                     NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                       is not citable as precedent. It is a public record.

         United States Court of Appeals for the Federal Circuit

                                        05-3135

                              TODD J. SCHOENROGGE,

                                                              Petitioner,

                                            v.

                             DEPARTMENT OF JUSTICE,

                                                              Respondent.

                           ___________________________

                           DECIDED: September 13, 2005
                           ___________________________


Before CLEVENGER, RADER, and DYK, Circuit Judges.

RADER, Circuit Judge.

      The Merit Systems Protection Board affirmed the Department of Justice’s

(Agency) removal of Mr. Todd J. Schoenrogge from Federal service.            Because

substantial evidence supports the Board’s decision, this court affirms.

                                    BACKGROUND

      Mr. Schoenrogge was a legal assistant at the Eloy Immigration Court in Eloy,

Arizona. Schoenrogge v. Dep’t of Justice, DE-0752-03-0465-I-1, slip op. at 2 (M.S.P.B.

Apr. 16, 2004) (Initial Decision). On July 17, 2003, Immigration Judge Owens proposed

Mr. Schoenrogge’s removal for disorderly conduct, disrespectful conduct, and

inappropriate conduct.      Id.   After reviewing several written replies from Mr.
Schoenrogge, Chief Immigration Judge Creppy issued a decision effecting Mr.

Schoenrogge’s removal on August 26, 2003. Id., slip op. at 2-3.

      Mr. Schoenrogge appealed the Agency’s decision to the Board.               During

proceedings before the administrative judge, Mr. Schoenrogge challenged the Agency’s

decision, in part, as reprisal for filing discrimination complaints in violation of the

Whistleblower Protection Act. Id., slip op. at 9-12. Mr. Schoenrogge attempted to prove

these allegations primarily through the testimony of thirty-three witnesses. However,

the administrative judge did not allow Mr. Schoenrogge to call all thirty-three proposed

witnesses, but instead limited Mr. Schoenrogge to the five witnesses also on the

Agency’s witness list, plus two additional witnesses. Schoenrogge v. Dep’t of Justice,

DE-0752-03-0465-I-1 (M.S.P.B. Nov. 21, 2003) (Witness Order) Unsatisfied with this

decision, Mr. Schoenrogge moved the administrative judge to certify to the full Board

the issue of the propriety of limiting witnesses at the hearing.        Apparently the

administrative judge did not act on that request.

      After the hearing, the administrative judge concluded that the Agency proved the

charges against Mr. Schoenrogge and that the penalty of removal was an appropriate

penalty.   Id., slip op. at 15.   The administrative judge further concluded that Mr.

Schoenrogge did not show that the Agency’s action was in violation of the

Whistleblower Protection Act, Pub L. No. 101-12, 103 Stat. 16, codified in scattered

sections of 5 U.S.C. Id. The Board sustained this decision. Schoenrogge v. Dep’t of

Justice, DE-0752-03-0465-I-1 (M.S.P.B. Mar. 15, 2005). Mr. Schoenrogge then filed the

present appeal for review before this court. This court has jurisdiction under 28 U.S.C.

§ 1295(a)(9).




05-3135                                     2
                                      DISCUSSION

       This court affirms a decision of the Board unless it is arbitrary, capricious, an

abuse of discretion, not in accordance with the law, or unsupported by substantial

evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt., 243 F.3d

1375 (Fed. Cir. 2001).

       The Three Charges

       In the present case, substantial evidence supports the administrative judge’s

findings regarding all three of the charges against Mr. Schoenrogge. The first charge,

disorderly conduct, involves a June 26, 2003 incident where Mr. Schoenrogge appeared

uninvited at the home of his second-level supervisor, Mr. Meehan, and attempted to

provoke a physical altercation with him. See Initial Decision, slip op. at 3-5. The record

shows that Mr. Schoenrogge was arrested for the incident and subsequently pleaded

guilty to a charge of disorderly conduct.        See State v. Schoenrogge, M-1142-CR-

2003001084 (Casa Grande Mun. Ct. 2003).

       While Mr. Schoenrogge acknowledges the incident, he challenges the Meehans’

testimony that he was intoxicated at the time. Specifically, Mr. Schoenrogge argues

that the Meehans lack credibility due to prior statements that allegedly contradict their

testimony before the Board. The administrative judge, however, made specific findings

on the Meehans’ credibility, finding their testimony both internally consistent and

consistent with each other. Initial Decision, slip op. at 5. In contrast, the administrative

judge found Mr. Schoenrogge’s testimony to be wholly inconsistent and unexplainable.

Id. These well reasoned credibility findings, which are virtually unreviewable on appeal,

are fully supported by the record. See Hambsch v. Dep’t of Treasury, 796 F.2d 430,




05-3135                                      3
436 (Fed. Cir. 1986) (citing DeSarno v. Dep’t of Commerce, 761 F.2d 657, 661 (Fed.

Cir. 1985); Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985);

Anderson v. City of Bessemer, 470 U.S. 564 (1985)) (commenting that, given the highly

deferential standard for reviewing a deciding official’s credibility determination, such

determinations are “virtually unreviewable” on appeal).

       The second charge, disrespectful conduct, involves exchanges between

Mr. Schoenrogge and Immigration Judge Keenan.                    Initial Decision, slip op. at 5-6.

Specifically, while employed at the Agency, Mr. Schoenrogge worked with Immigration

Judge Keenan as a court clerk, starting July 1, 2003. Id. However, on June 25, 2003,

Mr. Schoenrogge sent Judge Keenan an email informing him that certain instructions

regarding tasks Mr. Schoenrogge was to perform simply would not be followed and that

anything    Judge       Keenan   wanted    to    say       to   him   should   be   sent   through

Mr. Schoenrogge’s chain of command.                  Id.        Proof of this incident includes

Mr. Schoenrogge’s email, in addition to the testimony of Judge Keenan and

Mr. Schoenrogge’s first-line supervisor, Shirley Coolbaugh.

       Again, while acknowledging the incident, Mr. Schoenrogge challenges the

credibility of Shirley Coolbaugh and Judge Keenan. The administrative judge, however,

made specific findings on the credibility of Mrs. Coolbaugh and Judge Keenen, in which

he noted their testimonies were uniformly consistent with each other’s testimonies and

with the email itself.     Id., slip op. at 6.   The record supports these well reasoned

credibility findings.

       The third and final charge against Mr. Schoenrogge, inappropriate conduct,

involves fifty seven phone calls made by Mr. Schoenrogge after duty hours to various




05-3135                                          4
individuals at the Agency’s headquarters. Id., slip op. at 7-9. These messages were

rambling and occasionally incoherent, suggesting that Mr. Schoenrogge was intoxicated

while leaving them. Id., slip op. at 8. The record includes transcripts of the calls,

though Mr. Schoenrogge challenges the accuracy of these transcripts.

         Once again, while acknowledging the calls, Mr. Schoenrogge attempts to justify

these calls as protected whistleblowing activities and/or work-related in nature. Id., slip

op. at 9. The record, however, indicates the calls were exclusively made after hours to

individuals randomly selected. Id. This supports the administrative judge’s finding that

“it was far more likely that the telephone calls were made by [Mr. Schoenrogge] for the

purpose of venting when he could be certain that no one would answer his or her

telephone.” Id.

         On the basis of the record, this court detects no reversible error. See 5 U.S.C.

§ 7703(c) (2000); McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1367 (Fed. Cir.

2004).

         The Affirmative Defenses

         Mr. Schoenrogge also asserts two affirmative defenses against his removal. The

first affirmative defense asserts that the dismissal was taken in reprisal for filing

discrimination complaints in violation of 5 U.S.C. § 2302(b)(9). Initial Decision, slip op.

at 9-10.     However, while the Agency concedes Mr. Schoenrogge did engage in

protected activity (i.e., filing discrimination complaints), the record does not show any

causal connection between the protected activity and the removal action other than

Mr. Schoenrogge’s own testimony. Thus, the administrative judge properly determined

that Mr. Schoenrogge did not prove this defense by preponderant evidence.             See




05-3135                                      5
Warren v. Dep’t of Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) (discussing petitioner’s

burden to prove a genuine nexus between the retaliation and petitioner’s removal in

establishing this defense).

       Mr. Schoenrogge’s second and final affirmative defense involves a purported

violation of the Whistleblower’s Protection Act. Specifically, Mr. Schoenrogge alleged

six “protected” disclosures:

       (1) Immigration Judges bringing unopened bottles of wine as Christmas
       gifts into the Eloy Immigration Court, in [Mr. Schoenrogge’s] opinion, a
       secure facility; (2) Immigration Judges allegedly allowing attorneys
       appearing before them to make false statements on certificates of service;
       (3) the agency’s alleged misuse of immigration detainees to perform
       menial labor; (4) the alleged misuse of funds by allowing contract
       interpreters to wait around, and thus be paid, while tape-recorded
       advisories were being played; (5) Immigration Court employees allegedly
       not working 8 hours for 8 hours pay by leaving work when Immigration
       Court business was finished; and (6) Immigration Judges ‘padding’ their
       statistics by entering the computer code ‘A’ instead of code ‘S.’

Initial Decision, slip op. at 11. The administrative judge dismissed these purported

disclosures as unprotected, finding instead that they “concern trivial materials that

reflect [Mr. Schoenrogge’s] subjective vision of how the Eloy Immigration Court ought to

operate rather than how, by policy, it actually operates.” Id. The administrative judge

further opined that these allegations “simply do not rise to the level of a violation of law,

rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health” as contemplated by the

statute. Id. (citing 5 U.S.C. § 2302(b)(8)(A)) (other citations omitted).

       Before this court, Mr. Schoenrogge complains that the Board erroneously held

that the allegation of employees bringing wine into the Immigration Court was not

protected. As to this disclosure this court concludes that, based on the evidence of

record, the Board found that Mr. Schoenrogge could not reasonably have believed that


05-3135                                       6
the bringing of wine was illegal. Mr. Schoenrogge has not shown that this finding was

not supported by substantial evidence. Mr. Schoenrogge has not pursued item (2) on

appeal, and has explicitly disavowed item (3). Mr. Schoenrogge has not shown that the

Board committed reversible error in characterizing items (4) and (5) as trivial or

debatable matters of policy. And with respect to item (6), Mr. Schoenrogge has failed to

call this court’s attention to any testimony that would support a finding that he

reasonably believed that the events had occurred to the extent that they would be

considered non trivial.

       Removal As A Penalty

       Mr. Schoenrogge challenges as well the appropriateness of removal as a penalty

for the misconduct.       This court upholds a penalty determination unless it is clearly

excessive or an abuse of discretion. See Coleman v. U.S. Secret Serv., 749 F.2d 726,

729 (Fed. Cir. 1984) (citations omitted). Mr. Schoenrogge asserts the administrative

judge did not consider mitigating factors including his history of past work performance

and letters from Immigration Judges attesting to his outstanding work performance.

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

factors for consideration in determining an appropriate penalty for misconduct). To the

contrary, the administrative judge’s Initial Decision expressly noted “there are no

mitigating circumstances present here except for the presumptive acceptance or better

quality of [Mr. Schoenrogge’s] performance.” Initial Decision, slip op. at 14 (emphasis

added).    Thus, the administrative judge did consider Mr. Schoenrogge’s work

performance.




05-3135                                       7
      Mr. Schoenrogge also asserts that the penalty of removal is inconsistent with

other cases in which individuals were merely suspended for striking their supervisor.

This argument simply has no merit, as the inconsistency of a penalty with other cases is

not dispositive where the penalty is appropriate to the sustained misconduct as this

court perceives it to be in this case. See Rackers v. Dep’t of Justice, 79 M.S.P.R. 262,

283-84 (1998), aff'd,194 F.3d 1336 (Fed. Cir. 1999) (Table). Thus, this court need not

address other cases in which individuals have merely been suspended for various

instances of misconduct. Hence, for the foregoing reasons, this court finds that the

penalty of removal was not clearly excessive or an abuse of discretion.

      Motion To Certify

      The final issue raised by Mr. Schoenrogge’s appeal involves his motion to certify

to the full Board the limitation on witnesses. Specifically, Mr. Schoenrogge argues that,

without any indication that the motion was ever formally granted or denied, the

administrative judge instead must have simply ignored the motion altogether. According

to Mr. Schoenrogge, ignoring a motion constitutes a clear abuse of discretion, because

the administrative judge has a duty to either grant or deny the motions before him. See

5 C.F.R. § 1201.92 (current through Aug. 2, 2005) (governing certification of

interlocutory appeals to the Board).    Even assuming that the administrative judge

abused his discretion in ignoring the motion, however, this court perceives no prejudice

to Mr. Schoenrogge.

      As previously noted, Mr. Schoenrogge requested the administrative judge’s

permission to have thirty-three witnesses testify in his defense.    The administrative

judge, however, only allowed Mr. Schoenrogge to call two witnesses beyond those the




05-3135                                    8
Agency also sought to have testify. Witness Order, slip op. at 2. These two witnesses

were approved for the sole purpose of giving testimony regarding an absence of past

misconduct. Id. As to the remaining witnesses:

       [They] were not approved because their testimonies uniformly go to
       matters which are not reviewable in the instant appeal or are not relevant
       at all or go to matters which the appellant is not required to defend against
       such as loose language in the proposal and decision letters which does
       not concern either the charges of misconduct or the propriety of the
       penalty.

Id. In response, Mr. Schoenrogge asserts only that these witnesses were “vital” to his

defense. Without any reason to question the administrative judge’s decision not to

admit these witnesses, a decision subject to considerable deference on review, this

court perceives no error or prejudice to Mr. Schoenrogge. See 5 C.F.R. §1201.41(b)(8);

Tiffany v. Dep’t of Navy, 795 F.2d 67, 70 (Fed. Cir. 1986); Keefer v. Dep’t of Agriculture,

92 M.S.P.R. 476, 480 (2002) (discussing Board review of an administrative judge’s

certification decision under an abuse of discretion standard)

                                       Conclusion

       In brief, this court finds that substantial evidence supports the three charges

against Mr. Schoenrogge. In addition, this court finds that Mr. Schoenrogge did not

prove his affirmative defenses by a preponderance of the evidence, and that any

purported error in failing to grant or deny the certification motion did not unduly

prejudice Mr. Schoenrogge from presenting his case. The decision of the Board is

affirmed.




05-3135                                     9
