NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOE M. JIMENEZ, JR.,

Petitioner

v.

DEPARTMENT OF VETERANS 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

______________________ 

 JOE M. JIMENEZ, JR., San Antonio, TX, pro se.

CORINNE ANNE NIOSI, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON 

KIDD-MILLER. 

______________________ 

Before MOORE, WALLACH, and STOLL, Circuit Judges.
2 JIMENEZ v. DVA

PER CURIAM. 

Joe M. Jimenez, Jr. appeals the decision of the Merit 

Systems Protection Board denying him relief for an employment 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 successfully rebutted 

Mr. Jimenez’s prima facie case of reprisal for whistleblowing by showing independent causation for the employment action. Because substantial evidence supports the 

Board’s decision, we affirm. 

BACKGROUND

Mr. Jimenez worked as a Nuclear Medicine Technologist 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, determined 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 officer. 

Following the investigation, the V.A. proposed 

Mr. Jimenez’s removal in a letter dated December 23, 
JIMENEZ v. DVA 3

2011, for “Endangering the Patient’s Health and Safety of 

Others” and for “Failure to Observe Precautions for 

Containment and Contamination of a Radioactive Material.” 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 Protection Act 

(“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 complaint of a coworker at his facility regarding the handling of nuclear 

materials there. Mr. Jimenez further alleged that he 

disclosed this 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 Counsel 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 disclosures 

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.”) 36–39. 
4 JIMENEZ v. DVA

The Board concluded in its February 12, 2016, decision that Mr. Jimenez’s October 7, December 10, and 

December 22, 2011, disclosures were protected under the 

WPA and that, under the 5 U.S.C. § 1221(e)(1)

knowledge/timing test, these protected disclosures contributed to the decision to remove Mr. Jimenez, first 

proposed on December 23, 2011.2 The Board also concluded that the alleged February 7, 2012, disclosure did 

not contribute to his removal because it occurred after the 

removal 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 that it would have removed 

Mr. Jimenez despite his protected disclosures. The Board

credited the Chief of Nuclear Medicine’s hearing testimony regarding the spill incident, along with contemporaneous 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 reported the spill, he introduced no supporting evidence. Finally, the Board discounted Mr. Jimenez’s 

argument that the V.A. had not disciplined other nonwhistleblowers involved in this and similar spills. The 

Board explained that none of the non-whistleblowers 

Mr. Jimenez relied on had the same disciplinary record as 

Mr. Jimenez, which included “reprimand 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 on 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 regardless of his protected disclosures. 

Mr. Jimenez appeals to us, and we have jurisdiction 

under 5 U.S.C. § 7703(a)(1), (b)(1).

DISCUSSION

I.

At the outset, we address the Government’s threshold 

argument that the Board did not have jurisdiction to hear 

this case. The Government avers that because 

Mr. Jimenez retired on March 2, 2012—before his March 

5, 2012, effective removal date—the case is 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 Government concedes that it did not present this argument to 

the Board. “[M]ootness . . . is a threshold jurisdictional 

issue,” however. Myers Investigative and Sec. Servs., Inc. 

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

Because “[a] challenge to the Board’s jurisdiction may be 

made at any time, even on appeal,” we have considered 

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 voluntarily retires upon receiving a proposed notice of removal 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. 
6 JIMENEZ v. DVA

Indeed, the Government’s mootness argument does 

not comport with our holding in Mays. In that case, the 

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 agency informed 

Mays by letter that ‘you will be removed from your position effective the close of business 4 December 1992.’” Id. 

at 1578. The letter also “set forth Mays’ appeal rights.” 

Id. After receiving that letter, Ms. Mays retired on December 4, 1992 and subsequently filed an appeal regarding her removal. The 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. We held that, because “[t]he agency 

made a final decision and took action when it issued the 

decision letter” and because Ms. Mays’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 “stating in the remarks section, 

‘[r]etired after receiving written notice on 12–01–92 of 

decision to separate for 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. Mays’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 letters and subsequently retired 

in light of that removal. Specifically, the V.A. sent
JIMENEZ v. DVA 7

Mr. Jimenez a proposed removal letter on December 23, 

2011, to which Mr. Jimenez responded both in writing

and orally. Ultimately, 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 based on the following reasons.” S.A. 103 (italicization added). The notice also expressly informed 

Mr. Jimenez of his right to appeal: “You may appeal this 

action to the Merit Systems Protection Board (MSPB) or 

[]under the grievance procedure (non-bargain) or under 

the negotiated grievance procedure . . . .” Id. Moreover, 

just like in Mays, the remarks section in 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 determined 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 

conferred 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 responding 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 address the merits of Mr. Jimenez’s appeal. 
8 JIMENEZ v. DVA

II.

Actions brought under the WPA operate in a burdenshifting 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 employee’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 successfully rebutted an employee’s prima facie case by demonstrating independent causation, this court has approved 

of the use of three, albeit nonexclusive, factors described 

in Carr v. Social Security Administration, 185 F.3d 1318, 

1323 (Fed. Cir. 1999): 

[1] the strength of the agency’s evidence in support of its personnel action; [2] the existence and 

strength of any motive to retaliate on the part of 

the agency officials who were involved in the decision; and [3] any evidence that the agency takes 

similar actions against employees who are not 

whistleblowers but who are otherwise 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 by 
JIMENEZ 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 threshold 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 independent causation before the Board. Thus, the 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 “credibility 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 testimony that he 

actually reported the spill because “he provided no evidence to support that 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 radiological material actually occurred. Appellant Br. Amendment 7–8. Not only does Mr. Jimenez raise this argument 

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 what 
10 JIMENEZ v. DVA

Mr. Jimenez experienced” during oral response to V.A.’s 

proposed removal action). 

Mr. Jimenez also argues that the Board did not 

properly consider the decisionmaker’s retaliatory motive 

under Carr factor two. We disagree. The Board heard the 

decisionmaker’s testimony that “the reasons set out in the 

proposal notice, not the appellant’s whistleblowing activities, 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 situated nonwhistleblowers had not been removed, which goes to Carr 

factor three. The Board did address Mr. Jimenez’s argument, 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 convincing evidence. Accordingly, we do not disturb 

the Board’s determination.

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 . . . medically and scientifically.” Appellant Br. 15. The Board concluded that the testimony of Dr. Chaudhuri would be 

“irrelevant and/or unduly repetitious.” S.A. 241. We 
JIMENEZ 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. Mgmt., 846 F.2d 

1373, 1378 (Fed. Cir. 1988)). 

We agree with the Board that Dr. Chaudhuri’s testimony would have been irrelevant because it would not 

bear on whether Mr. Jimenez spilled a radioactive substance and failed to report it to his superiors. 

Mr. Jimenez has not presented an argument explaining 

why the Board abused its discretion in finding this testimony irrelevant. Accordingly, we conclude that the Board 

did not abuse its discretion in refusing this testimony. 

We have considered Mr. Jimenez’s remaining arguments, including those relating to alleged incidents that 

occurred after his proposed removal, and find them unpersuasive. For the foregoing reasons, we conclude that 

this case is not moot, but that the Board’s ultimate decision is supported by substantial evidence. We therefore 

affirm. 

AFFIRMED

COSTS

No costs.