                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit
                                        06-3096



                                 DOMENIC L. AMATO,

                                                                       Petitioner,

                                            v.

                           DEPARTMENT OF THE ARMY,

                                                                       Respondent.

                           __________________________

                           DECIDED: July 19, 2006
                           __________________________


Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and SCHALL,
Circuit Judge.


PER CURIAM.

      Domenic L. Amato ("Mr. Amato") seeks review of the final decision of the

Merit Systems Protection Board ("Board") denying his request for corrective action

pursuant to his Individual Right of Action ("IRA").        Amato v. Dep't of the Army,

No. DC1221020755-W-5 (Merit Sys. Prot. Bd. Apr. 18, 2005) (Final Decision).

Mr. Amato alleged that his employing agency, the Department of the Army, Southern

European Task Force in Vincenza, Italy ("SETAF" or "Agency"), subjected him to

adverse personnel actions in reprisal for disclosures protected under the Whistleblower

Protection Act ("WPA"). The Board determined that the agency had established by
clear and convincing evidence that Mr. Amato would have been subject to the alleged

adverse personnel actions absent his protected disclosures, such that Mr. Amato was

not entitled to corrective action. Because substantial evidence supports the Board's

determination, we affirm.

                                             I

       In order for the Board to have jurisdiction over a WPA claim, an individual must

make nonfrivolous allegations that he has made a protected disclosure that was a

contributing factor in an agency's decision to take a prohibited personnel action against

him. Yunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To

prevail on the merits, the individual must prove these elements by a preponderance of

the evidence.   Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).

However, if the agency can establish by clear and convincing evidence that it would

have taken those actions regardless of the disclosures made, the employee is not

entitled to relief. Carson v. Dep't of Energy, 398 F.3d 1369, 1380 (Fed. Cir. 2005).

       After determining that Mr. Amato had made nonfrivolous allegations sufficient to

establish the Board's jurisdiction, Final Decision, slip op. at 3, the Administrative Judge

("AJ") determined that his hearing should be bifurcated, with an initial hearing limited to

the question of whether Mr. Amato would have been properly subjected to the alleged

adverse personnel actions absent his protected disclosures.         See Dick v. Dep't of

Veterans Affairs, 290 F.3d 1356, 1363 (Fed. Cir. 2003) (hearings on the merits may be

bifurcated and an AJ has great discretion in determining which issues to consider first)




06-3096                                  2
overruled in part by Garcia v. Dep't of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006).1

The AJ determined that the agency had established by clear and convincing evidence

that Mr. Amato would have been subject to each of the alleged adverse personnel

actions absent his disclosures and thus denied Mr. Amato's request for corrective

action. Mr. Amato appealed to the full Board, which declined to review the decision of

the AJ, such that it became the final decision of the Board. Mr. Amato then appealed to

this court.

                                             II

       We must affirm the final decision of the Board unless it is arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 7703(c) (2000);

Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). To uphold a factual

finding of the Board, we must determine "whether it has a rational basis supported by

substantial evidence from the record taken as a whole."         Id. (citation omitted).   In

addition, credibility determinations are within the discretion of the AJ and are "virtually

unreviewable." King v. Dep't of Health and Human Servs., 133 F.3d 1450, 1453 (Fed.

Cir. 1998).

                                             III

       Mr. Amato was initially employed by the agency on January 14, 2000, as a GS-

12 Civil Military Operations Specialist in its G5 division. On April 1, 2001, Mr. Amato



       1
              In Garcia, this court addressed the jurisdictional requirements of a
constructive adverse action claim before the Board. In particular, we held that for the
Board to have jurisdiction over a constructive adverse action claim, the petitioner must
establish by a preponderance of the evidence that the action was involuntary. Garcia,
437 F.3d at 1325. However, we expressly declined to address the nonfrivolous
allegation standard in the context of WPA cases. See id. ("Neither . . . the WPA, nor the
Board's jurisdiction under the WPA are before us today.")


06-3096                                  3
was detailed to the G3 division to a GS-12 Computer Specialist position. In December

2001, that detail was terminated and Mr. Amato was formally assigned to the same

position. Mr. Amato left SETAF on May 5, 2002, for a GS-11 Information Technology

Specialist position at the 52nd Signal Battalion in Vaihingen, Germany, and resigned

from that position on February 22, 2003.

      Mr. Amato alleges that during his employment with SETAF, the agency engaged

in seven adverse personnel actions in retaliation for his protected disclosures.

However, after receiving oral testimony and written statements from Mr. Amato, five of

Mr. Amato's superior officers, as well as a human relations specialist at SETAF in Italy,

the AJ determined that each of the alleged retaliatory actions would have taken place

absent his disclosures.   With regard to each alleged action, the AJ found that the

agency's witnesses had explained why the action would have occurred absent the

disclosures. Further, the AJ noted that Mr. Amato had no documentary evidence to

support his claims, which rested primarily on his assertion that the agency's witnesses

lied during their testimony. Final Decision, slip op. at 40. However, the AJ credited the

agency's witnesses, noting that their testimony was consistent, both internally and with

one another, showed no bias, and was not contradicted by the written record.           In

contrast, the AJ found that Mr. Amato's claims were unsupported by the written record,

directly rebutted by the record and the testimony of the agency's witnesses, and in

some instances, "inherently improbable." Id.

      On appeal, Mr. Amato repeats the same arguments made before the AJ, namely

that the agency's witnesses lied and produced false documents to support their

testimony. Mr. Amato further alleges collusion between the witnesses. However, as




06-3096                                 4
noted above, the AJ's credibility determinations are virtually unreviewable.     Further,

Mr. Amato does not produce any documentary evidence supporting his allegations.

      Mr. Amato also appears to argue that the AJ incorrectly applied the law, arguing

that the AJ failed to consider that his disclosures were protected. However, the AJ

assumed, for the purposes of the initial hearing, that Mr. Amato had made protected

disclosures that were a contributing factor in the agency's actions. Nevertheless, the AJ

determined that the agency had established by clear and convincing evidence that the

allegedly retaliatory actions would have taken place absent these disclosures.

      Finally, Mr. Amato alleges that the AJ failed to consider the evidence that he

presented and that the AJ conducted the proceedings in a biased and unfair manner.

However, we presume that a fact finder has reviewed all of the relevant evidence unless

he explicitly expresses otherwise. See, e.g., Medtronic, Inc. v. Daig Corp., 789 F.2d

903, 906 (Fed. Cir. 1986). Further, Mr. Amato has not presented any evidence to

support his contentions. To the contrary, the AJ conducted a lengthy hearing and wrote

a thorough, well-reasoned opinion in which he analyzed the oral testimony and written

statements of each witness, as well as the documentary evidence of record, and

determined that the agency had established by clear and convincing evidence that it

would have taken the alleged adverse personnel actions absent Mr. Amato's protected

disclosures. In short, substantial evidence supports the AJ's determination. As such,

we affirm.




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