                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      February 14, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
RAYMOND H. RYAN,

             Plaintiff-Appellant,

v.                                                        No. 11-6335
                                                   (D.C. No. 5:09-CV-01374-C)
DEPARTMENT OF THE AIR FORCE,                              (W.D. Okla.)
Secretary, Michael B. Donley,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.


      Raymond H. Ryan, formerly a civilian Air Force employee, appeals the district

court’s judgment in favor of the Secretary of the Air Force in this lawsuit concerning

the Air Force’s termination of Mr. Ryan’s employment. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The Air Force first terminated Mr. Ryan’s employment in 2006. Although the

Merit Systems Protection Board (MSPB) rejected Mr. Ryan’s claims of disability

discrimination and retaliation for whistleblowing, in October 2007 it ordered him

reinstated due to a procedural error. But Mr. Ryan never reported to Tinker Air

Force Base in Oklahoma as ordered, and the Air Force removed him from

employment for the second time effective February 15, 2008. This time, in addition

to rejecting Mr. Ryan’s claims of disability discrimination and retaliation for

whistleblowing, the MSPB upheld the removal. The Equal Employment Opportunity

Commission concurred with the MSPB’s final decision finding no discrimination.

      Mr. Ryan then filed suit in the district court. The court granted the Secretary’s

Fed. R. Civ. P. 12(b)(1) motion to dismiss Mr. Ryan’s whistleblowing claims on the

ground that there is no private right of action under the Whistleblower Protection Act

of 1989 (WPA), 5 U.S.C. § 2302(b)(8). The court denied the Secretary’s Fed. R.

Civ. P. 12(b)(6) motion to dismiss Mr. Ryan’s discrimination and retaliation claims

and allowed them to go to a jury trial. After Mr. Ryan rested, the district court

granted the Secretary’s Fed. R. Civ. P. 50 motion for judgment as a matter of law

because “there simply was not evidence presented from which a reasonable jury

could determine that [the Air Force’s] actions were discriminatory or retaliatory.”

R., Vol. 1 at 406-07.

      On appeal, Mr. Ryan complains that the district court: (1) dismissed his

whistleblower claims; (2) denied his motions to compel the Secretary to produce


                                          -2-
relevant evidence, instead allowing the Secretary to submit deficient privilege logs,

and denied his third motion to extend the discovery schedule; (3) granted the

Secretary’s motion to voluntarily dismiss a counterclaim without ruling on

Mr. Ryan’s request for sanctions; (4) quashed certain witness subpoenas and

excluded certain evidence at trial; (5) denied Mr. Ryan’s motion to recuse; and

(6) granted the Secretary’s Rule 50 motion.

1.    Whistleblower Claims

      We review the district court’s Rule 12(b)(1) dismissal of the whistleblowing

allegations de novo. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239,

1242 (10th Cir. 2011). It appears that Mr. Ryan was trying to bring a freestanding

WPA claim. We agree with the district court, however, that there can be no such

claim, due to preemption by the Civil Service Reform Act (CSRA). See Steele v.

United States, 19 F.3d 531, 533 (10th Cir. 1994); Petrini v. Howard, 918 F.2d 1482,

1485 (10th Cir. 1990).1

      To the extent that Mr. Ryan was seeking judicial review of the MSPB decision,

the district court would have had jurisdiction to consider the claim. See 5 U.S.C.

§§ 1221(h), 7703(b)(2); Steele, 19 F.3d at 532. But even assuming that Mr. Ryan


1
       In Wells v. Shalala, 228 F.3d 1137, 1147 (10th Cir. 2000), this court discussed
the elements of “a prima facie case for whistleblowing under the WPA.” Steele,
however, had already held that whistleblowing allegations were preempted by the
CSRA, and “when faced with an intra-circuit conflict, a panel should follow earlier,
settled precedent over a subsequent deviation therefrom.” Haynes v. Williams,
88 F.3d 898, 900 n.4 (10th Cir. 1996).


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intended to assert a judicial-review claim rather than a freestanding WPA claim, no

remand is required. The district court could only uphold the MSPB decision, as it

was not “(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.”

Daugherty v. Thompson, 322 F.3d 1249, 1254 (10th Cir. 2003) (internal quotation

marks omitted). To the contrary, the MSPB decision was unassailably correct given

the uncontroverted fact that Mr. Ryan never reported to Tinker Air Force Base.

2.    Discovery Rulings

      We review the district court’s discovery rulings for abuse of discretion. See

Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647 (10th Cir. 2008) (denial of motion

to compel); Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007)

(denial of request for continuance). “Under this standard, we will reverse a district

court only if it exceeded the bounds of permissible choice, given the facts and

applicable law in the case at hand.” Regan-Touhy, 526 F.3d at 647 (internal

quotation marks omitted). We have recognized that:

      In the discovery context, the range of permissible choices available to
      the district court is notably broad. This is so because discovery
      decisions necessarily involve an assessment of the anticipated burdens
      and benefits of particular discovery requests in discrete factual settings,
      while at the same time also requiring the trial judge to take account of
      the amount in controversy, the parties’ resources, the importance of the
      issues at stake in the action, and the ability of the proposed discovery to
      shed light on those issues, among many other things.

Id.

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      We cannot conclude that any of the discovery decisions identified by Mr. Ryan

were an abuse of the district court’s discretion. In denying the motion to compel, the

district court carefully evaluated the relevant factors, including the adequacy of the

Secretary’s privilege log, and gave supportable reasons for declining to compel

further production of evidence. As for the third motion to continue discovery, the

district court had granted two previous extensions, giving Mr. Ryan several extra

months to complete discovery, and it had warned Mr. Ryan there would be no further

extensions. Denying the motion cannot be considered an abuse.

3.    Voluntary Dismissal of the Secretary’s Counterclaim

      After initially bringing a counterclaim to recover severance pay that Mr. Ryan

received for the first removal, just before trial the Secretary moved under

Fed. R. Civ. P. 41 to dismiss the counterclaim with prejudice. Mr. Ryan responded,

opposing dismissal but also requesting that the court award him monetary sanctions

to compensate him for the time he had expended on the counterclaim. Although the

district court dismissed the counterclaim with prejudice, it did not rule on the request

for sanctions. On appeal, Mr. Ryan complains about the grant of the dismissal

motion and the court’s failure to rule on his sanctions request.

      Our review of this issue is also for abuse of discretion. Vanguard Envtl., Inc.

v. Kerin, 528 F.3d 756, 759-60 (10th Cir. 2008). Under Rule 41(a)(2), the district

court may dismiss a claim “on terms that the court considers proper.” It was not an

abuse of discretion for the district court to accept the Secretary’s representation that


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the counterclaim was not necessary to protect the Air Force’s interests and to

determine that dropping the counterclaim would simplify the trial.

      Regarding the sanctions request, it is unclear whether the district court

overlooked the request, or if it simply did not consider a monetary sanction to be a

proper condition of dismissal. We need not reverse for further consideration,

however, because under these circumstances a grant of sanctions would have been an

abuse of discretion. See Ashby v. McKenna, 331 F.3d 1148, 1151 (10th Cir. 2003)

(“[W]ith respect to a matter committed to the district court’s discretion, we cannot

invoke an alternative basis to affirm unless we can say as a matter of law that it

would have been an abuse of discretion for the trial court to rule otherwise.” (internal

quotation marks omitted)). Mr. Ryan essentially sought an award in the nature of an

attorney’s fee, without specifying any authority for compensating him for the time he

spent on the counterclaim.2 But attorney’s fee awards are not always available to

pro se plaintiffs. See Kay v. Ehrler, 499 U.S. 432, 435 (1991) (42 U.S.C. § 1988

case). Moreover, the counterclaim was dismissed with prejudice. Where a claim is

dismissed with prejudice under Rule 41(a)(2), “attorneys’ fees are usually not a

proper condition of dismissal because the defendant cannot be made to defend

again.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir. 1997). Although
2
       On appeal, Mr. Ryan refers to Fed. R. Civ. P. 11. However, his district-court
response did not cite Rule 11, and in any event, it does not appear that the request
met the strict requirements for Rule 11 motions. See Fed. R. Civ. P. 11(c)(2)
(requiring that a Rule 11 motion be made separately and that the movant give the
other party an opportunity to withdraw the offending paper before filing the motion).


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AeroTech acknowledged that a fee award “might be appropriate” if there were

exceptional circumstances, see id., this case does not present any such exceptional

circumstances.

4.    Evidentiary Rulings

      “[W]e review the court’s evidentiary rulings, including the court’s decision to

exclude evidence or testimony, for abuse of discretion.” Breakthrough Mgmt. Grp.,

Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1189 (10th Cir. 2010).

“We . . . revers[e] only if we have a firm and definite belief that the trial court made a

clear error in judgment.” Tanberg v. Sholtis, 401 F.3d 1151, 1162 (10th Cir. 2005)

(internal quotation marks omitted).

      The district court granted the Air Force’s motion to quash six witness

subpoenas on the ground that the witnesses had no testimony relevant to the second

removal. Mr. Ryan argues that the witnesses falsely asserted that they had no

knowledge of the second termination, and in fact they had knowledge about

(1) Mr. Ryan’s medical condition that they conveyed to other officials before the

second removal, and (2) prior disciplinary actions that allegedly played a role in the

removal decision.

      We are not convinced that the district court made a clear error in judgment in

excluding the six witnesses. And “even if we were to find an error that amounted to

an abuse of discretion, reversible error may be predicated only upon errors that affect

a party’s substantial rights.” Id.; Fed. R. Evid. 103(a). We recognize that Mr. Ryan


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believes that the witnesses were necessary for his case, but his descriptions of their

testimony do not establish that his substantial rights were affected. Questioning of

other witnesses established the Air Force’s knowledge of his medical condition and

provided information about the prior disciplinary actions. Thus, Mr. Ryan has failed

to establish that any error in quashing the subpoenas was reversible error.

       As for the limitation of evidence at trial, the district court excluded all

evidence regarding employment decisions other than the second removal. On appeal

Mr. Ryan complains that he was precluded from introducing evidence (1) concerning

the period between the first and second removals, (2) regarding the Secretary’s

counterclaim for recoupment of severance pay from the first removal, and (3) the

validity of his reinstatement. We have held, however, that “a trial court has broad

discretion to determine whether evidence is relevant and to exclude irrelevant

evidence[.]” Garcia-Martinez v. City & Cnty. of Denver, 392 F.3d 1187, 1193

(10th Cir. 2004) (internal quotation marks omitted). Moreover, “[t]he court may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . confusing the issues, misleading the jury, undue delay, [or] wasting

time[.]” Fed. R. Evid. 403. The first removal was not at issue in this litigation, and

the district court was well within its discretion to try to keep the parties and the jury

focused on the second removal and whether it resulted from discrimination or

retaliation.




                                           -8-
       Mr. Ryan also asserts that his whistleblower claims were inextricably

intertwined with his discrimination and retaliation claims, so that precluding

evidence of the whistleblower claim fatally undermined his discrimination and

retaliation claims. We are not persuaded that the different claims were so

intertwined, and as discussed above, Mr. Ryan was not entitled to a trial on his

whistleblowing allegations. Accordingly, the district court’s exclusion of

whistleblowing evidence was no abuse of discretion.

5.     Motion to Recuse

       “We review the denial of a motion to recuse for abuse of discretion, and under

that standard we will uphold a district court’s decision unless it is an arbitrary,

capricious, whimsical, or manifestly unreasonable judgment.” Higganbotham v.

Okla. ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003) (citation and

internal quotation marks omitted).

       In seeking recusal, Mr. Ryan argued that the district court’s rulings against

him showed bias and that the district court had engaged in ex parte communications

with the Secretary’s counsel. But allegations regarding adverse rulings “almost never

constitute a valid basis for a bias or partiality motion. . . . Almost invariably, they are

proper grounds for appeal, not recusal.” Liteky v. United States, 510 U.S. 540, 555

(1994). And the allegations regarding ex parte communications rested on speculation

and suspicion, which also are insufficient to require recusal, see United States v.

Cooley, 1 F.3d 985, 993 (10th Cir. 1993); Hinman v. Rogers, 831 F.2d 937, 939


                                           -9-
(10th Cir. 1987) (per curiam). Therefore, the district court’s denial of the recusal

motion was not arbitrary, capricious, whimsical, or manifestly unreasonable.

6.    Rule 50 Motion

      Finally, we review the grant of the Secretary’s Fed. R. Civ. P. 50 motion

de novo. Owner-Operator Indep. Drivers Ass’n , Inc. v. USIS Commercial Servs.,

Inc., 537 F.3d 1184, 1190 (10th Cir. 2008). “In reviewing the grant of judgment as a

matter of law, the question is not whether there is literally no evidence supporting the

nonmoving party but whether there is evidence upon which the jury could properly

find for that party.” Id. at 1191 (brackets and internal quotation marks omitted).

      Mr. Ryan argues that he presented sufficient evidence for a reasonable jury to

find that the Secretary’s proffered reason for the second removal was pretext for

discrimination and retaliation. Having reviewed the transcript of the trial, however,

we agree with the district court that there was insufficient evidence for the jury

properly to find in favor of Mr. Ryan.

      The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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