Elkassir v. General Services Administration , 257 F. App'x 326 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3272
FAROUK ELKASSIR,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Farouk Elkassir, of Fort Lee, New Jersey, pro se.
Joan M. Stentiford, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant
Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3272
FAROUK ELKASSIR,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
__________________________
DECIDED: December 10, 2007
__________________________
Before MICHEL, Chief Judge, NEWMAN, and PROST, Circuit Judges.
PER CURIAM.
Farouk Elkassir petitions for review of an adverse decision of the Merit Systems
Protection Board (“MSPB” or “Board”) denying him relief on his individual right of action
(“IRA”) appeal based on the Whistleblower Protection Act (“WPA”). Elkassir v. Gen.
Servs. Admin., No. NY1221060343-W-1 (M.S.P.B. May 4, 2007). We find no error with
the Board’s decision and therefore affirm.
BACKGROUND
Mr. Elkassir worked as a mechanical engineer in the General Services
Administration (“GSA”). In a February 3, 2006, email to the acting administrator of the
GSA, Mr. Elkassir questioned the rumored closure of the center he worked in and raised
possible reasons for that closure; he also suggested that improvements in management
would benefit the center. On March 22, 2006, Mr. Elkassir responded to a proposed
suspension action—for alleged conduct (outside his email) related to his prior
performance evaluation—by disclosing to his director of operations, Ms. Ramos, that his
supervisor, Mr. Santapaga, had asked him to delay processing Item Purchase
Descriptions and had added layers of review, in order to make the center seem busier
than it otherwise would. He also disclosed to Ms. Ramos that Mr. Santapaga had
issued a deviation from contract specifications to one of the government’s contractors—
allowing the contractor to use substandard packaging for shipments—without recouping
the savings for the government. Following Mr. Elkassir’s disclosures, Ms. Ramos
issued him an official reprimand for insubordination on June 20, 2006. Also, on May 30,
2006, Mr. Elkassir received a substandard performance evaluation, and the GSA later
issued a notice of unacceptable performance as well as a performance action plan.
Mr. Elkassir submitted a complaint to the Office of Special Counsel (“OSC”) on
July 13, 2006, alleging that the reprimand and a substandard performance rating were
in retaliation for his disclosures related to Mr. Santapaga. On August 24, 2006, the
OSC notified Mr. Elkassir that it had terminated its inquiry into his allegations but that he
could pursue relief at the MSPB. He then filed his IRA appeal with the Board.
In a March 30, 2007, initial decision, the MSPB administrative judge dismissed
Mr. Elkassir’s claim relating to the letter of reprimand because he had elected to pursue
relief through the negotiated grievance procedures defined by the collective bargaining
agreement. Elkassir v. Gen. Servs. Admin., No. NY1221060343-W-1 (M.S.P.B. Mar.
30, 2007) (“Initial Decision”). The administrative judge then conducted a hearing to
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determine Mr. Elkassir’s rights relating to his substandard performance rating. The
administrative judge concluded that Mr. Elkassir had asserted a nonfrivolous allegation
of Board jurisdiction, but had failed to prove that he made a protected disclosure. Initial
Decision, slip op. at 9. On May 4, 2007, the administrative judge’s initial decision
became the final decision of the Board. This petition followed.
DISCUSSION
We have jurisdiction over petitions for review of MSPB decisions under 28 U.S.C.
§ 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. We must set aside
agency actions we find, “(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).
To prevail on a claim under the WPA, an employee must show that he disclosed
information he reasonably believed “evidences (i) a violation of law, rule, or regulation,
or (ii) gross mismanagement, 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);
see Reid v. Merit Sys. Prot. Bd., No. 2007-3056, slip op. at 5 (Fed. Cir. Nov. 19, 2007)
(concluding that, to make a protected disclosure, a whistleblower need only disclose
what he reasonably believes is an imminent—not actual—violation of law, rule, or
regulation).
Before this court, Mr. Elkassir argues that he did make protected disclosures,
pointing to the waste created by Mr. Santapaga’s alleged change to the contract and
disputing the administrative judge’s credibility determinations. He also asserts that the
2007-3272 3
testimony of Linda Bambach—whom he alleges the administrative judge did not allow to
testify—would have helped his case.
The administrative judge considered Mr. Elkassir’s email to the acting
administrator of GSA and concluded that Mr. Elkassir did not make a specific and
detailed allegation of wrongdoing as required by the WPA. We agree with the
administrative judge; Mr. Elkassir’s email raised only the rumored closure of the center,
certainly not an “imminent” violation. Reid, slip op. at 5.
Next considering Mr. Elkassir’s disclosure that Mr. Santapaga had unnecessarily
added layers of review to the work process, the administrative judge compared Mr.
Elkassir’s testimony with that of Mr. Santapaga. Mr. Elkassir admitted he knew of Mr.
Santapaga’s stated reason for adding layers of review—to reduce the possibility of
error—and that he understood but disagreed with that stated reason. The
administrative judge therefore concluded that Mr. Elkassir did not have a reasonable
belief that Mr. Santapaga abused his authority or committed gross mismanagement.
Initial Decision, slip op. at 11.
In order to show gross mismanagement, “an employee must disclose such
serious errors by the agency that a conclusion the agency erred is not debatable among
reasonable people.” White v. Dep’t of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir.
2004). An abuse of authority requires an “arbitrary or capricious exercise of power by a
federal official or employee that adversely affects the rights of any person or that results
in personal gain or advantage to himself or to preferred other persons.” D’Elia v. Dep’t
of the Treasury, 60 M.S.P.R. 226, 232 (1993). Mr. Elkassir’s admission that he knew of
Mr. Santapaga’s stated reason for the policy shows that he understood the debatable
2007-3272 4
nature of the additional layers of review. Further, that stated reason also establishes
that the additional review was not arbitrary, but instead based on logical principles.
While Mr. Elkassir may have believed the additional review did not serve its intended
purpose, he could not have reasonably concluded that Mr. Santapaga’s actions rose to
the point of gross mismanagement or abuse of authority. Therefore, the administrative
judge correctly concluded that Mr. Elkassir did not make a protected disclosure relating
to the additional review.
The administrative judge then discussed Mr. Elkassir’s disclosure that Mr.
Santapaga had asked him to delay his work. The administrative judge explicitly found
that Mr. Santapaga offered more credible testimony on the issue, and had merely
expressed to Mr. Elkassir his concern that Mr. Elkassir should perform more research to
support his work. Initial Decision, slip op. at 12. The administrative judge’s credibility
determinations are “virtually unreviewable” on appeal. Frey v. Dep’t of Labor, 359 F.3d
1355, 1361 (Fed. Cir. 2004) (citation omitted). Accordingly, we find no error in the
administrative judge’s conclusion that Mr. Elkassir did not reasonably believe that Mr.
Santapaga abused his authority by suggesting Mr. Elkassir delay his work.
The administrative judge next addressed Mr. Elkassir’s disclosure to Ms. Ramos
that Mr. Santapaga had issued a deviation in a contractor’s shipping specifications
without recouping the savings for the government. Here, the administrative judge
looked to Mr. Elkassir’s testimony that Mr. Santapaga had no authority to either issue
the deviation or recover any associated costs. Initial Decision, slip op. at 17–18. The
administrative judge’s discussion of the issue points to a lack of evidence that Mr.
Santapaga should have in fact recovered the savings, and a lack of evidence that Mr.
2007-3272 5
Elkassir believed he should have done so. Mr. Elkassir admitted that Mr. Santapaga
could only make a recommendation, not actually issue the deviation. Initial Decision,
slip op. at 18. We agree with the administrative judge’s analysis; nothing in the record
indicates that Mr. Santapaga violated a law, rule, or regulation, committed gross
mismanagement, or abused his authority. While Mr. Elkassir may believe that the
government should recover any savings resulting from a contract deviation, he has not
shown that Mr. Santapaga was obligated or even authorized to do so. Because
substantial evidence supports the administrative judge’s conclusion that Mr. Elkassir did
not reasonably believe he was disclosing any wrongdoing, we affirm the administrative
judge’s conclusion that Mr. Elkassir did not make a protected disclosure.
Finally, Mr. Elkassir challenges the administrative judge’s decision to exclude
Linda Bambach from testifying as a witness. Mr. Elkassir only identifies the general
topic of Ms. Bambach’s testimony—the alleged unnecessary layers of work added by
Mr. Santapaga. We do not find an abuse of discretion where Mr. Elkassir has failed to
identify what the excluded witness would have added to the record. Davis v. Office of
Pers. Mgmt., 918 F.2d 944, 946 (Fed. Cir. 1990).
CONCLUSION
Because substantial evidence supports the administrative judge’s decision and
nothing indicates that the decision was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, or obtained without procedures required by law,
rule, or regulation having been followed, we affirm.
No costs.
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