McCarthy v. International Boundary and Water Commission ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT JOHN MCCARTHY,
Petitioner,
v.
INTERNATIONAL BOUNDARY AND WATER
COMMISSION:
U.S. AND MEXICO,
Respondent.
__________________________
2011-3239
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated case nos. DA1221090725-W-1 and
DA1221100078-W-1.
__________________________
Decided: October 15, 2012
__________________________
PAULA DINERSTEIN, Public Employees for Environ-
mental Responsibility, of Washington, DC, argued for
petitioner.
MICHAEL P. GOODMAN, Trial Attorney, Civil Division,
United States Department of Justice, of Washington, DC,
MCCARTHY v. INTL BOUNDARY & WATER CO 2
argued for respondent. With him on the brief were
STUART F. DELERY, Acting Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD M. HUGHES,
Deputy Director.
__________________________
Before BRYSON, PROST, and O’MALLEY, Circuit Judges.
PROST, Circuit Judge.
Robert McCarthy, who was formerly employed as a
supervisory attorney for the United States International
Boundary and Water Commission (the “Commission” or
the “USIBWC”), appeals from an order of the Merit Sys-
tems Protection Board (“Board”) holding that the Com-
mission did not violate the Whistleblower Protection Act
(“WPA”), 5 U.S.C. § 2302(b)(8), when it removed Mr.
McCarthy. For the reasons discussed below, this court
affirms.
I. BACKGROUND
A
USIBWC Commissioner Bill Ruth hired Mr.
McCarthy to serve in the excepted service as a perma-
nent, full-time, supervisory attorney for the Commission
beginning January 18, 2009. Shortly after Mr. McCarthy
began working at the Commission, he wrote a series of
memoranda, which he sent to the Commission’s executive
staff. First, in May 2009, Mr. McCarthy circulated a
memorandum stating his opinion that Commissioner
Ruth’s appointment was unconstitutional and invalid. On
June 19, 2009, Mr. McCarthy circulated a second memo-
randum, which recommended information technology
qualifications for a Chief Information Officer. The second
memorandum further asserted that the Chief Administra-
3 MCCARTHY v. INTL BOUNDARY & WATER CO
tive Officer, Diana Forti, was a “mid-level administrator
who does not possess these core competencies.” A third
memorandum also dated June 19, 2009, accused the
Commission of “gross mismanagement” by failing to adopt
the recommendations of the State Department’s Office of
Inspector General (“OIG”) regarding the separation of
oversight responsibility for budget and contracts.
While Commissioner Ruth did not review or approve
the memoranda, Mr. McCarthy claims that he wrote them
pursuant to his role on a “reorganization committee”
organized by Commissioner Ruth. Al Riera, the Commis-
sion’s principal engineer and former acting commissioner,
claims that he read and approved Mr. McCarthy’s memo-
randa before they were distributed to the alleged reor-
ganization committee and to Commissioner Ruth. But in
any event, Commissioner Ruth was upset by these memo-
randa, which he perceived as divisive, as attacking other
members of the executive staff, and causing “a lot of
resentment” amongst the staff. McCarthy v. Int’l Bound-
ary & Water Comm’n, No. DA1221090735-W-1, slip op. at
14 (M.S.P.B. Apr. 9, 2010) (“Initial Decision”). According
to Commissioner Ruth, the Commission had become
divided into two “camps,” one aligned with Mr. McCarthy
and the other viewed by Mr. McCarthy as his antagonists.
Id. at 15. Commissioner Ruth became concerned about
the quality of Mr. McCarthy’s legal advice, a concern he
first revealed to Mary Brandt, the Special Assistant to the
Commissioner, in May, 2009. Id. at 9.
At a late June 2009 meeting in Washington D.C.,
Commissioner Ruth told Ms. Brandt that he did not
believe that Mr. McCarthy was “a team player,” that he
regretted hiring Mr. McCarthy, and that he was consider-
ing terminating Mr. McCarthy’s employment. Id. at 10.
Ms. Brandt related to Commissioner Ruth that she also
MCCARTHY v. INTL BOUNDARY & WATER CO 4
perceived Mr. McCarthy’s memoranda as mean-spirited,
and in particular, that his memorandum regarding the
separation of budgeting and contracting functions ap-
peared to misinterpret the OIG’s recommendations. Id.According to Ms. Brandt, Commissioner Ruth asked her
to provide him with legal contacts at the State Depart-
ment who could assist him in removing Mr. McCarthy.
Id. at 11. Commissioner Ruth claims, and computer
meta-data confirms, that he actually began drafting Mr.
McCarthy’s termination letter on July 18, 2009. Id. at 19,
22.
On or around July 20, 2009, Commissioner Ruth told
Kevin Petz, the Commission’s Human Resources Director,
that he was considering firing Mr. McCarthy. Id. at 8.
Commissioner Ruth then directed Mr. Petz to research
the appropriate removal procedure. Id. After speaking
with Commissioner Ruth and then Mr. Riera regarding
the situation, Mr. Petz spoke directly with Mr. McCarthy.
In that conversation, Mr. Petz related to Mr. McCarthy
that Commissioner Ruth was upset with him and coun-
seled Mr. McCarthy to improve his relationship with
Commissioner Ruth. Id. Mr. Petz later asked Mr.
McCarthy, through a hypothetical question, how Commis-
sioner Ruth could fire an attorney. Id. at 8-9. Mr.
McCarthy then provided a memorandum suggesting that
an attorney in his position was entitled to “due process”
protection, which Mr. Petz in turn provided to Commis-
sioner Ruth. Id. at 9.
The Commission’s July 27, 2009 staff meeting was
“tense.” Id. at 11. According to Ms. Brandt, Mr.
McCarthy raised accusations that he had been excluded
from certain meetings of a “committee.” Id. In response,
Commissioner Ruth continued to assert that no commit-
tee existed, but rather, he had simply assigned tasks on
5 MCCARTHY v. INTL BOUNDARY & WATER CO
an individual basis. Id. at 17. Commissioner Ruth claims
that it was at this staff meeting that he made the firm
decision to terminate Mr. McCarthy’s employment. Id. at
18.
On July 28, 2009, the day after the staff meeting, Mr.
McCarthy submitted a memorandum entitled “Disclo-
sures of Fraud, Waste and Abuse” to the State Depart-
ment’s OIG, the Office of Special Counsel (“OSC”), the
Government Accountability Office, the Federal Bureau of
Investigation, and the White House. That same day, Mr.
McCarthy also sent an email to Commissioner Ruth
explaining that he had “report[ed] allegations of fraud,
waste, and abuse (and suspected criminal activity)” and
that he was now “assert[ing] [his] rights as a protected
whistleblower.” J.A. 2000.
It was not until his trip to Washington D.C. on July
29, 2009, that Commissioner Ruth actually met with
personnel from the State Department to discuss removing
Mr. McCarthy. Initial Decision, slip op. at 18. Rich Visik,
a lawyer with the State Department’s labor and personnel
division, advised Commissioner Ruth that he could termi-
nate Mr. McCarthy with a letter. Id. Additionally, Mr.
Visik explained that Mr. McCarthy would not be entitled
to appeal the termination because he had less than one
year of service. Admittedly in anticipation of his possible
termination, Mr. McCarthy delivered a memorandum to
Commissioner Ruth regarding the “Employment Rights of
Federal Attorneys and Whistleblowers” on July 30, 2009.
Id. at 20. Commissioner Ruth handed Mr. McCarthy a
removal letter the following day. Based on the advice of
Mr. Visik and other State Department personnel, Com-
missioner Ruth’s letter was brief and to the point, ex-
plaining that Commissioner Ruth was removing Mr.
McCarthy for “failure to support [Commissioner Ruth] or
MCCARTHY v. INTL BOUNDARY & WATER CO 6
other members of the executive staff in a constructive and
collegial manner.” Id. at 19.
B
Mr. McCarthy filed a complaint with OSC on August
1, 2009, wherein he alleged that he was removed for
whistleblowing. He also filed a second complaint in which
he claimed that the Commission terminated his federal
employee health benefits and failed to reimburse his
moving expenses in retaliation for whistleblowing. After
reviewing his complaints, OSC informed Mr. McCarthy
that because the Commission had initiated the termina-
tion process before his protected activities, they could not
infer that his termination was retaliatory. Mr. McCarthy
then filed two Individual Rights of Action (“IRAs”) with
the Board pursuant to the WPA. Both cases were as-
signed to the same administrative judge, who elected to
join the cases for hearing purposes only. The administra-
tive judge found that Mr. McCarthy was not an “em-
ployee” within the meaning of 5 U.S.C. § 7511. Id. at 2.
Accordingly, the administrative judge considered only
whether Mr. McCarthy was terminated in reprisal for
whistleblowing.
In an initial decision dated April 9, 2010, the adminis-
trative judge concluded that Mr. McCarthy was not
terminated for retaliatory reasons. Id. at 23. For the
sake of efficiency, the administrative judge assumed that
Mr. McCarthy had made protected disclosures that, as a
prima facie matter, contributed to his removal. Id. at 7.
Operating under that assumption, the administrative
judge next considered whether the Commission would
have removed him regardless of his protected disclosures.
The administrative judge noted that computer meta-data
confirmed Commissioner Ruth’s testimony that he began
7 MCCARTHY v. INTL BOUNDARY & WATER CO
drafting Mr. McCarthy’s termination notice on July 18,
2009. Id. at 22. Additionally, the administrative judge
noted that Commissioner Ruth “testified in a straight-
forward manner, without equivocation,” and found his
testimony to therefore be “plausible and credible.” Id. at
21. “Based on his demeanor and the documentary cor-
roboration of events prior to [the July 27, 2009] staff
meeting,” the administrative judge “credit[ed] [Commis-
sioner] Ruth’s testimony that it was [Mr. McCarthy’s]
behavior during that meeting that ultimately fixed his
determination to terminate [Mr. McCarthy].” Id. at 22.
In a separate decision, the administrative judge also
determined that Mr. McCarthy had “failed to present any
evidence that his disclosures were a contributing factor in
the [Commission’s] decision (if such a decision were
consciously made) to terminate his [federal employee
health benefits] coverage or to refuse to reimburse his
moving expenses.” McCarthy v. Int’l Boundary & Water
Comm’n, No. DA1221100078-W-1, slip op. at 6 (M.S.P.B.
Feb. 22, 2010). The administrative judge relied on the
fact that Mr. McCarthy had “failed to identify the [Com-
mission] official responsible for making those decisions.”
Id.Mr. McCarthy appealed both decisions to the full
Board. Relevant to the appeal before us, Mr. McCarthy
alleged that the administrative judge erred by not joining
the two separate appeals and by denying the IRA related
to his federal employee health benefits and moving ex-
penses simply because Mr. McCarthy had failed to iden-
tify the official responsible for taking those actions. Mr.
McCarthy further alleged that the administrative judge
erred by not considering his due process argument and by
denying his various motions related to discovery, includ-
ing motions for sanctions and to compel production of
MCCARTHY v. INTL BOUNDARY & WATER CO 8
evidence. Additionally, Mr. McCarthy argued that the
administrative judge erred in refusing to exclude some
evidence from the hearing while admitting other evidence.
In its final decision, the Board addressed each of Mr.
McCarthy’s contentions. First, the Board agreed with Mr.
McCarthy that the administrative judge should have fully
joined the appeals. McCarthy v. Int’l Boundary & Water
Comm’n, 116 M.S.P.R. 594, 602-03 (2011). The Board also
agreed that the administrative judge should not have
denied Mr. McCarthy’s IRA related to federal employee
health benefits and moving expenses solely because he
had failed to identify the officials responsible. Id. at 603.
With respect the Mr. McCarthy’s discovery and eviden-
tiary disputes, however, the Board found that the admin-
istrative judge had not abused his discretion. Id. at 604-
10. The Board also agreed with the administrative
judge’s conclusion that Mr. McCarthy’s constitutional
arguments were not properly before the Board. Id. at
610-11.
Turning to the whistleblowing claim, the Board found
that Mr. McCarthy had made at least one protected
disclosure that, as prima facie matter, contributed to his
removal. The Board then considered whether the Com-
mission had nonetheless demonstrated, by clear and
convincing evidence, that it would have removed Mr.
McCarthy even absent his disclosures. Relying in part on
the administrative judge’s demeanor-based determination
that Commissioner Ruth was a credible witness, the
Board found ample evidence that Commissioner Ruth’s
decision to remove Mr. McCarthy predated the disclo-
sures. Id. at 623-24. Next, the Board found that Com-
missioner Ruth had only a slight motive to retaliate
because when he hired Mr. McCarthy, he was aware that
Mr. McCarthy had previously filed whistleblower disclo-
9 MCCARTHY v. INTL BOUNDARY & WATER CO
sures regarding the Department of the Interior. Id. at
625. In other words, he decided to hire Mr. McCarthy
knowing his history as a whistleblower. Moreover, the
Board found that there was no evidence that Commis-
sioner Ruth actually read Mr. McCarthy’s disclosures
before he fired Mr. McCarthy. Id. On the other hand, the
Board also found that the record contains no evidence
that the Commission takes similar actions against simi-
larly situated employees who are not whistleblowers. Id.
at 626. Assessing all of these factors together, the Board
concluded that the Commission demonstrated by clear
and convincing evidence that it would have terminated
Mr. McCarthy notwithstanding his whistleblowing.
Mr. McCarthy now seeks review in this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
This court’s review of decisions by the Board in whis-
tleblower and other cases is limited. We will only over-
turn a decision of the Board if 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.” 5 U.S.C.
§ 7703(c). Accordingly, we “must reverse a decision of the
Board if [it] . . . is not in accordance with the require-
ments of the Due Process Clause of the Fifth Amendment
or any other constitutional provision.” Blank v. Dep’t of
the Army, 247 F.3d 1225, 1228 (Fed. Cir. 2001) (citing
Khan v. United States, 201 F.3d 1375, 1382 (Fed. Cir.
2000)). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938).
MCCARTHY v. INTL BOUNDARY & WATER CO 10
We review evidentiary and discovery rulings by an
administrative judge for abuse of discretion and will
reverse only if the petitioner can “prove that the error
caused substantial harm or prejudice to his rights which
could have affected the outcome of the case.” Curtin v.
Office of Pers. Mgmt., 846 F.2d 1373, 1379 (Fed. Cir.
1988).
A
Mr. McCarthy’s first argument is that the Commis-
sion violated his Fifth Amendment right to procedural
due process when it terminated his employment without
notice or an opportunity to respond.
We have recognized that “[i]f the government gives a
public employee assurances of continued employment or
conditions dismissal only for specific reasons, the public
employee has a property interest in continued employ-
ment.” Stone v. FDIC, 179 F.3d 1368, 1374 (Fed. Cir.
1999). “Property interests are not created by the Consti-
tution; ‘they are created and their dimensions are defined
by existing rules or understandings that stem from an
independent source [such as a statute] . . . .’” Id. (quoting
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). For
example, an individual whom Congress has defined as “[a]
federal employee, as defined in 5 U.S.C. § 7501 (1994),
‘has a property right in [her] continued employment.’”
Delong v. Dep’t of Health & Human Servs., 264 F.3d 1334,
1341 (Fed. Cir. 2001) (quoting King v. Alston, 75 F.3d 657,
661 (Fed. Cir. 1996)). “That property right entitles the
employee to procedural due process protections under the
Fifth Amendment.” Id. (citation omitted). “On the other
hand, if the public employee is hired for a limited ap-
pointment or is at will, then the employee does not have a
11 MCCARTHY v. INTL BOUNDARY & WATER CO
property interest in continued employment.” Stone, 179
F.3d at 1375.
To qualify as an “employee” in the excepted service
under Chapter 75, and thereby gain due process protec-
tions in one’s federal employment, a non-preference-
eligible individual not serving in an appointment pending
conversion to the competitive service must have “com-
pleted 2 years of current continuous service in the same
or similar positions . . . under other than a temporary
appointment limited to 2 years or less.” 5 U.S.C.
§ 7511(a)(1)(C) (emphasis added).
There is no dispute that Mr. McCarthy was a member
of the excepted service and served in his position at the
Commission for less than two years. And while Mr.
McCarthy admits that he does not qualify as an employee
under Chapter 75, he asserts that Chapter 75 is not the
only source of property rights in federal employment.
Rather, Mr. McCarthy contends that a property right in
employment may be found when, “though not secured by a
formal contractual tenure provision, [i]t was secured by a
no less binding understanding fostered by the [Commis-
sion].” Perry v. Sindermann, 408 U.S. 593, 599 (1972).
Mr. McCarthy notes that his corrected1 SF-50 describes
him as a permanent, non-probationary, excepted service
employee. Based solely on his designation as “perma-
nent,” Mr. McCarthy argues that he is entitled to due
process protections.
1 An incorrect SF-50 surfaced following Mr.
McCarthy’s removal, which mistakenly changed his
recorded status to “probationary” and “at will.” This
unexplained error was corrected by Mr. Petz on August 8,
2009—before the effective date of Mr. McCarthy’s re-
moval—to specify Mr. McCarthy’s non-probationary,
permanent status, and to remove the “at will” reference.
MCCARTHY v. INTL BOUNDARY & WATER CO 12
Mr. McCarthy’s argument misinterprets the statutory
framework behind the civil service system. More pre-
cisely, Mr. McCarthy seeks to bypass 5 U.S.C.
§ 7511(a)(1)(C) and create a property interest in employ-
ment for all members of the excepted service working
under permanent appointments, regardless of the length
of their service (i.e., regardless of whether they are “em-
ployees” under the statute). But it is not enough that
McCarthy’s SF-50 says “permanent”—§ 7511(a)(1)(C)(ii)
still requires two years of concurrent or continuous ser-
vice before he can become an “employee” as defined by
Chapter 75. This requirement is entirely consistent with
Mr. McCarthy’s permanent appointment. Indeed, “[b]y
the plain terms of § 7511(a)(1)(C)(ii), the two years of
current continuous service must be served ‘under other
than a temporary appointment,’ i.e., under a permanent
appointment.” Forest v. Merit Sys. Prot. Bd., 47 F.3d 409,
411 (Fed. Cir. 1995) (emphasis added). That is to say,
Congress has expressly conditioned the Chapter 75 pro-
tections afforded to members of the excepted service,
including those serving under permanent appointments,
upon two years of current continuous service. Moreover,
Mr. McCarthy has failed to indentify any action or com-
munication on the part of the Commission (other than his
SF-50 designation discussed above) that might establish a
property interest in his employment. Accordingly, we
conclude that Mr. McCarthy has failed to identify a
property interest in his employment that would require
cause to be shown or other procedures to be afforded with
respect to his discharge. 2
2 In his reply brief, Mr. McCarthy argues for the
first time that he has a liberty interest in his good name
that exists independently of a property interest. Pet’r’s
Reply Br. 4. We consider this argument to be waived. It
is a general rule of appellate procedure that an appellant
13 MCCARTHY v. INTL BOUNDARY & WATER CO
B
Mr. McCarthy also contends that the record before us
does not contain substantial evidence to support the
Board’s conclusion that the Commission proved by clear
and convincing evidence that Mr. McCarthy would have
been removed even in the absence of his protected disclo-
sures. A “protected disclosure” is a disclosure which “an
employee . . . reasonably believes evidences (i) a violation
of any law, rule, or regulation, or (ii) gross mismanage-
ment, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.”
5 U.S.C. § 2302(b)(8)(a). To establish a protected disclo-
sure under the WPA, an employee must demonstrate by a
preponderance of the evidence that he disclosed informa-
tion that he reasonably believed evidenced a violation of
any law, rule, or regulation. Id. § 2302(b)(8). Here, the
parties do not dispute that Mr. McCarthy made what
would qualify as protected disclosures. Moreover, the
Commission does not contest the Board’s prima facie
determination that Mr. McCarthy’s disclosures were a
contributing factor in the Commission’s decision to termi-
nate his employment.
If an employee establishes as a prima facie matter
that a protected disclosure was a contributing factor, the
burden shifts to the agency to establish by clear and
convincing evidence that it would have taken the action
even in the absence of the protected disclosure. 5 U.S.C.
§ 1221(e)(2); See Kewley v. Dep’t of Health & Human
Servs., 153 F.3d 1357, 1363 (Fed. Cir. 1998). In assessing
waives issues or arguments raised for the first time in a
reply brief. See Carbino v. West, 168 F.3d 32, 34 (Fed.
Cir. 1999); Becton Dickinson & Co. v. C.R. Bard, Inc., 922
F.2d 792, 800 (Fed. Cir. 1990).
MCCARTHY v. INTL BOUNDARY & WATER CO 14
whether an agency has met its burden, the Board looks at
three factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any
motive to retaliate on the part of 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
situated. See Carr v. Social Sec. Admin., 185 F.3d 1318,
1323 (Fed. Cir. 1999). Here, the Board determined that
the Commission established by clear and convincing
evidence that it would have terminated Mr. McCarthy’s
position in the absence of his disclosures.
Mr. McCarthy attacks the evidence and the Board’s
reasoning with respect to all three Carr factors. As to the
strength of the Commission’s evidence in support of its
action, Mr. McCarthy contends that the Board errone-
ously deferred to the administrative judge’s credibility
determination. Specifically, Mr. McCarthy asserts that
the testimony of both Mr. Riera and Mr. Petz undermines
Commissioner Ruth’s credibility by proving that the final
decision to terminate Mr. McCarthy’s employment was
made after his whistleblowing. According to Mr.
McCarthy, an allegedly backdated memorandum purport-
ing to justify his removal further undermines Commis-
sioner Ruth’s credibility. Additionally, Mr. McCarthy
argues that the Commission has since embraced his
reorganization opinions, thereby indicating that the tone
and content of his opinions were not the true reasons he
was fired. Mr. McCarthy also contends that because the
content of his memoranda ultimately became the content
of his whistleblowing disclosures, the Commission could
not fire him for his memoranda.
As an initial matter, we note that “[t]he WPA is not a
weapon in arguments over policy or a shield for insubor-
15 MCCARTHY v. INTL BOUNDARY & WATER CO
dinate conduct.” Lachance v. White, 174 F.3d 1378, 1381
(Fed. Cir. 1999). Mr. McCarthy’s claim does not turn on
the fact that the content of his protected disclosures
overlapped with the content of his earlier memoranda.
Moreover, we agree with the Board that “the question
here is not ultimately whether the Commission or Mr.
McCarthy was correct regarding their legal and policy
difference,” but whether the Commission had sufficiently
strong evidence to support its personnel action.
McCarthy, 116 M.S.P.R. at 624 n.15. We conclude that it
did. As previously discussed, the administrative judge
credited Commissioner Ruth’s testimony that, after
considering the issue for some time before, it was Mr.
McCarthy’s behavior during the July 27, 2009 staff meet-
ing that ultimately fixed his decision to terminate Mr.
McCarthy. The administrative judge also credited Com-
missioner Ruth’s testimony that, even before the disclo-
sures, he “became concerned about the quality of [Mr.
McCarthy’s] legal advice,” which he described as “strange”
and “unreasonable.” Id. at 630.
This court has “held that ‘an evaluation of witness
credibility is within the discretion of the Board and that,
in general, such evaluations are “virtually unreviewable”
on appeal.’” Kahn, 618 F.3d at 1313 (citing King v. Dep’t
of Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir.
1998) (quoting Clark v. Dep’t of the Army, 997 F.2d 1466,
1473 (Fed. Cir. 1993))). We have further clarified that
this credibility determination must be “based on observa-
tions of the demeanor of a testifying witness such that the
administrative judge’s findings were explicitly or implic-
itly based on such observation of demeanor.” Haebe v.
Dep’t of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). In
this case, the administrative judge noted that Commis-
sioner Ruth “testified in a straight-forward manner,
without equivocation, about his reaction to appellant’s
MCCARTHY v. INTL BOUNDARY & WATER CO 16
behavior” and specifically based his credibility determina-
tion on Mr. McCarthy’s demeanor. Initial Decision, slip
op. at 21-22.
To be sure, a credibility determination may be upset if
it is “inherently improbable or discredited by undisputed
evidence or physical fact.” Gibson v. Dep’t of Veterans
Affairs, 160 F.3d 722, 725-26 (Fed. Cir. 1998). Here, the
evidence supports the Board’s decision to defer to the
administrative judge’s credibility determination. Indeed,
computer meta-data confirms that Commissioner Ruth
began drafting the termination notice on July 18, 2009.
Ms. Brandt, who testified that Commissioner Ruth dis-
cussed terminating Mr. McCarthy’s employment as early
as June 2009, further corroborated Commissioner Ruth’s
testimony.
Mr. McCarthy’s reliance on Mr. Riera’s testimony to
undermine Commissioner Ruth’s credibility is misplaced.
Regarding the decision to terminate Mr. McCarthy, Mr.
Riera testified that on July 31, 2009, Commissioner Ruth
stated that “I thought long and hard last night, and this is
what I have to do, and I don’t want to discuss it.” But this
testimony does not necessarily contradict Commissioner
Ruth’s testimony that he made the decision to remove Mr.
McCarthy at the July 27, 2009 meeting. And in any
event, the administrative judge resolved any inconsis-
tency when he determined that Commissioner Ruth was a
credible witness. Similarly, Mr. Petz’s testimony that
Commissioner Ruth had no intention of firing Mr.
McCarthy as of July 24, 2009 is not inconsistent with
Commissioner Ruth’s testimony that he made his decision
on July 27, 2009. It is true that Mr. Petz sent a personal
email to Mr. McCarthy stating that he was surprised that
Commissioner Ruth had fired him. This “surprise,”
however, is contradicted by Mr. Petz’s own testimony that
17 MCCARTHY v. INTL BOUNDARY & WATER CO
on or around July 20, 2009, he and Mr. Riera had been
concerned about Commissioner Ruth’s intentions of firing
Mr. McCarthy and that he had counseled Mr. McCarthy
to develop a better relationship with Commissioner Ruth.
Initial Decision, slip op. at 8. And as the Commission
explained at oral argument, the allegedly backdated
memorandum is not backdated at all. Instead, Commis-
sioner Ruth created the memorandum at issue on August
2, 2009 as a record of a meeting that allegedly took place
between Mr. McCarthy and Mr. Ruth on July 23, 2009—
hence, the July 23, 2009 date noted in the memorandum.
The Commission never asserted that the memorandum
was actually created on July 23, 2009. At bottom, sub-
stantial evidence supports the Board’s determination that
the Commission had a strong basis for terminating Mr.
McCarthy’s employment.
Mr. McCarthy also contends that the Board’s conclu-
sions with respect to the second and third Carr factors are
not supported by substantial evidence. With respect to
the second Carr factor, Mr. McCarthy argues that the
Board was wrong to conclude that his protected disclo-
sures created only a slight motive to retaliate. As dis-
cussed above, the Board found that there was no evidence
that Commissioner Ruth actually read Mr. McCarthy’s
disclosures before the Commission terminated Mr.
McCarthy. But according to Mr. McCarthy, Commis-
sioner Ruth must have known the general content of Mr.
McCarthy’s disclosures, especially in light of Mr.
McCarthy’s previous memoranda and his email informing
Commissioner Ruth of the disclosures. With respect to
the third Carr factor, the Board found no evidence that
the Commission takes similar actions against employees
who are not whistleblowers but who are otherwise simi-
larly situated. Mr. McCarthy, however, contends that the
Board should have weighed this factor more heavily
MCCARTHY v. INTL BOUNDARY & WATER CO 18
against the Commission. Mr. McCarthy specifically
argues that the Board failed to consider that two Com-
mission employees, Mr. Graf and Ms. Forti, were simi-
larly situated—yet they were not fired despite their
allegedly divisive conduct.
Notwithstanding Mr. McCarthy’s contentions with re-
spect to Carr factors two and three, we agree with the
Board that the ultimate inquiry is whether the Commis-
sion has carried its burden of providing clear and convinc-
ing evidence that the same action would have been taken
absent the alleged whistleblowing. In Whitmore v. De-
partment of Labor, we explained that:
Carr does not impose an affirmative burden on
the agency to produce evidence with respect to
each and every one of the three Carr factors to
weigh them each individually in the agency’s fa-
vor. The factors are merely appropriate and per-
tinent considerations for determining whether the
agency carries its burden of proving by clear and
convincing evidence that the same action would
have been taken absent the whistleblowing.
680 F.3d 1353, 1374 (Fed. Cir. 2012) (citation omitted).
Here, the Commission provided strong evidence in
support of its personnel action. In particular, Commis-
sioner Ruth testified that, after months of dissatisfaction,
he made the ultimate decision to terminate Mr. McCarthy
before the alleged whistleblowing occurred. Based on
Commissioner Ruth’s demeanor and extensive corroborat-
ing evidence, the administrative judge found this testi-
mony credible. We see no reason to disturb that
credibility determination on appeal. While in many cases
an analysis of all three Carr factors may be necessary to
19 MCCARTHY v. INTL BOUNDARY & WATER CO
demonstrate what an agency would have done absent
whistleblowing,3 in this case, the Commission has defini-
tively established that it was actively working to remove
Mr. McCarthy prior to his disclosures.
We therefore conclude that substantial evidence sup-
ports the Board’s ultimate determination that the Com-
mission proved by clear and convincing evidence that it
would have terminated Mr. McCarthy even in the absence
of his disclosures.
C
Mr. McCarthy criticizes a number of discovery and
evidentiary rulings by the Board and the administrative
judge. We have held that “[p]rocedural matters relative
to discovery and evidentiary issues fall within the sound
discretion of the board and its officials.” Curtin v. Office
of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). “If
an abuse of discretion did occur with respect to the dis-
covery and evidentiary rulings, in order for petitioner to
prevail . . . he must prove that the error caused substan-
tial harm or prejudice to his rights which could have
affected the outcome of the case.” Id.3 Indeed, we explained in Whitmore that:
To the extent such evidence exists, however, the
agency is required to come forward with all rea-
sonably pertinent evidence relating to Carr factor
three. Failure to do so may be at the agency’s
peril. . . . Stated differently, the absence of any
evidence concerning Carr factor three may well
cause the agency to fail to prove its case overall.
Id. at 1374-75. But here, the Commission carried its
ultimate burden of proving by clear and convincing evi-
dence that the same action would have been taken even
absent Mr. McCarthy’s disclosures.
MCCARTHY v. INTL BOUNDARY & WATER CO 20
Mr. McCarthy primary contention is that the admin-
istrative judge abused his discretion in denying Mr.
McCarthy’s motions to compel. But according to the
Commission, Mr. McCarthy’s request failed to comply
with 5 C.F.R. § 1201.73(e). That regulation states, in
part, that “[before filing any motion to compel discovery,
the moving party shall discuss the anticipated motion
with the opposing party either in person or by telephone
and the parties shall make a good faith effort to resolve
the discovery dispute and narrow the areas of disagree-
ment.” 5 C.F.R. § 1201.73(e)(1). While Mr. McCarthy
claims to have complied with this requirement, the Com-
mission points out that Mr. McCarthy never meaningfully
conferred before he filed the motion to compel and that
his representatives simply demanded in a single email
that the Commission withdraw all objections or he would
file a motion to compel. After the administrative judge
denied his motions to compel, Mr. McCarthy filed a mo-
tion for certification of an interlocutory appeal of the
ruling, or in the alternative, for reconsideration. But Mr.
McCarthy still failed to explain how he had complied with
5 C.F.R. § 1201.73(e).
Moreover, there can be no prejudice from any denial
of Mr. McCarthy’s motions because the administrative
judge subsequently gave Mr. McCarthy an opportunity to
attempt to obtain the documents he requested—an oppor-
tunity that Mr. McCarthy rejected. On January 14, 2010,
just one day after Mr. McCarthy filed his motion for
reconsideration, the administrative judge held a status
conference. At that conference, the administrative judge
“instructed [Mr. McCarthy] to file a written request to
permit [him] personal access to the [Commission] and its
document[s].” J.A. 499. Mr. McCarthy, however, refused
to make what he perceived as “a last-minute, futile re-
quest for permission . . . to review such documents at
21 MCCARTHY v. INTL BOUNDARY & WATER CO
[Commission] headquarters . . . .” J.A. 519. On appeal in
this court, Mr. McCarthy continues to assert that the
administrative judge’s discovery proposal was a “coy
‘offer.’” Pet’r’s Br. 52. But Mr. McCarthy provides no
basis for his assertion. Having refused to follow the
administrative judge’s directions concerning the conduct
of discovery, Mr. McCarthy’s request for relief is without
merit. Accordingly, we conclude that the administrative
judge did not abuse his discretion in denying Mr.
McCarthy’s motions to compel.
Mr. McCarthy’s reliance on Whitmore is unavailing.
In that case, we held that “it is an abuse of discretion to
categorically exclude all witnesses offered to testify as to
evidence under the Carr factors on relevance grounds.”
Whitmore, 68 F.3d at 1370. Here, however, the adminis-
trative judge gave Mr. McCarthy an opportunity to re-
quest potentially relevant evidence, and Mr. McCarthy
refused to avail himself of that opportunity.
With respect to Mr. McCarthy’s contention that the
administrative judge improperly admitted certain evi-
dence and improperly excluded other evidence, we con-
clude that Mr. McCarthy has not demonstrated any
prejudice from those alleged errors. For example, Mr.
McCarthy complains that the administrative judge should
not have relied on Commissioner Ruth’s “Daytimer”
entries and “other fraudulent, backdated notes.” Mr.
McCarthy, however, fails to explain how these entries
prejudiced him. To be sure, the administrative judge cites
a portion of the record where Commissioner Ruth read
from his Daytimer entries regarding a meeting with Mr.
Petz, which allegedly took place on July 20, 2009. Initial
Decision, slip op. at 16. While the exact date of this
meeting is disputed, both Mr. Petz and Commissioner
Ruth testified that it occurred before the July 27, 2009
MCCARTHY v. INTL BOUNDARY & WATER CO 22
staff meeting and that they discussed terminating Mr.
McCarthy. Simply put, Mr. McCarthy does not explain
how the Daytimer entries prejudiced him in a way that
affected the outcome his case. Mr. McCarthy also does
not explain how he was prejudiced by the administrative
judge’s exclusion of other evidence. We therefore conclude
that Mr. McCarthy has failed to show that the adminis-
trative judge abused his discretion with respect to his
discovery and evidentiary rulings.
We have also considered Mr. McCarthy’s remaining
arguments and find them unpersuasive. Accordingly, we
hold that Mr. McCarthy has failed to identify a property
interest in his employment that would require due proc-
ess to be afforded with respect to his discharge. We
affirm the Board’s conclusion that the Commission did not
violate the WPA when it terminated Mr. McCarthy’s
employment. We also hold that the administrative judge
did not abuse his discretion with respect to his discovery
and evidentiary rulings.
III. CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED