                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           NOV 05 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ENRICO F. LUCCHETTI,                             No.   17-71081

              Petitioner,                        MSPB No.
                                                 SF-1221-16-0091-W-3
 v.

U.S. DEPARTMENT OF THE                           MEMORANDUM*
INTERIOR,

              Respondent.


                     On Petition for Review of an Order of the
                        Merits Systems Protection Board

                            Submitted October 11, 2018**
                              San Francisco, California

Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.

      Enrico Lucchetti challenges the decision of the Merit Systems Protection

Board (“Board”) denying his request for corrective action under the Whistleblower

Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8). Lucchetti claims he was


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissed during his probationary period as a maintenance worker because of his

disclosures about unsafe entries into confined spaces, in violation of 29 C.F.R.

§ 1910.146. The Department of the Interior (“DOI”) responds that Lucchetti was

instead terminated because of unprofessional conduct and unauthorized use of

government buildings.

      The Board ruled that Lucchetti made out a prima facie case of whistleblower

retaliation, but that DOI carried its burden of establishing “by clear and convincing

evidence that it would have taken the same [adverse] personnel action” against

Lucchetti absent his protected disclosures. 5 U.S.C. § 1221(e)(2); see Miller v.

Dep’t of Justice, 842 F.3d 1252, 1257 (Fed. Cir. 2016). We have jurisdiction to

review the Board’s decision under 5 U.S.C. § 7703(b)(1)(B) and we affirm.

      We must set aside a decision of the Board if it is “(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); Duggan v. Dep’t of

Defense, 883 F.3d 842, 843 (9th Cir. 2018). It is not this court’s “function” to

“retry[] factual issues decided . . . by the Board.” See Briley v. Nat’l Archives &

Records Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001).




                                          2
      When examining whether an agency has carried its burden of proving

independent causation, we begin with the Carr factors. See Duggan, 883 F.3d at

846. The three nonexclusive Carr factors are: “[1] the strength of the agency’s

evidence in support of its personnel action; [2] the existence and strength of any

motive to retaliate on the part of the agency officials who were involved in the

decision; and [3] any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.”

Carr v. Social Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).

      On the first Carr factor, the Board’s conclusion that DOI presented “strong”

evidence in support of the decision to terminate Lucchetti is supported by

substantial evidence. The Board correctly noted that Lucchetti did not deny the

“essential facts” of the stated grounds for his removal. The Board further found

Lucchetti’s “assertion that management never brought to his attention their

concerns about his language and conduct” was “directly contradicted by [his

supervisors’] testimony and by the written record.” Where, as here, the Board

“based its decision on the testimony of agency officials,” its “credibility

determinations . . . are ‘virtually unreviewable’” on appeal. Watson v. Dep’t of

Justice, 64 F.3d 1524, 1531 (Fed. Cir. 1995).




                                           3
      Lucchetti faults the Board for failing to discuss the cancellation of his

application for a vacant plumber position. But the evidence presented to the Board

about why Lucchetti was not offered the position—concerns about his language

and conduct—is the same evidence the Board credited in finding there were valid

grounds for Lucchetti’s removal. The Board therefore did not “manifestly

ignore[]” “considerable countervailing evidence” when it declined to discuss the

plumber position. See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir.

2012).

      On the second Carr factor, though this court would have been aided by a

more detailed discussion from the Board, we find substantial evidence to support

the Board’s conclusion that there was “scant evidence” of a retaliatory motive by

those involved in the decision to terminate Lucchetti. There is no evidence that

management was aware of the OSHA complaint filed by the union on confined

space issues when Lucchetti was dismissed. Regarding Lucchetti’s earlier internal

complaints, there is evidence that management was receptive to these concerns.

Even the OSHA notice recognized the agency’s “good faith” efforts to provide

training and did not “invoke violations” for that reason.

      We note that, contrary to Lucchetti’s arguments, the motives of one of his

co-workers in making complaints about Lucchetti are not relevant to the second


                                          4
Carr factor analysis. The Board’s inquiry is about whether the decision-makers

had an ulterior motive. See Carr, 185 F.3d at 1326 (finding no WPA violation

where the decision makers “were not motivated to retaliate,” even if they “acted on

information that came to them from . . . employees who were”).

      On the third Carr factor, the Board did not err in finding that DOI carried its

burden even though it did not present evidence about similarly situated non-

whistleblowers. Though absence of evidence on the third Carr factor can cut

against the agency where it withholds relevant information, a lack of similarly

situated non-whistleblowers can also “effectively remove that factor from the

analysis.” Whitmore, 680 F.3d at 1374; see also Duggan, 883 F.3d at 847 (holding

that, in the absence of evidence, the third Carr factor “plays no role in our

analysis”). Lucchetti agrees that a “similarly situated” employee in this case would

be a “probationary employee with a good work record.” The Board correctly

found there were no such employees.

      The Board also accurately noted that “no action whatsoever was taken by the

agency against . . . anyone else who complained about its failure to follow

pertinent regulations regarding confined spaces.” The third Carr factor, by its

terms, does not instruct the Board to consider whether other whistleblowers faced




                                           5
adverse personnel actions. See Carr, 185 F.3d at 1323. However, like the Board,

we find such evidence to be instructive.

      The Carr factors and the record must be considered “as a whole.” Duggan,

883 F.3d at 847. The Board concluded that the first two Carr factors weigh in

favor of DOI and that the third factor weighs, if at all, also in DOI’s favor. The

record as a whole provides substantial evidence to support the Board’s

conclusions.

      AFFIRMED.




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