Case: 20-1898 Document: 20 Page: 1 Filed: 12/07/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL FLYNN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-1898
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-19-0192-W-1.
______________________
Decided: December 7, 2020
______________________
MICHAEL FLYNN, Alameda, CA, pro se.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JEFFREY
B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E.
WHITE, JR.
______________________
Before PROST, Chief Judge, MAYER and MOORE, Circuit
Judges.
Case: 20-1898 Document: 20 Page: 2 Filed: 12/07/2020
2 FLYNN v. DVA
PER CURIAM.
Michael Flynn petitions for review of a Merit Systems
Protection Board (MSPB) final decision denying his indi-
vidual-right-of-action (IRA) appeal. Flynn v. Dep’t of Vet-
erans Affs., No. SF-1221-19-0192-W-1, 2020 WL 1130116
(M.S.P.B. Mar. 6, 2020). We have jurisdiction under 28
U.S.C. § 1295(a)(9). For the following reasons, we affirm.
BACKGROUND
Mr. Flynn was a registered nurse at the VA Wenatchee
Community Based Outpatient Clinic in Spokane, Washing-
ton. On July 14, 2016, Mr. Flynn submitted a report claim-
ing that an HR specialist had violated privacy rules while
giving a presentation. He claimed the HR specialist had
disclosed confidential information about prior disciplinary
cases, including discussing one of Mr. Flynn’s cases in de-
tail. On September 15, 2016, Mr. Flynn was removed for
“inappropriate conduct” relating to a confrontation with his
supervisor, Karla Spangler. Believing his termination had
been retaliatory, Mr. Flynn appealed to the MSPB.
In an initial decision, an administrative judge denied
Mr. Flynn’s claims. The AJ concluded that Mr. Flynn had
established a prima facie case of retaliation, but the De-
partment of Veterans Affairs proved by clear and convinc-
ing evidence that Mr. Flynn would have been terminated
in the absence of his protected activity. Specifically, in
light of his prior misconduct, Mr. Flynn would have been
terminated for his angry, inappropriate response to a per-
formance evaluation in the absence of his protected con-
duct. The AJ determined, therefore, that Mr. Flynn was
not entitled to relief. After the AJ’s decision became final,
Mr. Flynn petitioned for judicial review.
DISCUSSION
We “hold unlawful and set aside” an MSPB decision
that is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
Case: 20-1898 Document: 20 Page: 3 Filed: 12/07/2020
FLYNN v. DVA 3
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
Mr. Flynn claims the AJ (1) failed to follow the proce-
dures set forth in 5 U.S.C. § 7513, (2) abused his discretion
when enforcing MSPB rules, and (3) lacked substantial ev-
idence for his finding that the VA would have removed Mr.
Flynn even absent his protected disclosure. We do not
agree.
First, Mr. Flynn was not entitled to the procedure he
seeks, notice and an appeal under 5 U.S.C. § 7513.
Mr. Flynn claims he was entitled to such procedure as a
“preference eligible” employee under 5 U.S.C.
§ 7511(a)(1)(B). But 5 U.S.C. § 7511(b)(10) expressly ex-
empts “registered nurses” from the procedures afforded un-
der § 7513. And it is undisputed that Mr. Flynn was a
registered nurse. Thus, he is not entitled to § 7513’s pro-
cedures. See, e.g., Bonner v. Dep’t Veterans Affs. Pittsburgh
Healthcare Sys., 477 F.3d 1343, 1346–47 (Fed. Cir. 2007).
Second, the AJ did not abuse his discretion by admit-
ting the VA’s belated closing statement. See 5 C.F.R.
§ 1201.12 (providing MSPB discretion to waive rules). Mr.
Flynn has not shown how the AJ’s admission of the closing
statement was harmful or more than a waiver of a minor
procedural violation. See Cobo v. FERC, 29 M.S.P.R. 635,
637 (1986) (“[T]he Board . . . may waive strict enforcement
of a procedural regulation when the violation is minor and
the other party has not shown harm by the failure to follow
the regulation in question.”).
Third, substantial evidence supports the MSPB’s find-
ing that Mr. Flynn would have been removed in the ab-
sence of his protected activity. Mr. Flynn’s reaction to his
performance evaluation, for which he was dismissed, in-
volved inappropriate and angry conduct. And as the AJ
found, Mr. Flynn was previously suspended for yelling and
cursing at a patient. Mr. Flynn does not dispute these facts
Case: 20-1898 Document: 20 Page: 4 Filed: 12/07/2020
4 FLYNN v. DVA
or contend that they do not support his removal. Instead,
he impugns the AJ’s weighing of evidence, characterizing
testimony as “uncorroborated” and highlighting various
pieces of evidence he contends contradict the AJ’s finding.
Pet’r’s Informal Br. at 7–12. But “the evaluation of and
weight to be given to the evidence in the record are judg-
ment calls that rest primarily within the discretion of the
Board.” Koenig v. Dep’t of the Navy, 315 F.3d 1378, 1381
(Fed. Cir. 2003) (cleaned up). We see no reversible error in
the AJ’s evaluation of the evidence.
CONCLUSION
We have considered Mr. Flynn’s additional arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.