Cassidy v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD W. CASSIDY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
______________________
2014-3024
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-11-0365-B-1.
______________________
Decided: July 14, 2014
______________________
DONALD W. CASSIDY, of The Woodlands, Texas, pro se.
BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
FRANKLIN W. WHITE, JR., Assistant Director.
______________________
Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
2 CASSIDY v. DOJ
PER CURIAM
Donald W. Cassidy appeals the Merit Systems Protec-
tion Board’s (MSPB) denial of his request for corrective
action under the Whistleblower Protection Act (WPA).
Because we find that substantial evidence supports the
MSPB’s determination that the Department of Justice
(DOJ) demonstrated by clear and convincing evidence Mr.
Cassidy would not have been selected to serve as an
immigration judge even if he had made no disclosures
protected under the WPA, we affirm.
I. BACKGROUND
A. San Antonio application
At all times relevant to this appeal, Mr. Cassidy
served as deputy chief counsel for the Immigration and
Customs Enforcement Service (ICE), part of the Depart-
ment of Homeland Security. In that capacity, Mr. Cassi-
dy assisted in developing and coordinating ICE’s litigation
positions before the Immigration Court in Houston,
Texas, an administrative tribunal operating within the
Executive Office for Immigration Review (EOIR), which is
part of DOJ.
In May and December 2009, respectively, Mr. Cassidy
submitted applications in response to EOIR vacancy
announcements for immigration judge positions in San
Antonio, Texas and in Houston, Texas. Each vacancy
announcement required applicants to describe their
qualifications, including how they “demonstrate[d] the
appropriate temperament to serve as a judge.” Supple-
mental Appendix (“S.A.”) 36, 42.
Judge Larry Dean, an Assistant Chief Immigration
Judge based in San Antonio, was responsible for checking
the references of some of the candidates for the San
Antonio position, including the references listed in Mr.
Cassidy’s application. As part of this process, sometimes
called “vouchering,” he interviewed the individuals listed
CASSIDY v. DOJ 3
as references by Mr. Cassidy as well as several individu-
als who were not listed as references but knew Mr. Cassi-
dy on a professional basis. He summarized these
interviews in several “vouchering sheets.”
Among those interviewed by Judge Dean included Di-
na Sherman, the administrator for the immigration court
in Houston. Ms. Sherman described Mr. Cassidy as
“informative and well-informed,” though his emails were
sometimes “defensive.” S.A. 64. She stated that he was
“passionate about certain issues,” and, “[i]f a legal issue
arises, . . . inflexible.” Id. He was, in her opinion, “a
person who either likes you or does not.” Id.
Phillip Law, a Houston-based immigration judge, con-
sidered Mr. Cassidy to be “very competent,” but expressed
uncertainty about his impartiality. Judge Law comment-
ed: “would [Mr. Cassidy] be impartial? I don’t know. He
is very enforcement[-]oriented. He would probably be
impartial.” S.A. 64. Judge Law also noted that Mr.
Cassidy was sometimes “not tactful” and that “some trial
attorneys indicate that he can ‘get rough at times.’” Id.
Judge Dean also interviewed Howard Rose, another
Houston-based immigration judge. Judge Rose stated
that he had known Mr. Cassidy for 15-20 years, and that
Mr. Cassidy “is not a good people person, nor does he have
a good temperament.” S.A. 64. Judge Rose said that Mr.
Cassidy “[wa]s not easy to get along with,” and that “‘lots
of good people’ ha[d] left the [Chief Counsel’s] office
because of [him].” Id. Judge Rose felt Mr. Cassidy “‘lords’
over people” and that “he would be a ‘screamer’ in court.”
Id.
Judge Dean prepared “vouchering sheets” incorporat-
ing these responses for the chief immigration judge, Brian
O’Leary, and the acting EOIR director, Thomas Snow.
Judge O’Leary and Mr. Snow both prepared a ranking of
the top candidates for the San Antonio immigration judge
position. They each initially ranked Mr. Cassidy as the
4 CASSIDY v. DOJ
top candidate. S.A. 65–66. In January 2010, however,
Mr. Snow expressed concern “about leaving Cassidy as my
number one ranked candidate,” especially since there was
another candidate, Anibal Martinez, who was “highly
qualified” and had “received outstanding references.” S.A.
66. Though Mr. Snow did not believe Mr. Cassidy should
be “disqualif[ied]” from the application process, the “tem-
perament[-]related comments he received from some of
the people checked with” were “troub[ling].” Id. After
conferring with Judge O’Leary, they determined that Mr.
Cassidy should be ranked second, and Mr. Martinez, with
strong credentials and no apparent temperament-related
concerns, ranked first. They forwarded this ranked list of
candidates to a panel of three DOJ officials who made the
ultimate selection decision, choosing Mr. Martinez to fill
the vacancy. Mr. Cassidy was notified in May 2010 that
he had not been selected for the San Antonio immigration
judge position.
B. Houston application
In December 2009, Mr. Cassidy also submitted an ap-
plication for an immigration judge position in Houston.
Mr. Cassidy’s application for the Houston position was
evaluated by Judge O’Leary and Mr. Snow after they had
finished reviewing his application for the San Antonio
position. S.A. 179. For the Houston position, Judge
O’Leary and Mr. Snow ranked Mr. Cassidy as the top
candidate among the received applications. According to
Mr. Snow, since candidates were “ranked vis[-]a[-]vis the
other candidates that had applied for that city or that
vacancy,” despite any previous concerns about Mr. Cassi-
dy’s “temperament,” Mr. Snow believed that Mr. Cassidy
was “the best candidate for the Houston vacancy at the
time I forwarded the [] recommendation [to the DOJ
selection panel].” S.A. 180.
As with the previous ranking for the San Antonio po-
sition, Judge O’Leary and Mr. Snow’s ranked list of
CASSIDY v. DOJ 5
candidates was submitted to a three-person panel of DOJ
officials. The DOJ panel—consisting of Mr. Snow himself
and two deputy assistant attorney generals, Mike Allen
and Ann Ravel—invited Mr. Cassidy for an interview in
May 2010. Mr. Snow characterized Mr. Cassidy’s perfor-
mance in the interview as “OK, but not great. Mike
[Allen] & Ann [Ravel] didn’t think he was very strong.
[Mr. Cassidy] didn’t always answer the question asked . . .
[and was t]oo facile in responses.” S.A. 79.
As a result, the panel invited the second-ranked can-
didate for an interview. This candidate also failed to
impress the panelists. The panel then invited the third-
ranked candidate, Saul Greenstein, whom they deter-
mined to be “very poised, reflective, articulate, [with an]
excellent low-key demeanor.” S.A. 177. Mr. Greenstein
was ultimately selected to fill the vacant immigration
judge position in Houston. Mr. Cassidy was informed in
June 2010 that he had not been selected for the position.
C. Mr. Cassidy’s complaint
According to Mr. Cassidy, he initially filed a com-
plaint with the Equal Employment Opportunity Commis-
sion when he found out that Mr. Martinez was selected
for the San Antonio immigration judge position. 1 After he
was not selected for the Houston immigration judge
position, Mr. Cassidy submitted a complaint to the Office
of Special Counsel, alleging that his failure to be selected
for the San Antonio and Houston immigration judge
positions constituted retaliation against him for making
disclosures protected by the WPA.
The crux of Mr. Cassidy’s complaint was based on an
e-mail exchange in October 2009 between his supervisor,
Gary Goldman, and Judge Dean (“the October 2009 e-mail
1 Mr. Cassidy no longer alleges an Equal Employ-
ment Opportunity violation. Appellant’s Br. 6.
6 CASSIDY v. DOJ
chain”). Mr. Goldman, Mr. Cassidy’s supervisor and ICE’s
chief counsel, sent an e-mail to Judge Dean stating that
the immigration court in Polk County, Texas, took on
average “greater than three weeks to schedule an alien for
an initial master calendar appearance after receipt of the
filing of the [notice to appear].” S.A. 50. This delay,
according to Mr. Goldman’s recollection, violated a set-
tlement agreement that required DOJ to provide an
initial hearing to detained immigrants within 48 hours of
the government giving the court notice of the detention.
Shortly thereafter, Mr. Cassidy, who had been copied on
the e-mail, replied to all the message’s recipients, stating
“I have always found this to be an important issue . . . .
Clearly, indeterminate detention was a concern of our
Founding Fathers. . . . [T]he detainees probably have the
same fears of indeterminate detention. I hope we can
address this issue.” Id.
Judge Rose’s name did not appear anywhere in the
October 2009 e-mail chain. Nevertheless, Mr. Cassidy
alleged that this e-mail was a “complain[t]” about Judge
Rose to Judge Dean. S.A. 86. Further, even though it
was Mr. Goldman—and not Mr. Cassidy—who wrote to
Judge Dean about the allegedly long wait times for de-
tained immigrants, Mr. Cassidy’s complaint implied that
he—and not Mr. Goldman—had written the initial e-mail
to Judge Dean in the October 2009 e-mail chain. See id.
The Office of Special Counsel closed its file on Mr.
Cassidy’s complaint in February 2011 after concluding
that his WPA claim lacked merit. Mr. Cassidy then filed
a WPA claim with the MSPB, contending that his com-
plaints to Judge Dean about Judge Rose constituted
protected disclosures, and that Judge Dean had punished
him for making these disclosures by ensuring that Mr.
Cassidy would not be selected for a position as an immi-
gration judge. An administrative judge at the MSPB
dismissed Mr. Cassidy’s WPA claim for lack of jurisdic-
tion.
CASSIDY v. DOJ 7
On appeal, the MSPB vacated the administrative
judge’s dismissal for lack of jurisdiction. The MSPB
concluded that if Mr. Cassidy had “complained to Judge
Dean that Judge Rose’s conduct and unnecessary delays
violated the due process rights of detained aliens,” such a
complaint was a nonfrivolous allegation that could serve
as the basis of a reasonable belief by Mr. Cassidy that “he
was disclosing a violation of law, rule, or regulation in his
communications with Judge Dean.” Cassidy v. Dep’t of
Justice, DA-1221-11-0365-W-1, 2012 WL 1432407, at *4
(M.S.P.B. Apr. 25, 2012). The MSPB ruled that this was a
question of fact that should be resolved by the adminis-
trative judge on remand. Id.The MSPB also determined that Mr. Cassidy had
made nonfrivolous allegations that, if substantiated, could
satisfy the “knowledge/timing” test for determining
whether allegedly protected disclosures were a contrib-
uting factor to his non-selection. Id. at *5–6. In particu-
lar, the MSPB determined that Mr. Cassidy’s allegations
could support a finding that Judge Dean, motivated by
retaliatory animus, influenced DOJ officials on the selec-
tion panels and thus, that the decision-making DOJ
officials had constructive knowledge of Mr. Cassidy’s
allegedly protected disclosures. Id. Furthermore, the
MSPB determined that Mr. Cassidy’s allegedly whistle-
blowing e-mail was sent within a period of time such that
a reasonable person could conclude that it was a contrib-
uting factor to his non-selection for either the San Antonio
or the Houston immigration judge positions. Id. Conse-
quently, the MSPB had jurisdiction over Mr. Cassidy’s
complaint, and the administrative judge was required to
adjudicate the merits of Mr. Cassidy’s claim on remand.
On remand, the administrative judge heard testimony
from several witnesses, including Mr. Cassidy, Judge
Dean, Judge Rose, Judge O’Leary, and Mr. Snow. After
reviewing their testimony and other evidence in the
record, the administrative judge denied Mr. Cassidy’s
8 CASSIDY v. DOJ
request for corrective action. Cassidy v. Dep’t of Justice,
DA-1221-11-0365-B-1, at 2 (M.S.P.B. Sept. 27, 2012)
(hereinafter, “Initial Decision”). The administrative judge
determined that DOJ had proven by clear and convincing
evidence that it would not have selected Mr. Cassidy for a
position as an immigration judge in either San Antonio or
Houston even if he had not made any protected disclo-
sures under the WPA.
Mr. Cassidy then petitioned the MSPB for review of
the administrative judge’s decision. The MSPB rejected
his petition and adopted the administrative judge’s deci-
sion, concluding that Mr. Cassidy’s arguments constituted
“mere disagreement with the administrative judge’s
explained findings of fact and credibility determinations,”
which were “supported by the record and entitled to
deference.” Cassidy v. Dep’t of Justice, DA-1221-11-0365-
B-1, at 7 (M.S.P.B. Aug. 30, 2013) (hereinafter, “Final
Order”). This appeal followed.
II. DISCUSSION
Our review of MSPB decisions is narrowly defined
and limited by statute. 5 U.S.C. § 7703(c). We must
affirm a decision by the MSPB unless it is found to be
unsupported by substantial evidence. Id.; see also Kahn
v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” McLaughlin v. Office of Pers. Mgmt., 353
F.3d 1363, 1369 (Fed. Cir. 2004) (citation and internal
quotation marks omitted).
The WPA prohibits agencies from taking an adverse
personnel action against an employee in retaliation for
certain types of protected disclosures. The relevant WPA
statute, 5 U.S.C. § 2302(b)(8)(A), is excerpted below:
(b) Any employee who has authority to take, direct
others to take, recommend, or approve any per-
CASSIDY v. DOJ 9
sonnel action, shall not, with respect to such au-
thority—
...
(8) take or fail to take, or threaten to take or
fail to take, a personnel action with respect to
any employee or applicant for employment be-
cause of—
(A) any disclosure of information by an em-
ployee or applicant which the employee or
applicant reasonably believes evidences—
(i) any violation of any law, rule, or regula-
tion, or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substan-
tial and specific danger to public health or
safety . . . .
If an adverse personnel action has been taken against
an employee based on conduct protected under statutes
such as the WPA, the MSPB will order corrective action if
that protected activity was a “contributing factor” to the
adverse personnel action. Per the governing statute, 5
U.S.C. § 1221(e)(1):
Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel
practice as described under section 2302(b)(8) . . . ,
the Board shall order such corrective action as the
Board considers appropriate if the employee, for-
mer employee, or applicant for employment has
demonstrated that a disclosure or protected activi-
ty described under section 2302(b)(8) . . . was a
contributing factor in the personnel action which
was taken or is to be taken against such employ-
ee, former employee, or applicant.
10 CASSIDY v. DOJ
Thus, employees must show that a protected disclo-
sure was a “contributing factor” to an adverse employ-
ment decision by a preponderance of the evidence. Kewley
v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361
(Fed. Cir. 1998). One way for an aggrieved employee or
applicant to make this showing is by providing evidence
sufficient to meet the “knowledge/timing” test. This test
is also codified in 5 U.S.C. § 1221(e)(1):
The employee may demonstrate that the disclo-
sure or protected activity was a contributing fac-
tor in the personnel action through circumstantial
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 peri-
od of time such that a reasonable person could
conclude that the disclosure or protected activi-
ty was a contributing factor in the personnel
action.
By statute, once an employee satisfies the
“knowledge/timing” test, the agency may rebut the em-
ployee’s claim by showing by clear and convincing evi-
dence “that it would have taken the same personnel
action even in the absence of [the protected] disclosure.” 5
U.S.C. § 1221(e)(2); see also Chambers v. Dep’t of Interior,
602 F.3d 1370, 1375–76 (Fed. Cir. 2010).
Three non-exclusive factors, known as the Carr fac-
tors, are relevant in assessing whether an agency has
shown by clear and convincing evidence that it would
have taken the same personnel action even in the absence
of any alleged whistleblowing: 1) “the strength of the
agency’s evidence in support of its personnel action”; 2)
“the existence and strength 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
CASSIDY v. DOJ 11
similar actions against employees who are not whistle-
blowers but who are otherwise similarly situated.” Carr
v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The agency is not required to present evidence concerning
all three of those factors; rather, “[t]he factors are merely
appropriate and pertinent considerations for determining
whether the agency carries its burden.” Whitmore v. Dep’t
of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012).
A. San Antonio non-selection
Pursuant to 5 U.S.C. § 1221(e)(1), the MSPB found
that Mr. Cassidy satisfied the “knowledge/timing” test by
showing that Judge Dean was aware of Mr. Cassidy’s e-
mail in the October 2009 e-mail chain and that his May
2010 non-selection for the San Antonio position was
within such time that a reasonable person could find that
the disclosure contributed to the action. Initial Decision2
at 8. The MSPB determined, however, that pursuant to 5
U.S.C. § 1221(e)(2), DOJ successfully rebutted any pre-
sumption that a WPA violation occurred by providing
clear and convincing evidence that Mr. Cassidy would not
have been selected for the San Antonio immigration judge
position even if he had not made any protected disclo-
sures. Substantial evidence supports the MSPB’s find-
ings.
The MSPB focused on the first two nonexclusive Carr
factors: the strength of DOJ’s evidence supporting its
personnel action, and the existence of any motive to
retaliate by the officials involved in the non-selection
decision. The MSPB discounted the third Carr factor as
less relevant, as the contested action was non-selection
rather than punishment, and none of the other candidates
2 The MSPB adopted the findings in the adminis-
trative judge’s Initial Decision pursuant to 5 C.F.R. §
1201.113(b). Final Order at 2.
12 CASSIDY v. DOJ
for the position were alleged to have made protected
disclosures.
As for the first Carr factor, the MSPB noted that
Judge O’Leary and Mr. Snow had raised concerns about
Mr. Cassidy’s temperament, which they testified was “a
very important quality for an [immigration] judge” and
was expressly listed as a “Quality Ranking Factor” for the
evaluation of candidates in the description of the position.
Initial Decision at 12. For example, the MSPB noted that
Ms. Sherman described Mr. Cassidy as “inflexible” on
legal issues and is someone “who either likes you or does
not.” Id. at 11. Mr. Cassidy’s only response to Ms. Sher-
man’s comments is that she had no right to make those
comments because she is not a lawyer. Id. at 9. The
MSPB also noted that Judge Law felt Mr. Cassidy could
“get rough at times” and was not always “tactful.” Id.
Indeed, Mr. Cassidy admitted during his testimony that
he is “less than tactful” on occasion and has been disre-
spectful to his supervisor, Mr. Goldman. Id. at 10. Final-
ly, the MSPB noted that Judge Rose, who had known Mr.
Cassidy for 15-20 years, believed Mr. Cassidy did not
have a good temperament and would be a “screamer” in
court. Id. at 11. Judge Rose believed Mr. Cassidy “lords”
over people and “lots of good people” had left the Chief
Counsel’s office because of him. Initial Decision at 11.
In contrast, the MSPB found that Mr. Martinez was
described as “very even handed” and having an “even,
professional demeanor.” Id. at 29. Judge O’Leary and
Mr. Snow both testified that they moved Mr. Cassidy from
the first to the second-ranked candidate for the San
Antonio position solely due to concerns that his tempera-
ment was not suited to the role of an immigration judge,
and the MSPB determined their testimony to be credible.
Id. at 12–13. We agree. Mr. Cassidy provides no genuine
basis to contest the MSPB’s findings under this factor. In
fact, Mr. Cassidy admitted during his testimony that if he
had the comments of Ms. Sherman, Judge Law, and
CASSIDY v. DOJ 13
Judge Rose before him and he was on the panel, he would
not have selected himself for the San Antonio immigra-
tion judge position. Id. at 10.
Rather, Mr. Cassidy’s primary challenge to the MSPB
decision appears to be more directed to the second Carr
factor: motive to retaliate. In particular, Mr. Cassidy
contends that the MSPB should not have relied on Judge
Dean’s notes or Judge Rose’s testimony concerning his
temperament since they were “tainted” by Judge Dean’s
allegedly retaliatory motive. Appellant’s Br. 22. The
evidence relied on by the MSPB, however, supports the
opposite conclusion: neither Judge Rose nor Judge Dean
had any motive to retaliate against Mr. Cassidy based on
Mr. Cassidy’s e-mail in the October 2009 e-mail chain.
The MSPB concluded that “[t]here is no evidence in
the record that shows Judge Law or Judge Rose were
aware of [Mr. Cassidy’s] disclosures to Judge Dean.”
Initial Decision at 29. Mr. Cassidy relies solely on the
October 2009 e-mail chain as evidence that Judge Rose
knew of his complaint to Judge Dean that Judge Rose was
not “conscientious about his duties” and was “exceptional-
ly slow” in adjudicating the cases before him. S.A. 85. 3 In
the October 2009 e-mail chain, however, it was Mr. Gold-
man—and not Mr. Cassidy—who specifically raised these
concerns. Further, Mr. Goldman’s comments were di-
rected at the Immigration Court at the Polk County
Detention Facility, and not at a particular judge. Judge
Rose’s name never appears in the e-mail chain.
3 Mr. Cassidy’s complaint also alleged that this de-
lay violated a settlement agreement involving DOJ. Mr.
Cassidy, however, was unable to produce this alleged
agreement or identify the case which had resulted in the
purported settlement. S.A. 90, 94.
14 CASSIDY v. DOJ
In addition, Judge Dean testified that he frequently
received complaints about immigration judges from both
private and government attorneys and investigating those
complaints was part of the ordinary course of his job
duties. Id. at 10–11; Final Order at 5. The MSPB ob-
served that Mr. Cassidy’s witness Brett Bradford, an
Assistant Field Office Director, testified that he had
previously made complaints to Judge Dean similar to
those allegedly made by Mr. Cassidy. Initial Decision at
14; Final Order at 6. Mr. Bradford admitted that he did
not believe Judge Dean retaliated against him in any way
because of his complaints. Id. The MSPB found Judge
Dean and Mr. Bradford’s testimony to be credible, and we
see no reason to disturb those credibility determinations.
The MSPB also found that Judge Dean had followed
standard procedures in “vouchering” both Mr. Cassidy
and Mr. Martinez, the applicant eventually selected to fill
the immigration judge position in San Antonio. In partic-
ular, internal “vouchering” procedures specified that
evaluators should check the references listed by appli-
cants as well as additional references, including judges
the applicant may have appeared before and court admin-
istrators “who may be familiar with the professional
conduct of the applicant.” Initial Decision at 15; S.A. 58.
The MSPB rejected Mr. Cassidy’s allegation that
Judge Dean had contacted Judge Rose solely to obtain a
negative reference. Instead, the MSPB found that Judge
Dean had only interviewed Judge Rose after contacting
another immigration judge listed as a reference by Mr.
Cassidy. Mr. Cassidy’s reference told Judge Dean that
Mr. Cassidy had not appeared before him for a number of
years, and suggested that Judge Dean talk to Judge Rose.
Initial Decision at 11.
Mr. Cassidy also imputes ill motive to Judge Dean
based on Judge Dean’s testimony that he asked Mr.
Goldman during the “vouchering” process how long it
CASSIDY v. DOJ 15
would take for Mr. Cassidy to get into a fight with Judge
Rose if Mr. Cassidy was selected for the San Antonio
position. Id. at 12. But the MSPB found that Judge Dean
did not inform anyone else of this discussion, and that
this exchange did not affect Mr. Cassidy’s “vouchering”
sheets or demonstrate that Judge Dean had any motive to
retaliate against Mr. Cassidy for Mr. Cassidy’s e-mail in
the October 2009 e-mail chain. Id. Further, Mr. Cassidy
has no explanation for Judge Dean’s positive review of
Mr. Cassidy’s initial interview for the Houston immigra-
tion judge position, where he commented that Mr. Cassidy
was “[a]rticulate” and “[i]ndicate[d] substantial immigra-
tion knowledge and eagerness to get back into court.” Id.
at 12; S.A. 74. This interview occurred in March 2010,
after Judge Dean’s evaluation of Mr. Cassidy’s candidacy
for the San Antonio position. Indeed, Judge Dean’s
positive evaluation of Mr. Cassidy for the Houston posi-
tion included no mention of the negative feedback from
Ms. Sherman, Judge Law, or Judge Rose. Initial Decision
at 28.
On review of the record as a whole, the MSPB found
that Mr. Cassidy’s accusation that Judge Dean negatively
influenced the decision-making process of Judge O’Leary
and Mr. Snow was not grounded in fact, but based on Mr.
Cassidy’s subjective—and unsupported—interpretations
of the record. Id. at 16. The MSPB also determined that
nothing in the record demonstrated that Judge O’Leary or
Mr. Snow “w[ere] aware of any [of Mr. Cassidy’s] protect-
ed disclosures or had any motive whatsoever to retaliate
against [Mr. Cassidy].” Id. at 15. In large part, Mr.
Cassidy merely urges us to reweigh the evidence before
the MSPB and to reach a different conclusion as to the
meaning of documentary evidence and credibility of
witness testimony than did the MSPB. This is not our
function. See Bieber v. Dep’t of Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002) (“[R]e-weigh[ing] conflicting evidence . . .
is not our function.”). Substantial evidence in the record
16 CASSIDY v. DOJ
supports the MSPB’s findings that DOJ met its burden to
establish Mr. Cassidy would not have been selected for
the San Antonio position even if Mr. Cassidy had not
made any protected disclosures.
B. Houston non-selection
Substantial evidence also supports the MSPB’s con-
clusion that DOJ demonstrated by clear and convincing
evidence Mr. Cassidy would not have been selected for the
Houston immigration judge position even if he had not
made any protected disclosures. For example, evidence
under all three Carr factors supports a conclusion that no
WPA violation occurred.
As for the first Carr factor, the MSPB noted that
Judge Dean interviewed Mr. Cassidy as part of the
“vouchering” process for the Houston immigration judge
position. Initial Decision at 12. Judge Dean described
Mr. Cassidy as “articulate” and as having “substantial
immigration knowledge” and an “eagerness to get back
into court.” Id. Based in part on Judge Dean’s positive
“vouchering sheets,” Judge O’Leary and Mr. Snow initial-
ly ranked Mr. Cassidy as the top candidate for the Hou-
ston position. Id. at 13; S.A. 179–80. The MSPB found
Mr. Snow’s testimony credible that although the DOJ
selection panel for the Houston position interviewed Mr.
Cassidy first, it decided to interview the second- and
third-ranked candidates because of Mr. Cassidy’s medio-
cre interview performance. Mr. Cassidy contends that
nothing in the record supports DOJ’s “unsubstantiated
assertion” that he “interviewed poorly.” Appellant’s Br.
38. According to Mr. Snow, however, Mr. Cassidy provid-
ed “facile” responses to questions and did not “always
answer the questions asked.” Initial Decision at 13; S.A.
79.
As for the second Carr factor, even Mr. Cassidy con-
cedes that “none of the final decision makers [for the
Houston immigration judge position] had any reason to
CASSIDY v. DOJ 17
retaliate.” Appellant’s Br. 24. Those DOJ “decision
makers” simply decided not to select Mr. Cassidy because
of his poor interview. And as discussed supra, Mr. Cassi-
dy’s contention that Judge Dean was trying to “sabotage”
his candidacy because of the October 2009 e-mail chain is
undermined by the favorable “vouchering sheets” for Mr.
Cassidy submitted by Judge Dean to Judge O’Leary and
Mr. Snow. As for the third Carr factor, the MSPB found
that Mr. Snow’s testimony was bolstered by the fact that
the DOJ panel also passed over the second-ranked candi-
date for the same reason as Mr. Cassidy: an unimpressive
interview. Initial Decision at 15.
***
We have considered Mr. Cassidy’s remaining argu-
ments concerning the San Antonio and Houston immigra-
tion judge positions and find them unpersuasive.
III. CONCLUSION
Substantial evidence supports the MSPB’s determina-
tion that DOJ, by clear and convincing evidence, demon-
strated Mr. Cassidy would not have been selected for
either the San Antonio or the Houston immigration judge
position even if he had not made any protected disclo-
sures. The MSPB’s decision to deny Mr. Cassidy correc-
tive action is therefore
AFFIRMED.