                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-3209

                              GILBERT L. RODRIGUEZ,

                                                             Petitioner,

                                           v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                             Respondent.


      Jose Salvador Tellez, of Laredo, Texas, argued for petitioner.

       Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy
Director. Of counsel on the brief was J. Douglas Whitaker, Administrative Law Attorney,
Immigration and Customs Enforcement, United States Department of Homeland
Security, of Omaha, Nebraska.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2008-3209


                               GILBERT L. RODRIGUEZ,

                                                Petitioner,

                                           v.

                       DEPARTMENT OF HOMELAND SECURITY,

                                                Respondent.



Petition for review of the Merit Systems Protection Board in DA0752070091-I-1.

                           __________________________

                           DECIDED: March 3, 2009
                           __________________________


Before LOURIE, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Concurring opinion filed by Circuit
Judge DYK.

PROST, Circuit Judge.

      Gilbert L. Rodriguez petitions for review of a final decision by the Merit Systems

Protection Board (“Board”) that sustained his removal by the Department of Homeland

Security (“Agency”).    Rodriguez v. Dep’t of Homeland Sec., No. DA0752070091-I-1

(M.S.P.B. Jan. 31, 2008) (“Board Decision”).       Because we discern no error in the

Board’s decision, we affirm.
                                     BACKGROUND

       In March 2001, the San Antonio District Office of the Department of Justice’s

Immigration and Naturalization Service (“INS”) conducted an operation that resulted in

the apprehension of about thirty-five illegal aliens. While taking the aliens into custody,

three deportation officers severely injured Serafin Carrera, one of the apprehended

aliens. Rodriguez, who was then a Detention Enforcement Officer (“DEO”) responsible

for transporting apprehended aliens, witnessed some of the events surrounding

Carrera’s injury. While Rodriguez was transporting other aliens to the San Antonio

District Office (for processing prior to returning those individuals to Mexico), Rodriguez

learned that Carrera had sustained a broken neck. When he arrived at the District

Office, Rodriguez unplugged the camera from the Automated Biometric Identification

System (“IDENT”) and told his supervisor, Oscar Chapa, that the machine was not

functioning. The IDENT machine allows a previously deported alien to be quickly and

accurately identified once that individual’s photograph, fingerprints, and personal

biographical data are entered. As a result of Rodriguez’s inaccurate statement to his

supervisor, the aliens were not processed through IDENT.

       The three deportation officers responsible for Carrera’s injuries were later tried—

and convicted—on criminal civil rights charges. Rodriguez testified during their trial,

and, in his testimony, Rodriguez admitted to unplugging the IDENT machine on the day

of Carrera’s arrest and telling his supervisor that the machine was not functioning. After

learning of his misconduct, the Agency removed Rodriguez, effective October 28, 2006,

based on three charges: (1) making misstatements, (2) conduct unbecoming an officer,

and (3) noncompliance with procedures, policies, and instructions. At the time of his




2008-3209                                   2
removal, Rodriguez was employed as a Deportation Officer for the Agency’s Office of

Immigration and Customs Enforcement (“ICE”), which replaced the INS when the

Agency was created in March 2003.

       Rodriguez, represented by an attorney, filed an appeal with the Board

challenging his removal. Rodriguez also alleged that his removal was the result of

reprisal for a whistleblowing activity.   In an initial decision, the administrative judge

sustained each of the three charges and the Agency’s chosen penalty of removal, but

refused to consider Rodriguez’s whistleblower claim. Rodriguez v. Dep’t of Homeland

Sec., No. DA0752070091-I-1 (M.S.P.B. May 18, 2007) (“Initial Decision”).               After

Rodriguez petitioned for review, the Board found that the administrative judge erred by

failing to accept the whistleblower claim as an affirmative defense, but that this error did

not prejudice Rodriguez’s substantive rights because Rodriguez failed to establish a

prima facie case of whistleblower reprisal.       Board Decision at 8-12.       The Board

sustained Rodriguez’s removal, id. at 1, and Rodriguez appealed to this court.

                                      DISCUSSION

       While this court has jurisdiction to review a final decision by the Board, our scope

of review is limited. 5 U.S.C. § 7703(b)(1). We must affirm the decision by the Board

unless we find it to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.”            Id.

§ 7703(c); Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994). On

appeal, Rodriguez presents three challenges to the Board’s decision.




2008-3209                                    3
                                            A

         Rodriguez argues that the Agency failed to prove the third charge—

noncompliance with procedures, policies, and instructions—because IDENTing was

allegedly not part of the San Antonio District Office’s normal procedures.            The

administrative judge, however, made a factual finding that, in March 2001, a procedure

was in effect that required all aliens to be IDENTed before deportation. Initial Decision

at 13.    The administrative judge based this determination on substantial evidence,

including the testimony of Marc Moore and the criminal trial testimony provided by

Rodriguez. Id. at 9-13. On appeal, Rodriguez argues that Moore was biased, that his

testimony is not credible, and that the administrative judge improperly discounted Oscar

Chapa’s testimony. The Board rejected these arguments, characterizing them as “mere

disagreement with the AJ’s explained credibility determinations.” Board Decision at 8.

We agree with the Board and see no reason to overturn the administrative judge’s

credibility determinations. See King v. Dep’t of Health & Human Servs., 133 F.3d 1450,

1453 (Fed. Cir. 1998).

         Also, Rodriguez alleges that the Agency did not present substantial evidence to

support the charges because “taken in the totality of the circumstances, [Rodriguez’s

actions] had no affect on [the Agency’s] operation” that day. Petr.’s Br. 11. We are not

persuaded. The Board found that, because of Rodriguez’s misstatement, the Agency

did not enter the deported aliens’ fingerprints, photographs, and personal biographical

information into IDENT.     Board Decision at 5.    Accordingly, the Agency’s ability to

identify those individuals in the future was severely limited, and, as the Agency stated in

the notice proposing removal, Rodriguez’s misstatement evidenced a failure to use




2008-3209                                   4
good judgment, which “damaged the Agency’s confidence in [his] ability to perform [his]

duties.”

       Rodriguez admitted to making the misstatement (first charge), and the

administrative judge found that the Agency proved that Rodriguez’s actions constituted

conduct unbecoming a law enforcement officer (second charge) and a failure to comply

with procedures, policies, and instructions (third charge). Based on the record, we

conclude that these findings are supported by substantial evidence.

                                            B

       Second, Rodriguez alleges that removal was an unreasonable penalty under the

Douglas factors.    Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981).

Rodriguez faults the deciding official for merely reviewing a file prepared by another

department and alleges that the deciding official failed to consider “other factors

involved in this case that could have served as mitigating circumstances.” Rodriguez

also argues that the deciding official should have given more or less weight to particular

Douglas factors. Rodriguez, however, fails to identify any information that should have

been—but was not—considered by the deciding official.

       As noted by the administrative judge, the deciding official performed a detailed

and reasonable Douglas-factor analysis. Initial Decision at 14-16. The administrative

judge further found that Rodriguez’s misconduct “was extremely serious and

inconsistent with his duties and responsibilities as a law enforcement officer.” Id. at 16;

see also Watson v. Dep’t of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (“Law

enforcement officers are held to a higher standard of conduct than are other federal

employees . . . .”). In light of this record, we cannot conclude that “the severity of the




2008-3209                                   5
agency’s action appears totally unwarranted in light of all factors.” LaChance v. Devall,

178 F.3d 1246, 1251 (Fed. Cir. 1999) (quotation omitted). Accordingly, we will not

overturn the Agency’s penalty determination.

                                           C

      Finally, Rodriguez alleges that the Board erred in concluding that his March 26,

2001 memorandum was not a “protected disclosure” under the Whistleblower Protection

Act (“WPA”).   The WPA prohibits an agency from taking adverse personnel action

because of an employee’s “disclosure of information” that the employee “reasonably

believes evidences . . . a violation of any law, rule, or regulation.”         5 U.S.C.

§ 2302(b)(8)(A)(i). The Board found that Rodriguez’s memorandum “does not meet the

definition of protected disclosure under the WPA because it does contain any

information that [Rodriguez] could have reasonably believed evidenced a violation of

law or any other type of misconduct identified in 5 U.S.C. § 2302(b)(8).” Board Decision

at 10-11. The Board further found that the memorandum contains a “sanitized version

of the events . . . and actually creates the impression that government personnel

assiduously attempted to safeguard Mr. Carrera’s health.” Id. at 11. Accordingly, the

Board determined that Rodriguez failed to establish a prima facie case of whistleblower

reprisal. Id. at 12. We agree.

      Rodriguez also alleges that his testimony during the agents’ criminal trial in 2003

constituted a disclosure protected by 5 U.S.C. § 2302(b)(9). As the Agency notes,

however, the record before us shows that Rodriguez did not make this assertion before

the Board and instead relied solely on the March 26, 2001 memorandum for the alleged

protected disclosure. Rodriguez—who was represented by counsel both before the




2008-3209                                  6
Board and on appeal—provides us with no reason why we should entertain this

allegation in the first instance on appeal. Accordingly, we conclude that Rodriguez

waived this argument.

                                       COSTS

      Each party shall bear its own costs.




2008-3209                                    7
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-3209

                               GILBERT L. RODRIGUEZ,

                                                       Petitioner,

                                            v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                       Respondent.


Petition for review of the Merit Systems Protection Board in DA0752070091-I-1.


DYK, Circuit Judge, concurring.

      I join the majority opinion, but write separately to note the government’s

remarkable suggestion that Rodriguez’s testimony during his fellow agents’ criminal trial

in 2003 was not protected activity—i.e., that Rodriguez could have been removed for

testifying. This is so, the government contends, because the testimony allegedly was

given as part of Rodriguez’s normal duties.      Respondent’s Br. at 30, 32-33 (citing

Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1352-54 (Fed. Cir. 2001)).

      That is plainly incorrect as a factual matter. Rodriguez was employed first as a

Detention Enforcement Officer, where his primary responsibility appears to have been

transporting detained aliens in a passenger bus, and later as a Deportation Officer.

While his job responsibilities may have entailed testifying in court proceedings involving

immigration matters, nothing in the record supports the government’s bald assertion that

Rodriguez “testified against his coworkers in the course of his normal job duties,
through normal channels.” Id. at 33. Rodriguez’s normal job duties did not consist of

“the task of investigating and reporting wrongdoing by government employees,”

Huffman, 263 F.3d at 1352, much less testifying against them in criminal trials.

          In any event, in my view disclosures in criminal trial testimony against an

employee’s coworkers could virtually never be said to be part of an employee’s normal

duties. They are protected activity within the meaning of the WPA. It cannot seriously

be doubted that government employees who give such testimony against their

coworkers put themselves at substantial risk of workplace retaliation.       It is critically

important that those employees be protected, and the WPA was designed to afford such

protection.

          Rodriguez’s allegations of reprisal following his testimony are troubling. In May

2003, he gave key testimony leading to the conviction of three fellow INS agents who

violated the civil rights of detainee Serafin Carrera.      The Fifth Circuit affirmed the

agents’ convictions on January 17, 2006. United States v. Gonzales, 436 F.3d 560

(2006). Not until June 30, 2006, after those convictions had been affirmed by the Fifth

Circuit, did the Agency propose Rodriguez’s removal based on the statements made in

his trial testimony that he had unplugged the IDENT machine on the day of Carrera’s

arrest.     The timing of the personnel action against Rodriguez is, to say the least,

suspicious. Nonetheless, I agree that Rodriguez did not raise this issue below, and so it

is not properly before us.




2008-3209                                     2
