NOTE: This disposition is nonprecedential.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 Departm ent of Justice, of Washingt on, 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 Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Acti on (“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 Physici an at the Philade lphia Veterans Administration Medical Center (“PVAMC”), a Department of Veterans Affairs (“DVA” or “agency”) hospital located in Philadelphia, Pennsylvani a. On June 9, 2006, Dr. Wadhwa, while working at the Primary Care Clini c, encountered a patient who allegedly walked into his examination r oom without an appoint ment. The patient became confrontational, and blocked his exit. Dr. Wadhwa reported this incident to the DVA Office of Resolution Mana gement (“ORM”), including wit h his report the patient’s file containing personal information. In response, his supervisors asked a local Administrative Investigation Board to invest igate 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 th ereafter, his first-line supervi sor, Dr. Murphy, issued a proposed 14-day suspension letter to Dr. Wadhw a 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 reassign ed 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 purpos es of disability claims, rather than to his former clinical position in the Primary Care Clinic , where patients seek

2009-3167 2general medical care. After Dr. Wadhwa received a letter confirming that his reassignment to the C&P Se ction was permanent, Dr. Wadhw a filed a complaint with the Office of Special Counsel alleging that hi s 2007 reassignment from the Primary Care Clinic to the C&P Section was in re taliation for his whis tleblowing disclosure protected under the WPA. Dr. Wadhwa appealed to the Board, and the administrat ive 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 s ubmitted 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 reassign ment 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, t he 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 hav e 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 3DISCUSSION 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 ev idence.” 5 U.S.C. § 7703(c); see Dickey v. Off. of Pers. Mgmt. , 419 F.3d 1336, 1339 (F ed. Cir. 2005). In order for the Board to order correct ive action in an IRA appeal, the petitioner must show by a preponderance of the evi dence 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 evi dence that it would have taken the same personnel action in the absenc e of the disclosure. See 5 U.S.C. § 1221(e); Marano v. Dep’t of Justice , 2 F.3d 1137, 1141 (Fed. Cir. 19 93). 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 DV A satisfied its burden by cl ear and convincing evidence that it would have taken the same personnel absent the disclosure. When determining whether th e 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 exist ence 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 4evidence that the agency takes similar ac tions against employees who are not whistleblowers, but who are ot herwise 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 agen cy’s action to reassign Dr. Wadhwa was substantial. The agency’s witnesses testif ied that Dr. Wadhwa was reassigned because (1) there was a large backlog of cases in the C&P Secti on that had developed due to the Iraq War; (2) Dr. Wadhwa re quested 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. W adhwa had communication and collaboration problems with other staff members at t he 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 betw een Dr. Wadhwa and his supervi sors over his alleged performance with patient care prior to t he 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 ag ainst [Dr. Wadhwa] based on any improper reason.” Initial Decision at 16. Specifically, she f ound that “[n]o manager seems to have been affected by the . . . disclosures . No manager appeared to be concerned

2009-3167 5about 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 acti ons against employees who are not whistleblowers, but who are otherwise similarly situated. However, it appears that neither party presented evid ence 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 su pports the Board’s finding that the agency showed by clear and convinci ng evidence that it woul d 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 doi ng so.” As the finder of fact, the AJ is in a unique position to make credibility determi nations 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 pr ecluded from presenting witnesses to support his case. This argument is without merit. The proffered testimony of agency witnesses and the request for further cros s-examination of agency witnesses were

2009-3167 62009-3167 7 untimely, and Wadhwa in any ev ent 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 dec ision that DVA did not viol ate the WPA by reassigning Dr. Wadhwa from the Primar y Care Clinic to the C&P Section of the PVAMC. No costs.