N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ JOE M. JIMENEZ, JR., Petitioner

v.

DEPARTMENT OF VETERA NS AFFAIRS, Respondent

______________________

2016

- 1832

______________________ Petition for review of the Merit Systems Protection Board in No. DA

- 1221

- 13

- 0323 -W- 2.

______________________

Decided: November 7, 2016

______________________

J OE M. J IMENEZ , J R

. , San Antonio, TX, pro se.

C ORINNE A NNE N IOSI , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R

. , A LLISON K IDD -M ILLER

.

______________________
Before M OORE , W ALLACH , and S TOLL , Circuit Judges.JIMENEZ v. DVA 2

P ER C URIAM

. Joe M. Jimenez, Jr. appeals the decision of the Merit Systems Protection Board denying him relief for an e mployment action taken by the Department of Veterans Affairs (“V.A.”) . The Board held that Mr. Jimenez met his burden of showing that certain disclosures he made were protected under the Whistleblower Protection Act and contributed to his reassignment. The Board further held, however, that the Government successf ully rebutted Mr. Jimenez ’s prima facie case of reprisal for whistleblo wing by showing independent causation for the emplo yment action. Because substantial evidence supports the Board’s decision, we affirm

. B ACKGROUND
Mr. Jimenez worked as a Nuclear Medi cine Technol ogist for the V.A. , where his job duties included injecting patients undergoing PET/CT scans with radiological substances. During a November 21, 2011

, injection Mr. Jimenez conducted the radiological substance Flourine 18 escaped from its tubing and struck a patient’s arm and clothing. The Chief of Nuclear Medicine at the facility where Mr. Jimenez worked testified that the patient approached him later that day about the spill and explained that Mr. Jimenez did not clean the spill or show

concern over it

. The Chief memorialized his interaction with the patient in a memorandum he drafted the same day

. Mr. Jimenez’s direct supervisor investigated the incident and

, as reflected in a memorandum he drafted several days after the spill

, determi ned that radioactive material had been detected on the patient’s clothing and in the general area where the spill had occurred

. The memorandum further stated that Mr. Jimenez did not report the spill to his direct supervisor or to the radiation safety off icer.
Following the investigation , t he V.A. proposed Mr. Jimenez’s removal in a letter dated December 23,JIMENEZ v. DVA 3

201 1, for “Endangering the Patient’s Health and Safety of Others” and for “Failure to Observe Precautions for Containment and Contamination of a Rad ioactive Mater ial

. ” Mr. Jimenez responded both in writing and orally, but the V.A. issued Mr. Jimenez’s final notice of removal on February 22, 2012 , effective March 5, 2012

. Mr. Jimenez brought a Whistleblower P rotecti on A ct (“ WPA ” ) claim before the Merit Systems Protection Board. 1 Mr. Jimenez averred that the removal action was retaliatory in nature, citing several disclosures he alleged were protected under the WPA. Mr. Jimenez asserted that he had cooperated with an Office of Special Counsel investigation that was spurred by the complain t of a co

worker at his facility regarding the handling of nuclear materials there . Mr. Jimenez further alleged that he disclosed t his cooperation to Human Resources and his superiors , seeking whistleblower protection, in a letter dated December 22, 2011

. Mr. Jimenez also indicated that on October 7, 2011

, and December 10, 2011, he had reported safety concerns regarding patient and employee radiation exposure. Finally, Mr. Jimenez indicated that he had filed a complaint with the Office of Special Cou nsel on March 1, 2012

, regarding the handling of nuclear materials at his facility and alleging that he informed Human Resources of these handling practices on or about February 7, 2012

. Some of Mr. Jimenez’s dis closures criticized actions of his direct supervisor.

1 There were several procedural complications with Mr. Jimenez’s case before it was properly before the Board for consideration, the details of which are not relevant here and are set forth in the Board’s decision. See Jimenez v. V .A.

, DA

- 1221

- 13

- 0323 -W- 2, 2016 WL 602580 (Feb. 12, 2016) ( Board Op. ), Supplemental Appendix (“S.A.”) 3 6– 39

.JIMENEZ v. DVA 4

The Board concluded in its February 12, 2016

, dec ision that Mr. Jimenez’s October 7, December 10, and December 22, 2011

, disclosure s were protected under the WPA and that, under the 5 U.S.C. § 1221(e)(1) knowledge/timing test, the se protected disclosure s co ntributed to the decision to remove Mr. Jimenez, first proposed on December 23, 201 1. 2 The Board also co ncluded that the alleged February 7, 2012

, disclosure did not contribute to his remov al because it occurred after the

remova l action was already well underway.

The Board ultimately concluded, however, that the Government rebutted Mr. Jimenez’s prima facie case of whistleblower reprisal because it showed by clear and convincing evidence t hat it would have removed Mr. Jimenez despite his protected disclosure s

. The Board credited the Chief of Nuclear Medicine’s hearing testim ony regarding the spill incident

, along with contemporan eous corroborating memorandums from the Chief and Mr. Jimenez’s supervisor

. The Board also relied on the deciding official’s hearing testimony and

, like the Chief’s testimony, found it credible , citing specific reasons . The Board indicated that while Mr. Jimenez alleged that he had report ed the spill, he in troduced no supporting ev idence. Finally, the Board discounted Mr. Jimenez’s argument that the V.A. had not discipline d other non

whistleblowers involved in this and similar spill s . The Board explained that none of the non

- whistleblowers Mr. Jimenez reli ed on had the same disciplinary record as Mr. Jimenez, which included “ repr imand for endangering a patient’ s health, loss of control of a radiopharmaceutical

2 We note that while the proposed removal letter was dated December 23, 2011, Mr. Jimenez admitted that by the deciding official sought the authority to remove Mr. Jimenez o n December 19, 2011, see S.A. 143, which finds support in the record, see S.A. 71.JIMENEZ v. DVA 5

medicine, and failure to follow instructions. ” Board Op.

, 2016 WL 602580

, S.A. 47. Thus, the Board concluded that the Government proved by clear and convincing evidence that it would have removed Mr. Jimenez regar dless of his protected disclosure s.
Mr. Jimenez appeals to us, and we have jurisdiction under 5 U.S.C. § 7703(a)(1), (b)(1).

D ISCUSSION

I.
At the outset, w e address the Government’s threshold argument that the Board did not have jurisdiction to hear this case

. The Go vernment avers that because Mr. Jimenez retired on March 2, 2012 —before his March 5, 2012
, effec tive removal date

— the case i s moot. In other words, the Government asserts that there could be no basis for the Board to grant Mr. Jimenez relief because Mr. Jimenez’s removal never went into effect

. The Go vernment concedes that it did not present this argument to the Board

. “ [M] ootness . . . is a thresh old jurisdictional issue,” however. Myers Investigative and Sec

. Servs

. , Inc. v. United States , 275 F.3d 1366, 1369 (Fed. Cir. 2002)

. B ecause “[a] challenge to the Board’ s jurisdiction may be

m ade at any time, even on appeal

, ” we have consid ered the Government’s new argument. Carley v. Dep’ t of the Army , 413 F.3d 1354, 1356 (Fed. Cir. 2005)

. We have previously held that when an employee vo luntarily retire s upon receiving a proposed notice of r emoval a claim based on that notice may be moot

. See Cruz v. Dep’t of Navy

, 934 F.2d 1240 , 1247 (Fed. Cir. 1991) (en banc). But that is not the case where , as here

, before the employee retires there is a final, appealable V.A. action giving the employee the right to file a claim. See Mays v. Dep ’t of Transp

. , 27 F.3d 1577, 1579 (Fed. Cir. 1994)

. As such

, this case is not moot.JIMENEZ v. DVA 6

Indeed, t he Government’s mootness argument does not comport with our holding in Mays . In that case , t he appellant

, Ms. Mays

, retired before her removal went into effect. Id. at 1577

– 78. Specifically, “[o] n October 7, 1992, the agency proposed that Mays be removed from her position,” and subsequently, “ Mays submitted both a written and an oral response to the proposed adverse action. ” Id. “ On December 1, 1992, the agenc y informed Mays by letter that ‘ you will be removed from your pos ition effective the close of busi ness 4 December 1992 .’” Id. at 1578. The letter also “set forth Mays’ appeal rights .” Id

. After receiving that letter, Ms. Mays retired on D ecember 4, 1992 and subsequently filed an appeal regar ding her removal . T he Government argued there, as it does here, that there was no jurisdiction because Ms. Mays retired before her removal went into effect. Id. at 1579. We disagreed. W e held that

, because “[t] he agency made a final decision and took action whe n it issued the decision letter” and because Ms. May s’ s “removal was no longer ‘proposed’ in the normal sense of the word or as that word is used in Cruz

, ” Ms. Mays’s case was not moot. Id. at 1580. We further explained in Mays that it was “a case involving removal,” as evidenced by Ms. Mays ’s SF50 retirement form “ s tating in the remarks section,

‘ [r]etired after receiving written notice on 12

– 01

– 92 of decision to separate fo r unacceptable performance. ’” Id. at 1578. For these reasons, we found that 5 U.S.C. § 7701(j)

— which provides that an employee’s retirement status may not be taken into account in appealability of removal actions

— established our jurisdiction over Ms. May s’s case and that her case was not moot. Id. at 1581.

The facts of this case fall squarely in line with those in Mays : here, as in Mays , Mr. Jimenez received proposed, and then final

, removal letter s and subsequently retired in light of that removal

. Specifically , t he V .A. sentJIMENEZ v. DVA 7

Mr. Jimenez a proposed removal letter on December 23, 2011, to which Mr. Jim enez responded both in writing and orally . U ltimately, the V.A. decided to remove Mr. Jimenez and informed him with a final removal notice on February 22, 2012

. The February 22 , 2012 notice indicated that , “ [i] n connection with the letter of December 23, 2011, in which you were given advance notice of your proposed removal, a decision has been made to remove you from federal employment effective March 5 , 2012 base d on the follow ing reasons. ” S.A. 103 (italiciz ation added). The notice also expressly informed Mr. Jimenez of his right to ap peal: “You may appeal this action to the Merit Systems Protec tion Board (MSPB) or [] under the grievance procedure (non

- bargain) or under the negotiated grievance procedure

. . . .” Id. Moreover, just like in Mays

, t he remarks section i n Mr. Jimenez’s SF- 50 retirement form indicated that he “retired after receiving written notice on 02/22/2012 of decision to separate for endangering patient health and safety of others. ” S.A. 119. Thus, Mr. Jimenez’s retirement did not moot his claim. See Mays , 27 F.3d at 1580

– 81

. In fact

, during prehearing conferences , the Board d etermined that Mr. Jimenez “retired on March 2, 2012, because the agency had issued a decision to remove him on February 22, 2012, effective March 5, 2012

. ” S.A. 241

– 42 . The Board cited Mays

— under no objection by the Government , as it concedes

— to hold that the February 22 removal notice constituted an appealable action that

con fer red jurisdiction in this case. Id. The Government now unconvincingly argues in the abstract that this case is moot without either addressing the Board ’s specific holding on the issue or respondin g to its reliance on Mays in reaching that holding. We conclude that the Board’s holding was correct and that jurisdiction exists in this

case. Having concluded that jurisdiction is proper, we a ddress the merits of Mr. Jimenez’s appeal.JIMENEZ v. DVA 8

II.

Actions bro ught under the WPA operate in a burden

shifting framework. The initial burden lies with the employee to show “by a preponderance of the evidence that he or she made a protected disclosure under § 2302(b)(8) that was a contributing factor to the emplo yee’s termination.” Whitmore v. Dep’t of Labor , 680 F.3d 1353, 1367 (Fed. Cir. 2012) (citing 5 U.S.C. § 1221(e)). “If the employee establishes this prima facie case of reprisal for whistleblowing, the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken ‘the same personnel action in the absence of such disclosure,’” id. (quoting § 1221(e)), which we sometimes refer to as a showing of “independent causation,” see, e.g. , Kewley v. Department of Health & Human Services , 153 F.3d 1357, 1364 (Fed. Cir. 1998).
In evaluating whether the Government has succes sfully rebutted an employee’s prima facie case by demo nstrating independent causation, this court has approved of the use of three, albeit nonexclusive, f actors described in Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999): [1] the strength of the agency’s evidence in su pport of its personnel action; [2] the existence and strength of any motive to retaliate on the part of the ag ency officials who were involved in the dec ision; and [3] any evidence that the agency takes similar actions against employees who are not whistleblowers but who are othe r wise similarly situated. By statute, we set aside the judgment of the Board if the decision is “(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 byJIMENEZ v. DVA 9

substantial evidence.” 5 U.S.C. § 7703( c); see also Whitmore , 680 F.3d at 1366.
The Government does not dispute the Board ’s thres hold determination that Mr. Jimenez made a prima facie showing that his disclosures were protected by the WPA and that they contributed to his removal

. This finding shifted the burden to the Government to show indepen dent causation before the Board

. Thus, t he main issue before us is whether substantial evidence supports the Board ’s determination that the Government showed independent causation by clear and convincing evidence. We conclude that it does.

The Board relied on the testimony

— supported by contemporaneous documents

— of multiple witnesses involved in the spill incident, the investigation, and Mr. Jimenez’s removal procedure

. The Board found the Government’s witness testimony credible, but Mr. Jimenez argues that this evidence is weak because it came from unreliable witnesses

. But the Board’s “ cred ibility determinations are ‘ virtually unreviewable ’ at this level. ” Chambers v. Dep ’ t of Interior , 515 F.3d 1362, 1370 (Fed. Cir. 2008) (quoting Hambsch v. Dep’t of Treasury

, 796 F.2d 430, 436 (Fed. Cir. 1986))

. Further, the Board discredited Mr. Jimenez’s contradictory testimon y that he actually report ed the spill because “he provided no ev idence to support th at claim.” Board Op

., 2016 WL 602580
, S.A. 47. On appeal, Mr. Jimenez now argues for the first time that there is no proof that a spill of radiolo gical material actually occurred. Appellant Br. Amen dment 7

– 8. Not only does Mr. Jimenez raise this argume nt too late, it is also flatly contradicted by his multiple earlier admissions that a radiological spill did , in fact,

occur. See, e.g. , S.A. 475:16

– 476:10 (hearing testimony of Mr. Jimenez that tubing became separated from patient and “squirted the medicine out”) ; S.A. 99

– 100 (Mr. Jimenez’s representative declaring that “there was a spill” and describing a different spill as a “spill similar to whatJIMENEZ v. DVA 10

Mr. Jimenez experienced” during oral response to V.A.’s proposed removal action)

. Mr. Jimenez also arg ues that the Board did not properly consider the decisionmaker’s retaliatory motive under Carr factor two

. We disagree. The Board heard the decision make r’s testimony that “the reasons set out in the proposal notice, not the appellant’s whistleblowing act iv ities , were the reasons for his decision to propose the appellant’ s removal ” and found it to be credible. Board Op

. , 2016 WL 602580

, S.A. 46. Again, the Board credited this testimony, and such “ credibility determinations are

‘ virtually unreviewable ’ at this level. ” Chambers , 515 F.3d at 1370 (quoting Hambsch

, 796 F.2d at 436)

. Mr. Jimenez also argues that the Board failed to properly consider his evidence that other similarly situa ted non

whistleblowers had not been removed, which goes to Carr fact or three. T he Board did address Mr. Jimenez’s arg ument , but found it unpersuasive given that Mr. Jimenez had not shown that these other employees had his same disciplinary record, which included multiple violations for similar offenses. And, indeed, the Board’s finding is consistent with the deciding official’s testimony that Mr. Jimenez’s removal was an instance of “progressive discipline.” S.A. 375:21

– 376:2. Thus, considering the record as a whole, we conclude that there is substantial evidence from which the Board could have concluded that the Government proved independent causation by clear and convinc ing evidence. Accordingly

, we do not disturb the Board’s determ in ation.

Mr. Jimenez additionally contends that Board erred when it did not allow Dr. Tuhin Chaudhuri, an expert in Nuclear Engineering, to testify at the hearing

. Mr. Jimenez sought to have Mr. Chaudhuri testify that the Government’s testimony was “inaccurate

. . . medica lly and scientifically.” Appellant Br. 15. The Board co ncluded th at the testimony of Dr. Chaudhuri would be “irrelevant and/or unduly repetitious.” S.A. 241. WeJIMENEZ v. DVA 11

review the Board’s decision for abuse of discretion

. Veneziano v. Dep ’ t of Energy , 189 F.3d 1363, 1369 (Fed. Cir. 1999) (citing Curtin v. Office of Pers

. Mg m t. , 846 F.2d 1373, 1378 (Fed. Cir. 1988) ).
We agree with the Board that Dr. Chaudhuri’s test imony would have been irrelevant because it would not bear on whether Mr. Jimenez spilled a radioactive su bstance and failed to report it to his superiors. Mr. J imenez has not presented an argument explaining why the Board abused its discretion in finding this test imony irrelevant . Accordingly, we conclude that the Board did not abuse its discretion in refusing this testimony

. We have considered Mr. Jimenez’s remaining arg uments , including those relating to alleged incidents that occurred after his proposed removal, and find them u npersuasive. For the foregoing reasons

, we conclude that this case is not moot, but that the Board’s ultimate dec ision is supported by substantial evidence

. We therefore affirm

. AFFIRMED

C OSTS

No costs.