NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3262 KEVIN T. HENDRICKSON, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

___________________________ DECIDED: March 13, 2006

___________________________ Before BRYSON, GAJARSA, and LINN, Circuit Judges

. PER CURIAM. DECISION Kevin T. Hendrickson petitions for revi ew of a decision of the Merit Systems Protection Board, Docket No. NY-0752-04- 0054-I-1. The Board upheld his removal from his position with the Department of Veterans Affairs (“VA”). We affirm

. BACKGROUND In March 2003, Mr. Hendrickson, w ho worked as a Veterans Service Representative for the VA, was pursuing his own claim for benefits relating to a serviceconnected injury. In connection with that claim, he submitted a VA Form 9 to theNewark, New Jersey, Veterans Affairs Regi onal Office in suppor t of his claim for retroactive benefits and an incr ease in his compensation level. Included with his submission were two medical statements, which were dated April 29, 2002, and were purportedly written by Dr. Boaz Rabin. On June 10, 2003, at a hearing on his request for benefits, Mr. Hendrickson was questioned by Kenneth White, a decision review o fficer, regarding the authenticity of the two medical statements. Mr. White had obs erved that the two statements did not appear normal because they were both unsi gned and were not on a preprinted form, letterhead, or memorandum. Mr. Hendricks on stated under oath t hat he had obtained the two statements from Dr. R abin. Mr. Hendrickson testifi ed that “the statements from Dr. Rabine [sic], like I said, I presented evidenc e to him, I requested that he provide an opinion, and he subsequently provi ded the opinion.” Mr. Hendri ckson also testified that “I requested him to review the records, and that ’s what I got back from him. I can have it signed by him, have him review it once again . . . .” Subsequently, during one of Dr. Rabin’s week ly visits to the New York Regional Office, Mr. Hendrickson approached him and a sked him to sign the two medical statements. Dr. Rabin review ed the statements and observed t hat they were not in his usual format. Dr. Rabin then stated that he had not authored the two statements, and he accused Mr. Hendrickson of writing t hem himself. Mr. Hendrickson nonetheless persisted in urging Dr. Rabin to sign the statements. W hen Dr. Rabin refused, Mr. Hendrickson apologized for the confusi on and left. Mr. Hendrickson subsequently

05-3262 2submitted a request to t he VA that the two statem ents be withdrawn from consideration. 1 On July 1, 2003, Special Agent Greg McLaughlin of the Office of Inspector General questioned Mr. Hendrickson about t he two medical statements. Mr. Hendrickson explained that he did not know where he had obtained the statements and that he had found them amongst paperwork in his home. He denied writing the statements himself. He added that he might have received the statements from his service organization representative. On October 26, 2003, the VA removed Mr. Hendrickson from his position as a Veteran Service Representative. The re moval action was based on four charges: (1) presenting false documents in or der to defraud the VA in regard to a personal claim for benefits; (2) giving false testimony under oath in order to defraud the VA in regard to a personal claim for benefits; (3) attempting to deceive a VA official into signing fraudulent documents as his own work product; and (4) ma king false statements in connection with an official investigation. Mr. Hendrickson appealed the removal action to the Board. The administrative judge who was assigned to the appeal sustai ned the first three charges and upheld the

1 Mr. Hendrickson’s cl aim for benefits was ultimately granted in substantial part. In its review decision, the Veterans Benefits Administration noted that the “comment about the veteran’s attempts to produce documents fo r the purpose of obtaining a favorable outcome” was not suppor ted by clear and convincing evidence. The administrative judge cons idered that finding but found it inapplicable because the burden of proof in Board appeals is a pr eponderance of evidence, not clear and convincing evidence.

05-3262 3agency’s penalty of removal. 2 The administrative judge determined that there was a sufficient nexus between Mr. Hendrickson’s mi sconduct and the efficiency of the service and concluded that the penalty of removal wa s reasonable. The adm inistrative judge also rejected Mr. Hendrickson’s affirmative defenses, including discrimination against a veteran, disability discrimination, reta liation for having filed equal employment opportunity complaints, reprisal for whistleblowi ng activity, reprisal for activity as a union shop steward and EEO representat ive, as well as a claim of harmful procedural error. Mr. Hendrickson’s request for review by the full Board was denied. He now petitions this court for review of the Board’s decision. DISCUSSION To sustain a charge of submitting false information, the agency must show by a preponderance of evidence “that the employ ee knowingly supplied wrong information, and that he did so with the int ention of defrauding the agency.” Naekel v. Dep’t of Transp. , 782 F.2d 975, 977 (Fed. Cir. 1986). In re sponse to the charge of presenting false documents in order to defraud the VA in connection with a personal claim for benefits, Mr. Hendrickson cont ends that he was not aware that the two medical statements were false at the time he submitted them to t he VA. He therefore argues that the Board erred in finding t hat he intended to defraud the agency.

2 The fourth charge is not a subjec t of this appeal. The administrative judge found that the agency failed to meet its bur den on the fourth charge because nothing in the record contradicted Mr. Hendrickson’s st atements to Special Agent McLaughlin that he did not know the origin of the documents and that he may have received them from his service organization. The administr ative judge explained t hat “[w]hile his explanations may not satisfactor ily explain the existence of the documents, . . . they do corroborate his testimony during this appeal.”

05-3262 4The administrative judge found that ci rcumstantial evidence adequately supported the agency’s conclusion that Mr. Hendrickson intended to defraud the agency. In particular, the administrative judge noted that Mr. He ndrickson “has held different positions on the unsi gned statements at different times in the record.” For example, in the hearing before Mr. Whit e, Mr. Hendrickson testified, without qualification, that the two statements had been provided by Dr . Rabin. Later, in his interview with Special Agent McLaughlin, Mr. Hendrickson claimed that he had found the two statements in paperwork at his home. Mr. Hendricks on also suggested that he may have received the documents from his service representative. Finally, at his hearing before the administrativ e judge, Mr. Hendrickson stated that he could not recall where he acquired the documents. The administrative judge also found that Mr. Hendrickson “failed to provide a reasonable and satisfactory explanation for t he existence of the two unsigned, typed statements.” That is, Mr. Hendrickson has not come forward with any plausible scenario that could lead to his coming into possession of the two medical statements without being aware of their origin and w ho authored them. For instance, if the statements had indeed been written by the servic e representative, it seems implausible that the service represent ative would have surreptitiously placed them in Mr. Hendrickson’s home without notifying Mr. Hendrickson. Consequently, the administrative judge did not err in sustaining this first charge. Mr. Hendrickson’s response to the second charge of giving fals e testimony under oath in order to defraud the VA in regard to a personal claim for benefits is similarly unavailing. Mr. Hendrickson again argues that the Board erred in finding that he

05-3262 5intended to defraud the agency. He contends that he was not aware that his testimony before Mr. White was false because he “reme mbered and actually met with” Dr. Rabin on April 29, 2002. In support, Mr. Hendri ckson points to Dr. Rabin’s handwritten and signed medical opinion of that date. Mr. Hendrickson’s possession of a signed, handwritten statement by Dr. Rabin tends to undermine, not support, his assertion that he justifiably believed Dr. Rabin had authored the other two statem ents. Possession of one signed statement from a visit with a doctor would lead a reasonable person to question the authorsh ip of two other unsigned statements of the same date in a di fferent format. Moreover, as pointed out by the administrative judge, Mr. Hendrickson’s testimony bef ore Mr. White contradicts his subsequent testimony before the administr ative judge that he c ould not recall how he acquired the two unsigned statements. Consequently, the adminis trative judge did not err in sustaining the second charge. In response to the third charge of attempti ng to deceive a VA official into signing fraudulent documents as his own work pr oduct, Mr. Hendrickson contends that the administrative judge erred in her assessment of the witnesse s’ credibility, particularly that of Dr. Rabin and of Mr. Hendrickson himself. However, “determination of the credibility of witnesses is withi n the discretion of the presid ing official who heard their testimony and saw their demeanor,” Griessenauer v. Dep’t of Energy , 754 F.2d 361, 364 (Fed. Cir. 1985), and an administrative judge’s credibility det erminations are “virtually unreviewable,” Hambsch v. Dep’t of the Treasury , 796 F.2d 430, 436 (Fed. Cir. 1986). Because there is nothing in the record of this case that makes Dr. Rabin’s testimony inherently incr edible, and because the admin istrative judge had the

05-3262 6opportunity to assess Mr. Hendrickson’s credi bility in person, we will not disturb the administrative judge’s credibility dete rminations regarding Dr. Rabin and Mr. Hendrickson. We therefore uphold the administrative judge’s decision to sustain the third charge. Mr. Hendrickson also argues that there is an insufficient nexus between his misconduct and the VA’s performance of its functions . He explains that in his capacity as a Veteran Service Representative all of his cases were reviewed by his supervisors and he therefore had no ability to “single handedl y fraudulently prosecute a claim on his own behalf nor on behalf of any other veteran.” He also states that his job entailed minimal contact with the public. This court, however, deferentially review s the Board’s determination of whether a nexus has been shown. Brown v. Dep’t of the Navy , 229 F.3d 1356, 1358 (Fed. Cir. 2000). Here, the administrat ive judge emphasized that fa lsification is generally considered a serious offense and reflects “adversely on the employee’s reliability, veracity, trustworthiness, and ethical conduct.” Moreover, the administrative judge took note of the deciding official’s testimony that as a Veteran Servic e Representative, Mr. Hendrickson was in a special pos ition with regard to veterans ’ appeals for benefits. The administrative judge expressed concern that Mr. Hendrickson’s actions in pursuing a personal claim for benefits affected the agency’ s confidence and trust in his ability to perform his job. The adminis trative judge also explained that Mr. Hendrickson’s actions reflected negatively on the agency’s credibility in representing the interests of veterans. Under our deferential standard of review, it does not appear that the administrative

05-3262 7judge erred in finding a sufficient nexus between Mr. Hendrickson’s actions and the efficiency of the service. Mr. Hendrickson further argues that the penalty of removal was unreasonable. In particular, he contends that the penalty levied against him is “far mo re severe than any other penalty levied against [other] employ ees.” The adminis trative judge noted, however, that the deciding official properly considered all the relevant factors in rendering a decision, including the nat ure and seriousness of the misconduct. See Douglas v. Veterans Admin. , 5 M.S.P.R. 302, 332 (1981). The administrative judge also found that Mr. Hendrickson did not make an adequate showing that his penalty was substantially harsher than penalties given fo r similar misconduct to similarly situated employees. In particular, the adminis trative judge pointed out, Mr. Hendrickson’s referenced cases did not involve similar mi sconduct or similarly situated employees. We hold that the administrativ e judge did not err in concludi ng that removal “is within the range of reasonableness.” Mr. Hendrickson also alleges that t he Board committed a harmful procedural error in refusing to consider his reply to the VA’s respons e. Mr. Hendrickson, however, erroneously confuses a response with a cross- petition. Under 5 C.F.R. § 1201.114(i), the record closes when a response to a petiti on for review is filed. However, in the event a cross-petition is filed, the original petitioner is allowed time to file a reply to the cross-petition. Here, the VA filed a response, not a cr oss-petition. Thus, Mr. Hendrickson was not entitled to file a reply and was so notified. In the Board’s acknowledgment letter to Mr. Hendrickson, the Board explained that a “cross-petition for review differs from a response because it al so disagrees with the initial decision.”

05-3262 8Consequently, there is no merit to Mr. Hendrickson’s argument that the Board committed a harmful procedural error. Mr. Hendrickson next argues that his remo val was the product of discrimination based on his disability and his status as a vete ran. The administrat ive judge found that Mr. Hendrickson had failed to present evidence in support of those claims. We sustain the administrative judge’s ruling in that regard. Mr. Hendri ckson fails to point to any evidence to support his claims that the VA di scriminated against him on either of those grounds. Finally, Mr. Henrickson reiterates his c ontention that his re moval was the product of retaliation against him for filing equal employment opportunity complaints, for engaging in whistleblowing activity, and fo r acting as a union shop steward and EEO representative. The admin istrative judge analyzed Mr. Hendrickson’s claims of retaliation and found no retaliatory motive on the part of the deciding official in his case and no nexus between the alleged retaliation and the adverse employment action. Likewise, the administrative j udge found that there was “littl e or no evidence” that the deciding official sought to retaliate against Mr. Hendrickson based on his activity as a shop steward and EEO repr esentative. With regard to his allegations of retaliation based on protected disclosures, the administr ative judge found that the disclosures in question related to complaints about Mr. Hendrickson’s own request for a promotion and a transfer and did not constitute protec ted disclosures within the meaning of the pertinent provision of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). See Francisco v. Office of Pers. Mgmt. , 295 F.3d 1310, 1314 (Fed. Cir. 2002) (complaints

05-3262 9about agency’s disposition of employee’s pers onal claims do not constitute protected whistleblower disclosures). We sustain each of those rulings. Mr. Hendrickson has not pointed to evidence that undermines the administrative judge’s fi ndings with respect to his claims of discrimination and retaliation. Moreover, in his passing reference to the Whistleblower Protection Act, Mr. Hendrickson has failed to poi nt to any disclosures that he made that would qualify as protected disclosures under the Act. Accordingly, because the administrative judge’s decision is suppor ted by substantia l evidence and Mr. Hendrickson has not pointed to any legal erro r in the proceedings bef ore the Board, we uphold the Board’s decision.

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