N OTE : This disposition is nonprecedential.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

______________________
M ICHAEL F LYNN , Alameda, CA, pro se.

G ALINA I. F OMENKOVA , Commercial Litigation Branch, Civil Division, United States Department of Justice , Washington, DC, for respondent. Also represented by J EFFREY B. C LARK , R OBERT E DWARD K IRSCHMAN , J R ., F RANKLIN E. W HITE , J R

.

______________________
Before P ROST , Chief Judge

, M AYER and M OORE , Circuit Judges

. Case: 20-1898 Document: 20 Page: 1 Filed: 12/07/2020FLYNN v. DVA 2

P ER C URIAM

. Michael Flynn petitions for review of a Merit Systems Protection Board (MSPB) final decision denying his individ ual

- 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, w e affirm

. B ACKGROUND Mr. Flynn was a registered nurse at the VA WenatcheeCommunity 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 spec ialist 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, a n administrative judge denied Mr. Flynn ’s claims. The AJ concluded that Mr. Flynn had established a prima facie case of retaliati on, 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. T he AJ determined , therefore, that Mr. Flynn was not entitled to relief. After the AJ’s decision became final

, Mr. Flynn petitioned for judicial revie w

. D ISCUSSION
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 Case: 20-1898 Document: 20 Page: 2 Filed: 12/07/2020FLYNN v. DVA 3

procedures required by law, rule, or regulation having been followed; or (3) unsuppo rted by substantial evidence.” 5 U.S.C. § 7703(c).
Mr. Flynn c laims 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 wa s not entitled to the procedure he seeks , notice and an appeal under 5 U.S.C. § 7513

. Mr. Flynn claims he wa s entitled to such procedure as a “pr eference 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 yelli ng and cursing at a patient . Mr. Flynn does not dispute these facts Case: 20-1898 Document: 20 Page: 3 Filed: 12/07/2020FLYNN v. DVA 4

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 eviden ce he contends contradict the AJ’s finding

. Pet ’r’s Informal Br. at 7

– 12. But “the evaluation of andweight 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 o f the Navy , 315 F.3d 1378, 1381 (Fed. Cir. 2003) (cleaned up)

. W e see no reversible e rror in the AJ’s evaluation of the evidence.

C ONCLUSION

We have considered Mr. Flynn’s additional arguments and find them unpersuasive. For the foregoing reasons , we affirm

. AFFIRMED

C OSTS

No costs. Case: 20-1898 Document: 20 Page: 4 Filed: 12/07/2020