Collica v. Department of the Army , 651 F. App'x 981 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAYMOND CHARLES COLLICA,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2015-3132
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-12-0618-I-2.
______________________
Decided: June 8, 2016
______________________
RAYMOND CHARLES COLLICA, Tampa, FL, pro se.
COURTNEY D. ENLOW, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD; REBECCA AUSPRUNG, Civilian
Personnel Branch, United States Army Litigation Divi-
sion, Fort Belvoir, VA.
______________________
2 COLLICA v. ARMY
Before TARANTO, BRYSON, and STOLL, Circuit Judges.
PER CURIAM.
Raymond Collica was employed by the Department of
the Army as an attorney-advisor. He was stationed in
Europe for several years. In May 2012, the Army re-
moved him from his position for refusing a reassignment
to the United States ordered by Army management. He
appealed the removal to the Merit Systems Protection
Board, which found the removal proper and not in retalia-
tion for Mr. Collica’s whistleblower activity. See Collica v.
Dep’t of the Army, No. DC-0752-12-0618-I-2, 2015 WL
779691 (MSPB Feb. 25, 2015) (Final Order); Collica v.
Dep’t of the Army, No. DC-0752-12-0618-I-2, 2013 WL
6631195 (MSPB July 10, 2013) (Initial Decision). We
affirm.
BACKGROUND
Before his 2012 removal, Mr. Collica served as an
attorney-advisor in the Army’s Warrior Transition Battal-
ion in Wiesbaden, Germany. In that position, he provided
legal counsel to soldiers who were going through the
Army’s process for determining their fitness for continued
service and eligibility for disability compensation; specifi-
cally, he advised soldiers during the phase of that process
in which their medical condition was assessed to decide if
they would continue to meet the Army’s medical stand-
ards for retention. In September 2011, an Army-wide
directive implementing the Integrated Disabilities Evalu-
ation System moved processing, including the phase
handled by Mr. Collica, to the continental United States.
Because processing would no longer take place in
Europe, Mr. Collica’s supervisor, Colonel Joyce Hamel,
notified him on December 16, 2011, that he had until
March 31, 2012, to resolve pending cases. The colonel’s
memorandum also offered to reassign Mr. Collica to a
different attorney position—with the same basic salary
COLLICA v. ARMY 3
plus an increase for locality pay—at Walter Reed National
Military Medical Center in Bethesda, Maryland. Mr.
Collica refused the reassignment. He asserted that he
was being reassigned as reprisal for whistleblower disclo-
sures he had made in June 2010 about a plan to send
attorneys from Washington, DC, to Germany for two
months, a plan he considered mismanagement and a
waste of funds. In response, Colonel Hamel’s supervisor,
Colonel Jonathan Kent, wrote to Mr. Collica that the
reason for reassignment was that “there is no longer a
requirement for soldiers’ counsel to remain in Europe,”
that he saw no merit in the claim that the reassignment
was in reprisal for the identified disclosures, and that the
mismanagement/waste charge would be further investi-
gated. S.A. 102–03. In the resulting investigation, the
investigating lieutenant rejected Mr. Collica’s charge,
including its reprisal aspect.
On March 1, 2012, Colonel Hamel issued a new mem-
orandum directing Mr. Collica’s reassignment to the
previously offered position at Walter Reed and explaining
that failure to accept could result in his removal. The
memorandum reiterated that there was no longer a need
for Mr. Collica’s attorney-adviser position in Europe and
stated that the need for attorneys in the United States
had increased. But Mr. Collica again declined the reas-
signment and provided reasons for doing so. Colonel Kent
reviewed all of Mr. Collica’s arguments for staying in
Europe and decided that the management-directed reas-
signment would proceed. When Mr. Collica failed to
accept the reassignment, Colonel Kent removed him from
federal service on May 25, 2012.
Mr. Collica filed an appeal with the Merit Systems
Protection Board in November 2012, challenging the
removal and asserting, as an affirmative defense, retalia-
tion for whistleblower activity. After an evidentiary
hearing, the administrative judge upheld the agency’s
removal. She found that the agency’s decision to reassign
4 COLLICA v. ARMY
Mr. Collica from Europe was a valid, non-arbitrary exer-
cise of managerial discretion where an Army directive
mandated relocation of all relevant processing to the
United States. She also rejected the retaliation defense.
She found that the disclosures at issue were protected by
the Whistleblower Protection Act and were a contributing
factor in the removal (under a test keyed to timing of the
decision and the decision-maker’s knowledge of the disclo-
sures), but she found that the Army showed by clear and
convincing evidence that it would have taken the same
action even if the disclosures had not been made. Finally,
the administrative judge agreed with the Army that Mr.
Collica’s failure to accept the directed reassignment
impaired the efficiency of the service and that removal
was an appropriate remedy.
Mr. Collica’s petition for review, filed with the Board
in October 2013, asserted errors in the administrative
judge’s substantive findings and procedural rulings. The
Board modified the initial decision by adding an analysis
of the agency’s authority to reassign and remove Mr.
Collica: although he raised that argument for the first
time in his petition for review, relevant evidence—
specifically, an August 2012 email—was among 1,800
emails provided to him by the Army just six days before
the hearing with the administrative judge. Taking into
account the August 2012 email, the Board determined
that Colonel Kent had the authority to direct Mr. Collica’s
reassignment. See Collica, 2015 WL 779691, ¶¶ 6–11.
And the Board found no other reversible error: it rejected
Mr. Collica’s procedural objections and agreed that the
Army met its burden to defeat his whistleblower defense.
See id. ¶¶ 12–23.
Mr. Collica appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
COLLICA v. ARMY 5
DISCUSSION
We 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 proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see Terban v. Dep’t of Energy, 216 F.3d
1021, 1024 (Fed. Cir. 2000). We see no basis for disturb-
ing the Board’s decision.
There was substantial evidence to support the finding
that the Army had legitimate management reasons to
direct Mr. Collica’s reassignment—and, consequently,
that he could be removed for refusing the reassignment.
See Cobert v. Miller, 800 F.3d 1340, 1349, 1351 (Fed. Cir.
2015); Frey v. Dep’t of Labor, 359 F.3d 1355, 1360 (Fed.
Cir. 2004). The Army-wide restructuring directive re-
quired that the soldier processing at issue, specifically the
phase handled by Mr. Collica, would thereafter take place
in the United States. Even the small number of soldiers
granted exceptions to stay in Europe would return to the
United States temporarily for processing. It therefore
made sense, and the administrative judge credited Colo-
nel Hamel’s and Kent’s testimony, that these changes
made it important for counsel to be in the United States,
not in Europe. Moreover, reliance on this reason for Mr.
Collica’s reassignment was no afterthought: all of the
communications between Mr. Collica and his supervisors
explicitly refer to the restructuring directive as the reason
for the at-first-voluntary, then-mandatory reassignment,
while giving him both an opportunity to respond and
notice of the consequences for failure to accept. And the
evidence that the Army saw the need for some paralegals
to continue working in Germany does not render illegiti-
mate the decision that attorneys performing Mr. Collica’s
advising function were no longer needed in Germany.
6 COLLICA v. ARMY
We further discern no legal or factual error in the
Board’s determination that Colonel Kent had the authori-
ty to direct Mr. Collica’s reassignment. Mr. Collica argues
otherwise based on an email sent to Colonel Kent in
August 2012—after Mr. Collica’s removal in May 2012—
suggesting that the Army could not move Mr. Collica’s
position to the United States on an organizational chart
without the approval of the Vice Chief of Staff. But, as
the Board correctly recognized, the pertinent issue here is
not who had authority to effect an internal alteration of
where an existing position would sit in an organizational
hierarchy. The only authority question here concerns
authority to move Mr. Collica to a different, already-
existing vacant position in the United States that would
perform related tasks. As the Board succinctly put it,
“[t]he movement of positions and the movement of per-
sonnel between positions are not synonymous.” S.A. 17.
Mr. Collica has no valid claim that Colonel Kent did not
have the authority to reassign him.
Mr. Collica suggests that the reassignment was pro-
cedurally defective, pointing to Army Regulation 690-200,
chapter 213, section 4-13, which provides that the respon-
sible qualifying attorney, here the judge advocate general,
must “[b]e notified before action is taken to involuntarily
reassign . . . a civilian attorney.” But the Board made
sufficient findings that the procedure used here complied
with that regulation’s terms. The Board concluded that,
even if the judge advocate general’s approval was neces-
sary for Mr. Collica’s reassignment, Colonel Kent had
obtained such approval and had supervisory authority
over Mr. Collica. It relied on evidence that Mr. Collica
emailed both Colonel Kent and the judge advocate general
about his reassignment and that Colonel Kent responded
on behalf of the judge advocate general. More generally,
evidence shows that Colonel Kent coordinated with the
judge advocate general, who knew about the reassign-
ment and expressed no objections to it. The evidence here
COLLICA v. ARMY 7
suffices for us to uphold the Board’s authority determina-
tion, apart from any question about whether Mr. Collica
waived this point or whether the reassignment could be
affirmed in the absence of the judge advocate general’s
approval.
Regarding Mr. Collica’s whistleblower claim, the Ar-
my does not object to the Board’s conclusion that Mr.
Collica made a prima facie case of whistleblower reprisal
by showing that his disclosures were protected under 5
U.S.C. § 2302(b)(8) and that they were a contributing
factor in his removal under the knowledge-timing ap-
proach to that issue. It relies, instead, on the statutory
basis for rejecting the claim where the agency “demon-
strates by clear and convincing evidence that it would
have taken the same personnel action in the absence of
such disclosure[s].” 5 U.S.C. § 1221(e)(2). To determine
whether the Army has done so here, the administrative
judge and the Board properly examined the three factors
identified in Carr v. Social Security Administration, 185
F.3d 1318, 1323 (Fed. Cir. 1999). Substantial evidence
supports the findings on each of those factors.
As to the first factor, i.e., the strength of the agency’s
evidence supporting its personnel action, the administra-
tive judge found the evidence to be very strong because
the Army proved that processing would take place exclu-
sively in the United States and there was no need for an
attorney in Europe. Indeed, the attorney position in
Europe has remained vacant, while the attorney position
in Bethesda, Maryland, has since been filled. As to the
second factor, i.e., the deciding official’s motive to retali-
ate, the administrative judge determined that Colonel
Kent had a reasonable explanation for directing Mr.
Collica’s reassignment, was not affected by Mr. Collica’s
disclosures, and had no improper motive to retaliate.
Although Mr. Collica’s direct supervisor, Colonel Hamel,
had reasons to retaliate and exhibited a dislike of Mr.
Collica in numerous emails, it was Colonel Kent, not
8 COLLICA v. ARMY
Colonel Hamel, who made the reassignment decision.
And, contrary to Mr. Collica’s contentions, the judge
considered and rejected his argument that Colonel Hamel
participated in or had influence on the decision, relying in
part on Colonel Kent’s testimony that he did not recall
discussing the reassignment with Colonel Hamel and that
he made the decision. We see no basis for overturning the
Board’s findings in this regard, which rely on credibility
determinations that warrant particular deference. See
Frey, 359 F.3d at 1360–61. As to the final factor, i.e., the
treatment of similarly situated non-whistleblower em-
ployees, the Board reasonably found nothing to detract
from the other evidence because no other employee was
situated similarly to Mr. Collica.
Mr. Collica’s other contentions do not undermine the
Board’s findings or ultimate conclusion. He says that the
investigation Colonel Kent commissioned on his whistle-
blower claim involved a conflict of interest, but he identi-
fies only a tenuous connection between the investigating
lieutenant and Colonel Hamel (who was not the deciding
official in any event). And he says that the Board failed to
consider evidence of other prohibited personnel practices,
but he does not adequately link the alleged error to one of
the Carr factors or explain why consideration of those
practices was necessary when the Board concluded that
he had already established a prima facie case of whistle-
blower reprisal. Sufficient evidence supports the Board’s
finding that the Army showed that it would have taken
the same action in the absence of Mr. Collica’s disclosures.
Finally, Mr. Collica contends that many of the admin-
istrative judge’s evidentiary and discovery rulings were
incorrect. Such procedural matters fall within the discre-
tion of the Board and generally call for a showing of
prejudice before the Board determination is overturned.
See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed.
Cir. 2012). Here, Mr. Collica has not shown that he
suffered any harm that affected his case. His main con-
COLLICA v. ARMY 9
tention is that the administrative judge should have given
him more time to review the emails produced by the Army
in discovery six days before the hearing. The Board
remedied that restrictive timing in one respect: it allowed
him to present an argument about the August 2012 email
that would otherwise have been late. But he has offered
no other reason why having more time would have mat-
tered to his case. His other objections, including that he
was prevented from putting on or adequately examining
certain witnesses and that the Army did not provide
requested evidence, are similarly unaccompanied by any
concrete indication of a reason to think the record would
have been materially different from what it actually was.
We therefore reject Mr. Collica’s procedural arguments.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Merit Systems Protection Board.
AFFIRMED