NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MICHAEL JOSEPH,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2012-3156
__________________________
Petition for review of the Merit Systems Protection
Board in No. AT1221110202-W-2.
__________________________
Decided: November 9, 2012
__________________________
MICHAEL JOSEPH, of Miami, Florida, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
__________________________
MICHAEL JOSEPH v. DHS 2
Before O’MALLEY, PLAGER, and REYNA Circuit Judges.
PER CURIAM.
Michael Joseph petitions for review of a final decision
of the Merit Systems Protection Board (“the Board”)
denying his request for corrective action under the Whis-
tleblower Protection Act (“the Act”).1 Because the Board’s
decision is in accordance with the law, was obtained
through proper procedures, and is supported by substan-
tial evidence, we affirm.
BACKGROUND
Mr. Joseph was employed by the Department of
Homeland Security (“the agency”) under the Student
Career Experience Program (“SCEP”) from November
2002 through August 2010. On March 10, 2010, Mr.
Joseph attended a meeting organized by Congressman
Kendrick Meeks, during which agency employees were
encouraged to voice concerns about managerial miscon-
duct within the agency. During that meeting, Mr. Joseph
stated his belief that senior management officials had
violated Federal regulations by scheduling SCEP employ-
ees for work during hours that they were scheduled for
class. On July 9, 2010, the agency informed Mr. Joseph
that there would not be any competitive service positions
available within the district when he finished his school-
ing and, therefore, he would not be converted to a term,
career, or career-conditional appointment per 5 C.F.R.
§ 213.3202 and the agency’s SCEP policy.
Mr. Joseph appealed the agency’s decision to the
Board alleging that the agency failed to convert his SCEP
1 Joseph v. Dep’t of Homeland Sec., No. AT-1221-11-
0202-W-2 (April 27, 2012) (“Final Decision”).
3 MICHAEL JOSEPH v. DHS
position to a career position in retaliation for his protected
whistleblowing during the meeting with Congressman
Meeks. In an initial decision, the administrative judge
determined that Mr. Joseph had suffered an adverse
personnel action, but had not established that he had
made a protected disclosure.2 The administrative judge
further determined that even if Mr. Joseph had made a
protected disclosure, he did not show that the disclosure
was a contributing factor in the agency’s decision not to
convert his SCEP appointment into a permanent ap-
pointment. Id. at 7-10.
On petition for review, the Board vacated the pro-
tected disclosure portion of the initial decision, finding
that Mr. Joseph had made a protected disclosure. Final
Decision at 3-4. However, the Board affirmed the no
contributing factor portion of the initial decision, finding
that Mr. Joseph had failed to prove that the officials who
were involved in the decision not to convert his SCEP
appointment to a permanent position knew of his pro-
tected disclosure. Id. at 5-6. Accordingly, the administra-
tive judge’s initial decision denying corrective action
under the Act became the final decision of the Board. Id.
at 6. This appeal followed.
DISCUSSION
Our scope of review in an appeal from a decision of
the Board is limited. 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
2 Joseph v. Dep’t of Homeland Sec., AT-1221-11-
202-W-2, slip op. at 3-7 (November 14, 2011) (“Initial
Decision”).
MICHAEL JOSEPH v. DHS 4
regulation having been followed; or unsupported by
substantial evidence. See 5 U.S.C. § 7703(c).
Mr. Joseph contends that his due process rights were
violated because the administrative judge in the initial
decision failed to discuss the criteria set forth in Hillen v.
Dep’t of the Army, 35 M.S.P.R. 453 (1987) for assessing
witness credibility. According to Mr. Joseph, this omis-
sion denied him a reasonable opportunity to refute the
Board’s reasoning on appeal.
We disagree. Although we have recognized the
Board’s use of Hillen’s instructions for resolving credibil-
ity determinations (see, e.g., Long v. United States Postal
Service, 968 F.2d 1226, *3 (Fed. Cir. 1992)), we have not
required a formalistic discussion of the Hillen factors in
every Board decision. Rather, we view Hillen as having
articulated general procedural guidelines that the Board
has established for its adjudicative process, and we review
the Board’s fulfillment of those procedures in that light.
See Haebe v. Dep’t of Justice, 288 F.3d 1288, 1302 n.32
(Fed. Cir. 2002).
In Mr. Joseph’s case, the Board had before it affida-
vits from the Field Office Director and District Director
stating that neither knew of Mr. Joseph’s protected dis-
closure until after they had made the decision not to
convert his SCEP position into a career position. The
Board also had before it an affidavit from the District
Director’s former assistant stating that she “know[s] Ms.
Swacina [the District Director] was aware of Mr. Joseph’s
disclosures,” though with no explanation of how she
knows. The Board resolved the apparent conflict between
the District Director’s affidavit and her former assistant’s
affidavit by noting that the assistant “doesn’t explain how
it is that she knows” that the Director was aware of Mr.
5 MICHAEL JOSEPH v. DHS
Joseph’s disclosure, and that she “may have just pre-
sumed that . . . the District Director[] must have known.”
Initial Decision at 9. Finding that the District Director
“is in the best position to know what she knew,” the Board
credited her affidavit over that of her former assistant.
Id.
Although the Board did not provide a comprehensive
discussion of the Hillen factors, the Board’s articulation of
specific reasons for its credibility determination provided
a reasonable opportunity for Mr. Joseph to refute the
Board’s decision on appeal. Accordingly, there has been
no infringement of Mr. Joseph’s right to due process.
Mr. Joseph also challenges the Board’s decision to
credit the District Director’s testimony over that of her
former assistant. According to Mr. Joseph, the Board’s
decision is “illogical” because the assistant was in a
position to be aware of Ms. Swacina’s activities and
knowledge, and improperly raises the burden of proof to
that of “smoking gun direct evidence.”
Mr. Joseph requests that we reevaluate the conflict-
ing evidence in this case and come to a different conclu-
sion than the Board. But that is not our function. As an
appellate court, we are not in a position to reevaluate
credibility determinations that are not inherently im-
probable or discredited by undisputed facts. Pope v.
United States Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir.
1997). Accordingly, we have held that “an evaluation of
witness credibility is within the discretion of the Board
and that, in general, such evaluations are virtually unre-
viewable on appeal.” King v. Dep't of Health & Human
Servs., 133 F.3d 1450, 1453 (Fed.Cir.1998) (internal
citation omitted).
MICHAEL JOSEPH v. DHS 6
It is true that credibility determinations typically re-
flect the trial officer’s assessment of the truth of a wit-
ness’s testimony based on observation at a hearing or
trial. In this case, since no hearing was held, the Admin-
istrative Judge (and the Board) based what it called
credibility on the substance of the affidavits. Mr. Joseph
argues that such affidavits cannot properly be given the
respect usually accorded in personam credibility determi-
nations.
As we read the record, however, the Board’s crediting
the affidavit evidence of the District Director over the
affidavit evidence of her former assistant was based on
the content of the affidavits. The Board found the state-
ment of the assistant as to what the District Director
actually knew at the relevant time less convincing than
the personal statement of the director as to what she
herself then knew. This was in large part because the
assistant’s affidavit gave no explanation to support her
allegations.
Thus, we decline to reverse the Board’s credibility de-
termination in this case based on Mr. Joseph’s conjecture
that the District Director’s former assistant must have
been aware of Ms. Swacina’s knowledge by virtue of her
position. Although the Act does not require “smoking gun
direct evidence” that the official who took the disputed
personnel action knew about the alleged protected activ-
ity, the Act does require a petitioner to provide some
factual basis for his allegation beyond mere speculation.
Based on the record in this case, the Board’s decision to
credit the District Director’s testimony over that of her
former assistant is neither inherently improbable nor
discredited by undisputed facts.
7 MICHAEL JOSEPH v. DHS
CONCLUSION
For the foregoing reasons, we affirm the Board’s deci-
sion to deny Mr. Joseph’s request for corrective action
under the Whistleblower Protection Act.
AFFIRMED