       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               ROBERT J. MACLEAN,
                    Petitioner

                           v.

    DEPARTMENT OF HOMELAND SECURITY,
                 Respondent
           ______________________

                      2018-1068
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0752-06-0611-C-1.
                ______________________

              Decided: October 24, 2018
               ______________________

   THAD MCINTOSH GUYER, T.M. Guyer & Friends, PC,
Medford, OR, argued for petitioner.

    ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR., CHAD A. READLER.
                ______________________
2                                           MACLEAN v. DHS




    Before PROST, Chief Judge, MOORE and TARANTO,
                    Circuit Judges.
PROST, Chief Judge.
    Petitioner Robert MacLean appeals the decision of the
Merit Systems Protection Board (“MSPB”) denying his
Petition for Enforcement and his request for a correspond-
ing evidentiary hearing. The MSPB determined that
(1) Mr. MacLean did not meet his burden of proof as to his
medical and dental expenses; (2) Mr. MacLean failed to
sufficiently demonstrate that he was entitled to a retroac-
tive promotion; and (3) a hearing was unnecessary to
resolve these matters. We affirm.
                      BACKGROUND
    This case has a long history. Although we provide a
brief summary of the relevant facts below, the circum-
stances of Mr. MacLean’s removal and subsequent rein-
statement as a federal air marshal (“FAM”) are set forth
more fully in previous opinions. See Dep’t of Homeland
Sec. v. MacLean, 135 S. Ct. 913, 916–18 (2015); MacLean
v. Dep’t of Homeland Sec., 714 F.3d 1301, 1304–05 (Fed.
Cir. 2013). This appeal concerns the MSPB’s denial of
Mr. MacLean’s post-reinstatement requests for certain
consequential damages, retroactive promotion, and an
evidentiary hearing.
    Mr. MacLean became a FAM in 2001, shortly after the
September 11, 2001, terrorist attacks. In July 2003, the
Transportation Security Administration (“TSA”) briefed
all FAMs about a potential plot to hijack U.S. airliners. A
few days after the briefing, however, TSA officials sent
Mr. MacLean and other FAMs a text message cancelling
all overnight missions on flights from Las Vegas until
early August 2003. Mr. MacLean contacted his supervisor
to inquire about the TSA cancellations, which he believed
were illegal and dangerous for the public. The supervisor
told Mr. MacLean that the missions were cancelled due to
MACLEAN v. DHS                                          3



insufficient funds. Mr. MacLean then reported the can-
cellations to the Department of Homeland Security
(“DHS”) Inspector General’s office. He was told nothing
could be done.
    Unwilling to accept these responses, Mr. MacLean
turned to the media. He disclosed the content of the
TSA’s text message to MSNBC, which subsequently ran a
story about the cancellations. Initially, the TSA did not
know the source of the disclosure but eventually learned
that it was Mr. MacLean. Consequently, the TSA fired
Mr. MacLean in April 2006.
    Mr. MacLean appealed his removal to the MSPB, ar-
guing that his disclosure to the media was protected
whistleblowing activity. The MSPB sustained Mr. Mac-
Lean’s removal, finding that his disclosure was prohibited
by law and therefore could not constitute protected whis-
tleblowing. This court disagreed. We vacated the MSPB’s
decision and remanded for a determination whether Mr.
MacLean’s disclosure qualified for protection under the
Whistleblower Protection Act.
   The Government petitioned for writ of certiorari. The
Supreme Court granted certiorari and affirmed our judg-
ment.
    On remand, the MSPB ordered DHS to restore Mr.
MacLean to his employment position as of April 11, 2006,
to award him back pay and interest, and to provide him
appropriate consequential relief. MacLean v. Dep’t of
Homeland Sec., 2017 MSPB LEXIS 3176, at *11–13
(M.S.P.B. July 18, 2017) (initial decision). 1




   1   The MSPB’s initial decision entered on July 18,
2017, became final on August 22, 2017. Pet’r’s Br. 1; J.A.
33.
4                                           MACLEAN v. DHS




    After DHS restored Mr. MacLean to his position as a
FAM, Mr. MacLean filed a Petition for Enforcement
before the MSPB on March 6, 2016, alleging, inter alia,
that (1) DHS owes him $104,975.05 in consequential
damages (medical and dental expenses in particular); (2)
DHS failed to restore him to the position he would have
held absent the retaliation by refusing to promote him;
and (3) the MSPB should grant him a fact-finding hearing
to support his request for promotion and consequential
damages. MacLean, 2017 MSPB LEXIS 3176, at *13–14.
    On July 18, 2017, the MSPB denied Mr. MacLean’s
Petition for Enforcement. Id. at *57. As to Mr. Mac-
Lean’s request for medical and dental expenses, the
MSPB ordered Mr. MacLean to timely file evidence to
support his claim for consequential damages. J.A. 1074.
In response, Mr. MacLean filed a declaration identifying
his healthcare expenses. J.A. 1613, 1618. Because Mr.
MacLean failed to provide documentation, such as re-
ceipts or doctors’ notes, that disclosed the amount, nature,
and extent of his medical and dental expenses, the MSPB
declined to grant his request for consequential damages.
See MacLean, 2017 MSPB LEXIS 3176, at *37. On the
promotion request, the MSPB determined that in view of
Oates v. Department of Health & Human Services, 64
M.S.P.R. 349, 351 (1994), reinstated employees are not
entitled to restoration to a better position and that FAMs
do not advance within the agency as a matter of course—
that is, promotions to supervisory positions are competi-
tive. MacLean, 2017 MSPB LEXIS 3176 at *48. Further,
the MSPB found that over half of the FAMs did not ad-
vance past Mr. MacLean’s current level, and that none
within Mr. MacLean’s original office were promoted. Id.
On the request for hearing, the MSPB determined that
the “compliance issues raised by the appellant did not
require a hearing to resolve based on the opportunities for
the parties to submit an extensive amount of information
into the record.” Id. at *21.
MACLEAN v. DHS                                            5



    Mr. MacLean appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    Mr. MacLean makes three main arguments challeng-
ing the MSPB’s final decision. He argues that the MSPB:
(1) erred as a matter of law in requiring a standard of
proof higher than preponderance of the evidence for
showing entitlement to medical and dental expenses,
Pet’r’s Br. 13–14; (2) erred as a matter of law in determin-
ing that reinstated whistleblowers do not have a right to
promotions that are competitive and not automatic, see id.
at 13; and (3) abused its discretion in not affording him a
fact-finding hearing, id. at 14. We address each argument
below.
                             A
    Mr. MacLean argues that the MSPB erred by requir-
ing him to show with reasonable certainty that he is
entitled to consequential damages for his medical and
dental expenses. Id. at 13. The MSPB determined that
“in order to recover, [Mr. MacLean] would need to provide
documentation as to the amount and nature of the ex-
pense.” MacLean, 2017 MSPB LEXIS 3176, at *37. The
MSPB then ordered Mr. MacLean to file records evidenc-
ing or corroborating his health care expenses. J.A. 1071
(Nov. 30, 2016 Order). Not only did Mr. MacLean fail to
comply with the MSPB’s Order by submitting a declara-
tion identifying his health care expenses rather than
documentation (such as receipts) to support his claim for
reimbursement, J.A. 1613, 1618, he also did not provide
the MSPB with any explanation as to why he failed to file
the requested documentation. The MSPB, therefore,
denied his claim for medical and dental expenses. See
MacLean, 2017 MSPB LEXIS 3176, at *37. We agree
with that decision.
6                                           MACLEAN v. DHS




    Consequential damage awards under 5 U.S.C.
§ 1221(g)(1)(A)(ii) are designed to allow for reimburse-
ment of only actual monetary losses or out-of-pocket costs.
See Bohac v. Dep’t of Agric., 239 F.3d 1334, 1342 (Fed.
Cir. 2001). The MSPB’s order for receipts or doctors’
notes to substantiate Mr. MacLean’s claim for health care
costs was not unreasonable. 2 We will not disturb the
MSPB’s denial in the absence of this record evidence. 3
                            B
    Next, Mr. MacLean argues that the MSPB erred as a
matter of law in denying his request for a retroactive
promotion. Pet’r’s Br. 23–26. The MSPB determined that
Mr. MacLean failed to meet his burden to demonstrate
that he was entitled to such promotion. See MacLean,
2017 MSPB LEXIS 3176, at *49–50. According to the
MSPB, the evidence shows that FAMs do not advance to
supervisory positions as a matter of course and that


    2    Although Mr. MacLean argued in his briefing that
the MSPB erred in imposing a requirement to produce
medical receipts or notes for recovery of consequential
damages, Pet’r’s Br. 13–14, he conceded at oral argument
that there was nothing unreasonable about the Govern-
ment’s request for receipts, see Oral Arg. at 1:35–44,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl
=2017-1068.mp3 (Q: “What is unreasonable or unusual
about the Government’s position?” A: “Well, there’s
nothing unreasonable about the Government wanting
receipts . . . .”).
    3    We do not address Mr. MacLean’s argument that
the standard of proof for entitlement to consequential
damages should be preponderance of the evidence instead
of reasonable certainty because we view his uncorroborat-
ed declaration—the only evidence he submitted in support
of his claim for consequential damages—as insufficient
even under the preponderance standard.
MACLEAN v. DHS                                            7



promotions to supervisory FAM positions are competitive.
Id.
    As Mr. MacLean acknowledges, “[t]he law is well es-
tablished that ‘if the employee could clearly establish that
he would in fact have been promoted,’ then the agency
would ‘be required to reinstate him at that higher level.’”
Pet’r’s Br. 23 (citing Boese v. Dep’t of the Air Force, 784
F.2d 388, 390 (Fed. Cir. 1986)). Indeed, Mr. MacLean
does not challenge the MSPB’s decision as to factual
issues. See Pet’r’s Reply Br. 1. Rather, he asserts that, as
a legal matter, this court should reject and overrule its
precedent requiring reinstated whistleblowers to “clearly
establish” an entitlement to promotion. 4 Pet’r’s Br. 23
n.1. In Mr. MacLean’s view, a reinstated whistleblower
should only need to demonstrate that it is more likely
than not that he would have been promoted had he not
been wrongfully removed. See id.
   This panel, however, does not have the authority to
grant Mr. MacLean the relief that he desires. A panel
cannot simply overrule its precedent. George E. Warren
Corp. v. United States, 341 F.3d 1348, 1351–52 (Fed. Cir.




   4    See, e.g., Boese, 784 F.2d at 390 (“Only if some
provision of law mandates a promotion during the interim
period, or perhaps if the employee could ‘clearly establish’
that he would in fact have been promoted, would the
agency be required to reinstate him at that higher level.”);
Naekel v. Dep’t of Transp., 850 F.2d 682, 684 (Fed. Cir.
1988) (noting that “[retroactive] promotion . . . [is] inap-
propriate if the employee would have been only one of
several qualified candidates for the promotion, but the
factual record did not clearly establish that the employee
would have been selected for promotion”).
8                                           MACLEAN v. DHS




2003). To overrule a precedent, the court must rule en
banc. Id. 5
                            C
    Finally, Mr. MacLean argues that the MSPB abused
its discretion by refusing to convene an evidentiary hear-
ing. Pet’r’s Br. 26. Although Mr. MacLean acknowledges
that he is not entitled to an evidentiary hearing on his
Petition for Enforcement, Pet’r’s Reply Br. 11, he argues
that such a hearing was “necessary to resolve matters at
issue,” see Pet’r’s Br. 14; 5 C.F.R. § 1201.183(a)(3) (“The
judge may convene a hearing if one is necessary to resolve
matters at issue.”). Specifically, Mr. MacLean avers that
the MSPB failed to discern “the reasons why some were
promoted and some were not” or “any basis to find that
[Mr. MacLean] would not have been among the promoted
group.” Pet’r’s Reply Br. 11.
     The MSPB did not abuse its discretion in denying Mr.
MacLean’s request for an evidentiary hearing. As an
initial matter, our precedent places the burden on Mr.
MacLean to show that he would have been promoted and
not on the MSPB to show that he would not have been.
See Boese, 784 F.2d at 390. Further, the MSPB gave the
parties ample opportunity to submit substantial infor-
mation into the record, see, e.g., J.A. 1073–74, and rea-
sonably determined that the compliance issues that Mr.
MacLean raised could be resolved by the existing record
evidence.
                       CONCLUSION
    We have considered Mr. MacLean’s remaining argu-



    5   Petitioner acknowledged at oral argument that
the relief he requests requires en banc consideration. See
Oral Arg. at 10:55–11:20, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2017-1068.mp3.
MACLEAN v. DHS                                      9



ments and find them unpersuasive. For the foregoing
reasons, the MSPB’s final decision denying Mr. Mac-
Lean’s Petition for Enforcement and his request for an
evidentiary hearing is affirmed.
                      AFFIRMED
                         COSTS
   The parties shall bear their own costs.
