Case: 19-1712    Document: 39    Page: 1   Filed: 02/10/2020




        NOTE: This disposition is nonprecedential.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 Jus-
 tice, Washington, DC, for respondent. Also represented by
 JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
 KIRSCHMAN, JR.
                  ______________________

     Before DYK, TARANTO, and STOLL, Circuit Judges.
Case: 19-1712    Document: 39     Page: 2    Filed: 02/10/2020



 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 Ad-
 ministration (“FAA”). As a condition of continued employ-
 ment, 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 of-
 fer trainees “an avenue to ensure points lost during a[n
 evaluation] are based on [relevant FAA] rules or proce-
 dures.” 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 simula-
 tion. Mr. Rutila regained the point and consequently
 passed his first evaluation. He also passed his second eval-
 uation.
      Mr. Rutila’s third evaluation was administered by Mi-
 chael 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,
Case: 19-1712    Document: 39      Page: 3    Filed: 02/10/2020




 RUTILA v. DEPARTMENT OF TRANSPORTATION                     3



 and his score remained unchanged. Mr. Rutila was deemed
 “mathematically eliminated” from the program and, ac-
 cording 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 ter-
 minated as a reprisal for filing TRs and helping other train-
 ees file TRs. In particular, he argued that Mr. Henderson
 influenced Mr. Taylor’s scoring of Mr. Rutila’s third evalu-
 ation in retaliation for Mr. Rutila’s earlier TR filing that
 noted Mr. Henderson’s grading error on the first evalua-
 tion. 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 al-
 leged 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 fil-
 ings. 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 regu-
 lation, 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 regula-
 tion—with regard to remedying a violation of
 [§ 2302(b)](8).”
Case: 19-1712     Document: 39     Page: 4    Filed: 02/10/2020



 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 ju-
 risdiction 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) ar-
 bitrary, capricious, an abuse of discretion, or otherwise not
 in accordance with law; (2) obtained without procedures re-
 quired 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 reason-
 able 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 bur-
 den 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. Ser-
 rao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1577–78 (Fed. Cir.
 1996); see also 5 U.S.C. § 1214(a)(3).
Case: 19-1712     Document: 39      Page: 5   Filed: 02/10/2020




 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 disclo-
 sure under § 2302(b)(8)(A). That section defines protected
 disclosures as those made by an employee “which the em-
 ployee . . . 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.” Sec-
 tion 2302(b)(9)(A)(i) defines a protected activity as “the ex-
 ercise 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 per-
 sonnel action is due to a disclosure covered by ei-
 ther § 2302(b)(8)—i.e. retaliation for whistleblowing—
 or § 2302(b)(9)(A)(i)—i.e. retaliation for exercising a griev-
 ance 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
Case: 19-1712     Document: 39      Page: 6    Filed: 02/10/2020



 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 find-
 ing his TRs to constitute protected activity in its analysis
 under 5 U.S.C. § 2302(b)(9). The Board found that Mr. Ru-
 tila’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 con-
 cern 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 pro-
 tected activity under § 2302(b)(9), because we conclude
 that the Board’s finding that the FAA “would have termi-
 nated the appellant absent his filing of the TRs to challenge
 his test scores,” J.A. 7, is supported by substantial evi-
 dence.
      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 pro-
 tected under § 2302(b)(9). The Board followed the ap-
 proach 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 nor-
 mally 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 dis-
 closures under 5 U.S.C. § 2302(b)(8).
Case: 19-1712    Document: 39       Page: 7   Filed: 02/10/2020




 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 dec-
 laration 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 evalua-
 tion] intended to retaliate against the appellant by declin-
 ing 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 sit-
 uated.” 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 “under-
 cuts [Mr. Rutila’s] claim that by filing TRs he was termi-
 nated from his position.” J.A. 9.
     We conclude that the Board’s analysis of the Carr fac-
 tors 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 consid-
 ered 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 super-
 visors 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 em-
 ployee’s subsequent characterization of that statement in
 his appeal to the Board.” Serrao, 95 F.3d at 1577.
Case: 19-1712    Document: 39     Page: 8    Filed: 02/10/2020



 8                 RUTILA v. DEPARTMENT OF TRANSPORTATION




     The OSC complaint does not mention his trainee feed-
 back 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 peti-
 tioner to prevail on these issues he must prove that the er-
 ror 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 sub-
 poena 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 dis-
 covery 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 evi-
 dence.” J.A. 2635–36. 3 The AJ’s decision to deny these mo-
 tions was thus not an abuse of discretion.




     3To the extent Mr. Rutila’s motion for issuance of a
 subpoena to Mr. Henderson can be read to be eliciting tes-
 timony in addition to documentary evidence, there was
Case: 19-1712    Document: 39      Page: 9    Filed: 02/10/2020




 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 sched-
 uled hearing with the Board, Mr. Rutila moved for a post-
 ponement 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 rec-
 ord. 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 rea-
 sonably prepare for a hearing” that was to take place two
 days after the conference, and had “not even received a de-
 cision on his motion for a subpoena or motion to compel dis-
 covery” 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 hear-
 ing.
                        AFFIRMED
                           COSTS
     No costs.




 likewise no prejudice because the FAA had planned to call
 Mr. Henderson as a witness at the hearing.
