Case: 19-1533   Document: 39     Page: 1   Filed: 04/10/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                    ANZOR MIKAIA,
                       Petitioner

                            v.

           DEPARTMENT OF COMMERCE,
                     Respondent
               ______________________

                       2019-1533
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-1221-17-0794-W-2.
                 ______________________

                 Decided: April 10, 2020
                 ______________________

    MICHAEL LEE VOGELSANG, JR., The Employment Law
 Group, PC, Washington, DC, for petitioner.

     ALISON VICKS, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, for respondent. Also represented by JOSEPH H. HUNT,
 ELIZABETH MARIE HOSFORD, ROBERT EDWARD KIRSCHMAN,
 JR.
                  ______________________

    Before CHEN, SCHALL, and HUGHES, Circuit Judges.
Case: 19-1533    Document: 39      Page: 2    Filed: 04/10/2020




 2                                       MIKAIA   v. COMMERCE



 PER CURIAM.
     Dr. Anzor Mikaia petitions for review of a decision by
 the Merit Systems Protection Board denying corrective ac-
 tion for his claim of whistleblower retaliation. Because the
 Board properly identified the protected activities and be-
 cause substantial evidence supports its factual findings
 that no retaliation occurred, we affirm the Board’s decision.
                               I
     Dr. Mikaia is a Research Chemist in the Mass Spec-
 trometry Data Center of the Materials Measurement La-
 boratory at the National Institute of Standards and
 Technology (NIST), within the Department of Commerce.
 His job duties prior to the events underlying this appeal
 included evaluating data for inclusion in NIST’s Mass
 Spectral Library—which is published with updates every
 three years—and serving as a liaison for certain contract
 scientists assisting with this work.
     According to Dr. Mikaia, over the course of roughly six
 months from December 2016 to June 2017, he made whis-
 tleblower disclosures regarding contractor management;
 and in retaliation the agency revoked his conference travel,
 attempted to remove his contractor duties, issued him a let-
 ter of reprimand, set new unattainable performance stand-
 ards, and created a hostile work environment for him.
 During this same period, the Mass Spectrometry group was
 working to finalize the 2017 Library for public release after
 learning from Dr. Mikaia in January 2017 that he would
 not be done with his data evaluations on time.
      After filing a complaint of whistleblower reprisal with
 the Office of Special Counsel, Dr. Mikaia filed an individual
 right of action appeal with the MSPB. Following a four-
 day hearing, the Administrative Judge issued an initial de-
 cision concluding that although Dr. Mikaia made a prima
 facie case with respect to one protected disclosure, the
 agency provided clear and convincing evidence that it
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 MIKAIA   v. COMMERCE                                         3



 would have taken the alleged personnel actions against
 him regardless of that disclosure. Mikaia v. Dep’t of Com-
 merce, No. DC-1221-17-0794-W-2, slip op. at 32–36, 77,
 2018 WL 6065200 (M.S.P.B. Nov. 16, 2018) (“Board Deci-
 sion”). The Administrative Judge determined that the sole
 protected disclosure occurred on February 14, 2017, when
 Dr. Mikaia reported that contractors were being assigned
 work beyond the scope of their contracts in violation of the
 Anti-Deficiency Act, 31 U.S.C. § 1341. Crediting record ev-
 idence and testimony from Dr. Mikaia’s colleagues and su-
 pervisors, the Administrative Judge concluded that the
 agency took the asserted personnel actions largely in re-
 sponse to learning that Dr. Mikaia was behind on his data
 evaluations rather than for retaliatory reasons. Accord-
 ingly, the Administrative Judge denied corrective action.
     The Administrative Judge’s initial decision became the
 final decision of the Board on December 21, 2018. See
 5 U.S.C. § 7701(e)(1). Dr. Mikaia timely petitioned for re-
 view. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
                               II
      Under our narrow review, we will set aside a final de-
 cision of the Board only if the decision is “(1) arbitrary, ca-
 pricious, an abuse of discretion, or otherwise not in
 accordance with law; (2) obtained without procedures re-
 quired by law, rule, or regulation having been followed; or
 (3) unsupported by substantial evidence.”            5 U.S.C.
 § 7703(c).
      We first address Dr. Mikaia’s challenge to the Admin-
 istrative Judge’s determination that three of his asserted
 whistleblowing activities were not “protected” under
 5 U.S.C. § 2302(b)(8) and § 2302(b)(9). As to the first, in
 December 2016, Dr. Mikaia found out that a contractor was
 “supervising” another NIST contractor’s employee, which
 he believed improper under the Federal Acquisition Regu-
 lations (FAR); he told his supervisor and another lead sci-
 entist that this was “wrong.” J.A. 2405–06. Dr. Mikaia
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 4                                        MIKAIA   v. COMMERCE



 argues that the Administrative Judge erred in finding this
 disclosure not protected under § 2302(b)(8)(A), which ap-
 plies to “any disclosure of information” that an employee
 “reasonably believes evidences (i) any violation of any law,
 rule, or regulation, or (ii) gross mismanagement, a gross
 waste of funds, an abuse of authority, or a substantial and
 specific danger to public health or safety.” Specifically, Dr.
 Mikaia argues that the evidence of this disclosure was not
 “weak at best,” as the Administrative Judge found, see
 Board Decision, slip op. at 17; that his belief of impropriety
 was long held and shared by others; and that the Adminis-
 trative Judge improperly viewed FAR Subpart 7.5, 48
 C.F.R. Subpt. 7.5 (“Inherently Governmental Functions”),
 as the basis for Dr. Mikaia’s belief when he did not testify
 to that specific source.
      None of these arguments provides a basis for reversal.
 Despite describing the evidence of the December 2016 re-
 porting as weak, the Administrative Judge nonetheless as-
 sumed that it occurred and rejected it as an overly vague
 claim that failed to identify wrongdoing or mismanage-
 ment under the FAR. Board Decision, slip op. at 15–18.
 Dr. Mikaia nowhere explains what law, rule, or regulation
 he believed was being violated. Based on Dr. Mikaia’s ci-
 tation to FAR Subpart 7.5 in his individual right of action
 appeal [J.A. 137], the Administrative Judge analyzed that
 set of regulations and found nothing prohibiting the re-
 ported contractor interaction. We see no error in this anal-
 ysis or the Administrative Judge’s focus on regulations
 expressly identified by Dr. Mikaia. Lastly, that Dr. Mi-
 kaia’s belief may have been shared by other agency wit-
 nesses does not establish its reasonableness. See Lachance
 v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) (“A purely
 subjective perspective of an employee is not sufficient even
 if shared by other employees.”).
     The last two disputed activities occurred in April 2017
 when Dr. Mikaia filed both an informal grievance and a
 formal grievance in response to receiving a letter of
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 MIKAIA   v. COMMERCE                                        5



 reprimand. Dr. Mikaia argues that the Administrative
 Judge should have counted these grievances as activities
 protected under § 2302(b)(9)(A)(i), which applies to exercis-
 ing any legally authorized “appeal, complaint, or grievance
 right . . . with regard to remedying a violation of
 [§ 2302(b)(8)].” We likewise see no error in the Adminis-
 trative Judge’s treatment of these grievances. Although at
 certain points the grievances mention conduct now as-
 serted as violating § 2302(b)(8), Dr. Mikaia filed both griev-
 ances in order to oppose the letter of reprimand on its
 merits and to address its alleged inaccuracies—not to “rem-
 edy[]” the earlier actions mentioned. § 2302(b)(9)(A)(i); see
 J.A. 589, 599 (requesting that the reprimand be “re-
 scinded”).
     Next, we turn to Dr. Mikaia’s contention that the Ad-
 ministrative Judge made various factual findings unsup-
 ported by substantial evidence.           These arguments
 misunderstand the nature of our substantial evidence re-
 view. See Arthrex, Inc. v. Smith & Nephew, Inc., 935 F.3d
 1319, 1329 (Fed. Cir. 2019) (“[T]he presence of evidence
 supporting the opposite outcome does not preclude sub-
 stantial evidence from supporting the Board’s fact find-
 ing.”). We find sufficient record evidence to support the
 Administrative Judge’s conclusions that (1) Dr. Mikaia
 was not timely performing his evaluation work; (2) he re-
 fused to provide an estimated evaluation completion date;
 and (3) the relevant coworker interactions were not suffi-
 ciently severe or pervasive to create a hostile work environ-
 ment.
     Dr. Mikaia also argues that substantial evidence does
 not support the Administrative Judge’s conclusion that the
 agency would have taken the same personnel actions even
 without Dr. Mikaia’s February 14 disclosure of potential
 Anti-Deficiency Act violations, arguing that the timing of
 the ensuing personnel actions shows otherwise. In our
 view, the agency supplied clear and convincing evidence to
 overcome any retaliatory implications to be drawn from the
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 6                                       MIKAIA   v. COMMERCE



 timing alone. See 5 U.S.C. § 1221(e)(2); Carr v. Soc. Sec.
 Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999) (adopting fac-
 tors for evaluating whether the employing agency has met
 its burden).
     Finally, we reject Dr. Mikaia’s challenges to the Ad-
 ministrative Judge’s findings that several agency wit-
 nesses were more credible than Dr. Mikaia. We see no
 reason to depart in this case from our traditional deference
 to administrative judges on such matters. See Bieber v.
 Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (“The
 credibility determinations of an administrative judge are
 virtually unreviewable on appeal.”).
                             III
    We have considered Dr. Mikaia’s remaining arguments
 and find them unpersuasive. For the reasons explained
 above, we affirm the Board’s decision.
                        AFFIRMED
     No costs.
