NOTE: This disposition is nonprecedential.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 Board
NOTE: This disposition is nonprecedential.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 “Board”) denying him relief on his individual right of action 

(“IRA”) appeal based on the Whistleblower Protection 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 raised 
possible reasons for that closure; he also suggested that improvements in management 

would benefit the center. On March 22, 2006, Mr. Elkassir responded to a proposed 

suspension action—for alleged conduct (outside his email) related to his prior 

performance evaluation—by disclosing to his director 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 disclosed to Ms. Ramos that Mr. Santapaga had 

issued a deviation from contract specifications to one of the government’s contractors—

allowing the contractor to use substandard packaging for shipments—without recouping 

the savings for the government. Following 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 performance evaluation, and the GSA later 

issued a notice of unacceptable performance as well as a performance action plan. 

Mr. Elkassir submitted a complaint to the 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 its inquiry into his allegations but that he 

could pursue relief at the MSPB. He then filed his IRA appeal with the Board. 

In a March 30, 2007, initial decision, the MSPB administrative judge dismissed 

Mr. Elkassir’s claim relating to the letter of reprimand because he had elected to pursue 

relief through the negotiated grievance procedures 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 judge then conducted a hearing to 

2007-3272 2
determine 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 that he made a protected disclosure. Initial 

Decision, slip op. at 9. On May 4, 2007, the administrative judge’s initial decision 

became the final decision of the Board. This petition followed. 

DISCUSSION 

We have jurisdiction over petitions for review of MSPB decisions 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, 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). 

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 disclosure, 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 that he did make protected disclosures, 

pointing to the waste created by Mr. Santapaga’s alleged change to the contract and 

disputing the administrative judge’s credibility determinations. He also asserts that the 

2007-3272 3
testimony of Linda Bambach—whom he alleges the administrative judge 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 concluded that Mr. Elkassir did not make a specific and 

detailed allegation of wrongdoing as required by the WPA. We agree with the 

administrative judge; Mr. Elkassir’s email raised only the rumored closure of the center, 

certainly not an “imminent” violation. Reid, slip op. at 5. 

Next considering Mr. Elkassir’s disclosure that Mr. Santapaga had unnecessarily 

added layers of review to the work process, the administrative judge compared Mr. 

Elkassir’s testimony with that of Mr. Santapaga. Mr. Elkassir admitted 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 therefore concluded that Mr. Elkassir did not have a reasonable 

belief that Mr. Santapaga abused his authority or committed gross mismanagement. 

Initial Decision, slip op. at 11. 

In order to show gross mismanagement, “an employee must disclose such 

serious errors by the agency that a conclusion 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 exercise of power by a 

federal official or employee that adversely affects 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. Elkassir’s admission that he knew of 

Mr. Santapaga’s stated reason for the policy shows that he understood the debatable 

2007-3272 4
nature 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 additional 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. Therefore, 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 administrative judge’s credibility 

determinations are “virtually unreviewable” on appeal. Frey v. Dep’t of Labor, 359 F.3d 

1355, 1361 (Fed. Cir. 2004) (citation omitted). Accordingly, we find no error in the 

administrative judge’s conclusion that Mr. Elkassir 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 government. Here, the administrative judge 

looked to Mr. Elkassir’s testimony that Mr. Santapaga had no authority to either issue 

the deviation or recover any associated costs. Initial Decision, slip op. at 17–18. The 

administrative judge’s discussion of the issue 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 5
2007-3272 6

Elkassir believed he should have done so. Mr. Elkassir admitted that Mr. Santapaga 

could only make a recommendation, not actually issue the deviation. Initial Decision, 

slip op. at 18. We agree with the administrative judge’s analysis; 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 resulting 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 conclusion 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 administrative 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 alleged 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 decision was arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law, or obtained without procedures required by law, 

rule, or regulation having been followed, we affirm. 

No costs.