NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

GEORGE DUGGAN, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

Respondent. 

__________________________ 

2012-3025 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. SF1221100159-W-1. 

__________________________ 

Decided: June 13, 2012 

__________________________ 

GEORGE DUGGAN, of Newman, California, pro se. 

BARBARA E. THOMAS, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

her on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

TODD HUGHES, Deputy Director. 

__________________________ 
DUGGAN v. DEFENSE 2

Before RADER, Chief Judge, O’MALLEY and WALLACH, 

Circuit Judges. 

PER CURIAM. 

George Duggan, a senior auditor with the Defense 

Contract Audit Agency (“DCAA”) of the Department of 

Defense, appeals from an order of the Merit Systems 

Protection Board (“Board”) holding that the agency did 

not violate the Whistleblower Protection Act, 5 U.S.C. 

§ 2302(b)(8) (“WPA”), by (1) suspending Mr. Duggan 

without pay for two days in 2003 or (2) initially giving Mr. 

Duggan a performance rating of “unacceptable” in 2008 

before revising that rating to “exceeds fully successful.” 

For the reasons discussed below, this court affirms the 

Board’s determinations. 

BACKGROUND

Mr. Duggan during the early 2000s was partly responsible for the auditing of the accounts of Chemical 

Systems Division, a component of federal contractor Pratt 

& Whitney. On September 13, 2002, Mr. Duggan faxed to 

a DCAA specialist a copy of a spreadsheet prepared by 

Chemical Systems personnel. Before faxing the spreadsheet, which listed potential losses that Chemical Systems might incur, Mr. Duggan handwrote on it several 

comments insinuating that the numbers indicated Chemical Systems had misled the Government regarding contract pricing.1

 1 Specifically, Mr. Duggan wrote “set-up reserve for 

[Defective Pricing] we will lose . . . pay [Government] for 

[Defective Pricing] when we lose, in no way more than the 

$162,482 we know we scammed the [Government]; reverse the rest on successful negotiation & in any case give 

me a raise, VP of [Government] relations.” 
3 DUGGAN v. DEFENSE

Although Mr. Duggan sent this altered copy of the 

spreadsheet to a DCAA employee, he used a Chemical 

Systems fax machine to do so. He then left the annotated 

spreadsheet in the fax machine, where it was later discovered by a Chemical Systems employee. In October 

2002, Mary Estes, Mr. Duggan’s supervisor, received a 

complaint from a Pratt & Whitney employee; Ms. Estes 

prepared a memorandum in which she summarized the 

various complaints that had been relayed to her and 

expressed certain concerns of her own about Mr. Duggan’s 

behavior toward contractor personnel. On November 21, 

2002, the manager of the DCAA branch where Mr. 

Duggan was employed, James P. Hayes, informed Mr. 

Duggan in a written memorandum that he was proposing 

that Mr. Duggan be suspended without pay for two days. 

He cited two reasons for the proposed suspension: (1) 

“[m]aking inappropriate comments about a fellow auditor 

to contractor representatives,” and (2) “[m]aking disrespectful, offensive comments to contractor representatives.” 

Mr. Duggan responded to Mr. Hayes’s memorandum 

by writing a letter to Karen Taylor, Mr. Hayes’s supervisors and the DCAA official who would make the final 

decision on the proposed suspension. In that memorandum, Mr. Duggan asserted that Chemical Systems was 

systematically withholding a wide variety of documentation without which he could not effectively audit the 

contractor’s finances and contract pricing. Additionally, 

he admitted making a number of disparaging comments, 

both about a fellow auditor and to contractor representatives. 

Mr. Duggan was suspended without pay on January 

16 and January 17, 2003. Mr. Duggan filed a grievance 

concerning the suspension, but the grievance was denied. 
DUGGAN v. DEFENSE 4

In May 2003, Mr. Duggan refused to sign a Statement 

of Independence, a standard form by which each DCAA 

auditor was to aver that he or she was “free both in fact 

and in appearance from personal, external, and organizational impairments to independence.” Mr. Duggan 

claimed that he operated under an external impairment 

because Chemical Systems refused to provide him with 

the documentation he believed necessary to permit him to 

conduct an adequate audit. DCAA officials informed Mr. 

Duggan both that they did not believe he was externally 

impaired and that he could no longer serve as an auditor 

assigned to Chemical Systems if he did not sign the 

independence statement, but Mr. Duggan continued to 

refuse to sign. Consequently, he was transferred from 

DCAA’s Silicon Valley Branch to the Peninsula Branch 

Office on May 25, 2003. Mr. Duggan filed a grievance 

concerning the transfer on June 9, 2003, but his grievance 

was denied. In June 2003, Mr. Duggan’s promotion appraisal was lowered from a 75 rating to a 66. 

In 2007, Mr. Duggan spent roughly ten months performing contractor audits in Iraq. In 2008, after his 

return to DCAA’s Peninsula Branch Office in California, 

Mr. Duggan began sending detailed letters to David 

Rapallo, chief investigative counsel for the House of 

Representatives’s Committee on Oversight and Government Reform. In those letters he complained of the “dysfunctional audit oversight” provided by DCAA in general 

and contended that DCAA’s performance in Iraq was 

particularly “egregious.” He provided numerous examples 

of what he called “systemic deficiencies” in DCAA’s work 

in Iraq. 

When Mr. Duggan left Iraq at the end of 2007, he received an “exit” performance appraisal from his supervisor there, who rated his work “outstanding.” On July 30, 

2008, several months after Mr. Duggan’s return to the 
5 DUGGAN v. DEFENSE

DCAA Peninsula Branch Office, his supervisor signed an 

appraisal of his job performance from December 2, 2007 

through June 30, 2008, rating that performance “unacceptable.” 

Mr. Duggan filed a grievance, arguing that the poor 

rating he received was unfounded and that he should 

have received an annual performance evaluation that 

incorporated his rating of “outstanding” upon his exit 

from Iraq, rather than an interim evaluation that addressed only the work he had performed since his return 

from Iraq. He also alleged that the negative evaluation 

was a form of prohibited retaliation for his protected 

disclosures to Congress. 

The regional audit manager, John Doherty, after examining the issue, decided that Mr. Duggan’s rating for 

the period in question should have been “fully successful,” 

and that Mr. Duggan should have been issued an annual 

performance evaluation that combined his two evaluations. Accordingly, Mr. Duggan’s performance appraisal 

for December 2007 through June 2008 was reissued with 

the revised rating of “fully successful,” and Mr. Doherty 

issued an annual evaluation of Mr. Duggan’s performance 

that rated it as “exceeds fully successful.” 

In 2009, Mr. Duggan filed a Complaint with the 

United States Office of Special Counsel (“OSC”) in which 

he alleged that the DCAA had retaliated against him in 

violation of the WPA. In two letters dated July 2, 2009, 

and September 24, 2009, the Special Counsel declined to 

present Mr. Duggan’s allegations to the Board. Mr. 

Duggan filed a Complaint with the Board on November 

22, 2009. He divided his allegations into “cases,” alleging 

(1) that his faxed notes were protected disclosures under 

the WPA and that his two-day suspension without pay in 
DUGGAN v. DEFENSE 6

2003 was retaliation for sending the notes (“Case A”)2; 

and (2) that the “unacceptable” rating was retaliation for 

his communicating with Congress, another protected 

disclosure (“Case B”).3 

The administrative judge (“AJ”) issued an initial decision in which he found in the agency’s favor with respect 

to Cases A and B. First, the AJ found that, although Mr. 

Duggan’s faxed spreadsheet constituted a protected 

disclosure and a contributing factor to Mr. Duggan’s 

suspension, the agency, nevertheless, had proven by clear 

and convincing evidence that it would have suspended 

Mr. Duggan even in the absence of any protected disclosure. With regard to the letters Mr. Duggan sent to highlevel DCAA personnel and his congressman, the AJ found 

that Mr. Duggan did not submit those particular allegations to OSC and, therefore, failed to exhaust his administrative remedies as to these letters.4 

Furthermore, the AJ determined that a promotion 

appraisal does not constitute a personnel action governed 

by the WPA. Even if it did, the AJ held Mr. Duggan’s 

claim would still fail because the decrease in the appraisal would have occurred even if no protected disclo-

 2 In a later filing, Mr. Duggan expanded Case A to 

include an allegation that his grievance of his suspension 

and his complaint to his congressman about it constituted 

protected disclosures. 

3 Mr. Duggan brought a third “case.” Case C concerned an unsuccessful attempt by one of Mr. Duggan’s 

supervisors to suspend him in December 2008. Because 

Case C is not at issue on appeal to this court, it will not be 

discussed further. 

4 The AJ also found that, even if the claims had 

been exhausted, they would not succeed. The agency, 

according to the AJ, would have denied Mr. Duggan’s 

grievance of his suspension even in the absence of any 

protected disclosure. 
7 DUGGAN v. DEFENSE

sure had been made. Similarly, the AJ found Mr. 

Duggan’s transfer would have been ordered in the absence 

of any protected disclosure. 

With regard to Case B, the AJ determined that Mr. 

Duggan failed to demonstrate that any retaliation on the 

basis of protected disclosures to House Investigative 

Counsel had occurred, because he had not proven that the 

agency officials whom he allegedly informed of the disclosures—his branch manager, Ellen Hoffer, and his temporary supervisor, Linda Lombardo—in fact knew of the 

disclosures in question. Therefore, the AJ held the disclosures could not have been “a contributing factor in [Mr. 

Duggan’s] subsequent performance rating or other personnel actions.” 

Mr. Duggan timely filed for full Board review of the 

initial decision. The Board rejected his objections to the 

AJ’s factual findings and upheld the initial decision. Mr. 

Duggan then petitioned for review by this court. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

This court’s review of decisions by the Board in whistleblower and other cases is limited. We will overturn a 

decision of the Board only if 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). 

Substantial evidence is “such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.” Consol. Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938). 

A “protected disclosure” is a disclosure which “an employee . . . reasonably believes evidences (i) a violation of 
DUGGAN v. DEFENSE 8

any law, rule, or regulation, or (ii) gross mismanagement, 

a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 

U.S.C. § 2302(b)(8)(A). To establish a protected disclosure 

under the WPA, an employee must demonstrate by a 

preponderance of the evidence that he disclosed information that he reasonably believed evidenced a violation of 

any law, rule, or regulation. Id. § 2302(b)(8). If the 

employee establishes that a protected disclosure was a 

contributing factor, the burden shifts to the agency to 

establish by clear and convincing evidence that it would 

have taken the action even in the absence of the protected 

disclosure. 5 U.S.C. § 1221(e)(2). In assessing whether 

an agency has met its burden, the Board looks at the 

three factors enumerated in Carr v. Soc. Sec. Admin., 185 

F.3d 1318 (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” (“Carr

factors”).

Mr. Duggan argues that the Board erred in that it 

failed to correctly assess evidence, failed take into account 

important evidence, relied on conflicting evidence, and 

relied on false evidence. He also argues that the Board 

improperly required him to prove his supervisors had 

more than constructive knowledge of his protected disclosures to Congress.5

 5 Mr. Duggan also contends that the Board incorrectly concluded he had failed to prove exhaustion of the 

following claims: claims that his letter to his congressman 

and his grievance letter complaining of his 2003 suspension contained protected disclosure and either those 
9 DUGGAN v. DEFENSE

The Government argues that the “[B]oard’s factual 

findings are based on substantial record evidence and Mr. 

Duggan’s arguments to the contrary are mere disagreements with the [B]oard’s credibility determinations and 

weighing of the evidence.” The Government also argues 

that Mr. Duggan does not offer “any countervailing evidence” in conflict with the evidence relied upon by the 

Board. Finally, the Government contends that Mr. 

Duggan’s arguments as to the wrong legal standard 

applied by the Board are in fact “another expression of his 

disagreement with the [B]oard’s factual findings.” 

The burden of establishing a reversible error in a 

Board decision rests upon the petitioner. Harris v. Dep’t of 

Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). If 

substantial evidence supports the Board’s factual findings, this court must affirm. 5 U.S.C. § 7703(c); Hayes v. 

Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). 

Regarding credibility determinations, we defer to the 

Board. Kahn v. Dep’t of Justice, 618 F.3d 1306, 1313 (Fed. 

Cir. 2010) (“[A]n evaluation of witness credibility is 

within the discretion of the Board and . . . in general, such 

evaluations are ‘virtually unreviewable’ on appeal”) 

(quoting King v. Health & Human Serv., 133 F.3d 1450, 

1453 (Fed. Cir. 1998). The court has independently 

reviewed the Board’s fact findings and has concluded, for 

 

disclosures or those in the faxed spreadsheet resulted in 

his transfer; the lowering of the promotion appraisal; and 

the denial of his grievance of his suspension. However, 

Mr. Duggan failed to submit to the Board any documents 

that he had presented to OSC. The Board noted that 

“[h]ere, [Mr. Duggan] has not shown, nor does the record 

reflect, that he ever brought these additional disclosures 

and personnel actions to the attention of the OSC, whose 

detailed responses to him do not mention those issues.” 

Because of the lack of evidence in the record, the Board’s 

determination is reasonable. 
DUGGAN v. DEFENSE 10

the reasons explained below, that substantial evidence 

supports the findings of the Board. 

First, with regard to Case A, the AJ determined that 

the spreadsheet faxed by Mr. Duggan was a protected 

disclosure under the WPA and was a contributing factor 

that led to his two-day suspension. However, applying the 

Carr factors, the AJ determined that the agency had 

shown, by clear and convincing evidence, that it would 

have taken the same personnel action despite the disclosure. The AJ found that other DCAA employees had been 

disciplined for making disparaging remarks about contractors absent whistleblower allegations, that the agency 

presented significant other evidence unrelated to whistle 

blowing activity in support of its personnel action, and 

that the main concern the agency had with regard to the 

fax was not with its contents but “the negligent fashion by 

which [the fax was sent], and the disparaging and unprofessional nature of the comments on it.” The AJ also found 

that “[a]t the hearing, [Mr. Duggan] admitted to making 

the disparaging comments that were the basis for his 

discipline . . . but similarly contended that they were 

justified because they were factual.” In short, substantial 

evidence supports the AJ’s finding that “[b]ased on the 

strong evidence the agency presented in support of its 

reasons for taking the action, as well [as] the fact that 

appellant has not shown evidence that the deciding 

official . . . had any retaliatory motive, I am left with the 

firm conviction that, even in the absence of [Mr. 

Duggan’s] disclosures, the agency would have issued 

[him] the suspension under all the circumstances.” 

Similarly, the AJ found that the agency had shown by 

clear and convincing evidence that it would have lowered 

the Appellant’s promotion appraisal for the period in 

question and, separately, would have reassigned him 

absent Mr. Duggan’s disclosures. The AJ relied on the 
11 DUGGAN v. DEFENSE

testimony of the Regional Audit Manager with regard to 

Mr. Duggan’s promotion appraisal who testified that “he 

was aware of the misconduct underlying [Mr. Duggan’s] 

suspension, and that he factored that misconduct into his 

promotion appraisal score . . . [and that] he was not aware 

of appellant’s alleged disclosures.” He also testified that 

“misconduct such as making disparaging remarks about 

colleagues and contractors is considered in assessing a 

promotion appraisal because it is indicative of whether or 

not the employee can foster good relations amongst colleagues and function as part of a team.” With regard to 

Mr. Duggan’s reassignment, the AJ relied on testimony 

that Mr. Duggan was reassigned not due to his disclosures but because he refused to sign the required auditor 

independence statement. The record contains substantial 

evidence to support the AJ’s finding that the personnel 

actions taken by the agency would have been taken 

absent Mr. Duggan’s disclosures. 

With regard to Case B, the AJ determined that Mr. 

Duggan’s “communications with the House Investigative 

Counsel reveals that they clearly constituted protected 

disclosures”; however, the AJ also determined that Mr. 

Duggan’s claims failed because he had not established 

that the officials he alleges to have retaliated against him 

had any particular knowledge of his protected disclosures. 

The AJ relied in part on Mr. Duggan’s testimony at trial 

that his comments to the pertinent officials “consisted of 

such warnings that outside oversight authorities were 

interested in looking at DCAA closely, but that he did not 

tell them that he had made any complaints or disclosures 

to Congressional personnel or anyone else.” The AJ further relied on the testimony of Mr. Duggan’s supervisors—Ms. Hoffer and Ms. Lombardo—that they were 

unaware Mr. Duggan had discussions with anyone outside the agency. 
DUGGAN v. DEFENSE 12

Two inferences can be drawn from the record. One inference is that, notwithstanding the testimony of Mr. 

Duggan and his supervisors, the supervisors understood 

that Mr. Duggan was engaging in, or was prepared to 

engage in, whistle-blowing activity. Mr. Duggan attended 

several meetings with his supervisors during which he 

gave repeated warnings that oversight authorities were 

watching the agency. At the time Mr. Duggan warned his 

supervisors about oversight activity, the Government 

Accountability Office (“GAO”) was investigating the 

agency’s practices and preparing to issue a report. Mr. 

Duggan’s colleague, auditor Cecilia Nguyen, knew of the 

GAO investigation and forthcoming report. Because 

rank-and-file employees such as Ms. Nguyen knew of that 

oversight activity, it is likely that supervisors would have 

been aware of it as well. Additionally, Ms. Hoffer acknowledged that she was aware of oversight activity when 

she testified that she had contact with the Defense Department’s Inspector General (“IG”). Thus, one may infer 

that, even if Mr. Duggan’s supervisors did not know of his 

communications with Congress, they may well have 

suspected that he was involved with various other oversight activities that were occurring at the time. 

The other possible inference is the one that the AJ 

drew: that the supervisors had no specific knowledge of 

Mr. Duggan’s whistle-blowing communications, whether 

those communications were with Congress or any other 

office or agency outside DCAA. Indeed, the evidence 

indicates that the supervisors could have perceived that 

Mr. Duggan’s warnings about oversight authorities’ 

scrutiny of DCAA were references only to the alreadypending GAO and IG investigations, with which Mr. 

Duggan apparently had no involvement. On this point, 

the AJ noted that “[b]oth Ms. Hoffer and Ms. Lombardo 

testified that they were unaware that the appellant had 
13 DUGGAN v. DEFENSE

had any discussions with anyone outside the agency 

regarding alleged malfeasance and that they did not 

consider him to have disclosed any waste, fraud or violations of law during their meetings.” And, the AJ credited 

this testimony in reaching his conclusion that Mr. Duggan 

had failed to present adequate evidence that his supervisors were aware of or motivated by any whistle-blowing 

activity. 

An employee may demonstrate that a protected disclosure was a contributing factor in the personnel action 

with circumstantial evidence by showing that (1) “the 

official taking the personnel action knew of the disclosure”; and (2) “the personnel action occurred within a 

period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the 

personnel action.” 5 U.S.C. § 1221(e)(1). And, proof that 

an official knew of a protected disclosure may be inferred 

from the facts of the case even if the official did not personally witness the whistle-blowing activity. See Massie 

v. Dep’t of Transp., 114 MSPR 155, 160 ¶ 15 (2010). 

While we might view the record differently than the 

AJ did under a less deferential standard of review, and 

draw a different inference from the testimony presented, 

Congress has limited our review to a substantial evidence 

inquiry. 5 U.S.C. § 7703(c). That standard of review 

requires deference to the AJ’s fact finding and credibility 

determinations. Hayes, 727 F.2d at 1537; Kahn, 618 F.3d 

at 1313. Because the record contains sufficient evidence 

to support the AJ’s finding that Mr. Duggan’s supervisors 

were unaware of his protected activity, we do not disturb 

the Board’s decision affirming the AJ’s findings as to 

“Case B.” 
DUGGAN v. DEFENSE 14

CONCLUSION

The record contains substantial evidence to support 

the AJ’s findings and the Board’s adoption of those findings. 

AFFIRMED 

COSTS

No costs.