Case: 19-1982     Document: 19    Page: 1     Filed: 02/05/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                   ______________________

                   ANTHONY W. SIMON,
                       Petitioner

                             v.

                DEPARTMENT OF JUSTICE,
                         Respondent
                   ______________________

                         2019-1982
                   ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DA-1221-18-0396-W-2.
                 ______________________

                  Decided: February 5, 2020
                   ______________________

    ANTHONY W. SIMON, Lancaster, TX, pro se.

     MICHAEL DUANE AUSTIN, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent. Also represented by
 JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT
 EDWARD KIRSCHMAN, JR.
                  ______________________
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 2                                              SIMON v. DOJ




 Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
 PER CURIAM.
     Anthony Simon (“Simon”) appeals from the final deci-
 sion of the Merit Systems Protection Board (“the Board”)
 denying his request for corrective action on his nonselec-
 tion for a position with the Bureau of Prisons. Because we
 agree with the Board that the agency proved by clear and
 convincing evidence that it would not have selected Simon
 even absent his protected whistleblowing activity, we af-
 firm.
                       I. BACKGROUND
                   A. Simon’s Application
      In September 2017, the Bureau of Prisons issued an in-
 ternal, merit promotion vacancy announcement for the po-
 sition of Human Resource Specialist within the agency’s
 Labor and Management Division. S.A. 2; S.A. 29. The an-
 nouncement explained that the position’s duties included
 “both labor and employee relations functions,” such as dis-
 cipline and discharge issues, grievance and appeal pro-
 cessing, and contract interpretation and negotiation. S.A.
 30. The announcement also indicated that there were two
 positions for this job available: one in Washington, D.C.
 and one in Grand Prairie, Texas. S.A. 29.
     Simon timely applied for the position at the GS-11, 12,
 and 13 levels, but he limited his application to the Grand
 Prairie location. S.A. 2; S.A. 37. Simon was found best
 qualified for the position at the GS-12 level, and listed on
 the merit promotion certificate for Grand Prairie at the GS-
 12 level. 1 His application was then referred to the


     1   Simon was found qualified, but not best qualified,
 at the GS-11 level. J.S. 2. Simon did not qualify for the
 position at the GS-13 level because he did not meet the
 time-in grade requirement. S.A. 2.
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 SIMON v. DOJ                                               3



 recommending official, Christopher Wade. S.A. 2. Wade
 ultimately referred two other individuals, J.H. and J.S., to
 the selecting official, Cristina Griffith. S.A. 3. J.H. and
 J.S. were found best qualified for the position at the GS-11
 level and listed on the merit promotion certificate for Cen-
 tral Office (Washington, D.C.). S.A. 2–3. On December 15,
 2017, Griffith selected J.H. for a position in Washington
 D.C. S.A. 3. On March 26, 2018, Griffith signed the GS-12
 merit promotion certificate for Grand Prairie, indicating
 that she did not wish to select anyone for that position, in-
 cluding Simon. S.A. 3. Two days later, Griffith selected
 J.S. for the remaining Human Resources position, but
 again designated that position for Washington D.C., rather
 than Grand Prairie. S.A. 3.
      Very soon thereafter, Simon filed a complaint regard-
 ing his nonselection with the Office of Special Counsel
 (“OSC”). S.A. 3. In his complaint, Simon alleged that the
 agency failed to select him for the Human Resources Spe-
 cialist position as a reprisal for Simon’s past “whistleblow-
 ing and/or protected activities,” i.e., activity protected
 under 5 U.S.C. §§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D).
 S.A. 27. Simon alleged that his prior OSC and union activ-
 ities, as well as his past appeals to the Board, were the ba-
 sis for the agency’s retaliatory animus. S.A. 27. Simon
 noted that Griffith had knowledge of three of these prior
 OSC complaints, and that the hiring action at issue in his
 complaint was the same action that he had cited in those
 prior matters. S.A. 27. That is, Simon had been rejected
 for the same Human Resources Specialist position on three
 prior occasions, and had filed OSC complaints in response
 to the agency’s decisions.
      On June 18, 2018, OSC informed Simon that, based on
 its evaluation of his complaint, it had made a final deter-
 mination to close his file. S.A. 27. OSC explained that Si-
 mon’s only evidence in support of his assertion that his
 nonselection was retaliatory was the fact that he was in-
 cluded on the merit promotion certificate for Grand Prairie,
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 and that this evidence was not sufficient. S.A. 27. Despite
 Griffith’s involvement in and knowledge of Simon’s past
 OSC complaints, OSC concluded that there was “a multi-
 tude of legitimate bases for not selecting a candidate for a
 position.” S.A. 27. OSC also explained that it had no basis
 for further review of claims that it previously adjudicated.
 OSC made a final determination to close Simon’s file, but
 notified Simon of his right to seek corrective action from
 the Board because he had alleged a violation under 5
 U.S.C. §§ 2302(b)(8) and (b)(9). S.A. 28.
                   B. The Board’s Decision
      On June 19, 2018, Simon filed an appeal of the agency’s
 nonselection decision to the Board. S.A. 3. Simon alleged
 that the agency failed to select him in retaliation for: (1) his
 prior OSC complaints; and (2) his prior Individual Right of
 Appeals (“IRA”) before the Board. S.A. 5. In support of his
 appeal, Simon noted that he had been found “best qualified
 for Human Resource Specialist 4 times (Emp & Lbr Rel)
 (Labor Management Relations Specialist).” S.A. 24. On
 April 8, 2019, the administrative judge (“AJ”) issued an in-
 itial decision, finding that Simon’s OSC complaints and
 IRAs are protected whistleblowing activities, but denying
 Simon’s request for corrective action. S.A. 5.
      First, the AJ explained that Simon failed to establish
 by a preponderance of the evidence that his OSC com-
 plaints were a contributing factor in his nonselection. S.A.
 5. Although Griffith was involved in the prior nonselection
 decisions, the AJ explained that there was no evidence “as
 to if or when Griffith, or anyone involved in the selection
 process for the vacancy at issue in this appeal, knew about
 [the OSC complaints].” S.A. 5. Accordingly, without any
 evidence of Wade or Griffith’s knowledge of the OSC com-
 plaints, the AJ could not conclude that Simon established
 by preponderant evidence that his prior OSC complaints
 were a contributing factor in his nonselection. S.A. 5.
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 SIMON v. DOJ                                                5



      With respect to Simon’s IRAs, the AJ found that Wade
 and Griffith’s knowledge of the appeals and the timing of
 the nonselection decision were sufficient to establish by
 preponderant evidence that Simon’s prior IRAs were a con-
 tributing factor in his nonselection. S.A. 6. Both Wade and
 Griffith had testified at the hearing in one of the prior
 IRAs, MSPB Docket No. DA-1221-16-0269-W-1, which oc-
 curred sometime between March 16, 2016 and August 12,
 2016. In that appeal, the appellant alleged, inter alia, that
 the agency failed to select him for a GS-12 Human Re-
 sources Specialist/Employee and Labor Relations position
 in retaliation for his protected whistleblowing activity.
 S.A. 5. Wade had similarly served as the recommending
 official for that nonselection and Griffith, though not the
 selecting official, had reviewed the applications and given
 them to the selecting official. S.A. 5–6. On August 14,
 2017, Griffith signed an agreement, on behalf of the
 agency, to settle two of the prior IRAs. The signed settle-
 ment agreement occurred just four months before she se-
 lected J.H. for the Washington D.C. position on December
 15, 2017. S.A. 6. Accordingly, the AJ determined that Si-
 mon established by preponderant evidence that his prior
 IRAs were a contributing factor in his nonselection. S.A. 6.
      Based on this finding, the burden shifted to the agency
 to prove, by clear and convincing evidence, that it would
 have taken the same action even absent the disclosure or
 other protected activity. See Horton v. Dep’t of the Navy,
 66 F.3d 279, 283–84 (Fed. Cir. 1995). After considering the
 evidence, the AJ found that the agency had met this bur-
 den. The agency presented evidence that, although the po-
 sition was initially advertised in both Washington, D.C.,
 and Grand Prairie, there was “a particular need” for Hu-
 man Resources Specialists in Washington, D.C. S.A. 7. At
 the time of the selection process at issue in this appeal,
 there were no Human Resources Specialists in Washington
 D.C. S.A. 8 (“In fact, Griffith testified, there were three to
 four unfilled Human Resources Specialist positions in
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 6                                                 SIMON v. DOJ




 Washington, D.C.”). The agency testified that it histori-
 cally had difficulty filling these D.C. positions due to a lack
 of qualified applicants willing to relocate, likely due at
 least in part to the higher cost of living. S.A. 8. Accord-
 ingly, because several highly qualified applicants, includ-
 ing J.H. and J.S., had applied for the Washington, D.C.,
 location, the agency decided to take advantage of the situ-
 ation and only hire for that location. S.A. 8. Based on this
 evidence, the AJ concluded: “[A]s the appellant only ap-
 plied for the Grand Prairie location, he would not have
 been selected regardless of his protected activity.” S.A. 8.
     The AJ also noted that Wade and Griffith’s decisions
 did not appear to be motivated by the appellant’s prior
 IRAs. S.A. 7–8. During the hearing, Griffith testified that
 she had also selected another applicant, K.B., but K.B. de-
 clined the job offer. S.A. 9. Like J.H. and J.S., K.B. had
 also applied for the position at the Washington, D.C. loca-
 tion. S.A. 9. K.B. was a Union president and had repre-
 sented Simon at an IRA hearing of which Griffith had
 knowledge and had participated. S.A. 9 (“Notably, the rec-
 ord shows that on August 8, 2017, K.B. executed the same
 settlement agreement Griffith later signed in [the IRAs]”).
 The AJ rationalized that, if Griffith harbored discrimina-
 tory animus against Simon for his prior IRAs, it would have
 been “highly unlikely that Griffith would have selected
 K.B. who helped [Simon] pursue at least some of those ap-
 peals.” S.A. 9. After considering the record, the AJ deter-
 mined that the agency proved by clear and convincing
 evidence that it would not have selected the appellant even
 absent his protected whistleblowing activity. S.A. 9.
      Simon did not petition the Board to review the AJ’s in-
 itial decision and it became the final decision of the Board.
 Simon timely appealed to this court, and we have jurisdic-
 tion pursuant to 28 U.S.C. § 1295(a)(9).
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 SIMON v. DOJ                                               7



                       II. DISCUSSION
      Our jurisdiction to review Board decisions is limited.
 By statute, we must affirm the Board’s decision unless it is
 “(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).
      The parties do not dispute the AJ’s finding that Simon
 established a prima facie case of reprisal for whistleblow-
 ing. “If the employee establishes its prima facie case of re-
 prisal for whistleblowing, the burden of persuasion shifts
 to the agency to show by clear and convincing evidence that
 it would have taken ‘the same personnel action in the ab-
 sence of such disclosure.’” Kewley v. Dep’t of Health and
 Human Servs., 153 F.3d 1357, 1363 (Fed. Cir. 1998) (quot-
 ing 5 U.S.C. § 1221(e)(2)). In determining whether the
 agency has met this “clear and convincing” standard, we
 consider the Carr factors: (1) the strength of the agency’s
 evidence in support of its action; (2) the existence and
 strength of any motive to retaliate on the part of the agency
 officials who were involved in the decision; and (3) any ev-
 idence that the agency takes similar actions against em-
 ployees who are not whistleblowers but who are otherwise
 similarly situated. Carr v. Soc. Sec. Admin., 185 F.3d 1318,
 1323 (Fed. Cir. 1999).
     Although Simon challenges the Board’s finding that
 the agency proved its case by clear and convincing evi-
 dence, he does not challenge any particular finding by the
 AJ on the Carr factors. Rather, Simon generally argues
 that the agency violated his rights under the Whistle-
 blower Protection Act and the Whistleblower Protection
 Enhancement Act when it failed to select him for the Hu-
 man Resources Specialist position. Appellant Br. 2. Simon
 asserts that the AJ “failed to take into account [the fact
 that] AD Griffith, or Cristopher Wade, had reason to
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 8                                               SIMON v. DOJ




 retaliate.” Appellant Br. 1. We find, however, that the AJ
 properly applied the Carr factors and that substantial evi-
 dence supports the AJ’s conclusion that the agency proved,
 by clear and convincing evidence, that it would have taken
 “the same personnel action in the absence of such disclo-
 sure.” Kewley, 153 F.3d at 1361.
     With respect to the first and second Carr factors, sub-
 stantial evidence demonstrated that the agency had other
 reasons for its nonselection and that its decision was not
 retaliatory. S.A. 6–9. For example, although the agency
 originally posted positions for both the Washington, D.C.
 and Grand Prairie offices, it decided to only hire for the
 Washington D.C. position after receiving several highly-
 qualified applications for that location. S.A. 8. The AJ
 found that the agency historically had difficulty filling
 these positions due to a lack of qualified applicants willing
 to relocate to Washington, D.C. S.A. 8. It is undisputed,
 moreover, that Griffith offered a position to K.B., who had
 represented Simon in a prior IRA hearing involving Grif-
 fith and her testimony. S.A. 9. And the AJ determined
 that Griffith and Wade’s testimony about their motives, as
 well as Griffith’s job offer to K.B., demonstrated that the
 agency officials did not have a strong motive to retaliate.
 S.A. 8–9.
     With respect to the third Carr factor, the AJ explained
 that the factor was not significant because there was no
 evidence regarding whether the agency has taken similar
 actions with respect to employees who are not whistleblow-
 ers but who are otherwise similarly situated. Carr does not
 require that each of the three factors individually weigh in
 favor of the agency. Whitmore v. Dep’t of Labor, 680 F.3d
 1353, 1374 (Fed. Cir. 2012). “Though the absence of evi-
 dence regarding similarly situated employees cannot favor
 the government, ‘the absence of any evidence relating to
 Carr factor three can effectively remove that factor from
 the analysis.’” Ingram v. Dep’t of the Army, 777 Fed. Appx.
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 SIMON v. DOJ                                               9



 980, 983–84 (Fed. Cir. 2019) (quoting Whitmore, 680 F.3d
 at 1374 (internal citations omitted)).
     Therefore, in considering the three Carr factors, we
 conclude that substantial evidence supports the AJ’s find-
 ing that the agency would not have been selected for the
 position, regardless of his protected activity.
     Simon also argues that the AJ improperly excluded ev-
 idence related to Griffith’s testimony in the prior IRAs be-
 fore the Board and contends that such evidence is relevant
 to the immediate appeal. Appellant Br. 3–4. We disagree.
 While Griffith’s knowledge of the IRAs is relevant to the
 question of whether the agency would have made the same
 nonselection decision in the absence of the IRAs, Simon of-
 fers no explanation as to why the substance of Griffith’s
 testimony in those IRAs is pertinent to the inquiry before
 us.
     Finally, Simon contends that the agency violated his
 rights to a veteran’s preference, as required by the Veter-
 ans Employment Opportunities Act of 1998 (“VEOA”). But
 Simon never raised this issue before the Board. “A party
 in an MSPB proceeding must raise an issue before the ad-
 ministrative judge if the issue is to be reserved for review
 in this court.” Bosley v. Merit Sys. Protection Bd., 162 F.3d
 665, 668 (Fed. Cir. 1998). Accordingly, we decline to ad-
 dress Simon’s VEOA argument because it is waived.
                      III. CONCLUSION
      The Board’s decision denying Simon’s request for cor-
 rective action is supported by substantial evidence and is
 not arbitrary, capricious, an abuse of discretion, or con-
 trary to law or regulation. For the foregoing reasons, we
 affirm the Board’s final decision.
                        AFFIRMED
                            COSTS
     No costs.
