                          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

                                              06-3107

                                        GARY A. YOUNG,

                                                                          Petitioner,

                                                 v.

                                 DEPARTMENT OF THE ARMY,

                                                                          Respondent.

                              ___________________________

                              DECIDED: September 11, 2006
                              ___________________________


Before LOURIE, DYK, and PROST, Circuit Judges.

PER CURIAM.

          Petitioner Gary A. Young (“Young”) petitions for review of the final order of the

Merit Systems Protection Board (“Board”), denying corrective action in Young’s

individual right of action (“IRA”) appeal. Young argues that the Department of the Army

(“Agency”) failed to promote him in retaliation for conduct protected under the

Whistleblower Protection Act of 1989, codified at 5 U.S.C. § 2302(b)(8) (2000). We

affirm.

                                       BACKGROUND

          Young was originally employed by the Agency as a carpenter. After an on-the-

job injury, he was reassigned in January 1993 as a safety technician at a GS-07 level.

Between June 1993 and June 1994, Young testified that his supervisor, Rudolph

Spencer (“Spencer”), requested that he do various home improvement projects and
other personal chores and in return promised to promote him to the GS-09 level.

Spencer admitted that Young helped him with a few, but not all, of the personal chores

alleged, but testified that Young volunteered to do so without being promised a

promotion.

      When he was not promoted, Young notified Spencer’s superiors in 1997 about

the alleged promise of promotion in exchange for personal services. He made similar

complaints to the Inspector General’s Office in 2000. Young was ultimately promoted to

a GS-09 position in October 2002 after the Agency conducted an audit. This audit was

in response to congressional inquiries sparked by Young’s communications with his

Senator’s office. He voluntarily retired from federal service in June 2003.

      In his IRA appeal filed with the Board on September 15, 2004, Young argued that

the Agency violated the Whistleblower Protection Act (“WPA”). 5 U.S.C. § 2302(b)(8)

(2000). Young alleged that the Agency failed to promote him to a GS-09 level from

1993 until 2002 because he reported Spencer’s improper promise of a promotion in

exchange for personal services.

      After a hearing, the Administrative Judge (“AJ”) concluded in a January 14, 2005,

initial decision that the Board had jurisdiction because Board jurisdiction over a WPA

claim exists when there are non-frivolous allegations that (1) the complaintant engaged

in protected whistleblowing activity; and (2) that his protected conduct was a

contributing factor in the agency’s decision to take personnel action. On the merits, the

AJ denied the request for corrective action, concluding both that Young had failed to

prove by preponderant evidence that his disclosures were protected by the WPA and

that any protected disclosure that occurred was not a contributing factor in the Agency’s




06-3107                                    2
failure to promote Young. Specifically, the AJ held that a subjective belief by Young that

a promise of a promotion as a quid pro quo for personal services had occurred was

insufficient; instead, the AJ required objective evidence of such a promise. Crediting

testimony from Spencer that there was no promise of promotion, the AJ concluded that

no protected disclosure occurred. The initial decision became final when the Board

denied the petition for review on November 22, 2005.

      Young timely filed his petition to this court on February 10, 2006. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

                                     DISCUSSION

      The Board’s decision must be affirmed unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483

(Fed. Cir. 1998).

      To establish a claim under the WPA, the claimant must show by preponderant

evidence (1) that he made a disclosure described in 5 U.S.C. § 2302(b)(8); and (2) that

the protected disclosure was a contributing factor in a personnel action taken against

the claimant. Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1378 (Fed. Cir.

2001). Among other things, Section 2302(b)(8) protects “any disclosure of information

by an employee . . . which the employee . . . reasonably believes evidences . . . an

abuse of authority….” 5 U.S.C. §§ 2302(b)(8)(A)(ii) (2000). The Board correctly applied

a disinterested observer test to determine whether Young had a reasonable belief that

Spencer was abusing his authority. See Lachance v. White, 174 F.3d 1378, 1381 (Fed.




06-3107                                    3
Cir. 1999). Applying this test, the Board resolved conflicting testimony from Young and

Spencer based on their respective credibility and found that no promise of promotion in

exchange for personal services occurred. Young thus had no reasonable basis for

believing that such a promise had been made.

       It is not our function to re-weigh the conflicting evidence, as “credibility

determinations of an administrative judge are virtually unreviewable on appeal.” Bieber

v. Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). The Board’s conclusion that no

promise of promotion in exchange for personal services occurred is supported by

substantial evidence. Spencer’s testimony, found credible by the Board, indicated that

only a few instances of personal services occurred and that these were completely

voluntary without any promise of promotion attached. This testimony was corroborated

by testimony from a co-worker that employees in the office frequently provided personal

assistance to each other.

      Having sustained the Board’s finding that no protected disclosure occurred, it is

unnecessary for us to reach the question of whether the Board erred in finding that the

protected disclosure was not a contributing factor in the personnel action.1

      For the foregoing reasons, the Board’s decision is affirmed.

                                         COSTS

      No costs.




      1
             In his informal brief, Young claims that his own testimony at the hearing
was negatively affected by the death of his mother the previous night. However, his
counsel never asked to delay the hearing, and this argument does not provide any basis
for reopening the proceedings.


06-3107                                    4
