Case: 19-1168    Document: 47    Page: 1    Filed: 04/08/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                LEONARD A. SISTEK, JR.,
                      Petitioner

                            v.

      DEPARTMENT OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                        2019-1168
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DE-1221-18-0100-W-1.
                 ______________________

                   Decided: April 8, 2020
                  ______________________

    ANDREW BAKAJ, Mark S. Zaid, P.C., Washington, DC,
 argued for petitioner.

     STEVEN MICHAEL MAGER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for respondent. Also repre-
 sented by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD,
 ROBERT EDWARD KIRSCHMAN, JR.
                 ______________________

     Before DYK, TARANTO, and STOLL, Circuit Judges.
 STOLL, Circuit Judge.
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 2                                               SISTEK v. DVA




     Petitioner Leonard Sistek, Jr. appeals the final deci-
 sion of the Merit Systems Protection Board denying correc-
 tive action in his claim filed under the Whistleblower
 Protection Act. Mr. Sistek, now retired, was a director at
 the Department of Veterans Affairs who made multiple
 protected disclosures over the course of several years. He
 alleged that certain individuals at the agency launched an
 investigation against him in retaliation for his whistle-
 blowing activities, ultimately resulting in a letter of repri-
 mand filed against him. The Board denied corrective
 action for the allegedly retaliatory investigation based on
 its view that a retaliatory investigation, in and of itself,
 does not qualify as a personnel action within the meaning
 of the WPA. For the reasons explained below, we affirm
 the Board’s decision.
                        BACKGROUND
                               I
     In April 2011, Mr. Sistek was appointed to a director
 role at the VA’s Chief Business Office Purchased Care in
 Denver, Colorado. While serving in that role, Mr. Sistek
 made several protected disclosures to the VA’s Office of the
 Inspector General (OIG) questioning various financial
 practices at the VA. For example, Mr. Sistek raised con-
 cerns in August 2012 regarding the “parking” of certain ap-
 propriated funds. Mr. Sistek also contacted the OIG in
 October 2013 regarding certain perceived contractual
 anomalies.
     During a conference call with agency staff on Janu-
 ary 17, 2014, Mr. Sistek expressed his concerns regarding
 the VA’s use of certain funds that were purportedly appro-
 priated for a different purpose. Mr. Sistek’s second-line su-
 pervisor, Cynthia Kindred, participated in that call.
 Shortly thereafter, Ms. Kindred appointed an Administra-
 tive Investigation Board (AIB) to investigate alleged mis-
 conduct in the organization, including certain allegations
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 SISTEK v. DVA                                              3



 relating to inappropriate relationships with subordinate
 staff.
      The AIB interviewed Mr. Sistek several weeks later on
 February 4, 2014. According to Mr. Sistek, he received no-
 tification that he would be interviewed by the AIB as a wit-
 ness, and he first realized that he was a subject of the
 investigation during questioning by the AIB members.
 Shortly after the interview, Mr. Sistek sent an email to the
 OIG expressing concern that he was being subjected to an
 investigation in retaliation for his prior whistleblowing ac-
 tivities. On the following day, Ms. Kindred formally added
 Mr. Sistek as a subject of the investigation.
      On April 21, 2014, the AIB issued a report detailing its
 findings regarding a number of allegations, among them a
 “failure to act and/or investigate allegations of a hostile
 work environment” by the management team, which in-
 cluded Mr. Sistek. J.A. 64, 73–76. The investigation cul-
 minated in a July 2014 report concluding that Mr. Sistek
 had failed to properly report information and allegations
 regarding an inappropriate sexual relationship between a
 director and that director’s subordinate staff member. The
 July 2014 report recommended that Mr. Sistek receive “an
 admonishment or reprimand” on that basis. J.A. 85. In
 August 2014, Mr. Sistek’s immediate supervisor, Lori
 Amos, issued a letter of reprimand consistent with that rec-
 ommendation.
     Mr. Sistek filed a formal grievance in response to the
 letter of reprimand. The assigned grievance examiner is-
 sued a report in December 2014 substantiating the conduct
 supporting the reprimand and recommending that Mr. Sis-
 tek’s grievance and requested relief be denied. In Janu-
 ary 2015, Ms. Amos’s supervisor Stan Johnson rescinded
 the letter of reprimand and expunged it from Mr. Sistek’s
 record. Mr. Johnson did not provide a reason for the rescis-
 sion and expungement.
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 4                                                SISTEK v. DVA




     In March 2015, the OIG confirmed that the concerns
 raised by Mr. Sistek on the conference call in January 2014
 were justified: the VA had violated appropriations law by
 improperly reallocating certain funds. In June 2015, the
 OIG confirmed that the “parking” of appropriated funds, as
 flagged by Mr. Sistek in August 2012, was unauthorized.
 Mr. Sistek retired from the VA in January 2018.
                               II
     Following the issuance of the April 2014 report from
 the AIB investigation, Mr. Sistek filed a complaint with the
 U.S. Office of Special Counsel (OSC) alleging whistleblower
 reprisal based on several personnel actions, including the
 letter of reprimand. After the OSC issued a closure letter,
 Mr. Sistek filed an individual right of action appeal with
 the Board, alleging that certain VA officials had retaliated
 against him for certain disclosures and activities protected
 under the Whistleblower Protection Act.
     Before the Administrative Judge, Mr. Sistek originally
 identified four reviewable personnel actions, including the
 letter of reprimand. The Administrative Judge later added
 retaliatory investigations to the list of alleged personnel ac-
 tions. The Administrative Judge ordered the parties to
 submit supplemental briefing on whether the alleged retal-
 iatory investigations could qualify for corrective action un-
 der the WPA. In his supplemental brief, Mr. Sistek argued
 that the investigation at issue merited corrective action be-
 cause it was launched against him in retaliation for his
 whistleblowing, resulting in the letter of reprimand and
 the creation of a hostile work environment.
     After evaluating Mr. Sistek’s various whistleblower
 claims, the Administrative Judge declined to order any cor-
 rective action in favor of Mr. Sistek. See generally Sistek
 v. Dep’t of Veterans Affairs, No. DE-1221-18-0100-W-1,
 2018 MSPB LEXIS 3010 (M.S.P.B. Aug. 8, 2018) (Deci-
 sion). Relevant here, the Administrative Judge deter-
 mined that a retaliatory investigation, in and of itself, does
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 SISTEK v. DVA                                               5



 not qualify as a personnel action eligible for corrective ac-
 tion under the WPA. And when evaluating the remainder
 of Mr. Sistek’s whistleblower claims, the Administrative
 Judge did not consider the allegedly retaliatory investiga-
 tion any further. For example, the Administrative Judge
 considered only Ms. Amos’s knowledge—and not Ms. Kin-
 dred’s knowledge even though she initiated the investiga-
 tion—in evaluating Mr. Sistek’s claim based on the letter
 of reprimand. The Administrative Judge rejected that
 claim after finding that Ms. Amos, the official who issued
 the reprimand, had no actual or constructive knowledge of
 Mr. Sistek’s protected disclosures to the OIG.
     The Administrative Judge’s initial decision became the
 final decision of the Board. Mr. Sistek now petitions for
 review. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
                         DISCUSSION
      On appeal, Mr. Sistek challenges the Board’s final de-
 cision denying corrective action for the allegedly retaliatory
 investigation. 1 The Board reasoned that a retaliatory



     1   Mr. Sistek also presents, for the first time on ap-
 peal, an argument that the allegedly retaliatory investiga-
 tion separately violates 5 U.S.C. § 2302(b)(10). That
 argument is forfeited for failure to present it to the Admin-
 istrative Judge in the first instance. Bosley v. Merit Sys.
 Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in
 an MSPB proceeding must raise an issue before the admin-
 istrative judge if the issue is to be preserved for review in
 this court.”). Mr. Sistek further challenges certain witness
 credibility determinations made by the Administrative
 Judge, but we do not find those arguments persuasive—not
 least because such determinations are “virtually unreview-
 able” on appeal. King v. Dep’t of Health & Human Servs.,
 133 F.3d 1450, 1453 (Fed. Cir. 1998) (quoting Clark v. Dep’t
 of the Army, 997 F.2d 1466, 1473 (Fed. Cir. 1993)).
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 6                                               SISTEK v. DVA




 investigation, in and of itself, is not a personnel action
 within the meaning of the Whistleblower Protection Act.
 We review the Board’s interpretation of a statute de novo,
 Marano v. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir.
 1993), and the Board’s factual determinations for substan-
 tial evidence, McGuffin v. Soc. Sec. Admin., 942 F.3d 1099,
 1107 (Fed. Cir. 2019) (citing McMillan v. Dep’t of Justice,
 812 F.3d 1364, 1371 (Fed. Cir. 2016)). We may reverse the
 Board’s decision only if it is “(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.” 5 U.S.C. § 7703(c). The petitioner
 bears the burden of establishing reversible error in the
 Board’s final decision. Fernandez v. Dep’t of the Army,
 234 F.3d 553, 555 (Fed. Cir. 2000) (citing Harris v. Dep’t of
 Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998)). For
 the reasons that follow, we conclude that Mr. Sistek has
 only identified harmless errors in the Board’s decision. Ac-
 cordingly, we affirm.
                               I
      For the Board to determine that an agency action mer-
 its corrective action under the Whistleblower Protection
 Act, the Board must first find that (1) there was a disclo-
 sure or activity protected under the WPA; (2) there was a
 personnel action authorized for relief under the WPA; and
 (3) the protected disclosure or activity was a contributing
 factor to the personnel action. See 5 U.S.C. § 1221(e)(1); see
 also Piccolo v. Merit Sys. Prot. Bd., 869 F.3d 1369, 1371
 (Fed. Cir. 2017). The petitioner must prove these elements
 by a preponderance of the evidence. Whitmore v. Dep’t of
 Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). Once the pe-
 titioner has done so, the agency may rebut the petitioner’s
 prima facie case of reprisal with “clear and convincing evi-
 dence that it would have taken ‘the same personnel action
 in the absence of such disclosure.’” Id. (quoting 5 U.S.C.
 § 1221(e)(2)).
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 SISTEK v. DVA                                               7



      Thus, a “personnel action,” as defined by the WPA, is a
 predicate for a whistleblower appeal. Only upon proof of a
 qualifying personnel action may a claimant seek corrective
 action from the Board. See 5 U.S.C. § 1221(a). The WPA
 defines the set of qualifying personnel actions at 5 U.S.C.
 § 2302(a)(2)(A). That section of the statute lists eleven spe-
 cific personnel actions—including, for example, “an ap-
 pointment,” “a performance evaluation,” and “a decision
 concerning pay”—followed by a catch-all provision: “any
 other significant change in duties, responsibilities, or
 working conditions.” Id. § 2302(a)(2)(A)(i)–(xii). Noticea-
 bly absent from the list, however, is any mention of a “re-
 taliatory investigation,” or indeed, any investigation at all.
     The statutory language indicates that Congress inten-
 tionally excluded retaliatory investigations from the scope
 of personnel actions authorized for relief under the WPA.
 “Where Congress includes particular language in one sec-
 tion of a statute but omits it in another section of the same
 Act, it is generally presumed that Congress acts intention-
 ally and purposely in the disparate inclusion or exclusion.”
 Russello v. United States, 464 U.S. 16, 23 (1983) (internal
 alterations omitted) (first quoting United States v. Wong
 Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972); then citing
 United States v. Wooten, 688 F.2d 941, 950 (4th Cir. 1982)).
 Section 2302(a)(2)(A) does not expressly address “investi-
 gations” or “retaliatory investigations,” but other sections
 do. Elsewhere, the WPA provides that the Board may or-
 der corrective action that includes “fees, costs, or damages
 reasonably incurred due to an agency investigation” that is
 “commenced, expanded, or extended in retaliation” for a
 protected disclosure or activity—i.e., a retaliatory investi-
 gation. 5 U.S.C. §§ 1214(h), 1221(g)(4). Based on this
 asymmetry in the statutory text, we infer that Congress
 acted purposely in excluding retaliatory investigations
 from the set of qualifying personnel actions specified by
 § 2302(a)(2)(A).
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 8                                                SISTEK v. DVA




      The legislative history supports our interpretation of
 the statutory text. Congress amended the WPA with the
 Whistleblower Protection Enhancement Act of 2012,
 Pub. L. No. 112-199, 126 Stat. 1465 (2012). The Senate Re-
 port for the WPEA demonstrates that Congress was aware
 of the harassing character of retaliatory investigations, yet
 expressly declined to add them to the list of qualifying per-
 sonnel actions. The report first acknowledges that the “re-
 taliatory investigation of whistleblowers may be a
 prohibited form of harassment.” S. REP. NO. 112-155, at 20
 (2012) (discussing remarks of House Civil Service Subcom-
 mittee Chairman Frank McCloskey during consideration of
 the 1994 amendments to the WPA). The report then ex-
 plains that the drafters of the WPEA declined to insert an
 express provision covering retaliatory investigations out of
 concern for chilling routine investigations. See id. at 21.
 Instead, the drafters of the WPEA sought to chart a middle
 course. Even as they declined to add retaliatory investiga-
 tions to the list of qualifying personnel actions, the drafters
 “create[d] an additional avenue for financial relief once an
 employee is able to prove a claim under the WPA, if the em-
 ployee can further demonstrate that an investigation was
 undertaken in retaliation for the protected disclosure.” Id.
 (emphasis added). In doing so, the drafters underscored
 that:
     This provision of the legislation does not in any way
     reduce current protections against retaliatory in-
     vestigations, and it would retain the existing
     standard for showing that a retaliatory investiga-
     tion or other supervisory activity rises to the level
     of a prohibited personnel practice forbidden under
     the WPA.
 Id. at 21–22. The drafters expressly confirmed their intent
 that the Board’s foundational decision in this area, Russell
 v. Dep’t of Justice, 76 M.S.P.R. 317 (1997), would remain
 the “governing law” following the 2012 amendments. Id.
 at 21.
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 SISTEK v. DVA                                                9



     Based on the plain language of the statute, as further
 supported by the legislative history, we conclude that re-
 taliatory investigations, in and of themselves, do not qual-
 ify as personnel actions under the WPA. Instead, the
 statute provides that a retaliatory investigation may pro-
 vide a basis for additional corrective action if raised in con-
 junction with one or more of the qualifying personnel
 actions specified by § 2302(a)(2)(A).
                               II
     Mr. Sistek acknowledges the statutory text and legis-
 lative history of the Whistleblower Protection Act dis-
 cussed above, but insists that the allegedly retaliatory
 investigation at issue in this case satisfies the threshold
 requirements of the WPA for two distinct reasons. First,
 Mr. Sistek contends that the allegedly retaliatory investi-
 gation qualifies as a personnel action under the WPA’s
 catch-all provision. Second, Mr. Sistek asserts that a retal-
 iatory investigation is independently actionable based on
 the Board’s decision in Russell, 76 M.S.P.R. 317. We ad-
 dress each argument in turn. We find neither argument
 availing to Mr. Sistek on the record before us.
                               A
     Mr. Sistek first argues that the allegedly retaliatory in-
 vestigation at issue qualifies as a personnel action under
 the WPA’s catch-all category of “any other significant
 change in . . . working conditions.”                 5 U.S.C.
 § 2302(a)(2)(A)(xii). Before the Board, Mr. Sistek con-
 tended that the retaliatory investigation, either on its own
 or in conjunction with the letter of reprimand, created a
 hostile work environment that satisfies the catch-all provi-
 sion. As the Government concedes, the Board failed to ad-
 dress this argument in the final decision. Oral Arg.
 at 31:58–32:49, http://oralarguments.cafc.uscourts.gov/de-
 fault.aspx?fl=2019-1168.mp3. On these facts, however, we
 conclude that the Board’s failure to address Mr. Sistek’s ar-
 gument was harmless.
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 10                                              SISTEK v. DVA




     To be sure, a retaliatory investigation, either on its own
 or as part of a broader set of circumstances, may qualify as
 a personnel action if it rises to the level of a “significant
 change in . . . working conditions.” The plain language of
 the statute requires as much—so long as the change in
 working conditions is significant. See Smith v. Dep’t of the
 Army, No. SF-1221-12-0349-W-6, 2017 MSPB LEXIS 3445,
 at *51–52 (M.S.P.B. Aug. 7, 2017) (collecting cases evalu-
 ating significance of change). Consistent with the statu-
 tory text, the Senate Report for the WPEA amendments
 expressly acknowledges that investigations may qualify as
 personnel actions “if they result in a significant change in
 job duties, responsibilities, or working conditions.” S. REP.
 NO. 112-155, at 20. The Government conceded at oral ar-
 gument that there may be extreme circumstances in which
 an investigation alone could constitute a significant change
 in working conditions. See Oral Arg. at 18:11–19:20 (dis-
 cussing hypothetical in which an employee is interviewed
 for an hour every day). Or, as the Board itself has held, a
 retaliatory investigation could contribute toward the crea-
 tion of a hostile work environment that is actionable as a
 significant change in working conditions.              Smith,
 2017 MSPB LEXIS 3445, at *52 (citing Savage v. Dep’t of
 the Army, 122 M.S.P.R. 612, 627 (2015)).
     Mr. Sistek failed to establish a significant change of
 working conditions here, however. In support of his claim,
 Mr. Sistek only presented facts that would apply to almost
 any investigation that results in a reprimand. See, e.g.,
 Oral Arg. at 16:59–17:39 (identifying only a single inter-
 view and a letter of reprimand). That Mr. Sistek was in-
 terviewed once and had the stigma and fear associated
 with every investigation does not make this investigation
 a significant change in working conditions. Nor does the
 fact that the investigation identified misconduct that re-
 sulted in a letter of reprimand—a letter that was later re-
 scinded and expunged, no less. Congress declined to
 include retaliatory investigations within the scope of
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 SISTEK v. DVA                                            11



 personnel actions out of concern for chilling routine inves-
 tigations, S. REP. NO. 112-155, at 21, so it cannot be that
 the catch-all provision may be satisfied by conduct that
 would apply to almost any routine investigation. To hold
 otherwise would allow the exception to swallow the rule.
                              B
      Mr. Sistek next argues that the Board was compelled
 to address the allegedly retaliatory investigation by the
 holding of Russell, 76 M.S.P.R. 317—the decision expressly
 left as “governing law” by the drafters of the WPEA amend-
 ments. S. REP. NO. 112-155, at 21. Mr. Sistek reads Rus-
 sell to establish that the Board may independently consider
 a separate claim of “retaliation by investigation” where
 there is a nexus between an investigation and a subsequent
 personnel action. Appellant’s Br. 22–24.
      We do not read Russell so broadly. In Russell, an em-
 ployee brought a WPA claim based on his demotion, which
 undisputedly qualified as a personnel action under the
 WPA. 76 M.S.P.R. at 320–22. The employee was demoted
 following several investigations that uncovered certain
 misconduct by that employee. See id. The investigations
 were initiated by officials with knowledge of the employee’s
 prior whistleblowing activity. Id. at 323–24. Applying the
 WPA framework, the agency sought to rebut the em-
 ployee’s prima facie case of reprisal by arguing that the
 agency would have taken disciplinary action against the
 employee regardless of the employee’s whistleblowing ac-
 tivities because the identified misconduct was inde-
 pendently sanctionable. See id. at 322–24. The Board
 disagreed, explaining that it must “look[] at where the in-
 vestigation had its beginnings.” Id. at 324 (citing Geyer
 v. Dep’t of Justice, 70 M.S.P.R. 682, 689 (1996), aff’d,
 116 F.3d 1497 (Fed. Cir. 1997)). The Board observed that
 the “investigations were initiated because of allegations
 about the [employee] made by one of the two subjects of the
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 12                                               SISTEK v. DVA




 [employee’s] protected disclosure.” Id. The Board reasoned
 that:
      When, as here, an investigation is so closely related
      to the personnel action that it could have been a pre-
      text for gathering evidence to retaliate, and the
      agency does not show by clear and convincing evi-
      dence that the evidence would have been gathered
      absent the protected disclosure, then the appellant
      will prevail on his affirmative defense of retaliation
      for whistleblowing. That the investigation itself is
      conducted in a fair and impartial manner, or that
      certain acts of misconduct are discovered during
      the investigation, does not relieve an agency of its
      obligation to demonstrate by clear and convincing
      evidence that it would have taken the same person-
      nel action in the absence of the protected disclo-
      sure.
 Id. (emphasis added) (citing 5 U.S.C. § 1221(e)(2)). To hold
 otherwise, the Board continued, would sanction the use of
 “selective investigations” as a “purely retaliatory tool.” Id.
 at 325. Because the investigations at issue gave rise to all
 the charges underlying the employee’s demotion, they were
 sufficiently closely related to merit consideration in con-
 junction with the demotion itself. See id. After considering
 evidence relating to the origin of the investigation, the
 Board ordered corrective action based on its conclusion
 that the agency had failed to rebut the employee’s prima
 facie case of reprisal. Id. at 327–28.
     We agree with the holding of Russell that, in the WPA
 context, the Board should “consider evidence regarding the
 conduct of an agency investigation when the investigation
 was so closely related to the personnel action that it could
 have been a pretext for gathering evidence to retaliate
 against an employee for whistleblowing activity.” Id.
 at 323–24 (first citing Geyer, 70 M.S.P.R. at 688; then cit-
 ing Mongird v. Dep’t of the Navy, 33 M.S.P.R. 504, 507
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 SISTEK v. DVA                                              13



 (1987)). We reject Mr. Sistek’s view that Russell somehow
 makes retaliatory investigations independently actionable
 under the WPA separate and apart from a qualifying per-
 sonnel action.
     Here, the holding of Russell obligated the Board to con-
 sider the allegedly retaliatory investigation as part of its
 evaluation of the letter of reprimand. In its briefing to the
 Board, the Government acknowledged that “the Adminis-
 trative Judge could potentially examine the conduct of the
 AIB in determining the propriety of the accepted personnel
 action—the reprimand.” J.A. 132. The Board also
 acknowledged the holding of Russell in its final decision.
 See Decision, 2018 MSPB LEXIS 3010, at *23–24 (citing
 Russell, 76 M.S.P.R. at 323–24). Yet, as the Government
 conceded at oral argument, the Board nevertheless failed
 to apply Russell in evaluating the letter of reprimand. See
 Oral Arg. at 32:50–33:44. That was error, but for the rea-
 sons that follow, we conclude that the Board’s error was
 harmless.
      Mr. Sistek failed to establish any reason why the out-
 come could have been different had the Board properly con-
 sidered the allegedly retaliatory investigation in
 conjunction with the letter of reprimand, as Russell in-
 structs. The facts of this case are distinguishable from
 Russell at least because here there is no evidence that the
 official who initiated the allegedly retaliatory investigation
 had knowledge of any protected disclosures. Indeed, the
 Board specifically found that Ms. Kindred had no actual or
 constructive knowledge of Mr. Sistek’s August 2012 and
 October 2013 protected disclosures, and Mr. Sistek did not
 dispute that finding on appeal. Although the Board did not
 account for Ms. Kindred’s potential knowledge of the Feb-
 ruary 2014 protected disclosure (i.e., Mr. Sistek’s email to
 the OIG following the AIB interview), Mr. Sistek did not
 allege any such knowledge in his briefing, much less ex-
 plain how Ms. Kindred’s knowledge of that protected
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 14                                              SISTEK v. DVA




 disclosure could have had any impact on the Board’s eval-
 uation of the letter of reprimand.
     At oral argument, counsel for Mr. Sistek presented a
 new theory of reprisal based on the presence of certain in-
 dividuals on the investigative board. Oral Arg. at 10:32–
 12:13. As counsel conceded at oral argument, that theory
 was not presented in Mr. Sistek’s opening brief before this
 court. Id. at 38:11–26. The argument is therefore waived.
 SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
 1319 (Fed. Cir. 2006) (“Our law is well established that ar-
 guments not raised in the opening brief are waived.” (citing
 Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc.,
 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005))). 2 On the
 merits, the argument also fails. Ms. Kindred’s decision to
 assign certain individuals to the AIB necessarily took place
 before Mr. Sistek’s February 2014 protected disclosure be-
 cause that disclosure—an email to the OIG about the in-
 vestigation—followed his interview by the AIB. Mr. Sistek
 does not allege that the membership of the investigative
 board changed from the time of the interview to the issu-
 ance of the investigative report implicating him, nor does
 that appear to be the case based on the record before us.
 Thus, Mr. Sistek failed to establish how any knowledge
 that Ms. Kindred may have had of the February 2014 pro-
 tected disclosure could have had any bearing on the mem-
 bership of the investigative board.
     We find no basis in the record on which the Board could
 have found differently had it properly considered, con-
 sistent with Russell, the allegedly retaliatory investigation
 as part of its evaluation of the letter of reprimand. The
 Board’s failure to do so was therefore harmless.



      2   Mr. Sistek does not appear to have presented this
 theory to the Administrative Judge either, so the argument
 is also forfeited on that basis. Bosley, 162 F.3d at 668.
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 SISTEK v. DVA                                          15



                       CONCLUSION
    We have considered the parties’ other arguments, and
 we do not find them persuasive. For the foregoing reasons,
 we affirm the Board’s final decision.
                       AFFIRMED
                          COSTS
     No costs.
