Diаne KING, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
No. 2007-3034.
United States Court of Appeals, Federal Circuit.
March 12, 2007.
Rehearing En Banc Denied April 17, 2007.
221 Fed. Appx. 875
Diane King, of Prattville, Alabama, pro se. David F. D‘Alessandris, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Patricia M. McCarthy, Assistant Director. Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and ROBINSON, Chief Judge.*
Diane King (“Ms. King“) seeks review of the decision of the Merit Systems Protection Board (“Board“) denying Ms. King‘s Individual Right of Action (“IRA“) appeal regarding the Department of Veterans Af-
BACKGROUND
Ms. King has been a GS-9 Medical Technologist with the VA Health Care System in Montgomery, Alabama since 1998. During her time аt the VA, she engaged in several whistleblowing disclosures. Ms. King alleges that several personnel actions were taken by the VA in reprisal for these disclosures.
After exhausting her remedies with the Office of Special Counsel regarding these actions, Ms. King filed an Individual Right of Action appeal to the Board under
In an initial decision on March, 30, 2006, AJ Clancy found that the VA had shown by clear and convincing evidence that it would have taken the same personnel actions even in the absеnce of Ms. King‘s whistleblowing. The AJ therefore denied Ms. King‘s request for corrective action. On October 4, 2006, the Board denied Ms. King‘s petition for review, making the AJ‘s dеcision final.
We have jurisdiction under
DISCUSSION
This court 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 without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.”
Ms. King argues that the AJ imprоperly limited the scope of the appeal. She argues that the AJ should have allowed her to argue that the VA wrongfully refused to credit her with past experience, reducing her pay; that the VA refused her training opportunities; and that she suffered verbal abuse from members of the VA‘s management. However, in an order on November 1, 2005, the same AJ found that “[t]he remaining matters raised by appellant did not constitute cognizable personnel actions pursuant to
Ms. King also argues that the AJ improperly refused Ms. King‘s discovery requests. This court reviews the Board‘s rulings regarding discovery and other evidentiary matters for an abuse of discretion. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378-79 (Fed.Cir.1988). However, after limiting the case to the two personnel actions at issue here, the AJ gave the parties a new opportunity to submit discovery requests. The AJ received no submissions from the parties in response to this opportunity and determined, in an order on January 5, 2006, that the VA had “responded specifically and sufficiently with respect to [Ms. King‘s] requests for documents.” There is no evidence in the record that the AJ abusеd his discretion in doing so.
Ms. King makes several arguments that the AJ made erroneous findings of fact.
Ms. King further argues that the AJ refused to consider circumstantial evidence and that he made erroneous credibility findings. As to the AJ‘s consideration of evidence, Ms. King points to several places in thе hearing transcript where the AJ tried to get her to focus on what he considered the relevant parts of the case. It is not an abuse of discrеtion for the AJ to focus a litigant away from irrelevant matters. As to the AJ‘s findings that several witnesses for the VA “testified in an extremely straightforward and forthright manner, and [that he] found their testimony both credible and compelling,” such credibility determinations “are virtually unreviewable.” Hambsch v. Dep‘t of the Treasury, 796 F.2d 430, 436 (Fed.Cir. 1986). Ms. King‘s simple assertion that this “testimony was particularly lacking in credibility” is insufficient for this court to overrule the AJ‘s determination.
Another argument presented by Ms. King is that the AJ did not properly apply the сlear and convincing evidence standard, by which the VA had to prove that it would have taken the same personnel actions had Ms. King not been a whistleblower.
As to the denial of the bonus, only two of ten employees who worked under Ms. King‘s supervisor were granted bonuses. The supervisor‘s testimony, which the AJ found highly credible, was that the two employees given bonuses were “outstanding” and “gave ‘110% every day.‘” The AJ found that Ms. King‘s own opinion that she “was ‘at least as good as’ the [other] two” was insufficient to overcome what he saw as strong evidence that the supervisor would have made the same choice in the absence of Ms. King‘s activity.
As to the denial of the promotion, Human Resources presented six employees to the selecting official as qualified. Of the six, five were GS-9 Medical Technologists (including Ms. King) and the sixth was a GS-10 Lead Medical Technologist who was eventually selected for the promоtion. The GS-10 was the independent first choice of each of the three members of the panel who interviewed the candidates. Each of thе panel members testified, with high credibility according to the AJ, that the GS-10 was the person most qualified who had the most relevant experience.
Ms. King‘s final аrgument is that the “AJ was clearly biased and this bias permeated this entire process.” In support of this argument, Ms. King invites this court to examine the hearing transсript. However, in order to find an AJ biased, a
CONCLUSION
Because this court finds that the AJ‘s holdings are supported by substantial evidence, thаt the AJ did not abuse his discretion in making discovery and evidentiary rulings, and that the AJ has not been shown to be biased, the decision of the Board is affirmed.
No costs.