       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                F. ALLAN MIDYETT,
                      Petitioner

                           v.

     DEPARTMENT OF VETERANS AFFAIRS,
                  Respondent
            ______________________

                      2016-2225
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-1221-12-0554-W-2.
                ______________________

              Decided: December 9, 2016
               ______________________

   F. ALLAN MIDYETT, Fayetteville, AR, pro se.

    JOSHUA A. MANDLEBAUM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for the respondent. Also repre-
sented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
                ______________________
2                                          MIDYETT   v. DVA



       Before PROST, Chief Judge, SCHALL, and STOLL,
                    Circuit Judges.
PER CURIAM.
    Dr. F. Allan Midyett appeals a final decision of the
Merit Systems Protection Board. The Board denied
Dr. Midyett’s petition for review and affirmed the initial
decision. We affirm.
                      BACKGROUND
    The Veterans Health Care System of the Ozarks hired
Dr. Midyett as a radiologist on November 2, 2010, pursu-
ant to the Department of Veterans Affairs’ hiring authori-
ty under 38 U.S.C. § 7401(1). Dr. Midyett began a two-
year probationary period, starting on November 21, 2010,
as a condition for his employment.
    In late 2011 and early 2012, the Chief of Radiology,
Dr. Kathryn Witztum, and the Medical Center Director,
Dr. Mark Enderle, oversaw a series of review procedures
that culminated in the initiation of a Professional Stand-
ards Board to conduct a review of Dr. Midyett’s perfor-
mance during his probationary period and make
recommendations concerning whether Dr. Midyett should
be retained or separated from federal service. This review
was held due to allegations of performance deficiencies in
clinical ability, skills, and knowledge.       On Febru-
ary 21, 2012, the Professional Standards Board concluded
that Dr. Midyett had a repetitive pattern of concerning
conduct, including errors in reports posing life-
threatening harm to patients, and had provided sub-
standard care.       As a result, the VA discharged
Dr. Midyett, effective April 6, 2012.
    On August 1, 2012, Dr. Midyett filed an individual
right of action (“IRA”) appeal with the Board, claiming
MIDYETT   v. DVA                                         3



inter alia, retaliation for whistleblower disclosures. 1 On
March 8, 2013, the Administrative Judge dismissed
Dr. Midyett’s IRA appeal without prejudice pending the
Board’s decision in Day v. Department of Homeland
Security, 119 M.S.P.R. 589 (2013), concerning the retroac-
tivity of the Whistleblower Protection Enhancement Act
of 2012 (“WPEA”). After the Board’s decision in Day,
Dr. Midyett’s IRA appeal was redocketed.
    On September 16, 2015, after conducting a three-day
hearing, the AJ issued his initial decision. The AJ first
determined that Dr. Midyett satisfied the minimum
requirements for Board jurisdiction. Next, the AJ ad-
dressed the merits of Dr. Midyett’s whistleblower allega-
tions, determining that Dr. Midyett was subjected to
personnel     actions     within    the     meaning    of
5 U.S.C. § 2302(a)(2)(A).   The AJ further found that
Dr. Midyett made protected disclosures and established
by preponderant evidence that his protected disclosures
were a contributing factor in some of the personnel ac-



   1     In addition to Dr. Midyett’s IRA appeal, he filed
two other appeals, one pursuant to the Veterans Em-
ployment Opportunities Act of 1998 (“VEOA”) and anoth-
er pursuant to the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”). Both
appeals were dismissed for lack of jurisdiction. See Mid-
yett v. Dep’t of Veterans Affairs, No. DA-4324-12-0568-I-1,
2013 WL 3814561 (M.S.P.B. Mar. 8, 2013); Midyett v.
Dep’t of Veterans Affairs, DA-3330-12-0569-I-1, 2014 WL
5305516 (M.S.P.B. Apr. 29, 2014), aff’d, 594 Fed. App’x
969 (2014). Dr. Midyett has also filed at least five civil
actions asserting similar allegations in the United States
District Court for the Western District of Arkansas, all of
which have been dismissed. See, e.g., Midyett v. Levy, No.
5:14–CV–05016, 2015 WL 4251144, *1 (W.D. Ark. July 13,
2015).
4                                             MIDYETT   v. DVA



tions at issue. The AJ determined, however, that the
agency presented clear and convincing evidence that it
would have taken the same personnel actions, even ab-
sent Dr. Midyett’s protected disclosures. Accordingly, the
AJ denied Dr. Midyett’s request for corrective action.
    Dr. Midyett petitioned for review of the initial deci-
sion, asserting that the AJ made erroneous factual find-
ings and failed to address his claims that the VA
committed harmful procedural errors and violated his
rights to due process in the process of his discharge.
Dr. Midyett also asserted that new and material evidence
was available that was unavailable when the record
closed, despite his due diligence.
    The Board denied the petition for review and affirmed
the initial decision. Midyett v. Dep’t of Veterans Affairs,
No. DA-1221-12-0554-W-2, 2016 WL 3035543 (M.S.P.B.
May 26, 2016). The Board held that the AJ’s failure to
discuss Dr. Midyett’s due process and harmful procedural
error claims did not warrant reversal of the initial deci-
sion because such “claims may not be heard in the context
of an IRA appeal.” Id. ¶ 7 (citing Hugenberg v. Dep’t of
Commerce, 120 M.S.P.R. 381, ¶ 24 (2013)). The Board
further held that, assuming that the AJ made erroneous
factual findings, these alleged errors were not prejudicial
to Dr. Midyett’s substantive rights and did not provide a
basis for reversing the initial decision. Id. ¶ 8. Finally,
the Board considered Dr. Midyett’s purportedly new
evidence and determined that it did not warrant a differ-
ent outcome. Id. ¶ 17.
    Dr. Midyett appealed to this court, and we have
jurisdiction under 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
    We review decisions of the Board on a limited basis,
setting aside Board actions, findings, or conclusions only
if we find them to be “(1) arbitrary, capricious, an abuse of
MIDYETT   v. DVA                                          5



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).
    Dr. Midyett does not allege any errors of law or erro-
neous factual findings by the Board related to his whis-
tleblower allegations. For example, he does not challenge
the Board’s finding that the agency presented clear and
convincing evidence that it would have taken the same
personnel actions, even absent Dr. Midyett’s protected
disclosures. Rather, Dr. Midyett reasserts that the VA
violated his rights to due process and committed harmful
procedural errors in the process of his discharge.
     This case involves review of an IRA appeal. In an IRA
appeal, the Board’s scope of review is limited to the merits
of the whistleblower allegations. See Kewley v. Dep’t of
Health & Human Servs., 153 F.3d 1357, 1366 (Fed. Cir.
1998); Kennington v. Merit Sys. Prot. Bd., 456 Fed. App’x
899, 902 (Fed. Cir. 2011) (holding that petitioner’s claims
that the agency violated his rights to due process “do not
fall within the scope of an IRA appeal, which is limited to
personnel actions taken in reprisal for protected disclo-
sures”). Thus, because Dr. Midyett’s claims—that the VA
violated his rights to due process and committed harmful
procedural errors—fall outside of the Board’s scope of
review in an IRA appeal, the Board did not err by refusing
to address these claims.
   We have carefully considered Dr. Midyett’s remaining
arguments and determined that they lack merit.
                       CONCLUSION
   For the reasons stated above, we affirm.
                       AFFIRMED
                          COSTS
   No costs.
