                         NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                              2007-3045


                                       WAYNE C. HAWKES,

                                                                            Petitioner,

                                                    v.


                             DEPARTMENT OF AGRICULTURE,

                                                                            Respondent.

          -------------------------------------------------------------------------------------------------

                                              2007-3184

                                       WAYNE C. HAWKES,

                                                                            Petitioner,

                                                    v.


                             DEPARTMENT OF AGRICULTURE,

                                                                             Respondent.

      Wayne C. Hawkes, of Davis, California, pro se in 2007-3045 and 2007-3184.

       James W. Poirier, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent in 2007-3045. Leslie
Cayer Ohta, Trial Attorney, for respondent in 2007-3184. With them on the briefs were
Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and Todd M.
Hughes, Assistant Director.

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                              NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit

                                                    2007-3045

                                            WAYNE C. HAWKES,

                                                                Petitioner,

                                                          v.

                                   DEPARTMENT OF AGRICULTURE,

                                                                Respondent.

----------------------------------------------------------------------------------------------------------------------


                                                    2007-3184

                                            WAYNE C. HAWKES,

                                                                Petitioner,

                                                          v.

                                   DEPARTMENT OF AGRICULTURE,

                                                                Respondent.


                                     ___________________________

                                     DECIDED: November 7, 2007
                                     ___________________________


 Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit
 Judge.

 PER CURIAM.
       Wayne C. Hawkes has filed two petitions to this court from decisions of the Merit

Systems Protection Board, in Nos. SF-1221-02-0558-M-1 and SF-1221-06-0415-W-2.

Both petitions pertain to allegations by Dr. Hawkes that he has been subjected to

adverse personnel actions because of disclosures he has made regarding agency

misconduct, in violation of the Whistleblower Protection Act. The Board has addressed

his several claims in great detail in two lengthy and carefully reasoned opinions by

administrative judge Craig A. Berg. In his order, the administrative judge granted relief

to Dr. Hawkes on one of his claims, but held that most of his claims did not give rise to a

right to relief. Although Dr. Hawkes has raised a number of objections to the Board’s

disposition of his two appeals, we affirm the decision of the Board in both cases, holding

that the administrative judge’s findings are supported by substantial evidence and are

not infected by legal error.

                                     BACKGROUND

       Dr. Hawkes has served as a research chemist with the U.S. Department of

Agriculture, working since 1994 at the Western Human Nutrition Research Center in

California. In 1995, Dr. Hawkes made a disclosure to the California Office of Safety and

Health Administration pertaining to safety concerns he had regarding a study that the

Research Center was planning to conduct involving the HIV virus. That disclosure led

to an inspection of the Research Center by state and federal agencies, resulting in the

issuance of recommendations regarding certain safety shortcomings at the Center.

Subsequently, Dr. Hawkes made additional disclosures relating to computer security at

the agency.




2007-3045,-3184                             2
      Between 1997 and 2000, the agency took several steps that Dr. Hawkes

regarded as retaliation for his disclosures. He was removed from the Health and Safety

Committee and the Operations Oversight Committee at the Research Center, he was

removed as Acting Manager of the Bioanalytical Support Laboratory, and he lost

supervisory responsibility over a subordinate employee.        In addition, the agency

suspended him for 14 days on charges relating to an inappropriate e-mail he had sent

to various recipients within the agency.

      In 2001, Dr. Hawkes filed an Individual Right of Action appeal with the Merit

Systems Protection Board in which he contended that the agency’s allegedly retaliatory

acts violated the Whistleblower Protection Act. The Board denied relief. On appeal,

this court upheld the Board’s decision in several respects, but vacated the Board’s order

and remanded the case to the Board for further proceedings on one aspect of Dr.

Hawkes’ claim. In particular, this court directed the Board to address Dr. Hawkes’

argument that his protected disclosure to the California Office of Safety and Health

Administration was a contributing factor in the agency’s decision to remove him from

“various positions at the Center,” specifically, his positions as Acting Director of the

Bioanalytical Support Laboratory, as a member of the Operations Oversight Committee

and the Health and Safety Committee, and his other supervisory responsibilities.

Hawkes v. Dep’t of Agric., 116 Fed. Appx. 264 (Fed. Cir. 2004).

      In the remand proceedings, the administrative judge conducted a detailed review

of the evidence relating to the remanded issues and reached the following conclusions:

(1) that the agency had shown by clear and convincing evidence that it would have

removed Dr. Hawkes from the Health and Safety Committee even in the absence of his




2007-3045,-3184                            3
protected disclosures; (2) that the agency had shown by clear and convincing evidence

that it would have reassigned the subordinate employee from Dr. Hawkes’ supervision

even in the absence of his protected disclosures; (3) that the agency had shown by

clear and convincing evidence that it would have removed Dr. Hawkes from the position

of Acting Manager of the Bioanalytical Support Laboratory even in the absence of his

protected disclosures; and (4) that the agency had failed to show by clear and

convincing evidence that it would have removed Dr. Hawkes from the Operations

Oversight Committee in the absence of the protected disclosures. Based on those

findings, the administrative judge ordered specific relief with regard to Dr. Hawkes’

position on the Operations Oversight team, but otherwise denied his claim. On Dr.

Hawkes’ petition for review, the full Board sustained the administrative judge’s decision

on the merits of the whistleblowing claims but remanded for further proceedings on Dr.

Hawkes’ request for consequential damages and forwarded to the regional office Dr.

Hawkes’ allegations that the agency had not complied with the interim relief, directing

that those allegations be treated as a petition for enforcement of a Board order. The

administrative judge subsequently ordered the agency to pay Dr. Hawkes $1648.61 in

consequential damages and $3116.27 in attorney fees and costs. Dr. Hawkes now

petitions for this court to review the Board’s decision on remand.

      While he was pressing his claims on remand, Dr. Hawkes filed a new Individual

Right of Action Appeal with the Board in March 2006, in which he alleged that he made

a protected disclosure of violations of various safety regulations in July 2005 and that

the agency took adverse personnel actions against him in retaliation for that disclosure

as well as the previous disclosures. That appeal was also assigned to administrative




2007-3045,-3184                             4
judge Berg.    After a hearing, the administrative judge issued an initial decision on

February 13, 2007, in which he denied Dr. Hawkes’ request for corrective action with

respect to each of his specific claims. In particular, the administrative judge ruled (1)

that Dr. Hawkes had failed to show that his disclosures were a contributing factor in the

agency’s decisions not to reclassify Dr. Hawkes’ position or to promote him; (2) the

alleged threat to disband the Research Center’s Health and Safety Committee did not

constitute a “personnel action” within the meaning of the Whistleblower Protection Act, 5

U.S.C. § 2302(b)(8), and even assuming that it did, the agency had shown by clear and

convincing evidence that it would have discussed the possibility of disbanding the

Health and Safety Committee even in the absence of Dr. Hawkes’ disclosures; (3) that

there was “overwhelming evidence” that there was no connection between an incident

of oral counseling of Dr. Hawkes by a superior and Dr. Hawkes’ whistleblowing

disclosures, and that the agency had shown by clear and convincing evidence that it

would have held the oral counseling session with Dr. Hawkes even in the absence of

any of his disclosures; and (4) that the agency’s January 2006 rating of Dr. Hawkes’

performance as “unacceptable,” and its subsequent act of placing him on a

Performance Improvement Plan (“PIP”), the administrative judge was “left with the firm

conviction that, even in the absence of the appellant’s disclosures, the agency would

have given him an unacceptable rating for 2005 and placed him on a PIP.” Dr. Hawkes

did not seek review of the initial decision by the full Board, but petitioned directly to this

court for review.




2007-3045,-3184                               5
                                      DISCUSSION

         Appeal No. 2007-3045. Dr. Hawkes’ first appeal is from the Board’s decision

following the remand from this court’s 2004 order. In the 2004 decision, this court

upheld the Board decision that was under review in all but one respect—we found it

necessary to remand to the Board for a decision as to whether Dr. Hawkes’ disclosure

to the California Office of Safety and Health Administration contributed to four specific

agency actions taken against Dr. Hawkes.        The administrative judge conducted a

comprehensive review of the evidence pertaining to that issue and ruled in Dr. Hawkes’

favor with respect to one of the agency actions and against him with respect to the other

three.    We are fully satisfied that substantial evidence supports the administrative

judge’s conclusions as to each of the three contested actions on which the

administrative judge ruled against him, and we sustain the administrative judge’s

decisions on those issues for the reasons given in the administrative judge’s opinion.

         In his brief, Dr. Hawkes seeks to raise a large number of other issues, such as

the propriety of the 14-day suspension imposed on him based on charges relating to an

e-mail he sent to co-workers containing jokes with sexually oriented themes. Those

issues, however, were not within the scope of this court’s remand to the Board, and it

was therefore proper for the Board to decline to address those issues.         The issue

regarding the 14-day suspension was raised and fully addressed in our earlier opinion,

where we upheld the administrative judge’s decision that the agency had proved by

clear and convincing evidence that it would have imposed the 14-day suspension even

in the absence of the protected disclosures. Other issues were either not raised in the




2007-3045,-3184                             6
earlier appeal or were not included within the scope of the remand. The Board was

therefore correct not to address those issues in the course of the remand proceedings.

       Appeal No. 2007-3184. Dr. Hawkes’ second appeal relates to complaints that

arose after the first appeal. Dr. Hawkes’ principal contention in the second appeal is

that the denial of graduate student support and the delay of his research project, which

he contends were acts of reprisal for his earlier disclosures, contributed to his low

research productivity, which in turn contributed to the agency’s denying him a

promotion.

       The administrative judge addressed Dr. Hawkes’ argument in the opinion in the

second appeal, noting that Dr. Hawkes had argued that his earlier disclosures were a

contributing factor in the denial of his promotions and the failure to upgrade his position,

because the agency had allegedly interfered with his ability to do the research

necessary to warrant those benefits. The administrative judge concluded, however, that

Dr. Hawkes had “presented no specific evidence supporting his claim that any delay in

his research or any study he planned was connected to his whistleblowing, and thus his

contention does not support a finding that the ‘contributing factor’ criteria was satisfied.”

The administrative judge’s assessment of the evidence bearing on that issue is

reasonable, and we therefore conclude that substantial evidence supports the

administrative judge’s conclusion that Dr. Hawkes failed to show that his protected

disclosures contributed to the agency’s act of denying him a promotion.




2007-3045,-3184                              7
