NOTE: Pur s uant to Fed

. Cir. R. 47.6, this dispo s ition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3096

DOMENIC L. AMATO, Petitioner,

v. DEPARTMENT OF THE ARMY, Respondent.

______ ____________________ DECIDED: July 19, 2006

______ ____________________ Before NEWMAN, Circuit Judge , CLEVENGER, Senior Circuit Judge , and SCHALL, Circuit Judge

.

PER CURIAM. Domenic L. Amato ("Mr. Amato") seeks review of the final decision of the Merit Systems Protection Board ("Board") denying his request for corrective action pursuant to his Individual Right of Action ("IRA"). Amato v. Dep't of the Army , No. DC1221020755-W-5 (Merit Sys. Prot. Bd. Apr. 18, 2005) ( Final Decision ). Mr. Amato alleged that his em ploying agency, the Departm ent of the Army, Southern European Task Force in Vincenza, Italy ("SETAF" or "Agency"), subjected him to adverse personnel actions in reprisal for di sclosures protected under the Whistleblower Protection Act ("WPA"). The Board determined that t he agency had established byclear and c onvinc i ng evidenc e that Mr. Amat o would have been subj ect to the alleged adverse personnel actions absen t his protec ted disc los u res, such that Mr. Amato was not entitled to corrective action. Becaus e substantial evidenc e supports the Board's determination, we affir m

. I In order for the Board to have jurisdic tion over a WPA claim, an individual must make nonf rivolous allegations t hat he ha s made a protected di sclosure that was a contributing factor in an agency' s decision to take a prohibited personnel act i on ag ainst him. Yunus v. Dep't of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). To prevail on the merits, the indiv i dual must prove these elements by a preponderance of the evidence. Ellison v. Merit Sys. Prot. Bd. , 7 F.3d 1031, 1034 (Fed. Cir. 1993). Howev e r, if the agency can establis h by cl ear and c onvinc i ng evi denc e that it would have taken those ac tions regar dless of th e disc losur e s made, the employee is not entitled to relief. Carson v. Dep't of Energy , 398 F.3d 1369, 1380 (Fed. Cir. 2005). After determining that Mr. Amato had made nonfrivolous allegations sufficient to establish t he Board's jurisdiction, Fina l Dec i sion , slip op. at 3, the Administrative Judge ("AJ") determined that his hearing should be bi furcated, with an initia l hearing limited t o the question of whether Mr. Amato would hav e be en properly s ubjec ted to the alleged adverse personnel actions absent his protected disclosures. See Dick v. Dep't of Veterans Affairs , 290 F.3d 1356, 1363 (Fed. Cir. 2003) ( hearings on the merits may be bifurcated and an AJ has great discretion in det ermining whic h is sues to consider first)

06-3096 2overruled in part by Garcia v. Dep't of Homeland Sec. , 437 F.3d 1322 (Fed. Cir. 2006)

. 1 The AJ determined that the agency had estab lished by clear and convincing evidenc e that Mr. A m ato would have been subject to each of the alleg ed advers e personnel actions absent his disclos ures and thus denied Mr. Amato's r equest for corrective action. Mr. Amato appealed to the full Board, which d e clin ed to review the decision of the AJ, suc h that it became the final decisi on of the Board. Mr. A m ato then appealed t o this court. II We must affirm the final decision of the B oard unless it is arbitrary, capricious, an abuse of discretion or ot herwise not in accordanc e with law. 5 U. S. C. § 7703(c) (2000); Hayes v. Dep't of the Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). To uphold a factual finding of the Board, we must determine "w hether it has a rational basis s upported by substantial evidenc e from the record taken as a whole." Id. (citation omitted). In additio n , credib ility d e termination s are within t he discr etion of th e AJ an d a r e "virtually unreviewable." King v

. Dep't of Health and Human Servs. , 133 F.3d 145 0, 1453 (Fed. Cir. 1998). III Mr. Amato was initially employed by the agency on J anuary 14, 2000, as a GS12 Civ il Military Operations Spec ialist in its G5 division. On April 1, 2001, Mr. Amato

1 In Garcia , this court addressed the juri sdictional requirements of a constructive adverse action claim before the B oard. In particular, we held that for the Board to have jurisdic tion over a constructi ve adverse action claim, the petitioner must establish by a preponderance of the ev iden ce that the action wa s involunta r y. Garcia , 437 F.3d at 1325. However, we expressl y declined to address the nonfrivolous allegation s t andard in the c ontext of WPA cases. See id. ("Neither . . . the WPA, nor the Board's jurisdiction under the WP A are before us today.")

06-3096 3was detailed to the G3 div i sion to a GS-12 Computer Specia list position. I n Decemb er 2001, that detail was terminat ed and Mr. Amato was formally assigned to the same position. Mr. Amato left SETAF on May 5, 2002, for a GS-11 Information Technolog y Specialist position at the 52 nd Signal Battalion in Vaihingen, Germany, and resigned from that position on February 22, 2003. Mr. Amato alleges that during his em ployment with SETAF, the agency en gaged in seven adverse personnel actions in reta liation for his protected disclos ures. Howev e r, after receiving oral tes t imony and written statements from Mr. Amato, five of Mr. Amato's superior officers, as well as a human relations spec ialist at SETAF in Italy, the AJ determined that each of the alleged retaliatory actions would have taken place absent his disclosures. With regard to eac h alleged action, the AJ found that the agency's witnesses had explained why the ac tion would hav e occurred absent the disclos ures. Further, the AJ noted that Mr. Amato had no documentary evidence to support his claims, which rested primarily on his asser t ion that the agency's witness es lied during their testimony. Final Decis i on , slip op. at 40. However, the AJ credited t he agency's witnesses, noting that their testimony was c onsistent, both internally and wit h one another, showed no bias, and was not contradicted by t he written record. In contrast, the AJ found that Mr. A m ato's cl aims were unsupported by the written record, directly rebutted by the record and the te stimony of the agency' s witnesses, and in some instances, "inherently improbable." Id. On appeal, Mr. Amato repeats the same arguments made before the AJ, namely that the agency's witnesses lied and produced fals e documents to support their testimony. Mr. Amato further alleges collusion between the wit nesses. However, as

06-3096 4noted above, the AJ' s credibilit y determinations are virtually unreviewable. Further, Mr. Amato does not produce any documentary evidence supporting his allegations. Mr. Amato also appears to argue that the AJ incorrect ly applied the law, arguing that the AJ failed to consider that his discl osures were protected. Howev e r, the AJ assumed, for the purposes of the initial h earing, that Mr. Amato had made protected disclos ures that were a contri buting factor in the agenc y's ac tions. Nevertheless, the AJ determined that the agency had established by clear and convinc i ng evidenc e that the allegedly retaliatory actions would have taken place absent these disclosures. Finally, Mr. Amato alleges that the AJ failed to consider the evidence that he presented and that the AJ co nducted the proceedings in a bias ed and unf air manner. Howev e r, we presume that a fact finder has reviewed all of the re levant evidence unles s he explic itly expresses otherwis e. See, e. g. , Medtro nic, Inc. v. Daig Corp. , 789 F.2d 903, 906 (Fed. Cir. 1986). Further, Mr. Am ato has not presented any ev idence t o support his contentions. To the c ontrary, th e AJ cond uc ted a le ngt hy hearing and wrote a thorough, well-reas oned opini on in whic h he analy z ed the oral testimony and written statements of each wit ness, as well as the documentary evidence of record, and determined that the agen cy had established by clear and c onvincing evidence that it would hav e taken the alleged adverse pers onnel actions absent Mr. Amato's protected disclos ures. In short, substantial evidence supports the AJ's det ermination. As such, we affirm.

06-3096 5