NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

HAROLD E. RUTILA, IV,

Petitioner

v.

DEPARTMENT OF TRANSPORTATION,

Respondent

______________________

2019-1712

______________________

Petition for review of the Merit Systems Protection 

Board in No. DC-1221-18-0474-W-1.

______________________

Decided: February 10, 2020

______________________

HAROLD EDWARD RUTILA, IV, Canton, MI, pro se. 

 DOMENIQUE GRACE KIRCHNER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by 

JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD 

KIRSCHMAN, JR. 

 ______________________

Before DYK, TARANTO, and STOLL, Circuit Judges.

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2 RUTILA v. DEPARTMENT OF TRANSPORTATION

PER CURIAM.

Harold E. Rutila IV appeals a decision from the Merit 

Systems Protection Board (“Board”) denying his request for 

corrective action under the Whistleblower Protection Act. 

We affirm.

BACKGROUND

Mr. Rutila had a temporary appointment as an Air 

Traffic Control Specialist with the Federal Aviation Administration (“FAA”). As a condition of continued employment, he was required to take three performance 

evaluations that simulate real-life scenarios as part of the

Initial Tower Cab Training. In May 2016, Dan Henderson 

administered and graded Mr. Rutila’s first evaluation. Mr. 

Rutila challenged his score on this evaluation by filing a 

Technical Review (“TR”). The TR process is designed to offer trainees “an avenue to ensure points lost during a[n 

evaluation] are based on [relevant FAA] rules or procedures.” J.A. 421. Trainee requests for TRs are evaluated 

by a Technical Review Panel of two supervisors. 

As a result of Mr. Rutila’s challenge, it was determined 

that Mr. Henderson erroneously deducted one point from 

Mr. Rutila’s grade based on Mr. Rutila’s failure to refer to 

an aircraft using specific phraseology during the simulation. Mr. Rutila regained the point and consequently 

passed his first evaluation. He also passed his second evaluation.

Mr. Rutila’s third evaluation was administered by Michael Taylor. After completing this third evaluation, Mr. 

Rutila was debriefed by Mr. Taylor and Mr. Henderson, 

though Mr. Taylor alone ultimately graded the evaluation. 

Mr. Rutila received a failing score. His score on the third 

evaluation lowered his overall training score, which meant 

he could not pass the Initial Tower Cab Training. Although 

Mr. Rutila challenged his score on the third evaluation by 

filing six TRs, the TR Appeal Board denied his challenges, 

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RUTILA v. DEPARTMENT OF TRANSPORTATION 3

and his score remained unchanged. Mr. Rutila was deemed

“mathematically eliminated” from the program and, according to protocol, was terminated on May 24, 2016. 

Mr. Rutila timely filed a complaint with the Office of 

Special Counsel (“OSC”). He alleged that he had been terminated as a reprisal for filing TRs and helping other trainees file TRs. In particular, he argued that Mr. Henderson 

influenced Mr. Taylor’s scoring of Mr. Rutila’s third evaluation in retaliation for Mr. Rutila’s earlier TR filing that

noted Mr. Henderson’s grading error on the first evaluation. On February 16, 2018, OSC terminated its inquiry. 

On April 22, 2018, Mr. Rutila appealed to the Board

under the Whistleblower Protection Act, 5 U.S.C. 

§ 2302(b)(8)–(9) (“WPA”). The Administrative Judge (“AJ”)

considered Mr. Rutila’s filings of TRs and analyzed them 

as alleged grievances under § 2302(b)(9)(A), but not as alleged protected disclosures under § 2302(b)(8). It found 

that the filing of TRs did not constitute protected activity 

under § 2302(b)(9)(A). The Board also found that even if 

the filings of TRs had constituted protected activities, the 

agency had shown by clear and convincing evidence that 

Mr. Rutila would have been removed absent the TR filings.1 The AJ also found that Mr. Rutila had not exhausted 

several of his other alleged protected disclosures before 

OSC. Mr. Rutila did not petition the Board for review of 

1 § 2302(b)(8)(A) defines protected disclosures as those 

made by an employee “which the employee . . . reasonably 

believes evidences—any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an 

abuse of authority, or a substantial and specific danger to 

public health or safety.” Section 2302(b)(9)(A)(i) defines a 

protected activity as “the exercise of any appeal, complaint, 

or grievance right granted by any law, rule, or regulation—with regard to remedying a violation of 

[§ 2302(b)](8).”

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4 RUTILA v. DEPARTMENT OF TRANSPORTATION

this decision. The AJ’s decision became the final decision 

of the Board. 

Mr. Rutila appeals directly to this court. We have jurisdiction under 5 U.S.C. § 7703 and 28 U.S.C. § 1295(a)(9).

DISCUSSION

I

A Board decision must be affirmed 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). Substantial evidence is “evidence that a reasonable mind may take as sufficient to establish a conclusion.” 

Grover v. Office of Pers. Mgmt., 828 F.3d 1378, 1383 (Fed. 

Cir. 2016).

The WPA prohibits an agency from taking a personnel 

action in retaliation for any whistleblowing “disclosure” or 

activity. 5 U.S.C. § 2302(b)(8)–(9). An employee must

show by a preponderance of the evidence that he made a 

protected disclosure or participated in a protected activity

(such as an appeal) that contributed to a personnel action 

against him. See Whitmore v. Dep’t of Labor, 680 F.3d 

1353, 1367 (Fed. Cir. 2012). “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. at 

1364 (quoting 5 U.S.C. § 1221(e)). The Board may consider 

whistleblowing charges only if the claimant first presented 

them “with reasonable clarity and precision” to OSC. Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1577–78 (Fed. Cir. 

1996); see also 5 U.S.C. § 1214(a)(3).

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RUTILA v. DEPARTMENT OF TRANSPORTATION 5

II

 Mr. Rutila argues that the Board erred in finding that 

he had jurisdiction only under 5 U.S.C. § 2302(b)(9) and not 

§ 2302(b)(8). He argues that, at the very least, his initial 

TR against Mr. Henderson constituted a protected disclosure under § 2302(b)(8)(A). That section defines protected 

disclosures as those made by an employee “which the employee . . . reasonably believes evidences—any violation of 

any law, rule, or regulation, or gross mismanagement, a 

gross waste of funds, an abuse of authority, or a substantial 

and specific danger to public health or safety.” Section 2302(b)(9)(A)(i) defines a protected activity as “the exercise of any appeal, complaint, or grievance right granted 

by any law, rule, or regulation—with regard to remedying 

a violation of [§ 2302(b)](8).” 

We need not decide whether the Board erred in finding 

that the filing of a TR by an employee on his own behalf is 

more appropriately analyzed under § 2302(b)(9) because

the Board under the WPA has jurisdiction over individual 

rights of action under both sections, and Mr. Rutila fails to 

demonstrate how he was prejudiced by the Board limiting 

its consideration to § 2302(b)(9). Under the current version 

of the WPA, “an employee may file an IRA, and the Board 

will have jurisdiction over the appeal, if the prohibited personnel action is due to a disclosure covered by either § 2302(b)(8)—i.e. retaliation for whistleblowing—

or § 2302(b)(9)(A)(i)—i.e. retaliation for exercising a grievance right related to whistleblowing.” Miller v. Merit Sys. 

Prot. Bd., 626 F. App’x 261, 266 (Fed. Cir. 2015). 2 We see 

2 Mr. Rutila argues that the Board failed to consider 

his assistance to two other trainees in their submission of 

TRs as protected disclosures and that these activities were 

not covered by § 2302(b)(9). Though we do not decide 

whether an employee’s filing of a TR on his own behalf is a 

protected disclosure, we see no error in the Board’s failure 

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6 RUTILA v. DEPARTMENT OF TRANSPORTATION

no error in the Board’s decision to proceed under 

§ 2302(b)(8) with respect to his TR activities. 

Mr. Rutila also argues that the Board erred in not finding his TRs to constitute protected activity in its analysis 

under 5 U.S.C. § 2302(b)(9). The Board found that Mr. Rutila’s TRs did not constitute protected activity because they 

“contained no reference to any legal authority and could 

not reasonably have been interpreted as raising any concern of illegality.” J.A. 6. The Board also emphasized that 

“the mere filing of a TR is routine in these circumstances.” 

J.A. 9. We also need not decide if the TR appeal is a protected activity under § 2302(b)(9), because we conclude

that the Board’s finding that the FAA “would have terminated the appellant absent his filing of the TRs to challenge 

his test scores,” J.A. 7, is supported by substantial evidence. 

The Board concluded that the FAA had shown by clear 

and convincing evidence that it would have terminated Mr. 

Rutila even if the filings of TRs were considered to be protected under § 2302(b)(9). The Board followed the approach described in Carr v. Social Security Administration, 

185 F.3d 1318, 1323 (Fed. Cir. 1999). The first Carr factor 

is “the strength of the agency’s evidence in support of its 

personnel action.” Id. The Board highlighted the agency’s 

evidence that Mr. Rutila in fact “misguided an airplane and 

mishandled the situation” during his third evaluation. J.A. 

8–9. The Board also pointed out that failing the course normally leads to removal. 

The second Carr factor is “the existence and strength 

of any motive to retaliate on the part of the agency officials 

who were involved in the decision.” Carr, 185 F.3d at 1323. 

The Board found that “no evidence of any retaliatory 

to treat his assistance in others’ TR filings as protected disclosures under 5 U.S.C. § 2302(b)(8). 

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RUTILA v. DEPARTMENT OF TRANSPORTATION 7

animus against the appellant” because “the mere filing of 

a TR is routine.” J.A. 9. In addition, Mr. Henderson’s declaration indicated that “he was unaware that the appellant 

had filed a TR.” Id. Similarly, the Board found that 

“[t]here is no evidence that either manager [who reviewed 

Mr. Rutila’s other six TRs subsequent to his third evaluation] intended to retaliate against the appellant by declining to award him additional points.” Id. 

The third and final Carr factor is “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. There appears to be no 

evidence of similar actions against employees who are not 

whistleblowers. “[T]he absence of any evidence relating to 

Carr factor three can effectively remove that factor from 

the analysis.” Whitmore, 680 F.3d at 1374. The Board did 

point out that the fact that other trainees who filed TRs 

against Mr. Henderson passed the training, which “undercuts [Mr. Rutila’s] claim that by filing TRs he was terminated from his position.” J.A. 9. 

We conclude that the Board’s analysis of the Carr factors and its finding that the FAA “would have terminated 

the appellant absent his filing of the TRs to challenge his 

test scores,” J.A. 7, were supported by substantial evidence.

III

Mr. Rutila argues that the Board should have considered two other protected disclosures in addition to the TRs: 

(1) a trainee feedback submission he submitted after this 

third evaluation and (2) his in person appeal to two supervisors regarding his third evaluation. The Board found 

that neither of these purported disclosures was exhausted 

before OSC. “The test of the sufficiency of an employee’s 

charge of whistleblowing to OSC is the statement that the 

employee makes in the complaint to OSC . . . , not the employee’s subsequent characterization of that statement in 

his appeal to the Board.” Serrao, 95 F.3d at 1577. 

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8 RUTILA v. DEPARTMENT OF TRANSPORTATION

The OSC complaint does not mention his trainee feedback form. And it mentions the in-person appeal not as a 

protected disclosure, but as a “decision” of the FAA not to 

allow him to retake the third evaluation. The Board thus 

did not err in declining to consider these disclosures. 

IV

Mr. Rutila argues that the Board improperly denied his 

discovery and document subpoena motions. “Procedural 

matters relative to discovery and evidentiary issues fall 

within the sound discretion of the board and its officials.” 

Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. 

Cir. 1988) “If an abuse of discretion did occur with respect 

to the discovery and evidentiary rulings, in order for petitioner to prevail on these issues he must prove that the error caused substantial harm or prejudice to his rights 

which could have affected the outcome of the case.” Id. at 

1379.

On August 27, 2018, Mr. Rutila filed a motion for a subpoena which sought documents and other evidence from 

Mr. Henderson. On October 24, 2018, Mr. Rutila moved to 

compel discovery of certain interrogatory responses and 

documents from the FAA. The AJ denied Mr. Rutila’s discovery motions.

Mr. Rutila does not explain how a contrary ruling 

would have affected the outcome. The AJ found that there 

was no evidence that the agency had “failed or refused to 

provide the appellant with any relevant or material evidence.” J.A. 2635–36.3 The AJ’s decision to deny these motions was thus not an abuse of discretion.

3 To the extent Mr. Rutila’s motion for issuance of a

subpoena to Mr. Henderson can be read to be eliciting testimony in addition to documentary evidence, there was 

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RUTILA v. DEPARTMENT OF TRANSPORTATION 9

V

Mr. Rutila argues that he was deprived of his right to 

a hearing. On October 25, 2018, four days before the scheduled hearing with the Board, Mr. Rutila moved for a postponement on the ground that he did not have adequate 

time to prepare and the AJ had not yet ruled on his two 

discovery motions. On October 26, 2018, the AJ conducted 

a telephone conference, which was summarized on the record. The summary indicated that Mr. Rutila “withdrew his 

request for a hearing.” J.A. 2632. 

Mr. Rutila argues that he “felt coerced into agreeing” 

to waive his hearing during the telephone conference with 

the AJ because, absent a postponement, he “could not reasonably prepare for a hearing” that was to take place two 

days after the conference, and had “not even received a decision on his motion for a subpoena or motion to compel discovery” until the telephone conference. Appellant’s Br. 58–

60. Mr. Rutila failed to preserve his objection to the denial 

of his motion to postpone by foregoing his right to a hearing. 

AFFIRMED

COSTS

No costs.

likewise no prejudice because the FAA had planned to call 

Mr. Henderson as a witness at the hearing. 

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