Salerno v. Interior, 17-1145

Rick D. Salerno, a BLM Telecommunications Specialist, received a written reprimand (Jan 10, 2013) requiring use of a government purchase card and prior authorization for official purchases.
Salerno submitted a protected disclosure to the Office of Special Counsel (OSC) in Feb 2013 alleging BLM security compliance problems.
After a prior 2-day suspension for similar violations (Dec 11, 2013), Salerno purchased an antenna on Jan 9, 2014 with his personal card, later obtained a fund code the same day, and promptly had the vendor transfer the charge to the government card.
The BLM proposed and imposed a 30-day suspension (proposed Jan 27, 2014; served May 5, 2014) for repeated failure to follow purchase-card rules; Salerno later resigned (Aug 20, 2014).
Salerno appealed to the MSPB under the Whistleblower Protection Act (IRA appeal), alleging the suspension was retaliation for his OSC disclosure; the MSPB found a non-frivolous contributing-factor showing and held a hearing on whether the agency would have taken the same action absent the disclosure.
The administrative judge excluded evidence about the content of Salerno’s OSC disclosure and denied discovery on broader security concerns; the AJ and the Board concluded the agency proved by clear and convincing evidence it would have suspended Salerno absent the protected disclosure.

Issue	Salerno's Argument	Interior's Argument	Held
Whether the 30-day suspension was retaliatory under the WPA	Suspension was retaliation for his OSC disclosure and hostile work environment	Suspension was legitimate discipline for repeated violations of purchase-card rules	Held: Not retaliatory; agency proved by clear and convincing evidence it would have imposed suspension absent disclosure
Whether evidence about the content of the OSC disclosure and broader security issues should be admitted	Such evidence was necessary to show a retaliatory motive and hostile work environment	Evidence irrelevant to whether agency would have acted absent disclosure; AJ properly limited scope	Held: AJ did not err in limiting evidence to matters bearing on the personnel action
Whether the agency’s penalty was supported by substantial evidence	N/A (Salerno did not dispute card-use facts)	Penalty supported by uncontradicted violations, supervisory testimony, and table-of-penalties guidance	Held: Substantial evidence supports 30-day suspension
Standard of proof for causation in WPA IRA appeals (contributing factor and same-action defense)	N/A	Agency must show by clear and convincing evidence it would have taken same action absent protected disclosure	Held: Carr factors applied; agency met its burden

Carr v. Soc. Sec. Admin., 185 F.3d 1318 (Fed. Cir. 1999) (sets framework for determining whether an agency would have taken the same personnel action absent protected disclosure)
Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016) (applies Carr factors in WPA retaliation context)
Fellhoelter v. Dep’t of Agric., 568 F.3d 965 (Fed. Cir. 2009) (same)
Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (standard of review for MSPB decisions)
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197 (1938) (defines substantial evidence standard)