Pak v. DVA

Case: 20-1845 Document: 22 Page: 1 Filed: 12/22/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAE PAK,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-1845
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-19-0337-W-1.
______________________
Decided: December 22, 2020
______________________
JAE PAK, Warsaw, IN, pro se.
ANTONIA RAMOS SOARES, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before DYK, CLEVENGER, and O’MALLEY, Circuit Judges.
Case: 20-1845 Document: 22 Page: 2 Filed: 12/22/2020
2 PAK v. DVA
PER CURIAM.
Mr. Jae Pak appeals from the final decision of the Merit
Systems Protection Board (“MSPB”) excluding his wit-
nesses and evidence, and denying his individual right of
action (“IRA”) appeal claiming that the Department of Vet-
erans Affairs (“DVA”) engaged in prohibited conduct when
it allegedly terminated him in retaliation for his alleged
protected whistleblowing activities. For the reasons set
forth below, we affirm the final judgment of the MSPB.
I
Mr. Pak was appointed on October 29, 2017 as a Gen-
eral Engineer for the VA Northern Indiana Health Care
System. His career-conditional appointment was subject to
a one-year probationary period. During his probationary
period, the record shows Mr. Pak failed to follow depart-
ment protocols, received complaints from contractors re-
garding his behavior, and interacted with a contractor in
an unprofessional manner. J.A. 9. 1 On September 7, 2018,
Mr. Pak was terminated because of “unacceptable conduct
and performance.”
On November 29, 2018, Mr. Pak filed a complaint with
the Office of Special Counsel (“OSC”) regarding his termi-
nation alleging that it amounted to prohibited personnel
action taken in response to his protected disclosures under
the Whistleblower Protection Act, as amended by the Whis-
tleblower Protection Enhancement Act of 2012, Pub. L. No.
112-19, 126 Stat. 1465. Mr. Pak asserted five disclosures
he made that he believed were reasonable and were con-
tributing factors to his termination. These disclosures are
summarized as follows:
1 “J.A. __” refers to the page in the Joint Appendix in
this case.
Case: 20-1845 Document: 22 Page: 3 Filed: 12/22/2020
PAK v. DVA 3
(1) Certain construction was outside the scope of
the contract and unnecessary which amounted
to a gross waste of funds and a violation of law.
(2) A contractor was charging the agency for an ex-
cessive number of unnecessary visits that
amounted to a gross waste of funds.
(3) A contractor had been improperly pre-selected
for a contract that required Mr. Pak to revise
the scope of the contract, which amounted to a
violation of law.
(4) Mr. Pak was improperly removed from a meet-
ing and ordered to “rubber stamp” the state-
ment of work from the pre-selected contractor,
which amounted to an abuse of authority and
gross mismanagement.
(5) An employee was performing Contracting Of-
ficer Representative duties without proper au-
thorization, which amounted to gross
mismanagement and a violation of law.
Unsuccessful in receiving corrective action from OSC,
Mr. Pak filed an IRA with the MSPB on May 1, 2019.
On May 2, 2019, the administrative judge (“AJ”) as-
signed to the case issued an Acknowledgment Order, in
which Mr. Pak was informed of the requirements for estab-
lishing Board jurisdiction over his IRA appeal, and of what
he must prove to be entitled to corrective action. That Or-
der clearly warned that “[i]f any party fails to follow my
orders or the Board’s regulations, I may impose sanctions
pursuant to 5 C.F.R. § 1201.43.” J.A. 63. The parties sub-
mitted briefs on the jurisdictional issue, and on August 21,
2019, the AJ found that Mr. Pak had made a nonfrivolous
allegation of at least one protected disclosure that may
have been a contributing factor in the agency’s decision to
take one or more personnel actions.
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4 PAK v. DVA
The AJ conducted a status conference on October 1,
2019. During this status conference, the AJ ordered Mr.
Pak to:
provide a concise statement clarifying specific de-
tails from his jurisdiction responses, to include: the
dates on which he made his purported disclosures;
the individuals to whom he made them; why his be-
lief in the truth of those disclosures was reasona-
ble; and why he believed his disclosure was a
contributing factor in his probationary termina-
tion.
J.A. 7. Mr. Pak never provided a response to the AJ’s order.
The AJ also issued an order on the same day which
scheduled November 5, 2019 for the pre-hearing conference
and set an October 30, 2019 deadline for filing pre-hearing
submissions. Mr. Pak failed to comply with the ordered
deadline for his pre-hearing submissions by filing them on
November 5, 2019, less than three hours before the sched-
uled pre-hearing conference. Initially, neither Mr. Pak nor
his representative appeared on November 5, 2019. The AJ
tried unsuccessfully to reach Mr. Pak by phone. But Mr.
Pak did not answer, and his voicemail could not accept
messages. The AJ was able to reach Mr. Pak’s representa-
tive who attended by phone.
On November 5, 2019, the AJ issued an Order and
Summary of the Telephonic Prehearing Conference. The
AJ noted that Mr. Pak failed to comply with the order set-
ting the deadline for pre-hearing submissions. J.A. 63. The
AJ also noted that Mr. Pak earlier defied the AJ’s October
1, 2019, order to file the required information. Id. The AJ
concluded that sanctions were appropriate and warranted.
Because Mr. Pak failed to file his pre-hearing submission
on time and failed to establish good cause for the untimeli-
ness, the AJ ruled that Mr. Pak failed timely to request any
witnesses. Accordingly, as sanctions, the AJ ruled that
while Mr. Pak could testify at his hearing, the AJ would
Case: 20-1845 Document: 22 Page: 5 Filed: 12/22/2020
PAK v. DVA 5
not approve any other witnesses to testify for Mr. Pak and
would not allow Mr. Pak to introduce any of the proposed
exhibits attached to his untimely pre-hearing submission.
On February 20, 2020, the AJ entered an initial deci-
sion finding that Mr. Pak “failed to prove a prima facie case
of whistleblower retaliation as he failed to prove by prepon-
derant evidence that he made any of his five alleged pro-
tected disclosures.” J.A. 7. The decision was made final on
March 26, 2020. Mr. Pak filed a timely notice of appeal to
this court.
It appears that Mr. Pak raises two main arguments: (1)
that precluding his witnesses from testifying and excluding
his exhibits from the record unfairly prejudiced him, and
(2) that the MSPB’s decision lacked substantial evidence
because it was based on hearsay and an incorrect weighing
of the evidence. 2 For the reasons below, we affirm the
MSPB’s decision.
II
We have jurisdiction over appeals from final decisions
of the MSPB. 28 U.S.C. § 1295(a)(4). Our task is to deter-
mine whether the MSPB’s decision was arbitrary, capri-
cious, an abuse of discretion, not in accordance with the
law, or unsupported by substantial evidence. 5 U.S.C. §
7703(c); Sandel v. Office of Pers. Mgmt., 28 F.3d 1184, 1186
(Fed. Cir. 1994). If not, then we must affirm the final ruling
of the MSPB. Further, we do not disturb the MSPB’s cred-
ibility determinations unless they are “inherently improb-
able or discredited by undisputed fact.” Pope v. U.S. Postal
Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997).
2 Although Mr. Pak’s brief was not clear as to his exact
contentions, we have distilled his argument into these
points.
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6 PAK v. DVA
III
Mr. Pak argues that it was “unfair and devastating” for
the MSPB to preclude his witnesses from testifying and ex-
clude his proposed exhibits from the record. Petitioner Re-
ply Br. 3. According to Mr. Pak, his witnesses would have
“clearly proven the infraction committed by DVA,” but he
does not explain how his witnesses would have corrobo-
rated his claims of protected disclosure. Petitioner Opening
Br. 2. In addition to his witnesses, he asserts that the pre-
cluded exhibits would have proved that the agency engaged
in retaliatory actions because of his protected disclosures.
Under 5 C.F.R. § 1201.43, an administrative judge may
impose sanctions on a party who fails to comply with the
judge’s orders. Pursuant to that authority, the judge may
prohibit the party “from introducing evidence concerning
the information sought, or from otherwise relying upon tes-
timony related to that information.” 5 C.F.R.
§ 1201.43(a)(2). Prior to imposing any sanction, “the judge
shall provide appropriate prior warning, allow a response
to the actual or proposed sanction when feasible, and doc-
ument the reasons for any resulting sanction in the record.”
5 C.F.R. § 1201.43. Mr. Pak does not argue that the AJ
failed to comply with the procedural requirements of
§1201.43. Instead, he challenges the order on its merits.
The record here is clear. The AJ sanctioned Mr. Pak for
failing to comply with multiple orders and failing to explain
that failure. The AJ first warned Mr. Pak in the May 2,
2019 “Acknowledgment Order” that “[i]f any party fails to
follow my orders or the Board’s regulations, I may impose
sanctions pursuant to 5 C.F.R. § 1201.43.” J.A. 63. Mr. Pak
failed to respond to the AJ’s order that required him to pro-
vide “a concise statement” to clarify the details related to
the dates he made the alleged protected disclosures, to
whom they were made, why his belief that the disclosures
were true was reasonable, and why such disclosures were
contributing factors to his termination. J.A. 7. All of these
Case: 20-1845 Document: 22 Page: 7 Filed: 12/22/2020
PAK v. DVA 7
requests were directly related to proving Mr. Pak’s pro-
tected whistleblower allegations.
The AJ again warned Mr. Pak on October 1, 2019 in
the “Order and Notice of Hearing and Prehearing Confer-
ence” that “[i]n presenting evidence at the hearing, you will
be limited by your prehearing submissions, except for good
cause shown.” J.A. 59. The order also stated that “an un-
listed witness will usually not be permitted to testify, and
hearing exhibits that were not reviewed during the pre-
hearing conference will usually not be accepted into the
record.” Id. Mr. Pak failed to attend his pre-hearing confer-
ence. Mr. Pak also failed to timely submit his pre-hearing
submission, instead filing the submission less than three
hours before the hearing and failing to provide an explana-
tion for the delay. The AJ properly excluded the evidence
and witness testimony under § 1201.43(a) due to these fail-
ures to comply with the MSPB’s orders. See Harp v. Dep’t
of Army, 791 F.2d 161, 163 (Fed. Cir. 1986)(holding that
presiding official properly excluded evidence due to re-
spondent’s failure to comply with an order).
Mr. Pak now explains that he was “under tremendous
financial and career pressure” because of his termination
and the start of a new job, while also acknowledging that
such unfamiliarity “is no excuse” for the delay. Petitioner
Opening Br. 1. This is the first time that Mr. Pak offers an
explanation, but in any case his explanation is insufficient.
See Turner v. Merit Sys. Prot. Bd., 681 F. App’x 934, 937
(Fed. Cir. 2017)(stating that financial difficulties do not
“excuse [respondent’s] failure to respond to repeated or-
ders.”).
We have even found that similar failures to comply
with orders were sufficient to justify an administrative
judge’s termination of an entire hearing. See, e.g., Ahlberg
v. Dep’t of Health & Hum. Servs., 804 F.2d 1238 (Fed. Cir.
1986)(upholding Board’s decision to dismiss appeal be-
cause respondent failed to comply with an order); Nasuti v.
Case: 20-1845 Document: 22 Page: 8 Filed: 12/22/2020
8 PAK v. DVA
Dep’t of State, 675 F. App’x 975, 980 (Fed. Cir. 2017)(hold-
ing that the administrative judge did not abuse his discre-
tion in cancelling the hearing “only after Mr. Nasuti
refused to comply with the administrative judge’s discovery
orders on two separate occasions—and only after Mr. Na-
suti was warned that continued refusal would result in
cancellation.”). Thus, we find that the MSPB did not abuse
its discretion when it excluded Mr. Pak’s evidence and wit-
nesses from the hearing due to his repeated failures to com-
ply with the AJ’s orders.
IV
We also reject Mr. Pak’s challenge to the MSPB’s denial
of his whistleblower allegations. In order for Mr. Pak to
prevail, he has to prove by a preponderance of the evidence
that he made a protected disclosure and that his disclosure
was a contributing factor in the agency’s decision to take
an adverse action against him. Morgan v. Dep’t of Energy,
424 F.3d 1271, 1273 (Fed. Cir. 2005). To be a protected dis-
closure, Mr. Pak must have reasonably believed that such
disclosure evidenced (i) a violation of law, rule, or regula-
tion 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(a)(2)(D), (b)(8).
The MSPB’s determination that Mr. Pak failed to prove
whistleblowing was based on substantial evidence. The
MSPB found that for each of Mr. Pak’s alleged protected
disclosures (i.e. improper performance of out-of-scope work,
excessive contractor visits, improper pre-selection of a con-
tractor, improper rubber-stamping and exclusion from
meetings, and unauthorized performance of duties), the
record either failed to show that he made the disclosure,
show what information he specifically disclosed and to
whom and when that information was disclosed, or show
that such disclosure evidenced any reasonable belief of
wrongdoing, such as a violation of law or gross mismanage-
ment. The MSPB reviewed the evidence before it and
Case: 20-1845 Document: 22 Page: 9 Filed: 12/22/2020
PAK v. DVA 9
determined that aside from Mr. Pak’s testimony there was
no evidence supporting his allegations. According to the
MSPB, however, Mr. Pak’s testimony was “vague,” “indi-
rect,” and “speculative and lacking in corroboration,”
whereas the testimony of the DVA’s witnesses was “direct
and responsive” and “unbiased.” J.A. 24, 30.
Mr. Pak takes issue with the MSPB relying on hearsay
and its weighing of the evidence in making its findings. The
MSPB may rely on hearsay as “substantial evidence in an
administrative proceeding . . . if the hearsay is inherently
truthful and more credible than the evidence offered
against it.” Sanders v. U.S. Postal Serv., 801 F.2d 1328,
1331 (Fed. Cir. 1986). As the MSPB determined, the testi-
mony of the DVA’s witnesses proved to be more credible
and truthful than Mr. Pak’s testimony and evidence. Mr.
Pak does not provide any reason for why the MSPB’s cred-
ibility determinations were “inherently improbable or dis-
credited by undisputed fact.” Pope, 114 F.3d 1149.
Furthermore, as discussed above, the MSPB’s determina-
tion that Mr. Pak failed to meet his burden in proving that
he engaged in protected whistleblowing activity was based
on substantial evidence, and we cannot reweigh such evi-
dence. See Parker v. U.S. Postal Serv., 819 F.2d 1113, 1115
(Fed. Cir. 1987)(“[T]he standard is not what the court
would decide in a de novo appraisal, but whether the ad-
ministrative determination is supported by substantial ev-
idence on the record as a whole.”).
V
For the foregoing reasons, we affirm the judgment of
the Merit Systems Protection Board.
AFFIRMED
No costs.