Ahuruonye v. Department of the Interior , 690 F. App'x 670 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARRY AHURUONYE,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2017-1503
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. DC-1221-15-0295-W-1, DC-1221-16-0398-
W-1, DC-1221-16-0474-W-1, DC-1221-16-0501-W-1, DC-
1221-16-0838-W-1.
______________________
Decided: June 8, 2017
______________________
BARRY AHURUONYE, Hyattsville, MD, pro se.
RUSSELL JAMES UPTON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER.
______________________
2 AHURUONYE v. INTERIOR
Before PROST, Chief Judge, TARANTO and HUGHES, Circuit
Judges.
PER CURIAM.
From December 2011 through April 2015, Barry Ahu-
ruonye worked as a Grants Management Specialist at the
U.S. Fish and Wildlife Service in the Department of the
Interior (Department). Between December 2014 and
August 2016, Mr. Ahuruonye filed at least five separate
appeals with the Merit Systems Protection Board, alleg-
ing that various actions by the Department constituted
whistleblower retaliation. In a consolidated decision, the
Board’s administrative judge denied Mr. Ahuruonye’s
appeal seeking corrective action for a Department-
proposed five-day suspension and dismissed four of his
other appeals for lack of jurisdiction. Initial Decision,
Ahuruonye v. Dep’t of Interior, Nos. DC-1221-16-0501-W-
1, DC-1221-15-0295-W-1, DC-1221-16-0398-W-1, DC-
1221-16-0474-W-1, DC-1221-16-0838-W-1 (M.S.P.B. Nov.
17, 2016) (Decision). For the reasons discussed below, we
affirm in part, vacate in part, and remand in part.
I
A
In November 2012, less than a year after starting in
his Grants Management Specialist position, Mr. Ahu-
ruonye filed one of many complaints with the Depart-
ment’s Office of the Inspector General. The complaint
alleged that his first-line supervisor, Penny Bartnicki,
had made illegal grant awards. Ms. Bartnicki became
aware of the allegation in January 2013.
On June 24, 2013, Mr. Ahuruonye received a bill for
$343.64 from David Yeo in the Department’s Debt Man-
agement Branch. The bill sought repayment of health
benefits that the Department had erroneously paid to Mr.
Ahuruonye, or on his behalf, from April 7, 2013, to June 1,
AHURUONYE v. INTERIOR 3
2013. Mr. Ahuruonye’s wages were subsequently gar-
nished to recoup the overpayment.
On April 29, 2014, Mr. Ahuruonye made a new accu-
sation of wrongdoing by Ms. Bartnicki—illegal approval of
funds related to a Mississippi River Delta Management
Strategic Planning Grant. He made that allegation to his
second-line supervisor, Tom Busiahn. According to the
papers before us, Ms. Bartnicki learned of the charge on
April 30, 2014.
On July 11, 2014, Mr. Ahuruonye copied Ms. Bart-
nicki on an email he sent to Kristin Smith, his coworker.
In the email, he said that there was no point in working
with the Mississippi Department of Marine Resources to
evaluate its request for increased funding because the
grant had been illegally awarded in the first place. Three
days later, Ms. Bartnicki replied, disputing Mr. Ahu-
ruonye’s factual assertions and instructing him to work
with Ms. Smith on the grant. On August 11, 2014, Mr.
Ahuruonye sent an email to Ms. Smith, copying Ms.
Bartnicki and, it appears, Mr. Busiahn and the Office of
the Inspector General. The email states: “Per DOI/OIG
determination 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.”
On September 17, 2014, Mr. Ahuruonye made addi-
tional allegations against Ms. Bartnicki to Mr. Busiahn.
He asserted that Ms. Bartnicki had violated the law with
respect to another grant and expressed his concern that
Ms. Bartnicki was asking him to sign off on Endangered
Species Act certification forms without making site visits
to ensure that the projects were in compliance. Two days
later, Ms. Bartnicki changed the standard operating
procedures so that Grants Management Specialists (like
Mr. Ahuruonye) no longer had to sign off on those certifi-
cations.
4 AHURUONYE v. INTERIOR
On September 25, 2014, Ms. Bartnicki proposed to
suspend Mr. Ahuruonye for five days, specifying four
instances of “[f]ailure to follow supervisory instructions”
and one instance of “[d]eliberately making known false
unfounded statements about your supervisor and other
Government officials.” Resp’t’s App. 35–40. Mr. Ahu-
ruonye challenged the proposed suspension, hiring coun-
sel to represent him before the agency’s deciding official,
Charles David Goad. Five days before Mr. Ahuruonye
was set to meet with Mr. Goad to respond to the charges,
Mr. Goad unexpectedly died. It appears that another
deciding official was assigned, but a decision was never
reached and the suspension never took effect. See Pet’r’s
Br. 12.
On March 3, 2015, Mr. Ahuruonye received a bill from
Matthew Neyer in the Debt Management Branch of the
Department’s payroll office. The bill sought recoupment
of $1,790.44 in wages and benefits paid to Mr. Ahuruonye
for hours he did not work. This money appears to have
been subsequently garnished from some wages owed to
Mr. Ahuruonye.
On March 26, 2015, the Department issued to Mr.
Ahuruonye a notice proposing to remove him from his
position. His timesheets are coded “absent without leave”
on March 27, 2015, and “administrative leave” from
March 29, 2015, through April 24, 2015.
The Department removed Mr. Ahuruonye on April 14,
24, or 26, 2015, 1 and that removal was sustained in a
1 The administrative judge found (without discus-
sion), and the government represents, that Mr. Ahu-
ruonye was removed on April 24 (a Friday). Decision at 2;
Resp’t’s Br. 9. That date is used in the initial decision
made in Mr. Ahuruonye’s removal appeal. Ahuruonye v.
Dep’t of Interior, No. DC-0432-15-0649-I-2, 2016 WL
AHURUONYE v. INTERIOR 5
decision not at issue here. Ahuruonye v. Dep’t of Interior,
No. DC-0432-15-0649-I-2, 2016 WL 3386637 (M.S.P.B.
June 15, 2016) (initial decision). Mr. Ahuruonye alleges
to us that he was issued a leave-and-earnings statement
dated April 28, 2015, which paid him $1,505.40, and that
he was actually due $1,711.04. The agency seems to
disagree, the Board made no factual findings on the issue,
and no April 28, 2015 statement has been provided to this
court.
On October 29, 2015, Mr. Ahuruonye received a col-
lection notice from the Department for $91.03. A state-
ment titled “Transferred Bill Information,” dated October
22, 2015, explained that the $91.03 debt “was the result of
a time sheet correction submitted by your agency for pay
period(s) 201510.” Resp’t’s App. 131. It is not clear
whether or when Mr. Ahuruonye paid this bill.
B
In five separate appeals, Mr. Ahuruonye challenged
(1) the September 2015 proposed five-day suspension, DC-
1221-15-0295-W-1 (M.S.P.B. filed Dec. 28, 2014); (2) the
October 2015 $91.03 bill, DC-1221-16-0398-W-1 (M.S.P.B.
filed Mar. 1, 2016); (3) the March 2015 bill and subse-
quent wage garnishment, DC-1221-16-0474-W-1
3386637 (M.S.P.B. June 15, 2016) (initial decision).
Payroll records submitted in DC-1221-16-0501-W-1 indi-
cate that his employment was terminated as of April 26 (a
Sunday). Resp’t’s App. 250, 257. Mr. Ahuruonye con-
tends that he was terminated on April 14 (a Tuesday),
consistent with documentary evidence that his health
coverage was terminated as of the 17th. Pet’r’s Br. 22,
Pet’r’s App. 10 at 11A, 11B; see also Pet’r’s Br. 7 (contend-
ing that Mr. Ahuruonye had brought this dispute to the
administrative judge’s attention and that the judge indi-
cated he would rule on it in his initial decision).
6 AHURUONYE v. INTERIOR
(M.S.P.B. filed Apr. 5, 2016); (4) the time-sheet records for
March 27, 2015, through April 26, 2015, DC-1221-16-
0501-W-1 (M.S.P.B. filed Apr. 14, 2016); and (5) the June
2013 bill and subsequent garnishment, DC-1221-16-0838-
W-1 (M.S.P.B. filed Aug. 28, 2016).
In the earliest appeal, DC-1221-15-0295-W-1, the ad-
ministrative judge found Board jurisdiction on October 26,
2015, and also reassigned the appeal to another adminis-
trative judge who was already handling other appeals
involving the same parties. Mr. Ahuruonye sought no
hearing in that appeal, and the parties submitted their
close-of-record statements on March 18, 2016.
On April 13, 2016, that appeal, i.e., DC-1221-15-0295-
W-1 (proposed suspension), was joined with DC-1221-16-
0398-W-1 ($91.03 debt) and DC-1221-16-0474-W-1 (March
2015 bill and garnishment). On April 26, 2016, DC-1221-
16-0501-W-1 (time-sheet records) was joined to the previ-
ous three cases, and the final appeal, DC-1221-16-0838-
W-1 (June 2013 bill and garnishment), was joined on
September 2, 2016.
The administrative judge, now handling all five ap-
peals, issued an initial decision on November 17, 2016.
For the proposed-suspension appeal, which (like the
others) rested on a charge of whistleblower retaliation,
DC-1221-15-0295-W-1, the initial decision concludes that,
while Mr. Ahuruonye established by a preponderance of
the evidence that his protected disclosures contributed to
Ms. Bartnicki’s decision to propose his suspension, the
Department established by clear and convincing evidence
that it would have proposed Mr. Ahuruonye’s suspension
anyway. Decision at 7–11. As to all of the other appeals,
the initial decision finds a lack of Board jurisdiction. Id.
at 11–15. Mr. Ahuruonye did not seek review by the full
Board, and the initial decision became the Board’s final
decision on December 22, 2016. For that reason, we
hereafter refer to the administrative judge as the Board.
AHURUONYE v. INTERIOR 7
Mr. Ahuruonye timely sought review in this court.
We have jurisdiction. 28 U.S.C. § 1295(a)(9).
II
Each of the appeals filed by Mr. Ahuruonye invokes 5
U.S.C. § 1221(a), which provides an individual right of
action to seek Board relief in certain reprisal cases. In
each appeal, Mr. Ahuruonye alleges that the Department
took actions in retaliation for his disclosures of infor-
mation he reasonably believed (a) violated a law, rule, or
regulation or (b) evidenced gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety. See 5 U.S.C.
§ 2302(b)(8).
In order to establish Board jurisdiction over his ap-
peals, Mr. Ahuruonye had to show that he “exhausted his
administrative remedies before the [Office of Special
Counsel] and ma[de] ‘non-frivolous allegations’ that (1) he
engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclo-
sure was a contributing factor in the agency’s decision to
take or fail to take a personnel action as defined by 5
U.S.C. § 2302(a).” Yunus v. Dep’t of Veterans Affairs, 242
F.3d 1367, 1371 (Fed. Cir. 2001). “‘[A] non-frivolous
allegation’ of an element required for Board jurisdiction”
is “one that, ‘if proven, can establish the Board’s jurisdic-
tion’ insofar as that element is concerned.” Cahill v. Merit
Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016) (quot-
ing Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1330
(Fed. Cir. 2006) (en banc)). “Non-frivolous allegations
cannot be supported by unsubstantiated speculation in a
pleading submitted by petitioner.” Dorrall v. Dep’t of the
Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled on
other grounds by Garcia, 437 F.3d 1322; see Kahn v. Dep’t
of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (analogiz-
ing the standard for non-frivolous allegations to that for
summary judgment). The jurisdictional analysis may be
8 AHURUONYE v. INTERIOR
conducted entirely on the written record and need not
involve a hearing. Kahn, 528 F.3d at 1341; Ward v. Merit
Sys. Prot. Bd., 981 F.2d 521, 525 (Fed. Cir. 1992).
Once jurisdiction is established, a whistleblower
claimant is entitled to a hearing on the merits of the
claim, if requested. 5 U.S.C. § 7701(a)(1); 5 C.F.R.
§ 1201.24(d), (e). At that stage, the claimant must estab-
lish, by a preponderance of the evidence, that a given
disclosure is a protected disclosure within 5 U.S.C.
§ 2302(b) and 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). The claimant “may demonstrate
that the disclosure or protected activity was a contrib-
uting factor in the personnel action through circumstan-
tial evidence, such as evidence that—(A) the official
taking the personnel action knew of the disclosure or
protected activity; and (B) the personnel action occurred
within a period of time such that a reasonable person
could conclude that the disclosure or protected activity
was a contributing factor in the personnel action.” 5
U.S.C. § 1221(e)(1).
Once such showings are made, the agency may still
defeat the whistleblowing charge. The claimant loses “if,
after a finding that a protected disclosure was a contrib-
uting factor, the agency demonstrates by clear and con-
vincing evidence that it would have taken the same
personnel action in the absence of such disclosure.” Id.
§ 1221(e)(2); see Whitmore, 680 F.3d at 1367. In deciding
whether the agency would have taken the same action
without the protected disclosure, the Board examines all
the evidence, including the following factors: “(1) the
strength of the agency’s reason for the personnel action
excluding the whistleblowing, (2) the strength of 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
AHURUONYE v. INTERIOR 9
v. Dep’t of Agric., 479 F.3d 821, 824 (Fed. Cir. 2007); Carr
v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
“Evidence only clearly and convincingly supports a con-
clusion when it does so in the aggregate considering all
the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion.”
Whitmore, 680 F.3d at 1368.
This court will “set aside any agency action, findings,
or conclusions found to be—(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.” 5 U.S.C.
§ 7703(c). Where the Board has not made adequate
findings on important components of the required analy-
sis, we may vacate and remand for further findings. See
Whitmore, 680 F.3d at 1372–75; Holderfield v. Merit Sys.
Prot. Bd., 326 F.3d 1207, 1209 (Fed. Cir. 2003); Whitting-
ton v. Merit Sys. Prot. Bd., 80 F.3d 471, 476 (Fed. Cir.
1996).
A
In DC-1221-15-0295-W-1, the Board found (1) that it
had jurisdiction over the claim, (2) that Mr. Ahuruonye
had made protected disclosures, and (3) that those disclo-
sures were a contributing factor in the Department’s
proposal to suspend Mr. Ahuruonye, citing Ms. Bartnicki’s
awareness of the disclosures and the fact that she pro-
posed the suspension less than six months later. Decision
at 7–8. Nevertheless, the Board rejected the whistleblow-
er claim on the ground that the Department had shown,
by clear and convincing evidence, that it would have
proposed Mr. Ahuruonye’s suspension anyway. Id. at 11.
We conclude that the Board did not make adequate find-
ings necessary to support that ultimate finding, and we
10 AHURUONYE v. INTERIOR
therefore remand for further proceedings in DC-1221-15-
0295-W-1. 2
The proposed suspension rested on four alleged in-
stances of failure to follow supervisory instructions and
one alleged instance of deliberately making known false
and unfounded statements about a supervisor. Mr.
Ahuruonye allegedly failed to follow instructions because
(1) he was instructed to work with Ms. Smith on the
Mississippi Department of Marine Resources grant, but
instead told her, “‘Per DOI/OIG determination this project
is ineligible for funding if Penny wants to fund it that’s on
her as far as I know funding this project is unlawful and
illegal,’” Decision at 9; (2) he was instructed to prepare a
particular correction letter on August 18, 2014, but failed
to do so, id.; (3) between June 1, 2014, and September 19,
2014, he was provided with 19 grant-review notes con-
taining instructions to correct deficiencies that he did not
correct; id. at 9–10; and (4) he failed to ensure that a
particular award letter and completed grant checklist
were uploaded to the electronic grant file as instructed,
id. at 10. The basis for the charge of making known false
statements about his supervisor was the “Per DOI/OIG”
email to Ms. Smith quoted above, which allegedly sug-
gested that Ms. Barnicki would approve illegal grants. Id.
at 10.
Mr. Ahuruonye’s appeal in DC-1221-15-0295-W-1 ad-
dresses a proposed five-day suspension. The Department
does not dispute, and the Board did not deny, that Mr.
Ahuruonye may challenge the proposed suspension even
2 Mr. Ahuruonye is no longer employed by the De-
partment, but the government has not suggested that we
need not decide the challenge to the proposed suspension,
for that reason or any other.
AHURUONYE v. INTERIOR 11
though no suspension in fact occurred. 3 The Board stated
that, in determining what the Department would have
done in the absence of Mr. Ahuruonye’s disclosures, it
must “consider all of the relevant factors, including the
following: (1) the strength of the agency’s evidence in
support of its action; (2) the existence of any motive to
retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situ-
ated.” Id. at 8–9; see Carr, 185 F.3d at 1323. But the
Board’s findings as to those considerations was lacking.
Regarding the latter two considerations, the Board
said nothing direct, certainly nothing significant, to
support the finding that the Department would have
proposed the suspension regardless of the disclosures.
Yet at least the “motive to retaliate” consideration war-
ranted discussion. The Board in its merits decision ob-
served that “the work relationship between the appellant
and Ms. Bartnicki could be characterized as troubled, and
3 See 5 U.S.C. § 1221(a) (“[A]n employee . . . may,
with respect to any personnel action taken, or proposed to
be taken, against such employee . . . , as a result of a
prohibited personnel practice described in section
2302(b)(8) . . . , seek corrective action from the Merit
Systems Protection Board.”); id. § 2302(b)(8) (“Any em-
ployee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not,
with respect to such authority . . . take or fail to take, or
threaten to take or fail to take, a personnel action with
respect to any employee . . . because of . . . any [protected
disclosure] . . . .”); id. § 2302(a)(2)(A) (including “an action
under chapter 75 of this title or other disciplinary or
corrective action” in the definition of “personnel action”);
id. § 7502 (covering suspensions of 14 days or less).
12 AHURUONYE v. INTERIOR
Ms. Bartnicki was fully aware of the appellant’s whistle-
blowing disclosures.” Decision at 11. Moreover, in dis-
cussing the charge of making knowingly false statements,
the Board recounted how Ms. Bartnicki herself viewed the
disclosures as impugning her personal integrity. Id. at
10. And in its jurisdictional decision, the Board for simi-
lar reasons had found to be nonfrivolous the allegation
that Ms. Bartnicki proposed the suspension because “she
‘[saw] no other way to deter [Mr. Ahuruonye] from mak-
ing disclosures against [her]’, or words to this effect, and
because [his] whistleblowing activity was ‘undermining
her reputation’ and creating a hostile work environment
for her.” Resp’t’s App. 107 (first alteration in original). 4
The Board’s own rulings thus suggest that personal
reputation was at stake, warranting some express atten-
tion to the motive-to-retaliate consideration.
In its opinion, the Board focused on the five bases the
Department recited for the proposed removal. But the
Board’s evaluation of the strength of the agency’s evi-
dence is wanting. Decision at 9–10. Indeed, most of the
brief discussion repeats the contents of Ms. Bartnicki’s
letter proposing the suspension without actually making
factual determinations as to what happened.
With respect to Charge 1 (failure to follow instruc-
tions), the Board described Specification 1 and concluded
only: “The appellant apparently failed to follow Ms. Bart-
4 Mr. Ahuruonye’s appendix in this court includes
what appears to be a declaration by Ms. Bartnicki from
another proceeding, which states: “[Mr. Ahuruonye]
periodically threatens to report me to the Office of Inspec-
tor General for what he perceives as my ‘illegal actions,’
in which he is totally inaccurate. . . . In actuality, he is
creating a hostile work environment for me.” Pet’r’s App.
8 at 8. It is not clear to us whether that declaration was
included in the record before the Board.
AHURUONYE v. INTERIOR 13
nicki’s instruction . . . .” Decision at 9 (emphasis added).
The Board described Specification 2 and concluded: “The
appellant seemingly failed to follow her instructions.” Id.
(emphasis added). Regarding Specification 3, the Board
described instructions from Ms. Bartnicki and actually
found: “The appellant failed to complete the task.” Id. at
9–10. But then, for Specification 4 (of Charge 1), the
Board merely recited that Mr. Ahuruonye “was charged
with failure to ensure” that certain documents were
uploaded. Id. at 10. And for Charge 2, the Board simply
recited the charge of “deliberately making known false
and unfounded” statements, including about Ms. Bart-
nicki, quotes the “Per DOI/OIG” email, and observes that
Ms. Bartnicki asserted the perceived implication of the
email and falsity of that implication. Id. Thus, only as to
one of the five specifications did the Board make its own
findings as to what actually occurred, as opposed to just
reciting the charges or stating what “apparently” or
“seemingly” occurred.
The Board’s discussion is inadequate to permit our af-
firmance of the finding that the evidence was clear and
convincing that the Department would have proposed the
suspension even without the protected disclosures. Con-
tributing to our conclusion of inadequacy are two features
of the case worth highlighting. First, the Department’s
letter proposing the suspension relies on all of the stated
grounds together; it does not say that the proposal would
be the same if only some of the grounds were present.
Resp’t’s App. 35–40. Second, as indicated in our discus-
sion of the motivation to retaliate, Charge 2—that Mr.
Ahuruonye made deliberately false allegations of illegali-
ty—is on its face hardly independent of the protected
disclosures, i.e., the allegations of illegality. Yet the
Board did not make findings about the knowing falsity of
the allegations or otherwise explain why, without such
findings, Charge 2 was a basis for defeating the whistle-
blower claim, rather than reinforcing it.
14 AHURUONYE v. INTERIOR
B
The Board dismissed Mr. Ahuruonye’s four other ap-
peals for lack of jurisdiction. With respect to all four of
these whistleblower appeals, the dismissal was proper,
without a hearing, if the Board correctly found no non-
frivolous allegations that the protected disclosures were a
contributing factor in the challenged actions. See Kerri-
gan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1354 (Fed. Cir.
2016); Cahill, 821 F.3d at 1373; Kahn, 528 F.3d at 1341;
Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008). We see no error in the Board’s findings in this
respect in any of the four appeals, whose dismissal we
therefore uphold. 5
In DC-1221-16-0398-W-1, Mr. Ahuruonye alleged that
the Department was retaliating against him by improper-
ly charging him $91.03 in October 2015 to recover medical
benefits it had erroneously paid on his behalf. The Board
held that Mr. Ahuruonye had not made any credible
allegation that any individual involved in collecting this
debt had any knowledge of his protected disclosures or
that those disclosures were a contributing factor to the
agency’s decision. Mr. Ahuruonye has not pointed to any
non-frivolous allegations that undermine that Board
determination, such as allegations that the deciding
officials took the actions at the recommendation of offi-
5 We have scrutinized Mr. Ahuruonye’s filings in
this court and see no other basis for disturbing the dis-
missals as to these four appeals. We note that, although
Mr. Ahuruonye in these four appeals to the Board had
alleged disparate treatment discrimination and retalia-
tion for filing an EEO complaint, the Board found no
jurisdiction over the allegations (because it lacked juris-
diction over the underlying personnel actions), Decision at
15–16, and Mr. Ahuruonye has affirmatively waived his
discrimination claims before this court, ECF No. 4.
AHURUONYE v. INTERIOR 15
cials who did know of the protected disclosures. See
Worthington v. Dep’t of Defense, 81 M.S.P.R. 532, 536
(M.S.P.B. Apr. 26, 1999).
In DC-1221-16-0474-W-1, Mr. Ahuruonye alleged that
the Department was retaliating against him by undertak-
ing “unlawful collections” totaling $1,790.44 in earlier
overpayments, garnishing the amount from pay periods 6,
7, 8, 9, 10, and 12 of 2015. The Board found that Mr.
Ahuruonye had failed to make a non-frivolous allegation
that his protected disclosures were a contributing factor
to the wage garnishment because he had failed to “provide
any credible evidence to indicate that Mr. Neyer, or any
other individual involved with the collection of the debt
knew of [his] protected activities.” Decision at 13. 6 We
see no error in that determination and therefore uphold
this dismissal. 7
6 The agency represented to the Board, and Mr.
Ahuruonye does not appear to have disputed, that the
$1,790.44 amount of the overpayment was previously
adjudicated in DC-1221-15-1012-W-1 and that only the
collection of the debt can be at issue here. See Ahuruonye
v. Dep’t of Interior, Nos. DC-1221-15-1012-W-1 et al., 2016
WL 526740, at B.vii (M.S.P.B. Feb. 5, 2016) (initial deci-
sion), modified on other grounds, 2016 WL 7335453
(M.S.P.B. Dec. 8, 2016).
7 Besides the debt-collection aspect of this appeal,
Mr. Ahuruonye asserted: “During the time the appellant
was supposed to be on pre-termination Administrative
Leave the agency provided the appellant with a bogus
‘Leave and Earnings Statement’ that he was paid 80
hours of Administrative Leave for the pay date of 4/28/15
which would have been net pay of $1,711.04 but the
agency only paid $1,505.40 . . . .” Resp’t’s App. 137. He
did not comprehensibly explain how a retaliation claim
arises out of this contention, which appears to claim the
16 AHURUONYE v. INTERIOR
In DC-1221-16-0501-W-1, Mr. Ahuruonye sought “cor-
rective action with respect to his Time and Attendance
being designated as being on suspension due to a discipli-
nary action from March 27, 2015 to April 26, 2015.”
Resp’t’s App. 188. The Board found that this claim lacked
merit because, even if Mr. Ahuruonye was improperly
designated as being on suspension, he “did not provide
any evidence to indicate the improper activity was caused
by his whistleblowing activity” and, more specifically, he
“failed to raise a non-frivolous argument that his protect-
ed disclosures were a contributing factor in the alleged
personnel action.” Decision at 14. We see no error in that
determination, which suffices for us to uphold the dismis-
sal of this appeal. In addition, and as an independent
ground of affirmance, we see no error in the Board’s
determination that the Department’s records conclusively
show, contrary to Mr. Ahuruonye’s premise, that he was
not recorded to have been on a disciplinary suspension
during the period at issue: the records coded him as
absent without leave on March 27, 2015 (a Friday) and on
“administrative leave” from March 29, 2015, through
April 24, 2015. Id. at 13–14. 8
$205.64 difference based on a “bogus” record. The Board
noted the allegation, Decision at 12, and Mr. Ahuruonye
has not identified a reversible error in the Board’s evident
conclusion that this allegation added nothing to the
sustainability of jurisdiction over this appeal.
8 There is some evidence that Mr. Ahuruonye was
erroneously marked “absent without leave” on March 27
and should have been deemed on administrative leave
that day. See Resp’t’s App. 245 (agency response conced-
ing that “[a]s detailed in MSPB Docket No. DC-0752-15-
0509-I-1, due to an administrative oversight, Mr. Ahu-
ruonye was incorrectly coded as AWOL for March 27”),
251 (showing amended time sheet); Pet’r’s Reply App. 1 at
AHURUONYE v. INTERIOR 17
In the last appeal, DC-1221-16-0838-W-1, Mr. Ahu-
ruonye alleged that the agency garnished $343.64 from
his wages in 2013 in retaliation for his protected disclo-
sures. The Board found that Mr. Ahuruonye had “failed
to raise a non-frivolous argument that his protected
disclosures were a contributing factor in the alleged
improper garnishment of his wages” because he “did not
provide any credible evidence to indicate that Mr. Yeo, or
any other individual involved with the collection of the
debt knew of [his] protected activities.” Decision at 15.
As with the other appeals, we see no error in that deter-
mination. We therefore affirm the dismissal of this ap-
peal for lack of jurisdiction.
C
Finally, Mr. Ahuruonye alleges that Judge Dun-
naville, the presiding official in all five of these appeals,
was biased against him. Mr. Ahuruonye filed a motion for
Judge Dunnaville to recuse himself because of “pervasive
bias and prejudice” and “actions that ha[ve] evidenced a
deep-seated favoritism and antagonism that have made
and would make fair judgment impossible.” Pet’r’s App. 3
at 4 (citing Bieber v. Dep’t of the Army, 287 F.3d 1358,
1362–63 (Fed. Cir. 2002)). 9 Judge Dunnaville did not rule
9 (approving administrative leave as of March 26, 2015).
Even so, there is no basis for the Board to find that he
was on disciplinary suspension in the period at issue.
9 Although this motion requests that the judge
“withdraw from any further involvement in this case and
other cases,” it was filed only in DC-1221-16-0501-W-1, on
June 1, 2016, after it was joined to three other appeals
but before DC-1221-16-0838-W-1 was filed or joined.
Nevertheless, consistent with our practice of liberally
interpreting pro se plaintiffs’ papers, we will consider Mr.
Ahuruonye to have raised the issue of bias with respect to
all of the appeals at issue.
18 AHURUONYE v. INTERIOR
on the motion and did not discuss it in his initial decision.
Mr. Ahuruonye did not ask for full Board review of the
recusal matter.
We may assume (without deciding) that there was er-
ror in Judge Dunnaville’s not ruling on the motion, see 5
U.S.C. § 556(b), and that Mr. Ahuruonye did not forfeit
the claim of error when he bypassed the full Board.
Nevertheless, we see no reversible error. Mr. Ahu-
ruonye’s allegations do not meet the high bar of showing a
“deep-seated favoritism or antagonism that would make
fair judgment impossible.” Bieber, 287 F.3d at 1362
(holding that the recusal standard articulated by the
Supreme Court in Liteky v. United States, 510 U.S. 540
(1994), applies to M.S.P.B. administrative judges); see id.
at 1363 n.3 (addressing allegations of bias made for the
first time on appeal); cf. Sine v. Local No. 992 Int’l Bhd. of
Teamsters, 882 F.2d 913, 914–15 (4th Cir. 1989) (holding
that a district court judge’s failure to rule on a recusal
motion was not reversible error because the affidavits
were insufficient as a matter of law).
The Board applies a presumption of honesty and in-
tegrity to administrative judges, see, e.g., Stussy v. Dep’t
of the Treasury, No. SF-1221-14-0068-W-1, 2015 WL
3874704, at ¶ 17 (M.S.P.B. June 23, 2015); Sullivan v.
Dep’t of Transp., No. SF-1221-10-0137-W-3, 2012 WL
11881398, at *1 (M.S.P.B. Apr. 3, 2012), and we have
indicated that there is a “strong presumption” that ad-
ministrative judges discharge their duties in good faith,
Thomas v. Office of Pers. Mgmt., 350 F. App’x 448, 451
(Fed. Cir. 2009). To establish bias, an appellant must
show more than mere disagreement with the judge’s
substantive rulings. See Chianelli v. Envtl. Prot. Agency,
8 F. App’x 971, 979–81 (Fed. Cir. 2001). And even the
existence of multiple rulings adverse to the party, or
multiple rulings containing errors, does not itself rise to
the level needed for recusal, especially where the appel-
AHURUONYE v. INTERIOR 19
lant has presented a blizzard of filings, many hard to
parse, that demand large numbers of rulings.
Mr. Ahuruonye identifies, as evidence of the adminis-
trative judge’s bias, (1) that he did not conduct status
conferences in four of the appeals; (2) that he did not
disqualify the agency’s lawyer when Mr. Ahuruonye so
requested; (3) that he failed to address the exact date that
Mr. Ahuruonye was terminated; and (4) that he sustained
the agency’s proposed suspension after the initial admin-
istrative judge on that appeal had found non-frivolous
allegations that his disclosures contributed to the pro-
posed suspension. Even taking into account our vacating
of the proposed-suspension decision, we find nothing here
beyond disagreement with the administrative judge’s
decisions. We make particular note that there is nothing
inherently suspicious about one judge finding that Mr.
Ahuruonye had made sufficient allegations to establish
jurisdiction and a second judge finding—here, in a portion
of the proceeding raising new issues (the agency’s de-
fense)—that the appellant was not entitled to prevail.
III
For the reasons described above, we affirm the deci-
sions in DC-1221-16-0398-W-1, DC-1221-16-0474-W-1,
DC-1221-16-0501-W-1, and DC-1221-16-0838-W-1. We
vacate the Board’s decision in DC-1221-15-0295-W-1
(proposed suspension) and remand for further proceedings
consistent with this opinion.
No costs.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED IN PART