                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3167

                                  DOM WADHWA,

                                                    Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                    Respondent.


      Dom Wadhwa, of Moorestown, New Jersey, pro se.

       Matthew H. Solomson, Trial Attorney, Commercial Litigation 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 Reginald T. Blades, Jr., Assistant Director.

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                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                     2009-3167

                                  DOM WADHWA,

                                                    Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                    Respondent.


      Petition for review of the Merit Systems Protection Board in PH1221080019-W-1.


                           __________________________

                           DECIDED: November 19, 2009
                           __________________________


Before GAJARSA, DYK, and MOORE, Circuit Judges.

PER CURIAM.

      Dr. Dom Wadhwa petitions for review of 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”) appeal under the Whistleblower Protection Act

(“WPA”), 5 U.S.C. § 2302(b)(8) (2000). See Wadhwa v. Dep’t of Veterans Affairs, 110

M.S.P.R. 615 (M.S.P.B. Mar. 13, 2009) (“Final Decision”).     For the reasons stated

below, we affirm.
                                     BACKGROUND

       Dr. Dom Wadhwa is a Staff Physician at the Philadelphia Veterans

Administration Medical Center (“PVAMC”), a Department of Veterans Affairs (“DVA” or

“agency”) hospital located in Philadelphia, Pennsylvania.            On June 9, 2006,

Dr. Wadhwa, while working at the Primary Care Clinic, encountered a patient who

allegedly walked into his examination room without an appointment.            The patient

became confrontational, and blocked his exit. Dr. Wadhwa reported this incident to the

DVA Office of Resolution Management (“ORM”), including with his report the patient’s

file containing personal information.     In response, his supervisors asked a local

Administrative Investigation Board to investigate the possibility of a violation of the

Privacy Act, based on Dr. Wadhwa’s disclosure of the patient’s private information.

       On July 23, 2006, Dr. Wadhwa submitted a letter to the DVA Inspector General

(“IG”) office, describing both the incident on June 9, 2006, and safety problems at the

hospital in general. Shortly thereafter, his first-line supervisor, Dr. Murphy, issued a

proposed 14-day suspension letter to Dr. Wadhwa based on the alleged violation of the

Privacy Act. This proposal was later rescinded and was replaced with a proposed

removal by Dr. Wadhwa’s second-line supervisor, Dr. Grippey.

       In late 2006, Dr. Wadhwa was reassigned from the PVAMC to the Northern

Indiana Health Care System in Indiana.          That order was rescinded and he was

reassigned to the PVAMC due to the unresolved, proposed disciplinary action. On his

return, he was temporarily reassigned to the Compensation and Pension (“C&P”)

Section of the PVAMC, where patients are examined for purposes of disability claims,

rather than to his former clinical position in the Primary Care Clinic, where patients seek




2009-3167                                   2
general medical care.      After Dr. Wadhwa received a letter confirming that his

reassignment to the C&P Section was permanent, Dr. Wadhwa filed a complaint with

the Office of Special Counsel alleging that his 2007 reassignment from the Primary

Care Clinic to the C&P Section was in retaliation for his whistleblowing disclosure

protected under the WPA.

      Dr. Wadhwa appealed to the Board, and the administrative judge (“AJ”) denied

Dr. Wadhwa’s request for corrective action.     Wadhwa v. Dep’t of Veterans Affairs,

No. PH-1221-08-0019-W-1 (M.S.P.B. Jun. 26, 2008) (“Initial Decision”). In denying the

request, the AJ found that: (1) Dr. Wadhwa failed to show that he made protected

disclosures on July 23, 2006, when he submitted a memorandum alleging safety

violations at PVAMC to the IG; (2) even if Dr. Wadhwa’s disclosures were protected, he

failed to show that they were a contributing factor in his reassignment from the Primary

Care Clinic to the C&P Section; and (3) the agency showed by clear and convincing

evidence that it would have reassigned Dr. Wadhwa absent any disclosure. Id.

      On petition for review, the Board modified the AJ’s initial decision but

nevertheless denied Dr. Wadhwa’s request for corrective action, holding that: (1) the AJ

erred in finding that Dr. Wadhwa’s disclosures were not protected; and (2) the AJ erred

in finding that Dr. Wadhwa’s disclosures were not a contributing factor in his

reassignment; but (3) the AJ correctly found that the agency presented clear and

convincing evidence that it would have reassigned Dr. Wadhwa even absent any

protected disclosure. See Final Decision. Dr. Wadhwa timely filed this appeal. We

have jurisdiction over Dr. Wadhwa’s appeal pursuant to 28 U.S.C. § 1295(a)(9).




2009-3167                                  3
                                     DISCUSSION

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, a decision of the Board must be affirmed unless 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); see Dickey v. Off. of

Pers. Mgmt., 419 F.3d 1336, 1339 (Fed. Cir. 2005).

      In order for the Board to order corrective action in an IRA appeal, the petitioner

must show by a preponderance of the evidence that the protected disclosure was a

contributing factor to the personnel action. See 5 U.S.C. § 2302(b)(8)(A); Johnston v.

Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). The burden then shifts to the

agency to show by clear and convincing evidence that it would have taken the same

personnel action in the absence of the disclosure. See 5 U.S.C. § 1221(e); Marano v.

Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993).         Here, because the Board

determined that Dr. Wadhwa had satisfied his initial burden to show that the disclosure

was a contributing factor in the decision to reassign him, we need only review the

Board’s determination that DVA satisfied its burden by clear and convincing evidence

that it would have taken the same personnel absent the disclosure.

      When determining whether the agency has shown by clear and convincing

evidence that it would have taken the same personnel action absent the disclosure, the

following three factors are considered: (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




2009-3167                                   4
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).

       In denying Dr. Wadhwa’s request for corrective action, the Board correctly

considered the requisite Carr factors and properly evaluated the submitted evidence.

First, the evidence in support of the agency’s action to reassign Dr. Wadhwa was

substantial. The agency’s witnesses testified that Dr. Wadhwa was reassigned because

(1) there was a large backlog of cases in the C&P Section that had developed due to

the Iraq War; (2) Dr. Wadhwa requested that he not be returned to work for Dr. Murphy;

(3) Dr. Wadhwa had performance problems and received a large number of patient

complaints while working at the Primary Care Clinic, even before the July 23, 2006

report of alleged safety violations; and (4) Dr. Wadhwa had communication and

collaboration problems with other staff members at the Primary Care Clinic.           The

witnesses testified that Dr. Wadhwa was better suited to work in the C&P Section rather

than Primary Care, because a C&P physician has less contact or collaboration with

Dr. Murphy and other staff. Significantly, the agency presented clear evidence that

there were disputes between Dr. Wadhwa and his supervisors over his alleged

performance with patient care prior to the July 23, 2006 report of alleged safety

violations. Initial Decision at 17.

       With respect to the second factor, the AJ found “very little motivation for all four

managers to prevaricate and . . . for bias against [Dr. Wadhwa] based on any improper

reason.” Initial Decision at 16. Specifically, she found that “[n]o manager seems to

have been affected by the . . . disclosures. No manager appeared to be concerned




2009-3167                                   5
about the disclosures because the issues were not new or unknown, and for

Drs. Murphy and Grippey, not even within their direct authority to implement.” Id. at 12.

While Dr. Wadhwa argues that the testimony of the agency’s witnesses was lacking and

unsubstantiated, he points to no contrary evidence.      We note that the Board did not

specifically discuss whether the agency takes similar actions against employees who

are not whistleblowers, but who are otherwise similarly situated. However, it appears

that neither party presented evidence with respect to this factor. Given that no evidence

was introduced on the third Carr factor, the Board’s failure to discuss it was at most

harmless error.   Substantial evidence supports the Board’s finding that the agency

showed by clear and convincing evidence that it would have reassigned Dr. Wadhwa

absent the disclosure based on the analysis of the first two factors.

       Dr. Wadhwa contends that “the AJ erred in crediting the testimonies of the

Agency’s witnesses without any supporting documentation over [Dr. Wadhwa’s]

testimony and documentation” and that “the AJ made demeanor-based credibility

findings without sufficiently sound reasons for doing so.” As the finder of fact, the AJ is

in a unique position to make credibility determinations and evaluate the evidence on the

record before her.     Accordingly, the AJ’s credibility determinations are “virtually

unreviewable,” Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), and

we see no basis to overturn the Board’s finding here that the agency’s witnesses were

credible.

       Dr. Wadhwa also contends that he was precluded from presenting witnesses to

support his case. This argument is without merit. The proffered testimony of agency

witnesses and the request for further cross-examination of agency witnesses were




2009-3167                                    6
untimely, and Wadhwa in any event has failed to establish that this testimony was

relevant or non-cumulative. On the facts of this case, we do not find any abuse of

discretion by the AJ in denying the admission of the proffered testimony.

                                        CONCLUSION

      We hold that the Board’s findings are supported by substantial evidence and

therefore affirm the Board’s decision that DVA did not violate the WPA by reassigning

Dr. Wadhwa from the Primary Care Clinic to the C&P Section of the PVAMC.

      No costs.




2009-3167                                  7
