       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                DAVID A. DOLINSKY,
                     Petitioner,

                           v.
    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
              __________________________

                      2011-3140
              __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. CH1221090173-M-1.
              __________________________

               Decided: March 23, 2012
              __________________________

   DAVID A. DOLINSKY, of Chicago, Illinois, pro se.

    MICHAEL D. AUSTIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD M. HUGHES,
Deputy Director.
                __________________________
DOLINSKY   v. DHS                                         2


 Before PROST, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.

    David A. Dolinsky appeals the final decision of the
Merit Systems Protection Board (“Board”) that denied his
request for corrective action sought in his Individual
Right of Action (“IRA”) against the Department of
Homeland Security (“DHS”) under the Whistleblower
Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8) (2000).
Dolinsky v. Dep’t of Homeland Sec., No. CH1221090173-
M-1, 116 M.S.P.R. 350 (M.S.P.B. Mar. 31, 2011) (“Second
Final Order”). The Board found that while Mr. Dolinsky’s
disclosure was protected under the WPA, the WPA does
not apply because the agency established that it would
have taken the same or similar personnel actions absent
the disclosure. Because we conclude that the Board’s
decision is supported by substantial evidence and is
otherwise not contrary to law, we affirm.

                             I

                       BACKGROUND

    Mr. Dolinsky is the Great Lakes Region Regional
Emergency Coordinator for the General Services Admini-
stration (“GSA”) in Chicago, Illinois. Prior to holding this
position, Mr. Dolinsky worked for the Federal Emergency
Management Agency (referred to herein as “the agency”
or “FEMA”), directing the Continuity of Operations pro-
gram.

    In 2005, Mr. Dolinsky worked with Robert Thibeault,
a GSA appointee. On November 6, 2006, Mr. Dolinsky
reported to his supervisor, Michael Gelbert, GSA Deputy
Regional Administrator, that Mr. Thibeault had disclosed
to persons without appropriate clearance government
3                                          DOLINSKY   v. DHS


classified information regarding a 2005 emergency
exercise. Mr. Dolinsky informed Mr. Gelbert that if he
did not act on the disclosure regarding Mr. Thibeault’s
activities, Mr. Dolinsky would disclose the activity to the
agency’s Inspector General.

    While employed at FEMA, Mr. Dolinsky created dur-
ing off-duty hours a personal website that provided in-
formation about government agency responses to a
pandemic influenza outbreak. Both FEMA and GSA used
the materials to prepare such a response plan. On Octo-
ber 5, 2006, Rex Wamsley, FEMA Plans Division Director,
wrote an email to members of his team and individuals
outside of FEMA stating that he had received a call from
James Duncan, Region V Director of National Prepared-
ness DHS/FEMA Division, who was Mr. Dolinsky’s direct
supervisor. Mr. Wamsley stated in the email that it was
his sense that Mr. Dolinsky had created the website
materials as part of his FEMA duties. He further wrote
that according to Mr. Duncan, Mr. Dolinsky had copy-
righted the name “Steadfast Response” and was advertis-
ing the materials on his personal website.          GSA
eventually determined that the Steadfast Response
program belonged to Mr. Dolinsky and was not created as
part of his FEMA duties.

     Faye Wilkes, a GSA Office of Emergency Response
and Recovery Training and Exercise Division Leader,
stated that during a conference call with Messrs.
Wamsley and Duncan, Mr. Wamsley reported that the
website was Mr. Dolinsky’s property and that government
attorneys had determined that there was no copyright
problem. According to Ms. Wilkes, “Mr. Duncan had
made it sound as if [Mr. Dolinsky had] worked on the
site’s materials when he was at FEMA. I don’t know the
reason, but Mr. Duncan seemed to have ill will,
DOLINSKY   v. DHS                                        4


resentment and hostility toward [Mr. Dolinsky].” Wilkes
Aff. ¶ 5.

    Mr. Dolinsky filed a complaint with the agency’s
Inspector General the following month in which he made
two disclosures: that Mr. Wamsley’s email regarding the
website constituted defamation, and that Mr. Thibeault
had illegally disclosed classified information.        As
discussed further below, Mr. Dolinsky’s disclosure
regarding Mr. Thibeault’s alleged actions was found to be
protected under the WPA while Mr. Dolinsky’s disclosure
regarding Mr. Wamsley’s email was found not to be
protected under the WPA.

     In August 2007, Mr. Dolinsky applied for two FEMA
positions: (1) Supervisory Emergency Management
Program Specialist (“SEMPS”); and (2) Preparedness
Analysis and Planning Officer (“PAPO”). Mr. Dolinsky
submitted application materials and interviewed for both
positions. Sometime after the interviews, the agency
canceled its original PAPO vacancy announcement and
later re-announced the vacancy. Janet Odeshoo, a FEMA
Region Deputy Regional Administrator, stated that Mr.
Buikema informed her that the first PAPO vacancy
announcement was canceled because there were no
acceptable candidates.    The agency eventually hired
Thomas Mefferd for the SEMPS position and Vince Parisi
for the PAPO position.

    Mr. Dolinsky filed a request for corrective action with
the Office of Special Counsel on January 12, 2007. The
Office of Special Counsel denied his request, and Mr.
Dolinsky filed an appeal with the Board on November 28,
2008 in which he argued that he was not selected for the
SEMPS and PAPO positions in retaliation for his whistle-
5                                         DOLINSKY   v. DHS


blowing disclosures concerning the defamatory email and
the Thibeault disclosure.

    In a March 24, 2009 initial decision, an
administrative judge denied Mr. Dolinsky’s request for
corrective action. The administrative judge found that
although both disclosures were non-frivolous allegations
of whistleblowing, neither disclosure constituted a
whistleblowing disclosure. On August 7, 2009, the Board
issued its decision and upheld the administrative judge’s
decision. Mr. Dolinsky appealed the Board’s decision to
this court. This court in part affirmed the Board, but
remanded to the Board for further proceedings solely
concerning the Thibeault disclosure.

    On remand, the administrative judge determined that
the Thibeault disclosure was WPA protected and was a
contributing factor in the GSA rejecting Mr. Dolinsky for
the two positions and for GSA’s temporary cancelation of
the PAPO vacancy announcement. The administrative
judge determined, however, that the agency would have
taken the same personnel actions in the absence of the
disclosure. On March 31, 2011, the Board upheld the
determination of the administrative judge and denied Mr.
Dolinsky’s petition for review. On April 27, 2011, Mr.
Dolinsky timely appealed the Board’s Final Decision to
this court.

    This court    has   jurisdiction   under   28   U.S.C.
§ 1295(a)(9).
DOLINSKY   v. DHS                                        6


                             II

                    MR. DOLINSKY’S APPEAL

    Mr. Dolinsky appeals the Board’s finding that the
agency would have taken the same personnel actions
absent his protected disclosure. The sole issue on appeal
is the Board’s decision that the agency would have taken
the same personnel actions absent the protected
disclosure.

                             A

                     STANDARD OF REVIEW

    This court’s review of decisions by the Board in
whistleblower cases is limited. In sum, we may only set
aside the Board’s decision if it was (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) (2006); see also Dickey v. Office of Pers. Mgmt.,
419 F.3d 1336, 1339 (Fed. Cir. 2005).

                             B

                         DISCUSSION

    The WPA protects a government employee from
retaliation when the employee has made a disclosure
which the employee “reasonably believes evidences -- a
violation of any law, rule or regulation; or gross
mismanagement, gross waste of funds, abuse of authority,
or substantial and specific danger to public health or
safety.” 5 U.S.C. § 2302(b)(8). The WPA does not apply
7                                         DOLINSKY   v. DHS


when the agency would have taken the same action in the
absence of a protected disclosure. Carr v. Soc. Sec.
Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).

    The Board examines whether clear and convincing
evidence supports a finding that an agency would have
taken the same personnel action in the absence of the
protected disclosure. Id. The Board examines three
factors in its review of an administrative judge’s fact-
finding. See Smith v. Dep’t. of Agric., 64 M.S.P.R. 46, 66
(M.S.P.B. 1994). First, the Board determines the strength
of the agency’s evidence in support of the personnel
action. Carr, 185 F.3d at 1323. Second, the Board
considers the existence and strength of any motive to
retaliate on the part of the agency officials who were
involved in the decision. Id. And third, the Board
considers whether the agency has taken similar actions
against employees who are not whistleblowers, but who
are otherwise similarly situated. Id. We address each of
the three factors in turn.

     First, Mr. Dolinsky argues that the actions taken by
the agency are not supported by clear and convincing
evidence, a standard that requires a “detailed explanation
as to why the agency selected other applicants” or
“evidence of the selection procedure that it followed in
filling the positions or that would explain why the
appellant was not considered the top applicant for them.”
See Schnell v. Dept. of Army, 114 M.S.P.R. 83, 94
(M.S.P.B. 2010). Mr. Dolinsky asserts three specific
personnel actions taken by the agency:         hiring Mr.
Mefferd for the SEMPS position; hiring Mr. Parisi for the
PAPO position; and cancellation of the first posting for
the PAPO position.
DOLINSKY   v. DHS                                       8


    As to the first personnel action, Mr. Dolinsky asserts
that the administrative judge committed error when he
did not review Mr. Mefferd’s resume to determine
whether Mr. Mefferd had the “extensive state and local
experience” that the agency required. Further, Mr.
Dolinsky argues that his own resume shows that he had
experience with both local and state entities.

    The government contends that testimony from
selecting official Mr. Buikema and interviewer Ms.
Odeshoo, and an affidavit submitted by Mr. Duncan
constitute clear and convincing evidence that Mr. Mefferd
was objectively the better candidate.       Ms. Odeshoo
testified that “we were also looking for someone that had
extensive grant coordination experience. And again, we
wanted someone who had the state and local perspective
for this position. We had enough people at the Federal
perspective.” Mr. Buikema testified that Mr. Mefferd
“gave a very strong interview,” that he had “great
communication skills,” and that he had an “extensive
background in training and education exercises” in
desired “jurisdictions or communities.”      Mr. Duncan
provided in his affidavit that Mr. Mefferd served as a
county emergency management director of a major urban
county.

    Regarding the second personnel action, Mr. Dolinsky
argues that he had similar skills to Mr. Parisi. In addi-
tion, Mr. Dolinsky states that his veteran’s preference
should have increased his score such that Mr. Parisi could
not objectively have achieved a higher score. The gov-
ernment counters that Mr. Parisi was the better candi-
date, that Mr. Parisi had a better interview than Mr.
Dolinsky, and that Mr. Parisi’s “vision” for strengthening
the region impressed the decision makers. Additionally,
Ms. Odeshoo testified that Mr. Parisi was the most quali-
9                                          DOLINSKY   v. DHS


fied for the position. Mr. Duncan’s affidavit stated that
Mr. Parisi “clearly demonstrated his knowledge of the
Homeland Security Grant Program, superior experience
in developing exercises and a proactive vision of what he
wanted to accomplish in the position.” Duncan Aff. ¶ 8
(July 29, 2010).

    Addressing the third personnel action, Mr. Dolinsky
contends that the agency had no legitimate business
purpose in canceling the first vacancy posting for the
PAPO position. Mr. Dolinsky states that the first PAPO
posting never mentioned grants management, a criterion
that appeared in the subsequent announcement. The
record shows, however, that witnesses repeatedly stated
that such experience was crucial. In the second initial
decision, the administrative judge relied on Mr. Duncan’s
and Mr. Buikema’s statements that the agency reposted
the announcement in order to get a “better pool” of candi-
dates and determined that the agency had a legitimate
business purpose for cancelling the announcement. The
Board reviewed the record and the findings of the admin-
istrative judge and determined that the personnel actions
taken by the agency were supported by clear and convinc-
ing evidence.

     Next, we consider motive to retaliate on the part of
agency officials involved in the personnel actions. Mr.
Dolinsky focuses on Mr. Duncan to argue that the agency
failed to show it did not have motive to retaliate. Mr.
Dolinsky argues that while Mr. Duncan was not a final
decision maker in any of the personnel decisions, Mr.
Duncan had significant input in the selection process as
the manager of the division. Mr. Dolinsky contends that
his disclosure about Mr. Wamsley’s defamatory email
exposed Mr. Duncan to potential liability and thereby
gave motive to retaliate: “[H]e’s not a disinterested party
DOLINSKY   v. DHS                                      10


in this case. This case essentially could end up in his
being disciplined.” As a result, Mr. Dolinsky asserts that
Mr. Duncan’s statements are retaliatory, self-serving, and
untrustworthy.

    The government contends that there was no
retaliatory motive because none of the members of the
interview panels or the selecting official had motive
toward Mr. Dolinsky. The government correctly argues
that this court may only consider the Thibeault disclosure
and may not consider any statements related to the email
disclosure because the email disclosure is not before this
court.

     The record reflects that although Mr. Duncan was
aware of the Thibeault disclosure, Mr. Duncan stated in
his affidavit that he did not advise any of the panel
interview members or the selecting official about the
Thibeault disclosure. Mr. Buikema, who was a selecting
official for both positions, had no knowledge of the
Thibeault disclosure. James Opoka, a FEMA Deputy
Federal Preparedness Coordinator who served on an
interview panel for the PAPO position, also stated that he
was unaware of the Thibeault disclosure. Further, the
government asserts that Mr. Duncan was unaware about
the protected Thibeault disclosure until after the PAPO
solicitation was cancelled, a circumstance that makes
clear that the agency would have taken the same action
absent the disclosure.

    The Board determined that “[w]hile it is possible that
[Mr.] Duncan may have harbored some ill feeling toward
the appellant in connection with a controversy concerning
the appellant’s personal website, we find no evidence of
any animus as the result of [Mr.] Duncan’s knowledge of
the appellant’s allegation that [Mr.] Thibeault had
11                                        DOLINSKY   v. DHS


revealed classified information.” Second Final Order at
*5. The Board concluded that animus resulting from the
website disclosure was not related to the protected
Thibeault disclosure and that Mr. Duncan had no motive
to retaliate for Mr. Dolinsky’s protected disclosure under
the WPA.

    We next turn to whether the agency has taken similar
actions toward similarly situated employees that are not
whistleblowers. Mr. Dolinsky argues that the agency
provided no evidence that it has acted similarly toward
non-whistleblower employees who are similarly situated
to him. In particular, he asserts that the hiring of Mr.
Parisi rebuts any proof offered by the agency given that
Mr. Parisi failed to qualify for the original announcement
when the impartial team at OPM scored his application.
The government states that the agency interviewed other
candidates who had similar qualifications to Mr.
Dolinsky. The government argues that Mr. Dolinsky was
similarly situated with other candidates who were not
whistleblowers and who were not hired. The Board found
the government’s arguments persuasive.           The Board
explained that the third factor “has much less relevance
where the contested action is a nonselection, as it would
be highly unlikely that the selectee would also have made
protected disclosures.” Second Final Order at *4n.2.

                      CONCLUSION

    We find that the Board’s determination that the
agency would have taken the same or similar personnel
action absent a disclosure to be supported by substantial
evidence and otherwise not contrary to law and, as such,
we affirm the decision of the Board.

                      AFFIRMED
DOLINSKY   v. DHS                         12


                         COSTS

   Each party shall bear its own costs.
