                 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


                                        05-3262

                              KEVIN T. HENDRICKSON,

                                                Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                Respondent.

                           ___________________________

                           DECIDED: March 13, 2006
                           ___________________________


Before BRYSON, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

                                      DECISION

      Kevin T. Hendrickson petitions for review of a decision of the Merit Systems

Protection Board, Docket No. NY-0752-04-0054-I-1. The Board upheld his removal

from his position with the Department of Veterans Affairs (“VA”). We affirm.

                                    BACKGROUND

      In March 2003, Mr. Hendrickson, who worked as a Veterans Service

Representative for the VA, was pursuing his own claim for benefits relating to a service-

connected injury.   In connection with that claim, he submitted a VA Form 9 to the
Newark, New Jersey, Veterans Affairs Regional Office in support of his claim for

retroactive benefits and an increase in his compensation level.        Included with his

submission were two medical statements, which were dated April 29, 2002, and were

purportedly written by Dr. Boaz Rabin.

       On June 10, 2003, at a hearing on his request for benefits, Mr. Hendrickson was

questioned by Kenneth White, a decision review officer, regarding the authenticity of the

two medical statements.      Mr. White had observed that the two statements did not

appear normal because they were both unsigned and were not on a preprinted form,

letterhead, or memorandum. Mr. Hendrickson stated under oath that he had obtained

the two statements from Dr. Rabin. Mr. Hendrickson testified that “the statements from

Dr. Rabine [sic], like I said, I presented evidence to him, I requested that he provide an

opinion, and he subsequently provided the opinion.” Mr. Hendrickson also testified that

“I requested him to review the records, and that’s what I got back from him. I can have

it signed by him, have him review it once again . . . .”

       Subsequently, during one of Dr. Rabin’s weekly visits to the New York Regional

Office, Mr. Hendrickson approached him and asked him to sign the two medical

statements. Dr. Rabin reviewed the statements and observed that they were not in his

usual format. Dr. Rabin then stated that he had not authored the two statements, and

he accused Mr. Hendrickson of writing them himself. Mr. Hendrickson nonetheless

persisted in urging Dr. Rabin to sign the statements. When Dr. Rabin refused, Mr.

Hendrickson apologized for the confusion and left.         Mr. Hendrickson subsequently




05-3262                                       2
submitted a request to the VA that the two statements be withdrawn from

consideration.1

       On July 1, 2003, Special Agent Greg McLaughlin of the Office of Inspector

General questioned Mr. Hendrickson about the two medical statements.                    Mr.

Hendrickson explained that he did not know where he had obtained the statements and

that he had found them amongst paperwork in his home.              He denied writing the

statements himself. He added that he might have received the statements from his

service organization representative.

       On October 26, 2003, the VA removed Mr. Hendrickson from his position as a

Veteran Service Representative. The removal action was based on four charges: (1)

presenting false documents in order to defraud the VA in regard to a personal claim for

benefits; (2) giving false testimony under oath in order to defraud the VA in regard to a

personal claim for benefits; (3) attempting to deceive a VA official into signing fraudulent

documents as his own work product; and (4) making false statements in connection with

an official investigation.

       Mr. Hendrickson appealed the removal action to the Board. The administrative

judge who was assigned to the appeal sustained the first three charges and upheld the




       1
            Mr. Hendrickson’s claim for benefits was ultimately granted in substantial
part. In its review decision, the Veterans Benefits Administration noted that the
“comment about the veteran’s attempts to produce documents for the purpose of
obtaining a favorable outcome” was not supported by clear and convincing evidence.
The administrative judge considered that finding but found it inapplicable because the
burden of proof in Board appeals is a preponderance of evidence, not clear and
convincing evidence.


05-3262                                      3
agency’s penalty of removal.2 The administrative judge determined that there was a

sufficient nexus between Mr. Hendrickson’s misconduct and the efficiency of the service

and concluded that the penalty of removal was reasonable. The administrative judge

also rejected Mr. Hendrickson’s affirmative defenses, including discrimination against a

veteran, disability discrimination, retaliation for having filed equal employment

opportunity complaints, reprisal for whistleblowing activity, reprisal for activity as a union

shop steward and EEO representative, as well as a claim of harmful procedural error.

       Mr. Hendrickson’s request for review by the full Board was denied. He now

petitions this court for review of the Board’s decision.

                                       DISCUSSION

       To sustain a charge of submitting false information, the agency must show by a

preponderance of evidence “that the employee knowingly supplied wrong information,

and that he did so with the intention of defrauding the agency.” Naekel v. Dep’t of

Transp., 782 F.2d 975, 977 (Fed. Cir. 1986). In response to the charge of presenting

false documents in order to defraud the VA in connection with a personal claim for

benefits, Mr. Hendrickson contends that he was not aware that the two medical

statements were false at the time he submitted them to the VA. He therefore argues

that the Board erred in finding that he intended to defraud the agency.




       2
            The fourth charge is not a subject of this appeal. The administrative judge
found that the agency failed to meet its burden on the fourth charge because nothing in
the record contradicted Mr. Hendrickson’s statements to Special Agent McLaughlin that
he did not know the origin of the documents and that he may have received them from
his service organization.      The administrative judge explained that “[w]hile his
explanations may not satisfactorily explain the existence of the documents, . . . they do
corroborate his testimony during this appeal.”


05-3262                                       4
       The administrative judge found that circumstantial evidence adequately

supported the agency’s conclusion that Mr. Hendrickson intended to defraud the

agency. In particular, the administrative judge noted that Mr. Hendrickson “has held

different positions on the unsigned statements at different times in the record.” For

example, in the hearing before Mr. White, Mr. Hendrickson testified, without

qualification, that the two statements had been provided by Dr. Rabin. Later, in his

interview with Special Agent McLaughlin, Mr. Hendrickson claimed that he had found

the two statements in paperwork at his home. Mr. Hendrickson also suggested that he

may have received the documents from his service representative.               Finally, at his

hearing before the administrative judge, Mr. Hendrickson stated that he could not recall

where he acquired the documents.

       The administrative judge also found that Mr. Hendrickson “failed to provide a

reasonable and satisfactory explanation for the existence of the two unsigned, typed

statements.”    That is, Mr. Hendrickson has not come forward with any plausible

scenario that could lead to his coming into possession of the two medical statements

without being aware of their origin and who authored them.               For instance, if the

statements had indeed been written by the service representative, it seems implausible

that the service representative would have surreptitiously placed them in Mr.

Hendrickson’s    home     without   notifying       Mr.   Hendrickson.   Consequently,    the

administrative judge did not err in sustaining this first charge.

       Mr. Hendrickson’s response to the second charge of giving false testimony under

oath in order to defraud the VA in regard to a personal claim for benefits is similarly

unavailing.    Mr. Hendrickson again argues that the Board erred in finding that he




05-3262                                         5
intended to defraud the agency. He contends that he was not aware that his testimony

before Mr. White was false because he “remembered and actually met with” Dr. Rabin

on April 29, 2002. In support, Mr. Hendrickson points to Dr. Rabin’s handwritten and

signed medical opinion of that date.

       Mr. Hendrickson’s possession of a signed, handwritten statement by Dr. Rabin

tends to undermine, not support, his assertion that he justifiably believed Dr. Rabin had

authored the other two statements. Possession of one signed statement from a visit

with a doctor would lead a reasonable person to question the authorship of two other

unsigned statements of the same date in a different format. Moreover, as pointed out

by the administrative judge, Mr. Hendrickson’s testimony before Mr. White contradicts

his subsequent testimony before the administrative judge that he could not recall how

he acquired the two unsigned statements. Consequently, the administrative judge did

not err in sustaining the second charge.

       In response to the third charge of attempting to deceive a VA official into signing

fraudulent documents as his own work product, Mr. Hendrickson contends that the

administrative judge erred in her assessment of the witnesses’ credibility, particularly

that of Dr. Rabin and of Mr. Hendrickson himself.        However, “determination of the

credibility of witnesses is within the discretion of the presiding official who heard their

testimony and saw their demeanor,” Griessenauer v. Dep’t of Energy, 754 F.2d 361,

364 (Fed. Cir. 1985), and an administrative judge’s credibility determinations are

“virtually unreviewable,” Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir.

1986). Because there is nothing in the record of this case that makes Dr. Rabin’s

testimony inherently incredible, and because the administrative judge had the




05-3262                                     6
opportunity to assess Mr. Hendrickson’s credibility in person, we will not disturb the

administrative judge’s credibility determinations regarding Dr. Rabin and Mr.

Hendrickson. We therefore uphold the administrative judge’s decision to sustain the

third charge.

         Mr. Hendrickson also argues that there is an insufficient nexus between his

misconduct and the VA’s performance of its functions. He explains that in his capacity

as a Veteran Service Representative all of his cases were reviewed by his supervisors

and he therefore had no ability to “single handedly fraudulently prosecute a claim on his

own behalf nor on behalf of any other veteran.” He also states that his job entailed

minimal contact with the public.

         This court, however, deferentially reviews the Board’s determination of whether a

nexus has been shown. Brown v. Dep’t of the Navy, 229 F.3d 1356, 1358 (Fed. Cir.

2000).     Here, the administrative judge emphasized that falsification is generally

considered a serious offense and reflects “adversely on the employee’s reliability,

veracity, trustworthiness, and ethical conduct.” Moreover, the administrative judge took

note of the deciding official’s testimony that as a Veteran Service Representative, Mr.

Hendrickson was in a special position with regard to veterans’ appeals for benefits. The

administrative judge expressed concern that Mr. Hendrickson’s actions in pursuing a

personal claim for benefits affected the agency’s confidence and trust in his ability to

perform his job. The administrative judge also explained that Mr. Hendrickson’s actions

reflected negatively on the agency’s credibility in representing the interests of veterans.

Under our deferential standard of review, it does not appear that the administrative




05-3262                                      7
judge erred in finding a sufficient nexus between Mr. Hendrickson’s actions and the

efficiency of the service.

       Mr. Hendrickson further argues that the penalty of removal was unreasonable. In

particular, he contends that the penalty levied against him is “far more severe than any

other penalty levied against [other] employees.”          The administrative judge noted,

however, that the deciding official properly considered all the relevant factors in

rendering a decision, including the nature and seriousness of the misconduct. See

Douglas v. Veterans Admin., 5 M.S.P.R. 302, 332 (1981). The administrative judge also

found that Mr. Hendrickson did not make an adequate showing that his penalty was

substantially harsher than penalties given for similar misconduct to similarly situated

employees.        In particular, the administrative judge pointed out, Mr. Hendrickson’s

referenced cases did not involve similar misconduct or similarly situated employees.

We hold that the administrative judge did not err in concluding that removal “is within the

range of reasonableness.”

       Mr. Hendrickson also alleges that the Board committed a harmful procedural

error in refusing to consider his reply to the VA’s response. Mr. Hendrickson, however,

erroneously confuses a response with a cross-petition. Under 5 C.F.R. § 1201.114(i),

the record closes when a response to a petition for review is filed. However, in the

event a cross-petition is filed, the original petitioner is allowed time to file a reply to the

cross-petition.     Here, the VA filed a response, not a cross-petition.           Thus, Mr.

Hendrickson was not entitled to file a reply and was so notified.             In the Board’s

acknowledgment letter to Mr. Hendrickson, the Board explained that a “cross-petition for

review differs from a response because it also disagrees with the initial decision.”




05-3262                                       8
Consequently, there is no merit to Mr. Hendrickson’s argument that the Board

committed a harmful procedural error.

       Mr. Hendrickson next argues that his removal was the product of discrimination

based on his disability and his status as a veteran. The administrative judge found that

Mr. Hendrickson had failed to present evidence in support of those claims. We sustain

the administrative judge’s ruling in that regard. Mr. Hendrickson fails to point to any

evidence to support his claims that the VA discriminated against him on either of those

grounds.

       Finally, Mr. Henrickson reiterates his contention that his removal was the product

of retaliation against him for filing equal employment opportunity complaints, for

engaging in whistleblowing activity, and for acting as a union shop steward and EEO

representative.    The administrative judge analyzed Mr. Hendrickson’s claims of

retaliation and found no retaliatory motive on the part of the deciding official in his case

and no nexus between the alleged retaliation and the adverse employment action.

Likewise, the administrative judge found that there was “little or no evidence” that the

deciding official sought to retaliate against Mr. Hendrickson based on his activity as a

shop steward and EEO representative.        With regard to his allegations of retaliation

based on protected disclosures, the administrative judge found that the disclosures in

question related to complaints about Mr. Hendrickson’s own request for a promotion

and a transfer and did not constitute protected disclosures within the meaning of the

pertinent provision of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). See

Francisco v. Office of Pers. Mgmt., 295 F.3d 1310, 1314 (Fed. Cir. 2002) (complaints




05-3262                                      9
about agency’s disposition of employee’s personal claims do not constitute protected

whistleblower disclosures).

      We sustain each of those rulings. Mr. Hendrickson has not pointed to evidence

that undermines the administrative judge’s findings with respect to his claims of

discrimination and retaliation. Moreover, in his passing reference to the Whistleblower

Protection Act, Mr. Hendrickson has failed to point to any disclosures that he made that

would qualify as protected disclosures under the Act.        Accordingly, because the

administrative judge’s decision is supported by substantial evidence and Mr.

Hendrickson has not pointed to any legal error in the proceedings before the Board, we

uphold the Board’s decision.




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