Case: 19-1990   Document: 47     Page: 1   Filed: 06/15/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  STEVEN J. OLIVA,
                      Petitioner

                            v.

      DEPARTMENT OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                       2019-1990
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DA-1221-17-0225-P-1.
                 ______________________

                 Decided: June 15, 2020
                 ______________________

    JENNIFER CIELUCH, Covington & Burling LLP, New
 York, NY, argued for petitioner. Also represented by HAN
 PARK, RICHARD L. RAINEY, Washington, DC.

     IGOR HELMAN, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, argued for respondent. Also represented by JOSEPH H.
 HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
                  ______________________
Case: 19-1990      Document: 47    Page: 2    Filed: 06/15/2020




 2                                               OLIVA   v. DVA



      Before PROST, Chief Judge, MAYER and DYK, Circuit
                           Judges.
             Opinion of the court filed PER CURIAM.
     Opinion concurring in part filed by Chief Judge PROST.
 PER CURIAM.
    Steven J. Oliva appeals a decision by the Merit Sys-
 tems Protection Board (“Board”). We affirm.
                         BACKGROUND
      Mr. Oliva worked as an Associate Director of Pharmacy
 Customer Care at the Department of Veterans Affairs
 (“VA”) Health Resource Center in Waco, Texas. In a series
 of emails beginning on December 30, 2014, Mr. Oliva ac-
 cused his supervisor of preselecting an applicant for a po-
 sition at the agency, which his supervisor contested as an
 allegation that he had acted improperly. On January 9,
 2015, the agency issued Mr. Oliva a letter of reprimand for
 “Inappropriate Conduct.” J.A. 2–3.
     On March 13, 2017, Mr. Oliva filed an individual right
 of action alleging that the agency’s issuance of the retalia-
 tory letter of reprimand was a prohibited personnel action
 under the Whistleblower Protection Act, 5 U.S.C.
 § 2302(b)(8). Mr. Oliva sought damages for: (1) lost reloca-
 tion incentive pay for a job he alleges he would have re-
 ceived in El Paso absent the letter of reprimand, 1 (2) non-




       1 Mr. Oliva is also seeking damages for loss of the El
 Paso position in a Claims Court case on a different theory—
 that the agency breached a settlement agreement by dis-
 seminating information about the letter of reprimand. Our
 decision in that case is being issued contemporaneously in
 Oliva v. United States, No. 19-2059.
Case: 19-1990     Document: 47     Page: 3    Filed: 06/15/2020




 OLIVA   v. DVA                                             3



 pecuniary damages for emotional harm. 2 The Board found
 that the agency had taken a prohibited personnel action
 against Mr. Oliva because it perceived him to be a whistle-
 blower, its perception was a contributing factor to the issu-
 ance of the letter of reprimand, and the agency had not
 shown by clear and convincing evidence that it would have
 issued the letter of reprimand absent its perception of Mr.
 Oliva as a whistleblower. The Board awarded Mr. Oliva
 $3,500 in emotional harm damages. The Board denied
 damages for loss of the El Paso opportunity. Mr. Oliva ap-
 peals, and we have jurisdiction under 28 U.S.C.
 § 1295(a)(9).
                         DISCUSSION
      The scope of our review of the Board decision is limited
 by statute. We may only set aside Board decisions that are
 “(1) arbitrary, capricious, an abuse of discretion, or other-
 wise not in accordance with law; (2) obtained without pro-
 cedures required by law, rule, or regulation having been
 followed; or (3) unsupported by substantial evidence.”
 5 U.S.C. § 7703(c).
     Mr. Oliva argues that the Board should have awarded
 him more damages. The Board may award “foreseeable
 consequential damages” and “compensatory damages” in a
 corrective action for a Whistleblower Protection Act claim.
 5 U.S.C. § 1221(g)(1)(A).
     Mr. Oliva argues that the Board erred when it denied
 him damages for lost relocation incentive pay. Mr. Oliva
 asserted that the agency’s issuance of the letter of repri-
 mand caused him not to be selected for a position at the VA
 Medical Center in El Paso, Texas. Mr. Oliva asserted that
 if he had been selected, he would have received relocation


     2   Mr. Oliva also asserted other theories of relief,
 which the Board denied. Mr. Oliva does not challenge
 those aspects of the Board’s decision on appeal.
Case: 19-1990    Document: 47       Page: 4   Filed: 06/15/2020




 4                                               OLIVA   v. DVA



 incentive pay. The Board rejected this theory, in part be-
 cause Mr. Oliva had failed to show a causal relationship
 between the issuance of the letter of reprimand and his al-
 leged loss of relocation incentive pay. In other words, it
 was not foreseeable that the issuance of the letter of repri-
 mand would have resulted in its disclosure during Mr.
 Oliva’s employment application process. We discern no er-
 ror in the Board’s conclusion that Mr. Oliva had not estab-
 lished that his lost relocation incentive pay was a
 foreseeable consequence of the issuance of the letter of rep-
 rimand. See Bohac v. Dep’t of Agric., 239 F.3d 1334, 1340–
 41 (Fed. Cir. 2001) (noting that damages for a whistle-
 blower claim are “akin” to contract damages, which are
 rooted in the common law doctrine of foreseeability).
     Mr. Oliva also argues that he was entitled to more com-
 pensatory damages for emotional harm. The Board found
 that Mr. Oliva “established he experienced emotional harm
 as a result of the letter of reprimand.” J.A. 14. “[B]ased on
 the record and taking into account the severity and dura-
 tion of the appellant’s emotional distress and pain related
 to the . . . letter of reprimand,” the Board awarded Mr.
 Oliva $3,500 in compensatory damages. J.A. 16. The
 Board’s award was supported by substantial evidence, and
 we see no error of law.
                        AFFIRMED
                            COSTS
     No costs.
Case: 19-1990    Document: 47      Page: 5   Filed: 06/15/2020




         NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    STEVEN J. OLIVA,
                        Petitioner

                              v.

      DEPARTMENT OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                        2019-1990
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DA-1221-17-0225-P-1.
                 ______________________
 PROST, Chief Judge, concurring in part.
     I join the per curiam opinion in full but write sepa-
 rately because I would affirm the Board’s decision to deny
 Mr. Oliva damages for lost relocation incentive pay for an
 additional reason that the per curiam decision does not
 reach. The record establishes that the lost relocation in-
 centive pay was available, but not guaranteed, to be offered
 to the selectee of the Associate Medical Director position
 for which Mr. Oliva applied but was not selected. The
 Board found that Mr. Oliva failed to prove by preponderant
 evidence that he would have received this incentive even if
 he had been selected for the position. J.A. 6–8. Indeed, the
 only documentary evidence submitted to support
 Mr. Oliva’s claim, merely shows that the selectee for the
Case: 19-1990    Document: 47     Page: 6    Filed: 06/15/2020




 2                                               OLIVA   v. DVA



 position was offered a different incentive, which Mr. Oliva
 admits would not have been applicable to him. See J.A. 7–
 8; J.A. 69; see also Appellant’s Reply Br. 14. On appeal,
 Mr. Oliva has not identified any additional evidence
 demonstrating that he would have been offered the reloca-
 tion incentive if he had been selected for the position. See
 Appellant’s Op. Br. 21. Without such evidence, for this ad-
 ditional reason, I would affirm the Board’s denial of dam-
 ages based on lost relocation incentive pay.
