PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

LARRY BACA, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.

-------------------------------------- MERIT SYSTEMS PROTECTION BOARD,
Intervenor. No. 19-9536

PETITION FOR REVIEW FR OM AN ORDER OF THE MERIT SYSTEMS PROTECTION BOARD (No. DE-0752-19-0022-I-1)

Andrew B. Indahl, Altura Law Firm, Albuquerque, New Mexico for Petitioner. Domenique Kirchner, Se nior Trial Counsel, Commerc ial Litigation Branch, Civil Division, Department of Justi ce (Joseph H. Hunt, Assistant A ttorney General; Robert E. Kirschman, Jr., Director, Unite d States Department of Jus tice, Civil Division, National Courts Section; Elizabeth M. Hosford, Assi stant Director, United States Department of Justice, Civil Division, National Courts Sec tion, with her on the brief), Washington, D.C., for Respondent. Tristan L. Leavitt, General Counsel; Kather ine M. Smith, Deputy General Counsel; Stephen W. Fung, Attorney, Office of the General Counsel, Merit Systems Protection Board, Washington, D.C, for Intervenor. FILED United States Court of Appeals Tenth Circuit 

### September 2, 2020 Christopher M. Wolpert Clerk of Court2 Before BACHARACH, SEYMOUR, and McHUGH, Circuit Judges.

SEYMOUR , Circuit Judge.

__________________________________ On September 18, 2018, Mr. Larry B aca was removed from hi s position in the Directorate of Public Works at the U.S. Ar my White Sands Missile Range, New Mexico. Mr. Baca sought review of this decision by the Merit Systems Protection Board (MSPB), asserting three affirmative defenses to his rem oval. The MSPB rejected all of Mr. Baca’s defenses and affirmed his removal. He appeals only the MSPB’s determination with respect to one of his affirmative defenses , that his firing was unlawful retaliation for whistleblowing in violation of the Whis tleblower Protection Act (WPA), 5 U.S.C. § 2302(b). We hold that we have juri sdiction over this issue, and we affirm.
I. Background In October 2017, Mr. Baca was hired by the U.S. Army White Sands Missile Range in New Mexico as a Supervisory Engi neer, GS-13, and Chief of the Operations and Maintenance Division in the Directorate of Public Works. In July 2018, Mr. Baca received a notice of proposed removal that charged him with: (1) conduct unbecoming a federal employee; (2) interfering with an agency investigati on; (3) abusive, offensive, disgraceful or inflammatory language; and (4) lack of candor. Mr. Baca submitted a written response to his notice of removal stating that every charge was a “False3 Utterance.” Admin. R., vol. I at 185–89. Mr. Baca was removed from his position on September 18, 2018. He appealed his removal to the Merit Systems Protection Board (MSPB). An administrative judge (AJ) adjudicated the appeal in an initial decision and determined that two of the charges were established and warra nted removal. Admin. R., vol. II at 694, 723, 736. That decision b ecame the final decision of the MSPB after neither party petitioned for further review. 1 We review the details of each of the charges in order to provide context and then we turn to Mr. Baca’s affirmative defenses.

A. Charge 1: Conduct Unbeco ming a Federal Employee The AJ sustained the charge of conduc t unbecoming a federal employee based on several specifications of misbehavior by Mr. B aca. First, Mr. Baca was accused by five colleagues of showing them pornography at wo rk. The AJ determined that Mr. Baca had shown colleagues pornography on his cellphone on mul tiple occasions and had threatened two colleagues with repercussions if they told anyone about the pornography he showed them. In addition, at least two of Mr. Baca’s female colleagues reported that he had made unwanted romantic advances and inap propriate comments toward them. In one instance, Mr. Baca told Robin Pritchett he lik ed her and asked her to go dancing with him, continuing his advances despite her repe ated refusals. Based upon his conduct, Ms.

1 A decision becomes final 35 days afte r issuance if neither the employee nor agency petitions for review by the full three-member boar d in Washington, D.C. 5 C.F.R. §§ 1201.111 , 1201.113–14.4 Pritchett filed an EEO sexual harassment compla int against Mr. Baca in March 2018. In May 2018, Mr. Baca filed an EEO sexual hara ssment complaint accusing Ms. Pritchett of making unwanted romantic advances toward him. In his written response to the removal charges and at his hearing before the MSPB , however, Mr. Baca di d not mention his EEO complaint against Ms. Pritchett but instead simply denied Ms. Pritchett’s accusations. After an evidentiary hearing, the AJ fo und that Mr. Baca had made unwelcome romantic advances toward two female colleagues and that his denials were not credible. Regarding the incident with Ms. Pritchett, the AJ noted it was “i nherently improbable that, if there were any truth to [Mr. Baca’s ] accusation that Pritchett was the one sexually harassing him, [he] did not raise that claim ei ther in his written response to the proposal to remove him or at the Board’s hearing.” Id. at 706. Based upon these findings and others, the AJ sustained charge one fo r conduct unbecoming a federal employee.

B. Charge 2: Interfering with an agency investigation The charge of interfering w ith an agency inve stigation was based upon a single specification that on March 8, 2018, Mr. Baca attempted to intimid ate his colleague, Bill Huls, in order to secure a written statement that Ms. Pritc hett battered another coworker, Gus Alvidrez. Another Army employee, Cecilia Montoya, te stified that she overheard Mr. Baca pressuring Mr. Huls for almost three hours to write a statement. Notably, she had written a contemporaneous email to Ms. Pritchett describing what she overheard. The AJ credited Ms. Montoya’s testimony a nd found that Mr. Baca had tried to intimidate Mr. Huls into providi ng information on behalf of Mr. Alvidrez. But the AJ did5 not sustain this charge becau se there was insufficient ev idence that the attempt to intimidate Mr. Huls interfered with a government investigation.

C. Charge 3: Abusive, Offensive, Di sgraceful or Infla mmatory Language Mr. Baca was charged with using abusive, offensive, disgraceful or inflammatory language during several incidences in which he used derogatory te rms to refer to his colleagues. Based upon the testimony of his co workers, the AJ found that four of the five specifications were established, including several incidences of Mr. Baca using derogatory Spanish terms to refer to his colleagues.

D. Charge 4: Lack of Candor The agency charged Mr. Baca with lack of candor based upon his statement to an investigator that his “daily interaction wi th Robin Pritchett and other subordinates [was] always extremely professional.” Admin. R., vol. I at 15. Th e charge asserted that Mr. Baca misstated his interaction with Ms. Pritc hett because he “had in fact previously sexually harassed Ms. Pritchett, spoken unpr ofessionally towards other women . . . and created a hostile work environment.” Id. The AJ found that the charge was not established because the question posed to Mr. Baca about his relationship with Ms. Pritchett was “extremely generalized.” Admin. R., vol. II at 723. The AJ reasoned that the charge was “akin to a crim inal prosecutor hearing a defend ant state under oath that he is ‘innocent,’ and adding a perjury charge.” Id.6 E. Affirmative Defenses In addition to denying the ch arges against him, Mr. Baca raised several affirmative defenses. He originally asserted that his removal was retaliation for his refusal to follow two unlawful orders by his superior to sign o ff on an expensive janitorial contract. Mr. Baca subsequently ame nded his affirmative defenses, claiming that his removal was reprisal for (1) a whistleblow er disclosure against Ms. Pr itchett; (2) two whistleblower disclosures of “gross mismanag ement” related to a janitorial contract; and (3) an EEO discrimination complaint. Aple. App, vol. I at 445–49. The AJ concluded that Mr. Baca failed to establish any of his affirmative defe nses. The MSPB’s decision became final on April 4, 2019, after neither party pe titioned for administrative review. Mr. Baca appeals only the Board’s deci sion with respect to one affirmative defense: that his removal was a reprisal fo r whistleblowing against Ms. Pritchett. The facts relevant to this defense pertain to a m eeting that took place on March 7, 2018. All parties agreed that Ms. Pritchett, Mr. Huls, and Mr. Baca were together in Ms. Pritchett’s office for a meeting when Mr. Alvidrez ente red Ms. Pritchett’s office. She became angry, asked Mr. Alvidrez to leave, and th e door slammed shut behind him. Mr. Baca claimed that he heard the doorknob strike M r. Alvidrez in the back, that he immediately told Ms. Pritchett she had hit M r. Alvidrez with the door, that Mr. Huls agreed with him, and that Mr. Baca then ended th e meeting. The Army denied that Mr. Baca witnessed the doorknob hitting Mr. Alvidrez an d also denied Mr. Baca’s assertion that he stopped the meeting after accusing Ms. Pritche tt of striking Mr. Alvidrez.7 The following day, Mr. Baca asked Mr. Hu ls to provide a written statement about what he had observed during the meeting. The Army asserted that Mr. Baca was attempting to intimidate and pressure Mr. Huls into providing a statement to support Mr. Baca’s version of the meeting. Mr. Huls refused Mr. Baca’s request to provide a statement on March 8th but did provide one on March 16th at the request of his supervisor. With respect to Ms. Pritchett s hutting the door when Mr. Alvidrez left the meeting, Mr. Huls’ statement said: Ms. Pritchett was right there by the door when Mr. Alvidrez turned around to leave. Ms. Pritchett did grab the door and shut it. It might have slammed shut but that door had a br oken door closure and it wouldn’t take much for it to sound like it was slammed shut, so I can’t really confirm that it was slammed. Id. at 239. An AR 15-6 inve stigation was conducted into the alleged assault and it concluded that Ms. Pritchett had not stru ck Mr. Alvidrez with the doorknob.
II. Jurisdiction We must address two jurisdictional questions of first impression that are presented in this case: (1) whether this court has jurisdiction to review a whistleblower retaliation claim brought before the MSPB as an affirm ative defense to an employment action, and (2) whether we have jurisdiction over a case raising both discrimination and whistleblower retaliation defenses before th e MSPB where the discrimination claim has been waived on appeal. 2 Both questions are straight forward and easily resolved.

2 The MSPB joined as an in tervenor and provided separate briefing in support of this court’s jurisdiction to review the case.8 The Court of Appeals for the Federal Circ uit generally has jurisdiction over final decisions by the MSPB, 5 U.S.C. § 7703(b)(1)(A), with two exce ptions. First, an appeal that also challenges an adverse employment action based upon a claim of prohibited discrimination (termed a “mixed case”) must be appealed to the appropriate federal district court. See Perry v. MSPB , 137 S. Ct. 1975, 1988 (2017)). 3 Second, a petition for judicial review of: [A] final order or final decision of the [MSPB] that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in [5 U.S.C.] section 2302(b) other than practices described in section 2302(b)(8), or 2302 (b)(9)(A)(i), (B), (C) or (D ) shall be filed in the United States Court of Appeal s for the Federal Circuit or any court of appeals of competent jurisdiction

. 5 U.S.C. § 7703(b)(1)(B) (emphasis added). 4

A. Retaliation Claim as Affirmative Defense There are two ways whistleblower retalia tion claims arise before the MSPB: (1) a stand-alone claim under 5 U.S.C. § 1221 as an individual right of action; or (2) as an

3 A “mixed case” or “mixed claim” rais es “a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination.” Perry , 137 S. Ct. at 1981 (quoting Kloeckner v. Solis , 568 U.S. 41, 44 (2012)); see also 29 C.F.R. § 1614.302(a)(2).

4 Previously, petitions for review of final decisions by the MSPB were exclusively reviewed by the Federal Circuit. See Avilés v. MSPB , 799 F.3d 457, 459 (5th Cir. 2015). The WPEA extended judicial review of final MSPB in whistleblower cases. See Pub. L. No. 112-199, 126 Stat. 1469 codified at 5. U.S.C. § 7703(b)(1)(B). Initially set to sunset after two years and then extended another three years, see Pub. L. No. 113-170, the jurisdictional expansion was permanently author ized in 2018 by th e All Circuit Review Act. Pub. L. No. 115-19 5, 132 Stat. 1510 (2018).9 affirmative defense to an adverse em ployment action over which the MSPB has jurisdiction under 5 U.S.C. § 7513. In Mottas v. Dep’t of Army , 720 Fed. App’x 912, 913 (10th Cir. 2017), we exercised jurisdiction to review an MSPB decision on a direct individual whistleblower action filed under 5 U.S.C. § 1221. 5 But we have not had occasion to exercise jurisdiction over an ap peal from a final decision of the MSPB which includes a whistleblower claim raised as an affirmative defense. Notably, however, the WPEA’s grant of jurisdiction under 5 U.S. C. § 7703(b)(1)(B) does not differentiate between whistleblower actions raised as dire ct claims and those raised as affirmative defenses but simply refers to “a petition for review.” See 5 U.S.C. § 7703(b)(1)(B),

supra at 7-8. Under the plain language of that statute, therefore, we have jurisdiction over appeals from final MSPB decisions on wh istleblower claims where the claims arise either directly or as affirmative defenses.

B. Waiver of Employment Discrimination Claim As we have noted, Mr. Baca originally challenged his removal as retaliation for three whistleblower disclosures and for his filing of an EEO disc rimination complaint, making his claim a “mixed case.” Aple. A pp, vol. I at 445–49. The Code of Federal Regulations explains that an aggrieved employ ee “may obtain judicial review as provided by 5 U.S.C. § 7703” where the employee “elects to waive the discrimination issue” on

5 For jurisdiction, we relied in Mottas on the 2012 vers ion of the WPEA. See 720 F. App’x at 912 n.1. The language of that st atute is equivalent to the current language of § 7703(b)(1)(B), which permanently grants ju risdiction to “any court of appeals of competent jurisdiction.” See Pub. L. No. 115-195, 132 Stat. 1510 (2018).10 appeal. 5 C.F.R. §§ 1201.120 & 1201.157. Because Mr. Baca filed an explicit waiver of his discrimination claim and only appeals th e denial of one of his other affirmative defenses, we have jurisdiction unde r § 7703 to review this case.
III. Discussion We must affirm the decision of the MSPB unl ess it is (1) “arbitrary, capricious, an abuse of discretion, or othe rwise not in accordance with law; (2) obtained without procedures required by law, ru le or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c ). “The board abuses its discretion when it rests its decision on factual findings uns upported by substantial evidence.” Kirkendall v. Dep’t of Army , 573 F.3d 1318, 1321 (Fed. Cir. 2009). Mr. Baca claims that his removal was in re taliation for his protected disclosure to his supervisor, Jose Gallegos, that he witne ssed Ms. Pritchett slam her office door into Mr. Alvidrez’s back and injure him. An agency may not remove an employee for whistleblowing, 5 U.S.C. § 2 302(b)(8), which is a protected disclosure by a government employee who “reasonably believes that the di sclosure evidences any violation of any law, rule, or regulation, gross mismanagem ent, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 C.F.R. § 1209.4(b). When asserting a whistleblower reprisal claim, the employee bears the prima facie burden of establishi ng that he made a protected disclosure and that it “was a contributing factor in the personne l action.” 5 U.S.C. § 1221(e)(1); see also Marano v. Dep’t of Justice , 2 F.3d 1137, 1140 (Fed. Cir. 1993) (explaining that the WPA requires11 “evidence only that [a whistleblower’s] protected disclosure played a role in, or was ‘a contributing factor’ to, the personnel action taken”). The final decision of the MSPB denied Mr. Baca’s whistleblower reprisal claim based upon its finding that he did not reasonably believe his disclosure evidenced a violation. Mr. Baca challenges the Board’s ruli ng as arbitrary, capricious and contrary to law, claiming that it ignored his primary theory of relief, applied the wrong legal standard, and ignored evidence that suppor ted his reasonable belief that Ms. Pritchett battered Mr. Alvidrez.

A. Lawful Assistance Under 5 U.S.C. § 2302(b)(9)(B) Mr. Baca first contends the AJ “completel y ignored” his primary theory that he sought a statement from Mr. Huls in order to assist Mr. Alvidr ez in exercising his right to disclose the alleged assault. Aplt. Br. at 12. “Testifying for or otherwise lawfully assisting any individual in the exercise” of the right to an appeal, complaint, or grievance granted by law is protected under the Wh istleblower Protecti on Act. 5 U.S.C. § 2302(b)(9)(B). Mr. Baca cites Whitmore v. Dep’t of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012), for the principle th at “[i]t is error for the M SPB to not evaluate all the pertinent evidence in determin ing whether an element of a claim or defense has been proven adequately.” We agr ee that the MSPB must consider all pertinent evidence but it need not discuss each piece of evidence in its decision. Lowder v. Dep’t of Homeland
Sec. , 504 F.3d 1378, 1383 (Fed. Ci r. 2007). “The failure to discuss particular contentions in a case . . . does not mean that the [MSPB] did not cons ider them in reaching its12 decision.” Id. Accordingly, we will not presume that the AJ ignored ev idence which is not explicitly referenced in the decision. Here, the AJ credited the testimony of both Ms. Montoya and Mr. Huls. Ms. Montoya overheard the interaction between Mr. Huls and Mr. Baca and provided a statement that Mr. Baca spent “easily 3 ho urs intimidating [Mr. Huls] into writing a statement about what happened that morning in [Ms.Pritchett’s] Office.” Admin. R., vol. I at 45. Her statement is consistent w ith a contemporaneous email she sent to Ms. Pritchett in which she said she could overhe ar Mr. Baca “hammering [Mr. Huls] about this statement since about 0730,” “telling [Mr. Hu ls] to ‘tell the story in his statement’ . . . [and] ‘paint the picture,’” and also explai ning that she heard Mr. Huls respond to Mr. Baca, “I’m not putting all th at in my statement.” Id. at 463. In Mr. Huls’ written statement, he explained that he felt “uncomfo rtable” when Mr. Baca asked him to provide a statement about the incident. Id. at 38. He also said that “Mr. Baca’s conversational interactions within the Divi sion with personnel at times , gave me the impression of intimidation and perhaps humiliation.” Id. He reiterated this position in his oral testimony before the AJ: [Mr. Baca] would bring people in, he w ould talk to them, it was almost like an interrogation and . . . I thought th at was very unprofessional . . . it was very intimidating . . . having all thos e people standing around, people [who] had no business being there. Aple. Supp. App. at 104–05. In considering Mr. Baca’s claim that he was not trying to intimidate Mr. Huls, the AJ found it “implaus ible given Montoya’s undisputed testimony that [Mr. Baca] was in Huls’ office pushing him for almost three hours,” Admin. R.,13 vol. II at 717, and given the corroborating evidence from Mr. Huls’ statement and Ms. Montoya’s email. Attempting to intimidate a w itness into providing a false statement is not protected conduct under the WPA. The Act protects an employee from adverse personnel actions for “testifying for or otherwise lawfully assisting ” another in exercising their right as a whistleblower. 5 U.S.C. § 2302(b)(9)(B) (emp hasis added). After hearing the testimony, the AJ found that Mr. Baca spent three hours “ trying to intimidate” Mr. Huls into providing a statement on behalf of Mr. Al vidrez. Admin. R., vol. II at 718. Mr. Baca argues that as a supervisor of Mr. Alvidrez, he was required by Army and DoD policy to investigate and report on incidences of workplace violence. 6 The Army asserts that Mr. Baca wa ived this argument by not previously citing either the Army policy notice or DoD instruction. Gene rally, courts will not consider an issue on appeal if it was not raised befo re the administrative court. Sistek v. Dep’t of Veterans Affairs , 955 F.3d 948, 953 n.1 (Fed. Cir. 2020 ) (concluding “argument is forfeited for failure to present it to the Ad ministrative Judge in the firs t instance”). However, we do allow a party to provide “new legal authority [on appeal] for the pos ition that he . . .

6 Mr. Baca cites an Army Instruction, which provides that: “[e]mployees will immediately notify their supervisor . . . of a job-related . . . in jury. If the immediate supervisor or CDSO is not available, notify the next person in the supervisory chain,” and that “[s]upervisors will investigate and report, as soon as practical after notification, any unplanned event that results in . . . injury to on-duty Department of the Army (DA) Civilian personnel.” Army HQDA Policy Notice 385-3, effective 12 October 2017, Section 11(b)(1) & (c)(1)(a).14 advanced [below].” Schulenberg v. BNSF Railway Co. , 911 F.3d 1276, 1286 n.4 (10th Cir. 2018) (citation omitted). Here, Mr. Baca’s citations to the Ar my and DoD policies constitute new legal authority in support of hi s claim of lawful assistance rather than a new theory of relief. He cite s these policies to support his argument that Mr. Alvidrez had a right to file a complaint and that he had a duty to investigate Mr. Alvidrez’s complaint. Notably, however, Department of Defe nse (DoD) policies governing workplace conduct also clearly state that “[ v]iolence, threats, harassment, intimidation , and other disruptive behavior will not be tolerated in the workplace ,” and that employees who engage in these practices will be subject to disciplinary ac tions including removal. DoD Instruction No. 1438.06 (3) (e mphasis added). While Mr. Baca is correct that providing lawful assistance is a protected activity und er § 2303(b)(9)(B), attempting to intimidate Mr. Huls in order to secure a statement in support of Mr. Alvidrez violated DoD policy and did not constitute lawful assistance. Cf. Gunderson v. BNSF Railway Co. , 850 F.3d 962, 969–70 (8th Cir. 2017) (holding that a railroad union presid ent’s actions went beyond the bounds of protected union activity and warranted “adverse action for violating workplace rules” where the uni on president harassed and intim idated witnesses during an investigation). In sum, although Mr. Baca may have ha d a duty to investigat e and Mr. Alvidrez may have had a right to report any injury, M r. Baca’s attempt to intimidate Mr. Huls is not protected conduct. After a review of th e record, we are not persuaded by Mr. Baca’s15 claim that the Board failed to consider his theory that he sought a statement from Mr. Huls in order to assist Mr. Alvidrez in exer cising his right to disclose an alleged assault by Ms. Pritchett. Rather, the AJ credited other employees who saw or overheard the incident and contradicted Mr. Baca.

B. Substantial Evidence Unde r 5 U.S.C. § 7703(c)(3) Next, Mr. Baca contends the AJ’s determ ination was not supp orted by substantial evidence because the record included facts known to Mr. Baca which support a reasonable belief that a viola tion occurred, including corrobora tive evidence. We review the factual findings of the agen cy to ensure they are suppor ted by “substantial evidence,” 5 U.S.C. § 7703(c)(3), and we w ill only reverse if the agency’s factual determinations are not supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” NLRB v. U.S. Postal Service , 486 F.3d 683, 687 (10th Cir. 2007). Moreover, we have consistently deferre d to the credibility determinations of the fact finder because “he or she is uniquely ab le to observe the demeanor . . . of the claimant in a direct and unmediated fashion.” White v. Barnhart , 287 F.3d 903, 910 (10th Cir. 2001); see also Laborers’ Int’l Union of N. Am. v. NLRB , 594 F.3d 732, 740 (10th Cir. 2010). To be entitled to protection under the WPA, an employee must “ reasonably believe[] ” that his/her disclosure relates to “( i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gro ss waste of funds, an abuse of authority, or a substantial and specific danger to public he alth or safety.” 5 U.S.C. § 2302(b)(8)16 (emphasis added). To assess whether the employee had a reasonable belief, the AJ must determine “whether a disinterested observer w ith knowledge of the essential facts known to and readily ascertainable by the employee . . . could reasonably conclude” the alleged misconduct took place. 5 U.S.C. § 302(b)(14)(ii); see, e.g. , Kahn v. Dep’t of Justice , 618 F.3d 1306, 1313 (Fed. Cir. 2010). Applying this standard, 7 the AJ considered the testimony of everyone who witnessed the incident. As the AJ explained: I find no dispute that on March 7, 2018 , Pritchett, Huls, and the appellant were in Pritchett’s office for a meeti ng, and when Alvidrez came into her office, Pritchett became angry, told Alvidr ez to leave, and closed the door in a manner that the door slammed behind Alvidrez. Beyond th at, the witnesses’ accounts diverge.

7 Mr. Baca contends the AJ applied the wro ng standard in determ ining that he did not prove his affirmative defe nse and “required Mr. Baca to show that his accusations were true ” rather than applying th e reasonable belief standard. Aplt. Br. at 15 (emphasis in original). An AJ is not required to pres ume a whistleblower’s tes timony is credible in assessing his reasonable belief but instead mu st assess it from the vantage point of a disinterested observer and we igh contradictory evidence. See 5 U.S.C. § 2302(b)(14)(ii); see also Frederick v. Dep’t of Justice , 73 F.3d 349, 352 (Fed. Ci r. 1996). The AJ here did not require Mr. Baca to prove that Ms. Pritchett battered Mr. Alvidrez. Instead, he properly assessed whether ther e was sufficient, credible ev idence to support a reasonable belief that the battery occurred and found the evidence lacking. Admin. R., vol. II at 724–28. Mr. Baca also maintains that instead of applying the reasona ble belief standard, the AJ incorrectly relied on the factors specified in Hillen v. Dep’t of Army , 35 M.S.P.R. 453 (M.S.P.B. 1987), to assess which “set of co mpeting disputed facts [was] true.” Aplt. Br. at 13. We are not persuaded. Hillen sets out the “general internal procedural requirements that the MSPB has established fo r its adjudicative processes” in order to resolve issues of credibility. Haebe v. Dep’t of Justice , 288 F.3d 1288, 1301–02 n.32 (Fed. Cir. 2002). An AJ’s determination as to the credibility of a whistleblower, however, is relevant to the reasonable belief assessment. Kahn , 618 F.3d at 1313; see also Horton v. Dep’t of Navy , 66 F.3d 279, 283 (Fed. Cir. 19 95) (“credibility is indeed relevant in determining [the wh istleblower’s] reasonable belief”), superseded by statute on other grounds see Armstrong v. The Arcanum Group, Inc. , 897 F.3d 1283, 1287 (10th Cir. 2018)

.17 Admin. R., vol. II at 725. As a part of the May 2018 agency in vestigation, both Ms. Pritchett and Mr. Huls provided written statemen ts contradicting Mr. Baca’s claim that he witnessed the door hit Mr. Alvidrez. Admin. R., vol. I at 38–40, 62–65. The AJ noted that Mr. Huls’ statement on March 16, 2018, was “entirely inconsistent” with Mr. Baca’s testimony. Admin. R., vol. II at 726; see also Admin. R., vol. I at 239–40. In addition, Ms. Pritchett testified that she had a “little window” on her door th rough which she could see that Mr. Alvidrez was no longer in front of the door when she s hut it. Aple. Supp. App. at 82. Reviewing all of the evidence, the AJ determined that Mr. Baca’s testimony was not credible. 8 The AJ provided three additional reasons for his determination that Mr. Baca’s version of events was not believable. Firs t, Mr. Baca’s claim that the door hit Mr. Alvidrez during the meeting was implausible b ecause he could not have seen the door hit Mr. Alvidrez from his location in Ms. Pritche tt’s office. In addition, Mr. Alvidrez testified that he walked away and did not return to alert an yone he had been struck by the door. Aple. Supp. App. at 397. Second, th e AJ found implausible Mr. Baca’s claim that he immediately accused Ms. Pritchett of ba ttery, that Mr. Huls agreed with his accusation, and that Mr. Baca then stopped th e meeting because his version of events was

8 The AJ’s determination is also supp orted by testimony from Jason Benjamin, who worked across the hall from Ms. Pritchett’s o ffice. He testified that he could clearly see Mr. Alvidrez from the hallway and that he heard Ms. Pritchett’s “door slam, total slam, [the door] didn’t touch [Mr. Alvidrez] . . . [who] had already taken four or five steps away from the door.” Aple. Supp. App. at 25–26.18 not corroborated by either Ms. Pritchett or M r. Huls. Third, noting that Mr. Baca had previously accused another co lleague of assaulting Mr. Alvidrez, the AJ found it implausible Mr. Baca would “repeatedly witn ess the same employee get physically attacked or threatened.” Admin. R., vol. II at 727. Any remaining doubt the AJ had as to whether Mr. Baca could have tw ice observed Mr. Alvidrez bei ng attacked by a colleague was eliminated by Mr. Baca’s attempt to intimidate Mr. Huls into providing a statement on March 8th. Accordingly, Mr. Baca’s testimony did not provide credible “essential facts” on which a disinterested observer could rely. 5 U.S.C. §2302(14)(b)(ii). For all these reasons, the AJ provided more than su fficient support for the conclusion that a disinterested observer could not have re asonably concluded Ms. Pritchett battered Mr. Alvidrez. With virtually no citations to the record, Mr. Baca also contends the AJ “ignored and failed to address a mountain of evidence ” including the testimony of Mr. Alvidrez as well as medical records that allegedly corroborat e his testimony. Aplt. Br. at 17. An AJ is required to decide whether a whistleblow er had a reasonable belief based upon the facts “known to [or] readily ascertainab le by” the whistleblower. 5 U.S.C. § 2302(b)(14)(ii). Thus, Mr. Alvidrez’s tes timony and subsequent medical records are only relevant to Mr. Baca’s reasonable belie f if they were “kno wn to [or] readily ascertainable by” Mr. Baca at the time of his March 8th disclosure

. See id. Mr. Baca failed to introduce credible evid ence to establish the relevance of Mr. Alvidrez’s testimony or medical records. While Mr. Baca testified that immediately after19 the incident he received an email from Mr. Al vidrez “saying he was going to the McAfee Clinic . . . [and] that he was going to the De partment, the Director of Emergency Services to report the incident,” Aple. Supp. App. at 205, the AJ determined Mr. Baca was not credible. Indeed, Mr. Baca’s testimony is contradicted by Mr. Al vidrez, who testified that he sent an email to Mr. Baca and Mr. Gallegos after returning from the McAfee Clinic. He testified the email said that he “was going home beca use [he] had a lowerback injury,” without me ntioning that he had gone to the me dical clinic or that the injury was Ms. Pritchett’s fault. Id. at 400–01. The email is not in cluded in the record and the record does not otherwise contain any eviden ce that Mr. Alvidrez communicated to Mr. Baca, prior to Mr. Baca’s disclosure, that he suffered an assault or sought medical treatment. Based upon the evidence included in the agency record, the AJ focused his assessment on Mr. Baca’s claim that he witne ssed the events inside Ms. Pritchett’s office and correctly disregarded Mr. Alvidrez’s testimony and the medical evidence as irrelevant to assessing Mr. Baca’s reasonabl e belief at the time of his disclosure. Because we affirm the AJ’s finding th at Mr. Baca did not make a protected disclosure under 5 U.S.C. § 2 302(b)(8), we need not address the remainder of Mr. Baca’s arguments that he is entitled to relief unde r the WPA. The decision of the MSPB is
AFFIRMED.