NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

KEITH G. COLLINS,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2024-1390

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-1221-23-0166-W-1.

______________________ 

Decided: September 19, 2024

______________________ 

KEITH GRIFFIN COLLINS, Sierra Vista, AZ, pro se. 

 RAFAEL SHAPIRO, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. 

 ______________________ 

Before DYK, CHEN, and CUNNINGHAM, Circuit Judges.

PER CURIAM.

Case: 24-1390 Document: 26 Page: 1 Filed: 09/19/2024
2 COLLINS v. ARMY

Keith G. Collins appeals a final decision by the Merit 

Systems Protection Board (Board) denying his request for 

corrective action under the Whistleblower Protection Act 

(WPA). The Board found that Mr. Collins failed to establish a prima facie case of whistleblower reprisal by failing

to prove that his protected whistleblowing activity was a 

contributing factor in his non-selection for a promotion by 

the United States Department of the Army (Army). Collins 

v. Dep’t of the Army, No. DE-1221-23-0166-W-1, 2023 WL 

9979112 (M.S.P.B. Dec. 12, 2023) (Decision).1 For the reasons discussed below, we affirm. 

BACKGROUND

For the relevant time period, including February 

through May 2022, Mr. Collins was employed by the Army 

as a Lead Firefighter for the Fire Protection and Prevention Division of the Directorate of Emergency Services at 

Fort Huachuca, Arizona. 

On February 16, 2022, the union president of the 

American Federation of Government Employees, Local 

1662, filed a grievance against the Army alleging violations 

of a collective bargaining agreement, federal law, and 

Army regulations. SAppx. 17–30. Mr. Collins claims that, 

as a union officer, he played a significant role in the filing 

of the union grievance, including construction of the grievance document, research of claims, and assistance in the 

drafting process. 

On March 16, 2022, the Army posted a vacancy for the 

role of Supervisory Firefighter, and Mr. Collins applied for 

the position. In accordance with the agency’s hiring policy, 

1 Because the electronic version of the Board’s decision lacks pagination, we employ the pagination used in

the Board’s decision at SAppx. 1–16. “SAppx.” refers to the 

supplemental appendix submitted with the government’s 

informal brief.

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COLLINS v. ARMY 3

the Army convened a hiring panel that rated, ranked, interviewed, and scored the applicants. While Mr. Collins 

earned the second highest final score, the selecting official, 

Bradley Nicholson, selected the highest-scoring applicant

for the position. On May 8, 2022, Mr. Collins was notified 

that he was not selected for the position.

Mr. Collins subsequently filed a complaint to the Office 

of Special Counsel (OSC) alleging that his non-selection 

constituted whistleblower reprisal for his role in filing the 

February 16, 2022 union grievance. On February 22, 2023, 

OSC closed the complaint. 

On March 13, 2023, Mr. Collins timely filed an individual right of action (IRA) appeal. On December 12, 2023, 

the administrative judge issued an initial decision denying

Mr. Collins’s request for corrective action due to Mr. Collins’s failure to establish a prima facie case of whistleblower reprisal. Decision at 3–7. Specifically, the 

administrative judge determined that Mr. Collins had established that his participation in the February 16, 2022 

union grievance constituted protected whistleblowing, but 

that he had failed to prove that his union activity was a 

contributing factor in his non-selection for the Supervisory 

Firefighter role. Id. at 4, 7. The administrative judge’s initial decision became the Board’s final decision on January 

16, 2024. See 5 C.F.R. § 1201.113.

Mr. Collins timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

This court’s review of a final Board decision is limited 

by statute. We must affirm the decision of the Board unless 

it 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 substantial evidence.” 

5 U.S.C. § 7703(c); Cobert v. Miller, 800 F.3d 1340, 1347–

Case: 24-1390 Document: 26 Page: 3 Filed: 09/19/2024
4 COLLINS v. ARMY

48 (Fed. Cir. 2015). The Board’s decision is supported by 

substantial evidence if there is “such relevant evidence as 

a reasonable mind might accept as adequate to support a 

conclusion.” Dickey v. Off. of Pers. Mgmt., 419 F.3d 1336, 

1339 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)). 

“[T]o prevail in an IRA appeal alleging retaliation for 

protected disclosures under the WPA, the burden falls on 

the employee to show by a preponderance of the evidence 

that (1) a protected disclosure was made; and (2) the disclosure was a contributing factor in the adverse personnel 

action.” Carson v. Dep’t of Energy, 398 F.3d 1369, 1377 

(Fed. Cir. 2005); see 5 U.S.C. § 1221(e)(1). 

Mr. Collins alleges the Board erred because the administrative judge “incorrectly decided [and/or] failed to take 

into account certain facts.” Petitioner’s Opening Br. 16

(emphasis omitted). To support his position, Mr. Collins

presents several pieces of extra-record evidence. Id. at 8–

16; Petitioner’s Reply Br. 14.

As a preliminary matter, we are unable to consider 

Mr. Collins’s newly submitted evidence. Evidence that was 

not presented to the Board is not part of the record on appeal and is not properly before us. Turman-Kent v. Merit 

Sys. Prot. Bd., 657 F.3d 1280, 1283 (Fed. Cir. 2011). 

Mr. Collins requests that we accept his submission of supplemental evidence pursuant to 5 C.F.R. § 1201.115(d), 

which provides that the Board may grant a petition for review upon a showing of new and material evidence that 

was not previously available when the record closed despite 

the petitioner’s due diligence. But this regulation applies 

to the Board, not to this court on appeal. “Because we are 

limited to reviewing decisions of the Board based on the 

record before the deciding official, we decline to base our 

judgment on evidence that was not part of the record before 

the administrative judge.” Mueller v. U.S. Postal Serv., 76 

F.3d 1198, 1201–02 (Fed. Cir. 1996) (citation omitted). 

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COLLINS v. ARMY 5

We next address the arguments that Mr. Collins makes 

that do not rely on extra-record evidence. First, Mr. Collins 

contends that the Board erred in finding that the selecting 

official did not have knowledge of his whistleblowing activity, and thus that the “knowledge/timing test” had not been 

met. Under the “knowledge/timing test” set forth in

5 U.S.C. § 1221(e)(1), an employee may demonstrate whistleblower reprisal occurred by showing that “(A) the official 

taking the personnel action knew of the disclosure or protected activity” (i.e., knowledge); and “(B) the personnel action occurred within a period of time such that a reasonable 

person could conclude that the disclosure or protected activity was a contributing factor in the personnel action” 

(i.e., time). See Kewley v. Dep’t of Health & Hum. Servs., 

153 F.3d 1357, 1361 (Fed. Cir. 1998).

Mr. Collins argues that his participation in a prior 

grievance “provides evidence that Mr. Nicholson (the 

Agency hiring official) would have known of Mr. Collins[’s] 

participation” in the February 16, 2022 union grievance. 

Petitioner’s Opening Br. 8–9. Mr. Collins also alleges that 

the February 16, 2022 union grievance “directly references” Mr. Collins’s prior grievance. Id. at 9 (citing SAppx. 

22). 

Although the February 16, 2022 union grievance refers 

to an August 2021 “employee grievance,” SAppx. 22,

Mr. Collins is not identified by name in the union grievance, SAppx. 17–30. Furthermore, the administrative 

judge weighed Mr. Collins’s assertions against Mr. Nicholson’s testimony that he was unaware of the February 16, 

2022 union grievance until after Mr. Collins’s non-selection. The administrative judge credited Mr. Nicholson’s 

representations as “detailed, plausible, and credible,” Decision at 5, and “credibility determinations of an administrative judge are virtually unreviewable on appeal,” Bieber v. 

Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). 

The administrative judge also considered Mr. Collins’s argument that Mr. Nicholson had knowledge of his union 

Case: 24-1390 Document: 26 Page: 5 Filed: 09/19/2024
6 COLLINS v. ARMY

activity because Mr. Nicholson attended a meeting of Supervisory Firefighters that Mr. Collins asserts was held to 

discuss the union grievance. But the administrative judge 

gave this argument “no evidentiary weight” because 

Mr. Collins “fail[ed] to indicate that he personally attended 

the meeting, and he cite[d] no source for his assertions 

about it.” Decision at 5. Finally, the administrative judge 

“considered whether the record otherwise indicated anything about the grievance or nonselection to suggest the 

agency knew about [Mr. Collins’s] involvement in the 

grievance” and concluded it did not. Decision at 5–6. We 

find that substantial evidence supports the administrative 

judge’s conclusion that the selecting official did not have 

knowledge of Mr. Collins’s protected activity.

Second, Mr. Collins claims that the Army violated 

5 C.F.R. § 300.604(b)(2) by hiring a candidate who Mr. Collins asserts did not meet the requisite Time-in-Grade qualification. Petitioner’s Opening Br. 12–13. But the Board 

addressed this argument in a separately docketed action, 

in which it dismissed for lack of jurisdiction. See Decision

at 1 n.1; Collins v. Dep’t of the Army, No. DE-300A-23-0167-

I-1, 2023 WL 3580457 (M.S.P.B. May 15, 2023). Mr. Collins’s challenge to the Army’s hiring practices is thus not 

within the scope of this appeal.

Because substantial evidence supports the Board’s 

finding that the selecting official did not have knowledge of 

Mr. Collins’s protected activity, and therefore Mr. Collins’s 

protected activity was not a contributing factor in his nonselection, we affirm the Board’s determination that 

Mr. Collins did not meet his burden to establish whistleblower reprisal.

CONCLUSION

We have considered Mr. Collins’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s decision. 

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COLLINS v. ARMY 7

AFFIRMED

COSTS

No costs.

Case: 24-1390 Document: 26 Page: 7 Filed: 09/19/2024