                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2007-3272


                                 FAROUK ELKASSIR,

                                                      Petitioner,

                                           v.

                      GENERAL SERVICES ADMINISTRATION,

                                                      Respondent.


      Farouk Elkassir, of Fort Lee, New Jersey, pro se.

       Joan M. Stentiford, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant
Director.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2007-3272


                                 FAROUK ELKASSIR,

                                                             Petitioner,

                                             v.

                      GENERAL SERVICES ADMINISTRATION,

                                                             Respondent.

                           __________________________

                           DECIDED: December 10, 2007
                           __________________________


Before MICHEL, Chief Judge, NEWMAN, and PROST, Circuit Judges.

PER CURIAM.

      Farouk Elkassir petitions for review of an adverse decision of the Merit Systems

Protection Board (“MSPB” or “Board”) denying him relief on his individual right of action

(“IRA”) appeal based on the Whistleblower Protection Act (“WPA”). Elkassir v. Gen.

Servs. Admin., No. NY1221060343-W-1 (M.S.P.B. May 4, 2007). We find no error with

the Board’s decision and therefore affirm.

                                    BACKGROUND

      Mr. Elkassir worked as a mechanical engineer in the General Services

Administration (“GSA”). In a February 3, 2006, email to the acting administrator of the

GSA, Mr. Elkassir questioned the rumored closure of the center he worked in and raised
possible reasons for that closure; he also suggested that improvements in management

would benefit the center. On March 22, 2006, Mr. Elkassir responded to a proposed

suspension action—for alleged conduct (outside his email) related to his prior

performance evaluation—by disclosing to his director of operations, Ms. Ramos, that his

supervisor, Mr. Santapaga, had asked him to delay processing Item Purchase

Descriptions and had added layers of review, in order to make the center seem busier

than it otherwise would. He also disclosed to Ms. Ramos that Mr. Santapaga had

issued a deviation from contract specifications to one of the government’s contractors—

allowing the contractor to use substandard packaging for shipments—without recouping

the savings for the government.       Following Mr. Elkassir’s disclosures, Ms. Ramos

issued him an official reprimand for insubordination on June 20, 2006. Also, on May 30,

2006, Mr. Elkassir received a substandard performance evaluation, and the GSA later

issued a notice of unacceptable performance as well as a performance action plan.

       Mr. Elkassir submitted a complaint to the Office of Special Counsel (“OSC”) on

July 13, 2006, alleging that the reprimand and a substandard performance rating were

in retaliation for his disclosures related to Mr. Santapaga. On August 24, 2006, the

OSC notified Mr. Elkassir that it had terminated its inquiry into his allegations but that he

could pursue relief at the MSPB. He then filed his IRA appeal with the Board.

       In a March 30, 2007, initial decision, the MSPB administrative judge dismissed

Mr. Elkassir’s claim relating to the letter of reprimand because he had elected to pursue

relief through the negotiated grievance procedures defined by the collective bargaining

agreement. Elkassir v. Gen. Servs. Admin., No. NY1221060343-W-1 (M.S.P.B. Mar.

30, 2007) (“Initial Decision”). The administrative judge then conducted a hearing to




2007-3272                                    2
determine Mr. Elkassir’s rights relating to his substandard performance rating. The

administrative judge concluded that Mr. Elkassir had asserted a nonfrivolous allegation

of Board jurisdiction, but had failed to prove that he made a protected disclosure. Initial

Decision, slip op. at 9.   On May 4, 2007, the administrative judge’s initial decision

became the final decision of the Board. This petition followed.

                                      DISCUSSION

       We have jurisdiction over petitions for review of MSPB decisions under 28 U.S.C.

§ 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703.          We must set aside

agency actions we find, “(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).

       To prevail on a claim under the WPA, an employee must show that he disclosed

information he reasonably believed “evidences (i) a violation of law, rule, or regulation,

or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A);

see Reid v. Merit Sys. Prot. Bd., No. 2007-3056, slip op. at 5 (Fed. Cir. Nov. 19, 2007)

(concluding that, to make a protected disclosure, a whistleblower need only disclose

what he reasonably believes is an imminent—not actual—violation of law, rule, or

regulation).

       Before this court, Mr. Elkassir argues that he did make protected disclosures,

pointing to the waste created by Mr. Santapaga’s alleged change to the contract and

disputing the administrative judge’s credibility determinations. He also asserts that the




2007-3272                                   3
testimony of Linda Bambach—whom he alleges the administrative judge did not allow to

testify—would have helped his case.

       The administrative judge considered Mr. Elkassir’s email to the acting

administrator of GSA and concluded that Mr. Elkassir did not make a specific and

detailed allegation of wrongdoing as required by the WPA.             We agree with the

administrative judge; Mr. Elkassir’s email raised only the rumored closure of the center,

certainly not an “imminent” violation. Reid, slip op. at 5.

       Next considering Mr. Elkassir’s disclosure that Mr. Santapaga had unnecessarily

added layers of review to the work process, the administrative judge compared Mr.

Elkassir’s testimony with that of Mr. Santapaga. Mr. Elkassir admitted he knew of Mr.

Santapaga’s stated reason for adding layers of review—to reduce the possibility of

error—and that he understood but disagreed with that stated reason.                    The

administrative judge therefore concluded that Mr. Elkassir did not have a reasonable

belief that Mr. Santapaga abused his authority or committed gross mismanagement.

Initial Decision, slip op. at 11.

       In order to show gross mismanagement, “an employee must disclose such

serious errors by the agency that a conclusion the agency erred is not debatable among

reasonable people.” White v. Dep’t of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir.

2004). An abuse of authority requires an “arbitrary or capricious exercise of power by a

federal official or employee that adversely affects the rights of any person or that results

in personal gain or advantage to himself or to preferred other persons.” D’Elia v. Dep’t

of the Treasury, 60 M.S.P.R. 226, 232 (1993). Mr. Elkassir’s admission that he knew of

Mr. Santapaga’s stated reason for the policy shows that he understood the debatable




2007-3272                                     4
nature of the additional layers of review. Further, that stated reason also establishes

that the additional review was not arbitrary, but instead based on logical principles.

While Mr. Elkassir may have believed the additional review did not serve its intended

purpose, he could not have reasonably concluded that Mr. Santapaga’s actions rose to

the point of gross mismanagement or abuse of authority. Therefore, the administrative

judge correctly concluded that Mr. Elkassir did not make a protected disclosure relating

to the additional review.

       The administrative judge then discussed Mr. Elkassir’s disclosure that Mr.

Santapaga had asked him to delay his work. The administrative judge explicitly found

that Mr. Santapaga offered more credible testimony on the issue, and had merely

expressed to Mr. Elkassir his concern that Mr. Elkassir should perform more research to

support his work. Initial Decision, slip op. at 12. The administrative judge’s credibility

determinations are “virtually unreviewable” on appeal. Frey v. Dep’t of Labor, 359 F.3d

1355, 1361 (Fed. Cir. 2004) (citation omitted). Accordingly, we find no error in the

administrative judge’s conclusion that Mr. Elkassir did not reasonably believe that Mr.

Santapaga abused his authority by suggesting Mr. Elkassir delay his work.

       The administrative judge next addressed Mr. Elkassir’s disclosure to Ms. Ramos

that Mr. Santapaga had issued a deviation in a contractor’s shipping specifications

without recouping the savings for the government.        Here, the administrative judge

looked to Mr. Elkassir’s testimony that Mr. Santapaga had no authority to either issue

the deviation or recover any associated costs. Initial Decision, slip op. at 17–18. The

administrative judge’s discussion of the issue points to a lack of evidence that Mr.

Santapaga should have in fact recovered the savings, and a lack of evidence that Mr.




2007-3272                                   5
Elkassir believed he should have done so. Mr. Elkassir admitted that Mr. Santapaga

could only make a recommendation, not actually issue the deviation. Initial Decision,

slip op. at 18. We agree with the administrative judge’s analysis; nothing in the record

indicates that Mr. Santapaga violated a law, rule, or regulation, committed gross

mismanagement, or abused his authority.         While Mr. Elkassir may believe that the

government should recover any savings resulting from a contract deviation, he has not

shown that Mr. Santapaga was obligated or even authorized to do so.             Because

substantial evidence supports the administrative judge’s conclusion that Mr. Elkassir did

not reasonably believe he was disclosing any wrongdoing, we affirm the administrative

judge’s conclusion that Mr. Elkassir did not make a protected disclosure.

      Finally, Mr. Elkassir challenges the administrative judge’s decision to exclude

Linda Bambach from testifying as a witness. Mr. Elkassir only identifies the general

topic of Ms. Bambach’s testimony—the alleged unnecessary layers of work added by

Mr. Santapaga. We do not find an abuse of discretion where Mr. Elkassir has failed to

identify what the excluded witness would have added to the record. Davis v. Office of

Pers. Mgmt., 918 F.2d 944, 946 (Fed. Cir. 1990).

                                     CONCLUSION

      Because substantial evidence supports the administrative judge’s decision and

nothing indicates that the decision was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law, or obtained without procedures required by law,

rule, or regulation having been followed, we affirm.

      No costs.




2007-3272                                   6
