding Ahuruonye’s burden satisfied, the Board
focused on the Department’s burden to show that it would
have suspended Ahuruonye anyway. On appeal, Ahu-
ruonye identifies no error in the law that the Board
applied, instead only citing the relevant statutes—
statutes that the Board did in fact apply. See Petitioner’s
Informal Brief at 1 (stating that the proper law to be
applied includes 5 U.S.C. §§ 2302(b), 1221(e)(2), 7701).
Accordingly, we reject Ahuruonye’s request that we
reverse the Board’s decision on those grounds.
C. The Board Was Not Estopped
By its Prior Decision
In Charge Two, the Department alleged that Ahu-
ruonye deliberately made known false and unfounded
statements about his supervisor and other government
officials. To succeed on this ground, the Department
needed to prove by a preponderance of the evidence that
Ahuruonye made statements that, at the time they were
made, were unsupportable or Ahuruonye knew to be
incorrect or inaccurate. See Zayer v. Dep’t of Veterans
Affairs, 90 M.S.P.R. 51 (2001).
The allegedly false statement Ahuruonye was charged
with making in Charge Two is from an email discussing a
grant approval in which he stated that, “this project is
ineligible for funding if Penny [Bartnicki] wants to fund it
that’s on her as far as I know funding this project is
unlawful and illegal.” According to Bartnicki, this state-
8 AHURUONYE v. INTERIOR
ment deliberately (and falsely) implied that she would
approve an illegal action.
On appeal, Ahuruonye contends that the Board ig-
nored a prior ruling in its jurisdictional decision from a
separate, but related, action where it found that the
emails that are the subject of Charge Two were protected
disclosures. Petitioner’s Informal Brief at 1; Reply Brief
at 1–8. Specifically, Ahuruonye explains that the Board
previously determined that he “produced sufficient evi-
dence to show that he reasonably believed that Ms. Bart-
nicki and other agency officials violated the agency’s laws
and regulations during the grant Approval process.”
Reply Brief at 8 (citing Ahuruonye v. Dep’t of Interior, No.
DC-1221-15-1112-W-1 (M.S.P.B. Sep. 3, 2015) (Decision)).
Because he says the Board already concluded that Ahu-
ruonye believed his statements where true, Ahuruonye
argues that the Board erred in failing to apply that find-
ing in its decision on remand.
Ahuruonye mischaracterizes the impact of the Board’s
prior findings, however. Those findings occurred in the
context of a jurisdictional ruling, where the question
presented was simply whether Ahuruonye had made a
non-frivolous allegation that he had made a protected
disclosure—i.e., one reflecting a reasonable belief that
Bartnicki and other officials were taking illegal action. In
its merits decision, the Board was charged with determin-
ing whether, and which of, Ahuruonye’s disclosures were
actually protected, i.e., as to which disclosures reasonably
believed were true and reflected illegality.
In evaluating the evidence on remand, the Board con-
cluded that the Department established through clear and
convincing evidence that it would have charged Ahu-
ruonye with making certain deliberately false statements
which differed from his admitted protected disclosures.
Specifically, the Board reviewed emails, declarations, and
“other evidence in the record” and found that Bartnicki
AHURUONYE v. INTERIOR 9
and Smith’s contentions that certain of Ahuruonye’s
statements were false were credible. The Board found
that those separate falsehoods provided a reasonable
basis for his proposed suspension. Appendix at 15.
Specifically, in addressing the first specification of Charge
One, 3 the Board found that the Department had “demon-
strated by clear and convincing evidence that the appel-
lant’s allegations regarding the [grant at issue] were
unfounded” and that Ahuruonye’s contention to the
contrary was not convincing. Appendix at 10. The Board
made this finding after considering the Office of Inspector
General audit report and sworn declarations from Bart-
nicki and Thomas Busiahn, the former Chief of the Divi-
sion of Policy and Programs, Wildlife and Sport Fish
Restoration Program. Appendix at 10.
The Board’s credibility findings are “virtually unre-
viewable on appeal.” Rogers, 814 F.2d at 1554. The
Board weighed the evidence of record, following our prior
direction to “make findings about the knowing falsity of
the allegations” and explain why Charge Two “was a basis
for defeating the whistleblower claim, rather than rein-
forcing it.” Ahuruonye, 690 F. App’x at 677. While we
may dispute the Board’s interpretation of the evidence,
we cannot deem its findings, which rest on credibility
determinations, arbitrary and capricious. See Bieber v.
Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (“[The
appellant] basically requests us to re-weigh conflicting
evidence; this is not our function.”). 4
3 In the first specification of Charge One, Bartnicki
alleged that Ahuruonye failed to follow her instructions to
work with Smith on reviewing a grant amendment for
increased funding. That specification and Charge Two
are based on the same set of emails and statements.
4 Ahuruonye also argues that the Board failed to
consider evidence that Bartnicki approved the allegedly
10 AHURUONYE v. INTERIOR
D. Failure to Rule on the Motion to Strike
Did Not Cause Substantial Harm
Ahuruonye next contends that the Board failed to ad-
dress his March 2, 2018 motion to strike the Department’s
untimely pleadings that were submitted after the Board’s
February 23, 2018 deadline for supplemental evidence.
Reply Brief at 14. According to Ahuruonye, both parties
were required to comply with the Board’s deadline, and
the Department’s failure to timely submit its additional
pleadings—submitted one day later—“foreclosed and
fatally prejudiced” Ahuruonye’s ability to respond to the
Department’s evidence. Reply Brief at 14.
Based on the record, both parties were required to
submit their additional evidence and argument following
remand on or before February 23, 2018, with rebuttal
arguments due one week later, on March 2, 2018. Appen-
dix at 27. Accepting as true Ahuruonye’s allegations, the
Department failed to timely submit its evidence and filed
its pleadings one day late, on February 24. While the
Board does not seem to address Ahuruonye’s motion to
strike the Department’s untimely evidence in its decision
below, 5 we find that any failure by the Board in this
illegal grant. Petitioner’s Informal Brief at 1. Whether
Bartnicki ultimately approved the grant, however, does
not prove that the grant was illegal or that Bartnicki
would approve illegal action. As the Department ex-
plains, “there is no reason why one would expect Ms.
Bartnicki not to move forward with a grant action that
she had repeatedly advised Mr. Ahuruonye was both
proper and entirely legal.” Respondent’s Informal Brief at
12–13.
5 It is unclear why the Board did not address Ahu-
ruonye’s motion. The motion was filed on March 2, 2018,
and the Department responded on that same day. DC-
1221-15-0295-M-1, Tabs 33, 35. Nonetheless, the Board
AHURUONYE v. INTERIOR 11
regard did not cause substantial harm to Ahuruonye.
Ahuruonye’s response to the Department’s arguments
was not due until March 2, six days after the Depart-
ment’s late submission. Ahuruonye does not provide any
facts or circumstances to support his claim that he was
“fatally prejudiced” by the Department’s one-day late
filing. As we defer to the Board’s discretion on procedural
matters relative to discovery and evidentiary issues, we
see no reason to overturn the Board’s allowance of addi-
tional evidence. See Curtin, 846 F.2d at 1378.
E. The Board Properly Addressed Motive to Retaliate
Finally, Ahuruonye contends that the Board disre-
garded our “mandate that found that Bartnicki has mo-
tive to retaliate.” Petitioner’s Informal Brief at 1. In our
prior decision, however, we did not find that Bartnicki
had a motive to retaliate or had acted because of such a
motive; we simply explained that, under the circumstanc-
es, consideration of such a motive “warranted discussion”
by the Board. Ahuruonye, 690 F. App’x at 676–77.
On remand, the Board did exactly what we said, de-
voting a section of its decision to consideration of any
retaliatory motives of Bartnicki and other Department
officials. Appendix at 16–18. While acknowledging the
potential for a retaliatory motive on the part of Bartnicki,
the Board found the proposed suspension was “reasona-
ble, and not motivated by retaliatory animus” given
Ahuruonye’s prior warnings and reprimands and poor
work performance, as well as Bartnicki’s prior attempts to
help Ahuruonye complete his work. Appendix at 16–18.
In other words, while the Board acknowledged that Bart-
nicki would have a motive to retaliate, it concluded that
her recommendation was based on objective misdeeds or
made no additional rulings prior to its June 1, 2018
decision—the subject of this appeal.
12 AHURUONYE v. INTERIOR
performance failures by Ahuruonye; and not on any
retaliatory motive. While Bartnicki may naturally have
had some desire to respond to personal attacks on her, the
question at issue on remand was whether any such desire
actually motivated the proposed suspension. After due
consideration of that question, the Board concluded it did
not. We see no reason to disturb that finding.
CONCLUSION
For the foregoing reasons, we affirm the Board’s deci-
sion.
AFFIRMED
COSTS
No costs.