N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ BARRY AHURUONYE, Petitioner

v.

DEPARTMENT OF THE IN TERIOR, Respondent

______________________

2016

- 2493

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 1221

- 15

- 1172 -W- 1.

______________________

Decided: December 8, 2016

______________________

B ARRY A HURUONYE , Hyattsville, MD, pro se.

M ELISSA B AKER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., M ARTIN F. H OCKEY , J R

.

______________________

Before D YK , W ALLACH , and H UGHES , Circuit Judges.

P ER C URIAM

.AHURUONYE v. INTERIOR 2

Barry Ahuruonye petitions for review from a final d ecision of the Merit Systems Protection Board finding that he was not entitle d to corrective action under the Whi stleblower Protection Act because he failed to establish that his protected disclosures were a contributing factor to the alleged retaliatory personnel action. Because substantial evidence supports the Board’s decision, we affirm.

I
During the relevant pe riod, Mr. Ahuruonye was e mployed as a Grants Management Specialist for the United States Fish & Wildlife Service. I n May 2013, Mr. Ahuruonye suffered a loss of consciousness at work that requir ed hospitalization

. On February 7, 2014 , he emailed Lisa Van Alstyne

, his then

- supervisor

, asking that she complete a Form CA -2 so that he could proceed with his workers ’ compensation claim

. Ms. Van Alstyne did not complete the form because

, according to her

, the form was blank and a human resources employee had to ld her that Mr. Ahuruonye needed to first fill out the top portion before she could complete the supervisor’s portion. Ms. Van Alstyne asked human resources to explain the correct process to Mr. Ahuruonye. Ms. Van Alstyne never received a revised Form CA

- 2 from Mr. Ahuruonye.

O n September 5, 2015, Mr. Ahuruonye complained to the Office of Special Counsel (OSC) that Ms. Van Alstyne failed to fill out the Form CA

- 2 as reprisal for a 2012

com plaint he filed with the United States Department of Interior Office of Inspector General (Interior OIG) alle ging that Penny Bartnicki, Chief of the Coastal Impact Assistance Program

, unlawfully approved certain awards. Two weeks later, before the OSC completed its investig ation, Mr. Ahuruonye filed an individual ri ght -of- action

appea l with the Board under the Whistleblower Prote ction Act, 5 U.S.C. § 2302(b)(8) (2012)

, amended by Whi stleblower Protection Enhancement Act of 2012 , Pub. L.AHURUONYE v. INTERIOR 3

No. 112

– 199, 126 Stat. 1465 . Shortly thereafter, the OSC closed its investigation and informed Mr. Ahuruonye that he could seek corrective action.

On initial hearing , an Administrative Judge denied Mr. Ahuruonye’s request for corrective action on the merits

. Mr. Ahuruonye sought relief from the full Board, whic h vacated the Administrative Judge’s finding in part but sustained the denial of Mr. Ahuruonye’s petition

. T he Board concluded that Mr. Ahuruonye’s disclosure to Interior OIG did not contribute to Ms. Van Alstyne ’s decision to not complete Mr. Ahuruonye’s Form CA

- 2. This case followed. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II

“ We review the Board’ s decision to determine whether it is ‘ (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained wit hout procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial ev idence. ’” Grover v. Office of Pers. Mgmt. , 828 F.3d 1378, 1382 (Fed. Cir. 2016) (quoting 5 U.S.C. § 7703 (c) ). “Su bstantial evidence is more than a mere scintilla of ev idence , but less than the weight of the evidence.” Jones v. Dep’ t of Health & Human Servs. , 834 F.3d 1361, 1366 (Fed. Cir. 2016) (internal citations and quotation marks omitted). Under that deferential standard, “[i] t is not for this court to reweigh the evidence before the Board.” McMill an v. Dep’t of Justice , 812 F.3d 1364, 1371 (Fed

. Cir. 2016) (quoting Henry v. Dep’t of Navy , 902 F.2d 949, 951 (Fed. Cir. 1990))

. To prevail in seeking a corrective action, a whistl eblower must demonstrate “by a preponderance of the evidence that he or she made a protected disclosure under § 2302(b)(8) that was a contributing factor to the emplo yee’s ” adverse personnel action. Whitmore v. Dep’t of Labor , 680 F.3d 1353, 1367 (Fed

. Ci r. 2012). The “co n-AHURUONYE v. INTERIOR 4

tributing factor” element may be proven “through circu mstantial evidence, such as evidence that (A) the official taking the personnel a ction knew of the disclosure .

. . ; and (B) the personnel action occurred within a period of time suc h that a reasonable person could conclude that the disclosure

. . . was a contributing factor in the perso nnel action.” 5 U.S.C. § 1221(e)(1) ; Cahill v. M erit Sys. Prot. Bd. , 821 F.3d 1370, 1373 (Fed. Cir. 2016)

. Here, t he Board determined that Mr. Ahuruonye failed to establish his prima facie case because he did not show that Ms. Van Alstyne knew of his 2012 complaint against Ms. Bartnicki before she failed to complete his Form CA -2. Applying our deferential “substantial ev idence” stand ard, we agre e. The Board reasonably credi ted Ms. Van Alstyne ’s sworn statement that “[i]n February 2014, [she] was not aware that Mr. Ahuruonye had di sclosed anything to the [Interior OIG] related to any ‘ill egal grant awards.’” Resp. App. 22, 28 ¶ 3. Mr. Ahuruonye relies primarily on two pieces of circumstantial evidence predating Ms. Van Alstyne ’s complained

- of conduct : (1) a July 31, 2013 email from Ms. Van Alstyne , which the Board characterized as refer ring only generally to “OIG auditors,” and (2) an October 25, 2013 declaration by Ms. Van Alstyne submitted in a separate, equal emplo yment opportunity (EEO) complaint Mr. Ahuruonye filed

. Mr. Ahuruonye does not contend on appeal that the July 31, 2013 email reflects knowledge of his disclosure , and

w e see no reversible error in t he Board ’s conclusion that Ms. Van Alstyne’s declaration did not sufficiently show that she knew Mr. Ahuruonye reported Ms. Bartnicki to the Interior OIG

. Mr. Ahuruonye also points to an affidavit he prepared for the EEO ma tter, dated October 24, 2013, which d escribes his Interior OIG disclosure

. Although he claims that Ms. Van Alstyne reviewed it and thus knew of his disclosure, here he identifies no evidence supporting that assertion

. Therefore, s ubstantial evidence supp orts theAHURUONYE v. INTERIOR 5

Board’s finding that Mr. Ahuruonye’s protected disclosure was not a contributing factor to Ms. Van Alstyne ’s failure to complete his Form CA

- 2.

We find Mr. Ahuruonye’s remaining arguments u npersuasive. Accordingly, we affirm the Board’s denial of Mr. Ahuruonye’s petition.

AFFIRMED

No costs.