Belter v. Department of Homeland Security ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARYL BELTER,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2014-3028
______________________
Petition for review from the Merit Systems Protection
Board in No. DA-1221-11-0609-W-1.
______________________
Decided: May 12, 2014
______________________
DARYL BELTER, of Sarasota, Florida, pro se.
P. DAVIS OLIVER, 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
REGINALD T. BLADES, JR., Assistant Director.
______________________
Before MOORE, O’MALLEY, and CHEN, Circuit Judges.
2 BELTER V. DEP’T OF HOMELAND SEC.
PER CURIAM.
Daryl Belter petitions for review of a final decision of
the Merit Systems Protection Board (Board), which sus-
tained the Louisiana Transitional Recovery Office’s
(Agency’s) removal of Mr. Belter from the position of
Supervisory Logistics Management Specialist. See Belter
v. Dep’t of Homeland Sec., DA-1221-11-0609-W-1
(M.S.P.B. Sept. 20, 2013) (Final Decision). For the rea-
sons discussed below, we affirm.
BACKGROUND
The Agency removed Mr. Belter because of his unau-
thorized use of his government-issued travel credit card.
Mr. Belter alleged that he made disclosures protected
under the Whistleblower Protection Act (WPA) and filed a
whistleblower retaliation complaint with the Office of
Special Counsel (OSC) to challenge his removal. After the
OSC closed its inquiry into his allegations, Mr. Belter
filed an individual right of action appeal to the Board.
Mr. Belter alleged that the Agency terminated him in
retaliation for disclosures he made to the Acting Director
of the Agency and to the Office of Inspector General
(OIG), concerning the Agency’s lease of an office building
that he believed wasted a significant amount of Agency
money. The administrative judge (AJ) found that Mr.
Belter failed to prove his claim under the WPA. Mr.
Belter filed a petition for review with the full Board and
challenged the AJ’s conclusion on his WPA claim. Mr.
Belter further asserted that the Agency did not provide
him with the documents he sought through a Freedom of
Information Act (FOIA) request.
The Board affirmed the AJ’s Initial Decision, deter-
mining that Mr. Belter did not establish any basis under
5 C.F.R. § 1201.115 to grant his petition for review. The
Board found that Mr. Belter’s disclosure was not a pro-
tected disclosure because it did not rise to more than a
debatable difference of opinion concerning the cost of the
BELTER V. DEP’T OF HOMELAND SEC. 3
lease. Further, the Board noted that the investigation
that led to the discovery of Mr. Belter’s credit card misuse
preceded his disclosure to the OIG. The Board found that
Mr. Belter did not challenge the AJ’s findings that the
individual who terminated Mr. Belter testified credibly
that he had no information about Mr. Belter’s disclosures,
and that he fired Mr. Belter only for his credit card abuse.
The Board concluded that Mr. Belter failed to establish a
whistleblower claim.
Concerning Mr. Belter’s FOIA request, the Board
found that there was no evidence in the record that he
sought the desired documents through the discovery
process or filed a motion to compel the Agency to produce
these documents “despite being informed by the adminis-
trative judge of the procedure for doing so.” Final Deci-
sion at 12–13. Thus, the Board concluded that Mr.
Belter’s FOIA-related claims did not provide a basis to
disturb the AJ’s initial decision.
Mr. Belter appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012). The petitioner has the
burden of establishing error in the Board’s decision.
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467
(Fed. Cir. 1998). We review the Board’s legal determina-
tions de novo. Welshans v. U.S. Postal Serv., 550 F.3d
1100, 1102 (Fed. Cir. 2008).
On appeal, Mr. Belter does not challenge the Board’s
decision on the merits. Instead, Mr. Belter argues that
the Final Decision should be vacated or reversed and his
4 BELTER V. DEP’T OF HOMELAND SEC.
case remanded for the Board to review the new infor-
mation he obtained in response to his FOIA request,
which he received one day before the Board’s Final Deci-
sion. Mr. Belter asserts he “did not have adequate time to
properly review the new information, which was extreme-
ly pertinent” to his case. Petitioner’s Br. at 2. Mr. Belter
argues he is entitled to additional review by the Board
under 5 C.F.R. § 1201.115 because the new information
“creat[es] new and material evidence as well as a new
legal argument” that was not available when the record
closed. Id.
The government responds that we should affirm the
Board’s decision because Mr. Belter has not shown that
the Board committed reversible error. It argues that Mr.
Belter cannot seek a vacatur or reversal of the Board’s
decision based on information that was not presented to
the Board. It contends that § 1201.115 is inapplicable
because this regulation governs only new evidence sub-
mitted to the Board in connection with a petition for
review, not new evidence submitted to us on appeal.
We agree with the government. To the extent Mr.
Belter asks us to review the information that he received
in response to his FOIA request in the first instance, we
do not have that power. “Congress specifically limited our
appellate review, 5 U.S.C. § 7703(c), to final orders and
decisions of the board on the record.” Rockwell v. Dep’t of
Transp., F.A.A., 789 F.2d 908, 913 (Fed. Cir. 1986) (em-
phasis in original). We also conclude that the Board did
not violate 5 C.F.R. § 1201.115 because that regulation
only applies to “issues raised in a timely petition . . . for
review” of the AJ’s initial decision. 5 C.F.R. § 1201.115
(2012). Mr. Belter did not present to the Board the infor-
mation that he obtained via the FOIA request because
Mr. Belter received it long after he filed his petition for
review. We cannot reverse or vacate the Board’s decision
based on the information that was never presented to the
Board.
BELTER V. DEP’T OF HOMELAND SEC. 5
We cannot find a reversible error in the Board’s deci-
sion based upon the fact that Mr. Belter did not receive a
response to his FOIA request in time to present the
evidence to the Board. The Board has its own discovery
procedures. Rather than follow the Board’s specific
procedures for pursuing the information relevant to his
case, of which he was advised by the AJ, Mr. Belter
attempted to obtain it via a collateral FOIA request. Mr.
Belter did not request that the Board stay its proceedings
pending his FOIA request. We are aware of no obligation
on the Board to do so.
CONCLUSION
We have considered Mr. Belter’s remaining argu-
ments and find them to be without merit. Because Mr.
Belter has not established a reversible error, we affirm.
AFFIRMED
COSTS
No costs.