       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  GEORGE HEATH,
                     Petitioner

                           v.

          DEPARTMENT OF THE ARMY,
                   Respondent
             ______________________

                      2016-1273
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-0752-14-0233-B-1.
                ______________________

                Decided: April 7, 2016
                ______________________

   GEORGE HEATH, Wahiawa, HI, pro se.

    KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD.
                ______________________

   Before DYK, PLAGER, and TARANTO, Circuit Judges.
2                                            HEATH   v. ARMY



PER CURIAM.
    George Heath petitions for review of a September 30,
2015, decision of the Merit Systems Protection Board
(“MSPB” or “Board”) affirming the Department of the
Army’s (“Army”) action removing him from federal service
effective January 17, 2014. We affirm.
                       BACKGROUND
    George Heath served as an animal health technician
at the William Beaumont Army Medical Center (“Medical
Center”) in Fort Bliss, Texas, from September 2009 to
January 2014. Mr. Heath was responsible for serving as a
quality control officer, fulfilling the duties of a senior
animal health technician, and leading and performing
oversight work involving the operation of the animal
facility and the care of laboratory animals.
    On October 3, 2011, Mr. Heath disclosed alleged viola-
tions of procedures and falsification of data by his then
supervisor, Major Todd Collins, to the Chairman of the
Medical Center’s Institutional Animal Care and Use
Committee. Mr. Heath alleged that, because he had made
these disclosures, Major Collins informed him that he
would no longer be allowed to perform supervisory duties.
On September 18, 2012, Mr. Heath filed an individual
right of action appeal seeking restoration of his superviso-
ry duties, but the administrative judge held that Mr.
Heath’s disclosures “were part of [his] normal duties and
were made through normal channels” and therefore “do
not qualify as protected disclosures under the [Whistle-
blower Protection Act].” Resp’t’s App’x (“App’x”) at 63.
    On September 11, 2013, the Board granted Mr.
Heath’s petition for review and remanded to the adminis-
trative judge, because the intervening Whistleblower
Protection Enhancement Act clarified that disclosures
made in the normal course of one’s duties may qualify as
protected disclosures. See 5 U.S.C. § 2302(f)(2). On Janu-
HEATH   v. ARMY                                           3



ary 27, 2014, the administrative judge found that the
Army “failed to show by clear and convincing evidence
that, absent any protected disclosures, it would have
eliminated [Mr. Heath’s] supervisory duties.” App’x at 86.
The administrative judge granted Mr. Heath’s request for
corrective action and ordered the Army to, within 20 days,
“provide [Mr. Heath] with relief such that he is placed as
nearly as possible in the same situation he would have
been had the agency not retaliated against him for whis-
tleblowing.” App’x at 88.
    Meanwhile, Major Collins was promoted and left the
Medical Center in June 2012. In April 2012, shortly
before Major Collins’s departure, Staff Sergeant Prycie
Turner (“SSG Turner”) joined the Medical Center and
became Mr. Heath’s new supervisor. On March 15, 2013,
SSG Turner proposed Mr. Heath’s removal for failure to
observe orders, rules, or procedures, and failure to carry
out assigned duties. The Army removed Mr. Heath on
April 18, 2013, and Mr. Heath appealed to the Board,
arguing, inter alia, that his removal, like the elimination
of his supervisory duties, was retaliation for the alleged
whistleblowing that occurred in 2011. On September 12,
2013, an administrative judge rejected Mr. Heath’s af-
firmative defense of retaliation for whistleblowing, but set
aside the removal because Mr. Heath was not made aware
of or given an opportunity to respond to certain ex parte
communications made to the deciding official, Colonel
Eric Morgan. On October 28, 2013, the Army reinstated
Mr. Heath, and simultaneously placed him on paid ad-
ministrative leave retroactive to April 18, 2013. On the
same day, the Army instituted removal proceedings on
the same grounds as the first removal.
    The proposed removal letter was based on: (1) “Fail-
ure to observe orders, rules, or procedures where safety to
persons or property is endangered”; (2) “[f]ailure to ob-
serve orders, rules, or procedures where safety to persons
or property is not endangered”; and (3) “[f]ailure to carry
4                                             HEATH   v. ARMY



out assigned duties.” App’x at 121. Specifically, Mr. Heath
was charged with:
        •   leaving work early on February 5, 2013, and
            failing, inter alia, to properly clean and disin-
            fect animal cages and related items;
        •   euthanizing animals on or around February 22,
            2013, without observing the experimental pro-
            tocol or standard operating procedure;
        •   arriving to work early on March 4, 2013, with-
            out notifying a supervisor of his entrance to the
            building outside of normal duty hours, in viola-
            tion of standard operating procedure and prior
            counseling; and
        •   failing to prepare for a scheduled animal sur-
            gery on February 7, 2013.
App’x at 121–22. Because this was Mr. Heath’s third
instance of formal discipline for misconduct, 1 SSG Turner
proposed removal. Mr. Heath was removed for a second
time on January 17, 2014, 2 and he once more appealed his
removal to the Board, again arguing, among other things,



    1   On July 24, 2012, Mr. Heath received a Letter of
Reprimand, to be placed in his Official Personnel Folder
for 18 months, for “significant documentation inaccuracies
and three goats died due to not executing known best
practice procedures.” App’x at 149. On November 28,
2012, Mr. Heath was suspended without pay for two days
for performing surgeries, using the wrong anesthetic
agent and without approval, on five mice which later died.
See App’x at 153, 155.
    2   Because Mr. Heath had been removed on January
17, 2014, the Army did not restore Mr. Heath’s superviso-
ry duties in accordance with the Board’s January 27,
2014, order.
HEATH   v. ARMY                                         5



that he had been removed in retaliation for the alleged
2011 whistleblowing. An administrative judge sustained
Mr. Heath’s second removal on May 14, 2014. On appeal,
however, the Board vacated and remanded, holding that
the administrative judge erred in “finding that [Mr.
Heath] was barred by the doctrine of collateral estoppel
from litigating the facts underlying the agency’s charges”
that were determined in the first removal action, and held
that the administrative judge “must afford the parties the
opportunity to further develop the record.” App’x at 29–
30.
    Following additional briefing and a one-day hearing,
the administrative judge affirmed Mr. Heath’s second
removal on September 30, 2015. The administrative judge
determined that the Army had proven by preponderant
evidence that Mr. Heath had engaged in the charged
misconduct and that the penalty of removal was reasona-
ble and promoted the efficiency of service. The adminis-
trative judge also held that Mr. Heath had established a
prima facie case of reprisal for whistleblowing based on
Mr. Heath’s prior protected disclosures, and evidence that
his supervisor, SSG Turner, and the deciding official for
the second removal, Colonel Lisa Lehning, were aware of
his whistleblowing. However, the administrative judge
found that the Army had established by clear and con-
vincing evidence that it would have taken the same
personnel action in the absence of Mr. Heath’s disclo-
sures.
    Mr. Heath did not file a petition with the Board for
review of the initial decision, which became the final
decision of the Board on November 4, 2015. Mr. Heath
now petitions for review of the final decision. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
6                                             HEATH   v. ARMY



                        DISCUSSION
    We must affirm the decision of the MSPB unless it
was (1) arbitrary, capricious, or an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); Salmon v. Soc. Sec. Admin., 663 F.3d
1378, 1380 (Fed. Cir. 2011).
      Substantial evidence supports the Board’s finding
that Mr. Heath violated procedures and failed to perform
his duties. In addition to testimony from Mr. Heath’s
supervisors, the Board found that, “[d]uring his testimo-
ny, [Mr. Heath] acknowledged that he did not clean the
lab [on February 5, 2013, and] . . . acknowledged . . . that
he euthanized the mice at issue in this appeal. . . . [Mr.
Heath] acknowledged that he arrived at work early on
[March 4, 2013,] and did not contact either [of his super-
visors] prior to entering the building.” App’x at 38, 39, 41.
In addition, at the hearing, “[Mr. Heath] testified that he
. . . had not read the [e-mail notifying him about the
February 7, 2013 surgery],” confirming that he had failed
to prepare for the surgery as charged. App’x at 42.
    The Board, in finding that the agency had proven by
clear and convincing evidence that Mr. Heath would have
been removed absent the whistleblowing, is supported by
the record. In determining whether the agency would
have removed Mr. Heath absent his prior protected dis-
closures, the Board properly 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 evidence that the agency takes
similar actions against employees who are not whistle-
blowers but who are otherwise similarly situated.”
Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1365 (Fed. Cir.
2012) (internal quotation marks and citation omitted).
HEATH   v. ARMY                                            7



    As to the first factor, the Board found that “the agency
has proven all of the charges it brought against [Mr.
Heath] in this removal action.” App’x at 46. As to the
second, the Board found that there was no motive on the
part of SSG Turner or the deciding official, Colonel
Lehning, to retaliate against Mr. Heath by removing him.
SSG Turner arrived after Mr. Heath’s protected disclo-
sures, and just months before Major Collins’s departure.
SSG Turner declared that “Mr. Heath’s opinions of Major
Collins . . . had nothing to do with my decisions to propose
Mr. Heath’s removal from federal service in 2013. . . . An
investigation that I was not involved in was ending when
I arrived . . . . I don’t know what that was about and it
was not used, considered, or a factor in my decisions to
propose Mr. Heath’s removal.” App’x at 165. Colonel
Lehning was not even at the Medical Center when Major
Collins was there, and similarly declared that “[Mr.
Heath’s] general and conclusory comments about whistle-
blowing were not related to the charges in his proposed
removal and they were not a factor in my removal deci-
sion. Mr. Heath was removed solely because of his mis-
conduct.” App’x at 168.
     In considering the third factor, the Board noted that
another technician who worked in the lab “received a
written counseling from [SSG] Turner for his failure to
properly perform his duties on February 5, 2013. Howev-
er, I find that [the technician] is not similarly situated to
[Mr. Heath] in light of the fact that he is in the military
and not a civilian employee.” App’x at 47 n.6. The record
additionally shows that Mr. Heath was the senior techni-
cian, and Mr. Heath testified that “as the quality control
officer, he is responsible for ensuring that the facility was
clean.” App’x at 38. The Board did not err in concluding
that the Army had shown by clear and convincing evi-
dence that it would have removed Mr. Heath absent his
disclosures.
8                                        HEATH   v. ARMY



    We have considered Mr. Heath’s other arguments and
find them without merit.
                    AFFIRMED
                        COSTS
    No costs.
