NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3272

FAROUK ELKASSIR, Petitioner,

v. GENERAL SERVICES ADMINISTRATION, Respondent.

Farouk Elkassir , of Fort Lee, New Jersey, pro se. Joan M. Stentiford , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Jeanne E. Davidson , Director, and Steven J. Gillingham , Assistant Director. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3272

FAROUK ELKASSIR, Petitioner,

v. GENERAL SERVICES ADMINISTRATION, Respondent.

__________________________ DECIDED: December 10, 2007

__________________________ Before MICHEL, Chief Judge , NEWMAN, and PROST, Circuit Judges

. PER CURIAM. Farouk Elkassir petitions for review of an adverse decision of the Merit Systems Protection Board (“MSPB” or “B oard”) denying him relief on his individual right of action (“IRA”) appeal based on the Whistleblower Prot ection Act (“WPA”). Elkassir v. Gen. Servs. Admin. , No. NY1221060343-W-1 (M.S.P.B. May 4, 2007). We find no error with the Board’s decision and therefore affirm

. BACKGROUND Mr. Elkassir worked as a mechanical engineer in the General Services Administration (“GSA”). In a February 3, 2006, email to the acting administrator of the GSA, Mr. Elkassir questioned the rumored closure of the center he worked in and raisedpossible reasons for that closure; he also suggested that impr ovements in management would benefit the center. On March 22, 2006, Mr. Elkassir responded to a proposed suspension action—for alleged conduct (outsi de his email) related to his prior performance evaluation—by disclosing to his dire ctor of operations, Ms. Ramos, that his supervisor, Mr. Santapaga, had asked him to delay processing Item Purchase Descriptions and had added layers of review, in order to make the center seem busier than it otherwise would. He also discl osed to Ms. Ramos that Mr. Santapaga had issued a deviation from contract specificati ons to one of the gover nment’s contractors— allowing the contractor to use substandard packaging for shipments—without recouping the savings for the government. Followi ng Mr. Elkassir’s disclosures, Ms. Ramos issued him an official reprimand for insubordination on June 20, 2006. Also, on May 30, 2006, Mr. Elkassir received a substandard per formance evaluation, and the GSA later issued a notice of unacceptable performance as well as a performance action plan. Mr. Elkassir submitted a complaint to t he Office of Special Counsel (“OSC”) on July 13, 2006, alleging that the reprimand and a substandard performance rating were in retaliation for his disclosures related to Mr. Santapaga. On August 24, 2006, the OSC notified Mr. Elkassir that it had terminated it s inquiry into his allegations but that he could pursue relief at the MSPB. He t hen filed his IRA appeal with the Board. In a March 30, 2007, initial decision, the MSPB administrat ive judge dismissed Mr. Elkassir’s claim relating to the letter of reprimand because he had elected to pursue relief through the negotiated grievance procedur es defined by the collective bargaining agreement. Elkassir v. Gen. Servs. Admin. , No. NY1221060343-W-1 (M.S.P.B. Mar. 30, 2007) (“Initial Decision ”). The administrative j udge then conducted a hearing to

2007-3272 2determine Mr. Elkassir’s rights relating to his substandard performance rating. The administrative judge concluded that Mr. Elkassir had asserted a nonfrivolous allegation of Board jurisdiction, but had failed to prove t hat he made a protected disclosure. Initial Decision , slip op. at 9. On May 4, 2007, t he administrative judge’ s initial decision became the final decision of the B oard. This petition followed. DISCUSSION We have jurisdiction over petitions for review of MSPB decis ions under 28 U.S.C. § 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. We must set aside agency actions we find, “(1) arbitrary, capr icious, an abuse of discr etion, 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). To prevail on a claim under the WPA, an employee must show that he disclosed information he reasonably believed “evidences (i) a violation of law, rule, or regulation, 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(b)(8)(A);

see Reid v. Merit Sys. Prot. Bd. , No. 2007-3056, slip op. at 5 (Fed. Cir. Nov. 19, 2007) (concluding that, to make a protected di sclosure, a whistleblower need only disclose what he reasonably believes is an imminent—not actual—violation of law, rule, or regulation). Before this court, Mr. Elkassir argues t hat he did make protected disclosures, pointing to the waste creat ed by Mr. Santapaga’s alleged change to the contract and disputing the administrative judge’s credibility determinations. He also asserts that the

2007-3272 3testimony of Linda Bambach—whom he alleges the administrative j udge did not allow to testify—would have helped his case. The administrative judge considered Mr. Elkassir’s email to the acting administrator of GSA and conc luded that Mr. Elkassir did not make a specific and detailed allegation of wrongdoing as requi red by the WPA. We agree with the administrative judge; Mr. Elkassir’s email rais ed only the rumored clos ure of the center, certainly not an “imminent” violation. Reid , slip op. at 5. Next considering Mr. Elkassir’s disclosur e that Mr. Santapaga had unnecessarily added layers of review to the work proce ss, the administrative judge compared Mr. Elkassir’s testimony with that of Mr. Santapaga. Mr. Elkassir admi tted he knew of Mr. Santapaga’s stated reason for adding layers of review—to reduce the possibility of error—and that he understood but disagreed with that stated reason. The administrative judge therefor e concluded that Mr. Elkassir did not have a reasonable belief that Mr. Santapaga abus ed his authority or committed gross mismanagement. Initial Decision , slip op. at 11. In order to show gross mismanagemen t, “an employee must disclose such serious errors by the agency that a conclu sion the agency erred is not debatable among reasonable people.” White v. Dep’t of the Air Force , 391 F.3d 1377, 1382 (Fed. Cir. 2004). An abuse of authority requires an “arbitrary or capricious exer cise of power by a federal official or employee that adversely a ffects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons .” D’Elia v. Dep’t of the Treasury , 60 M.S.P.R. 226, 232 (1993). Mr. El kassir’s admission that he knew of Mr. Santapaga’s stated reason for the poli cy shows that he under stood the debatable

2007-3272 4nature of the additional layers of review. Further, that stated reason also establishes that the additional review was not arbitrary, but instead based on logical principles. While Mr. Elkassir may have believed the additi onal review did not serve its intended purpose, he could not have reasonably concluded that Mr. Santapaga’s actions rose to the point of gross mismanagement or abuse of authority. T herefore, the administrative judge correctly concluded that Mr. Elkassir did not make a protected disclosure relating to the additional review. The administrative judge then discussed Mr. Elkassir’s disclosure that Mr. Santapaga had asked him to delay his work. The administrative judge explicitly found that Mr. Santapaga offered more credible testimony on the issue, and had merely expressed to Mr. Elkassir his concern that Mr. Elkassir should perform more research to support his work. Initial Decision , slip op. at 12. The adm inistrative judge’s credibility determinations are “virtually unreview able” on appeal. Frey v. Dep’t of Labor , 359 F.3d 1355, 1361 (Fed. Cir. 2004) (citati on omitted). Accordingly, we find no error in the administrative judge’s conclusion that Mr. El kassir did not reasonably believe that Mr. Santapaga abused his authority by suggesting Mr. Elkassir delay his work. The administrative judge next addressed Mr. Elkassir’s disclosure to Ms. Ramos that Mr. Santapaga had issued a deviation in a contractor’s shipping specifications without recouping the savings for the gover nment. Here, the administrative judge looked to Mr. Elkassir’s testimony that Mr. Santapaga had no authorit y to either issue the deviation or recover any associated costs. Initial Decision , slip op. at 17–18. The administrative judge’s discussion of the iss ue points to a lack of evidence that Mr. Santapaga should have in fact recovered the savings, and a lack of evidence that Mr.

2007-3272 52007-3272 6 Elkassir believed he should have done so. Mr. Elkassir admitted that Mr. Santapaga could only make a recommendation, not actua lly issue the deviation. Initial Decision , slip op. at 18. We agree wit h the administrative judge’s anal ysis; nothing in the record indicates that Mr. Santapaga violated a law, rule, or regulation, committed gross mismanagement, or abused his authority. While Mr. Elkassir may believe that the government should recover any savings result ing from a contract deviation, he has not shown that Mr. Santapaga was obligated or even authorized to do so. Because substantial evidence supports the administrative judge’s conc lusion that Mr. Elkassir did not reasonably believe he was disclosing any wrongdoing, we affirm the administrative judge’s conclusion that Mr. Elkassir did not make a protected disclosure. Finally, Mr. Elkassir challenges the adm inistrative judge’s decision to exclude Linda Bambach from testifying as a witness. Mr. Elkassir only identifies the general topic of Ms. Bambach’s testimony—the all eged unnecessary layers of work added by Mr. Santapaga. We do not find an abuse of discretion where Mr. Elkassir has failed to identify what the excluded witness would have added to the record. Davis v. Office of Pers. Mgmt. , 918 F.2d 944, 946 (Fed. Cir. 1990). CONCLUSION Because substantial evidence supports the administrative judge’s decision and nothing indicates that the decis ion was arbitrary, capricious , an abuse of discretion, or otherwise not in accordance wit h law, or obtained without pr ocedures required by law, rule, or regulation having been followed, we affirm. No costs.