NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

MICHAEL FLYNN,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________

2020-1898

______________________

Petition for review of the Merit Systems Protection 

Board in No. SF-1221-19-0192-W-1.

______________________

Decided: December 7, 2020

______________________

MICHAEL FLYNN, Alameda, CA, pro se. 

 GALINA I. FOMENKOVA, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JEFFREY 

B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E.

WHITE, JR. 

 ______________________

Before PROST, Chief Judge, MAYER and MOORE, Circuit 

Judges.

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2 FLYNN v. DVA

PER CURIAM.

Michael Flynn petitions for review of a Merit Systems 

Protection Board (MSPB) final decision denying his individual-right-of-action (IRA) appeal. Flynn v. Dep’t of Veterans Affs., No. SF-1221-19-0192-W-1, 2020 WL 1130116 

(M.S.P.B. Mar. 6, 2020). We have jurisdiction under 28 

U.S.C. § 1295(a)(9). For the following reasons, we affirm.

BACKGROUND

Mr. Flynn was a registered nurse at the VA Wenatchee 

Community Based Outpatient Clinic in Spokane, Washington. On July 14, 2016, Mr. Flynn submitted a report claiming that an HR specialist had violated privacy rules while 

giving a presentation. He claimed the HR specialist had 

disclosed confidential information about prior disciplinary 

cases, including discussing one of Mr. Flynn’s cases in detail. On September 15, 2016, Mr. Flynn was removed for 

“inappropriate conduct” relating to a confrontation with his 

supervisor, Karla Spangler. Believing his termination had 

been retaliatory, Mr. Flynn appealed to the MSPB. 

In an initial decision, an administrative judge denied

Mr. Flynn’s claims. The AJ concluded that Mr. Flynn had 

established a prima facie case of retaliation, but the Department of Veterans Affairs proved by clear and convincing evidence that Mr. Flynn would have been terminated 

in the absence of his protected activity. Specifically, in 

light of his prior misconduct, Mr. Flynn would have been 

terminated for his angry, inappropriate response to a performance evaluation in the absence of his protected conduct. The AJ determined, therefore, that Mr. Flynn was 

not entitled to relief. After the AJ’s decision became final, 

Mr. Flynn petitioned for judicial review. 

DISCUSSION

We “hold unlawful and set aside” an MSPB decision 

that is “(1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; (2) obtained without 

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FLYNN v. DVA 3

procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c).

Mr. Flynn claims the AJ (1) failed to follow the procedures set forth in 5 U.S.C. § 7513, (2) abused his discretion 

when enforcing MSPB rules, and (3) lacked substantial evidence for his finding that the VA would have removed Mr. 

Flynn even absent his protected disclosure. We do not 

agree. 

First, Mr. Flynn was not entitled to the procedure he 

seeks, notice and an appeal under 5 U.S.C. § 7513. 

Mr. Flynn claims he was entitled to such procedure as a 

“preference eligible” employee under 5 U.S.C. 

§ 7511(a)(1)(B). But 5 U.S.C. § 7511(b)(10) expressly exempts “registered nurses” from the procedures afforded under § 7513. And it is undisputed that Mr. Flynn was a 

registered nurse. Thus, he is not entitled to § 7513’s procedures. See, e.g., Bonner v. Dep’t Veterans Affs. Pittsburgh 

Healthcare Sys., 477 F.3d 1343, 1346–47 (Fed. Cir. 2007). 

Second, the AJ did not abuse his discretion by admitting the VA’s belated closing statement. See 5 C.F.R. 

§ 1201.12 (providing MSPB discretion to waive rules). Mr. 

Flynn has not shown how the AJ’s admission of the closing 

statement was harmful or more than a waiver of a minor 

procedural violation. See Cobo v. FERC, 29 M.S.P.R. 635, 

637 (1986) (“[T]he Board . . . may waive strict enforcement 

of a procedural regulation when the violation is minor and 

the other party has not shown harm by the failure to follow 

the regulation in question.”). 

Third, substantial evidence supports the MSPB’s finding that Mr. Flynn would have been removed in the absence of his protected activity. Mr. Flynn’s reaction to his 

performance evaluation, for which he was dismissed, involved inappropriate and angry conduct. And as the AJ 

found, Mr. Flynn was previously suspended for yelling and 

cursing at a patient. Mr. Flynn does not dispute these facts 

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4 FLYNN v. DVA

or contend that they do not support his removal. Instead, 

he impugns the AJ’s weighing of evidence, characterizing 

testimony as “uncorroborated” and highlighting various 

pieces of evidence he contends contradict the AJ’s finding. 

Pet’r’s Informal Br. at 7–12. But “the evaluation of and 

weight to be given to the evidence in the record are judgment calls that rest primarily within the discretion of the 

Board.” Koenig v. Dep’t of the Navy, 315 F.3d 1378, 1381 

(Fed. Cir. 2003) (cleaned up). We see no reversible error in 

the AJ’s evaluation of the evidence.

CONCLUSION

We have considered Mr. Flynn’s additional arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm.

AFFIRMED

COSTS

No costs.

Case: 20-1898 Document: 20 Page: 4 Filed: 12/07/2020