NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ELLIOTT E. FISHER,

Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES,

Respondent

______________________ 

2015-3207

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-0752-12-0268-I-2.

______________________ 

Decided: March 10, 2016

______________________ 

ELLIOTT E. FISHER, Apache Junction, AZ, pro se. 

JOSEPH ASHMAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C.

MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES,

JR. 

______________________ 

Before LOURIE, BRYSON, and REYNA, Circuit Judges.
2 FISHER v. HHS

PER CURIAM. 

Elliott E. Fisher (“Fisher”) appeals from the final decision of the Merit Systems Protection Board (the “Board”) 

denying his petition for review and affirming the initial 

decision that affirmed the agency’s action of removal. 

Fisher v. Dep’t of Health & Human Servs., No. DE-0752-

12-0268-I-2 (M.S.P.B. June 25, 2015) (“Final Order”); see

Fisher v. Dep’t of Health & Human Servs., No. DE-0752-

12-0268-I-2 (M.S.P.B. Jan. 26, 2015) (“Initial Decision”). 

Because the Board did not err in denying the petition for 

review, we affirm. 

BACKGROUND

Beginning in March 2009, the Indian Health Service 

(“IHS”) employed Fisher as a psychiatric licensed practical nurse at the Desert Visions Youth Wellness Center, 

which treats adolescent patients with mental health and 

substance abuse problems. Final Order at 2; Initial 

Decision at 2. In November 2009, Fisher became concerned by a patient’s behavior and, believing her to be 

suicidal, requested an ambulance to transport the patient 

to another facility for an extended psychiatric evaluation. 

Final Order at 3; see also Initial Decision at 20. However, 

Dr. Beckstead, the supervising physician on duty, cancelled the emergency transport after asking Fisher a few 

questions about the patient. Pet’r’s Br. 9. Fisher believed 

that Dr. Beckstead by that behavior failed to perform his 

sworn duty to follow patient assessment protocols. Id.

Fisher met with his supervisors in October 2011 and 

allegedly disclosed Dr. Beckstead’s conduct in refusing to 

follow protocol by cancelling transport for the suicidal 

patient in 2009. Final Order at 6; Initial Decision at 16. 

In November 2011, Fisher filed a formal complaint regarding the 2009 incident with the state psychology 

licensing board (the Arizona Board of Psychologist Examiners). Final Order at 6. 
FISHER v. HHS 3

In January 2012, IHS placed Fisher on administrative 

leave pending an investigation into allegedly inappropriate patient and staff interactions, and proposed a 14-day 

suspension of Fisher. Final Order at 2. Before the suspension was implemented, however, IHS informed Fisher 

that he was being assigned to a detail at a different 

location, effective February 8, 2012, and that refusal to 

comply with that assignment could result in his removal. 

Id. Fisher responded that he would not comply, and IHS 

notified him on February 13 that he was considered 

absent without leave (“AWOL”). Initial Decision at 4. On 

February 21, IHS decided to suspend him for 14 days, 

from February 27 to March 11, as a result of the patientinteraction infractions. Id. at 5. Before the suspension 

went into effect, however, on February 24, IHS issued a 

notice of proposed removal for failure to comply with the 

detail assignment. Id.

Fisher filed an individual right of action (“IRA”) appeal challenging his detail assignment to a facility he 

considered he was not qualified to work in as inappropriate retaliation for a protected disclosure. Fisher v. Dep’t 

of Health & Human Servs., No. DE-1221-13-0778-W-1 

(M.S.P.B. Dec. 12, 2014). The Board dismissed his IRA 

appeal for lack of jurisdiction, finding that, although he 

had made a nonfrivolous allegation of a protected disclosure, he failed to nonfrivolously allege that his disclosure 

was a contributing factor to the detail assignment, e.g., 

how the internal investigation led to the detail or could 

have been a pretext for gathering information to retaliate. 

Fisher did not appeal from that decision.

Fisher also filed the instant appeal at the Board challenging his removal. The administrative judge (“AJ”) 

determined that Fisher had met his burden to show that 

he had made a protected whistleblower disclosure. Initial 

Decision at 20–21. Based on Fisher’s communications to 

the deciding official, in which he asserted retaliation, and 

the time period between the disclosure and the removal, 
4 FISHER v. HHS

the AJ found that Fisher had also met his burden to show 

that the protected disclosure was a contributing factor to 

the removal action under the Board’s previouslyelaborated “knowledge/timing” test. Id. at 21–22. However, the AJ found that the agency had shown by clear 

and convincing evidence that it would have removed 

Fisher even absent the disclosure, and that the penalty 

for his failure to comply with the detail assignment was 

reasonable. Id. at 22–26.

Fisher filed a petition for review, which the full Board 

denied. Final Order at 2. The Board found that Fisher 

failed to show error in the AJ’s findings that Fisher’s 

position was subject to the detail assignment; that the 

Board lacks jurisdiction to review the basis for the detail;

and that the agency proved that Fisher was AWOL. Id. at 

5–6. The Board further found that Fisher did not provide 

sufficient reason for the Board to reevaluate the AJ’s 

credibility determinations. Id at 6–7. The Board noted 

the AJ’s analysis of the Carr factors, see Carr v. Soc. Sec. 

Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999), and affirmed the AJ’s finding that the penalty of removal was 

within the limits of reasonableness. Final Order at 8–9. 

The Board also rejected Fisher’s challenges to the AJ’s 

rulings regarding witness testimony. Id. at 9–10. The 

Board thus declined the petition for review and affirmed 

the AJ’s initial decision.

Fisher appealed from the Board’s final decision to this 

court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

We must affirm the decision of the Board unless we 

find it to be “(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).
FISHER v. HHS 5

When evaluating whether an agency has shown by 

clear and convincing evidence that it would have taken a 

personnel action against a whistleblower even absent the

protected disclosure, the Board considers: 

the strength of the agency’s evidence in support of 

its personnel action; the existence and strength of 

any motive to retaliate on the part of the agency 

officials who were involved in the decision; and 

any evidence that the agency takes similar actions 

against employees who are not whistleblowers but 

who are otherwise similarly situated.

Carr, 185 F.3d at 1323. The Board’s review of the penalty 

imposed is limited to determining whether the agency 

considered all relevant factors and exercised its management discretion within tolerable limits of reasonableness. 

Douglas v. Veterans Admin., 5 M.S.P.B. 313, 333 (1981).

Fisher argues that the suspension, detail, and removal were all in retaliation for his protected disclosure, and 

challenges the credibility determinations underlying the 

AJ’s factual findings. Pet’r’s Br. 4–6, 10–12; Reply Br. 

10–12. Fisher asserts that the deciding official for the 

removal action did not explicitly analyze, and thus did not 

properly consider, any mitigating Douglas factors when 

imposing the penalty. Pet’r’s Br. 13; Reply Br. 10. Fisher 

also argues that he was denied due process of progressive 

discipline and administrative hearings, and thus the 

penalties were not reasonable. Pet’r’s Br. 12–14, 18; 

Reply Br. 4, 8–9. Fisher also disputes the propriety of the

suspension in response to his patient interactions and the 

detail assignment to a different facility. Pet’r’s Br. 15; 

Reply Br. 3–7, 11–12. Fisher further challenges the AJ’s

findings on the timing of his protected disclosure, Pet’r’s 

Br. 10–12, 17; Reply Br. 7, and insists that the new evidence he presented with the petition for review should 

have been considered, Pet’r’s Br. 10–11.
6 FISHER v. HHS

The government refutes all of Fisher’s arguments. It 

responds that there was clear and convincing evidence to 

show that the agency would have removed Fisher even 

absent any protected disclosure. Also, there were sufficient analyses of the Douglas factors evident in the notices of suspension and removal; federal employees subject 

to removal are not necessarily entitled to a hearing; and 

the suspension prior to the removal indicated progressive 

discipline and thus supported the reasonableness of the 

penalty. Resp’t’s Br. 14–16. The government argues that 

the Board correctly held that it could not hear a challenge 

to the basis for the detail because it did not involve a 

reduction in pay or grade. Id. at 11–12. The government 

finally contends that any alleged errors relating to the 

date of disclosure are not relevant to this appeal because 

the AJ ultimately found that Fisher had met his burden 

to show that he made a protected disclosure and that it 

was a contributing factor to his removal. Id. at 8–9. 

We agree that the Board did not err in finding that 

the agency proved that it would have removed Fisher

even absent the protected disclosure and that the removal 

was reasonable. The instant appeal is limited to that

removal action, and does not involve a review of the 

merits of the suspension or the detail assignment. As 

noted by the Board, many of Fisher’s assertions focus on 

the removal action as retaliation; however, the removal 

itself was premised upon his failure to report to his new 

detail assignment. The Board considered the Carr factors 

and concluded that the agency had proved with clear and 

convincing evidence that the IHS would have removed 

Fisher for being AWOL even if he had never made the 

protected disclosure. The date of disclosure and other 

factual determinations that Fisher challenges are not at 

issue here because the AJ found in his favor that he had 

met his burden to show that it was a protected disclosure 

and that it was a contributing factor to the removal 

action. His arguments about due process and mitigating 
FISHER v. HHS 7

factors primarily relate to his detail and suspension for 

unrelated conduct, and thus are insufficient to establish 

error in the Board’s decision affirming his removal.

CONCLUSION

We have considered Fisher’s remaining arguments 

and find them unpersuasive. We conclude that the 

Board’s decision is not arbitrary or capricious, is not 

contrary to law, and is supported by substantial evidence. 

Accordingly, the decision of the Board is affirmed.

AFFIRMED

COSTS

No costs.