NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3167 

DOM WADHWA, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

 Respondent. 

Dom Wadhwa, of Moorestown, New Jersey, pro se. 

Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, 

Director, and Reginald T. Blades, Jr., Assistant Director. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 

2009-3167 

DOM WADHWA, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

Petition for review of the Merit Systems Protection Board in PH1221080019-W-1. 

__________________________ 

DECIDED: November 19, 2009 

__________________________ 

Before GAJARSA, DYK, and MOORE, Circuit Judges. 

PER CURIAM. 

Dr. Dom Wadhwa petitions for review of the final decision of the Merit Systems 

Protection Board (“Board”) that denied his request for corrective action sought in his 

Individual Right of Action (“IRA”) appeal under the Whistleblower Protection Act 

(“WPA”), 5 U.S.C. § 2302(b)(8) (2000). See Wadhwa v. Dep’t of Veterans Affairs, 110 

M.S.P.R. 615 (M.S.P.B. Mar. 13, 2009) (“Final Decision”). For the reasons stated 

below, we affirm. 
BACKGROUND 

Dr. Dom Wadhwa is a Staff Physician at the Philadelphia Veterans 

Administration Medical Center (“PVAMC”), a Department of Veterans Affairs (“DVA” or 

“agency”) hospital located in Philadelphia, Pennsylvania. On June 9, 2006, 

Dr. Wadhwa, while working at the Primary Care Clinic, encountered a patient who 

allegedly walked into his examination room without an appointment. The patient 

became confrontational, and blocked his exit. Dr. Wadhwa reported this incident to the 

DVA Office of Resolution Management (“ORM”), including with his report the patient’s 

file containing personal information. In response, his supervisors asked a local 

Administrative Investigation Board to investigate the possibility of a violation of the 

Privacy Act, based on Dr. Wadhwa’s disclosure of the patient’s private information. 

On July 23, 2006, Dr. Wadhwa submitted a letter to the DVA Inspector General 

(“IG”) office, describing both the incident on June 9, 2006, and safety problems at the 

hospital in general. Shortly thereafter, his first-line supervisor, Dr. Murphy, issued a 

proposed 14-day suspension letter to Dr. Wadhwa based on the alleged violation of the 

Privacy Act. This proposal was later rescinded and was replaced with a proposed 

removal by Dr. Wadhwa’s second-line supervisor, Dr. Grippey. 

In late 2006, Dr. Wadhwa was reassigned from the PVAMC to the Northern 

Indiana Health Care System in Indiana. That order was rescinded and he was 

reassigned to the PVAMC due to the unresolved, proposed disciplinary action. On his 

return, he was temporarily reassigned to the Compensation and Pension (“C&P”) 

Section of the PVAMC, where patients are examined for purposes of disability claims, 

rather than to his former clinical position in the Primary Care Clinic, where patients seek 

2009-3167 2
general medical care. After Dr. Wadhwa received a letter confirming that his 

reassignment to the C&P Section was permanent, Dr. Wadhwa filed a complaint with 

the Office of Special Counsel alleging that his 2007 reassignment from the Primary 

Care Clinic to the C&P Section was in retaliation for his whistleblowing disclosure 

protected under the WPA. 

Dr. Wadhwa appealed to the Board, and the administrative judge (“AJ”) denied 

Dr. Wadhwa’s request for corrective action. Wadhwa v. Dep’t of Veterans Affairs, 

No. PH-1221-08-0019-W-1 (M.S.P.B. Jun. 26, 2008) (“Initial Decision”). In denying the 

request, the AJ found that: (1) Dr. Wadhwa failed to show that he made protected 

disclosures on July 23, 2006, when he submitted a memorandum alleging safety 

violations at PVAMC to the IG; (2) even if Dr. Wadhwa’s disclosures were protected, he 

failed to show that they were a contributing factor in his reassignment from the Primary 

Care Clinic to the C&P Section; and (3) the agency showed by clear and convincing 

evidence that it would have reassigned Dr. Wadhwa absent any disclosure. Id. 

On petition for review, the Board modified the AJ’s initial decision but 

nevertheless denied Dr. Wadhwa’s request for corrective action, holding that: (1) the AJ 

erred in finding that Dr. Wadhwa’s disclosures were not protected; and (2) the AJ erred 

in finding that Dr. Wadhwa’s disclosures were not a contributing factor in his 

reassignment; but (3) the AJ correctly found that the agency presented clear and 

convincing evidence that it would have reassigned Dr. Wadhwa even absent any 

protected disclosure. See Final Decision. Dr. Wadhwa timely filed this appeal. We 

have jurisdiction over Dr. Wadhwa’s appeal pursuant to 28 U.S.C. § 1295(a)(9). 

2009-3167 3
DISCUSSION 

Our scope of review in an appeal from a decision of the Board is limited. 

Specifically, a decision of the Board must be affirmed unless 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); see Dickey v. Off. of 

Pers. Mgmt., 419 F.3d 1336, 1339 (Fed. Cir. 2005). 

 In order for the Board to order corrective action in an IRA appeal, the petitioner 

must show by a preponderance of the evidence that the protected disclosure was a 

contributing factor to the personnel action. See 5 U.S.C. § 2302(b)(8)(A); Johnston v. 

Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). The burden then shifts to the 

agency to show by clear and convincing evidence that it would have taken the same 

personnel action in the absence of the disclosure. See 5 U.S.C. § 1221(e); Marano v. 

Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993). Here, because the Board 

determined that Dr. Wadhwa had satisfied his initial burden to show that the disclosure 

was a contributing factor in the decision to reassign him, we need only review the 

Board’s determination that DVA satisfied its burden by clear and convincing evidence 

that it would have taken the same personnel absent the disclosure. 

When determining whether the agency has shown by clear and convincing 

evidence that it would have taken the same personnel action absent the disclosure, the 

following three factors are considered: (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 

2009-3167 4
evidence that the agency takes similar actions against employees who are not 

whistleblowers, but who are otherwise similarly situated. Carr v. Social Sec. Admin., 

185 F.3d 1318, 1323 (Fed. Cir. 1999). 

In denying Dr. Wadhwa’s request for corrective action, the Board correctly 

considered the requisite Carr factors and properly evaluated the submitted evidence. 

First, the evidence in support of the agency’s action to reassign Dr. Wadhwa was 

substantial. The agency’s witnesses testified that Dr. Wadhwa was reassigned because 

(1) there was a large backlog of cases in the C&P Section that had developed due to 

the Iraq War; (2) Dr. Wadhwa requested that he not be returned to work for Dr. Murphy; 

(3) Dr. Wadhwa had performance problems and received a large number of patient 

complaints while working at the Primary Care Clinic, even before the July 23, 2006 

report of alleged safety violations; and (4) Dr. Wadhwa had communication and 

collaboration problems with other staff members at the Primary Care Clinic. The 

witnesses testified that Dr. Wadhwa was better suited to work in the C&P Section rather 

than Primary Care, because a C&P physician has less contact or collaboration with 

Dr. Murphy and other staff. Significantly, the agency presented clear evidence that 

there were disputes between Dr. Wadhwa and his supervisors over his alleged 

performance with patient care prior to the July 23, 2006 report of alleged safety 

violations. Initial Decision at 17. 

With respect to the second factor, the AJ found “very little motivation for all four 

managers to prevaricate and . . . for bias against [Dr. Wadhwa] based on any improper 

reason.” Initial Decision at 16. Specifically, she found that “[n]o manager seems to 

have been affected by the . . . disclosures. No manager appeared to be concerned 

2009-3167 5
about the disclosures because the issues were not new or unknown, and for 

Drs. Murphy and Grippey, not even within their direct authority to implement.” Id. at 12. 

While Dr. Wadhwa argues that the testimony of the agency’s witnesses was lacking and 

unsubstantiated, he points to no contrary evidence. We note that the Board did not 

specifically discuss whether the agency takes similar actions against employees who 

are not whistleblowers, but who are otherwise similarly situated. However, it appears 

that neither party presented evidence with respect to this factor. Given that no evidence 

was introduced on the third Carr factor, the Board’s failure to discuss it was at most 

harmless error. Substantial evidence supports the Board’s finding that the agency 

showed by clear and convincing evidence that it would have reassigned Dr. Wadhwa 

absent the disclosure based on the analysis of the first two factors. 

Dr. Wadhwa contends that “the AJ erred in crediting the testimonies of the 

Agency’s witnesses without any supporting documentation over [Dr. Wadhwa’s] 

testimony and documentation” and that “the AJ made demeanor-based credibility 

findings without sufficiently sound reasons for doing so.” As the finder of fact, the AJ is 

in a unique position to make credibility determinations and evaluate the evidence on the 

record before her. Accordingly, the AJ’s credibility determinations are “virtually 

unreviewable,” Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), and 

we see no basis to overturn the Board’s finding here that the agency’s witnesses were 

credible. 

Dr. Wadhwa also contends that he was precluded from presenting witnesses to 

support his case. This argument is without merit. The proffered testimony of agency 

witnesses and the request for further cross-examination of agency witnesses were 

2009-3167 6
2009-3167 7

untimely, and Wadhwa in any event has failed to establish that this testimony was 

relevant or non-cumulative. On the facts of this case, we do not find any abuse of 

discretion by the AJ in denying the admission of the proffered testimony. 

CONCLUSION 

We hold that the Board’s findings are supported by substantial evidence and 

therefore affirm the Board’s decision that DVA did not violate the WPA by reassigning 

Dr. Wadhwa from the Primary Care Clinic to the C&P Section of the PVAMC. 

No costs.