Burdge v. Dept. Of the Navy

• Court: Court of Appeals for the Federal Circuit
• Decided: August 16, 2005
• Docket: 2004-3393
• Status: Unpublished

Opinion

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

04-3393

AARON R. BURDGE,

Petitioner,

v.

DEPARTMENT OF THE NAVY,

Respondent.

__________________________

DECIDED: August 16, 2005 __________________________

Before MICHEL, Chief Judge, SCHALL, and PROST, Circuit Judges.

SCHALL, Circuit Judge.

DECISION

Aaron R. Burdge petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that dismissed, for failure to state a claim upon which relief

could be granted, his appeal of his termination from the Department of the Navy

(“agency”). Burdge v. Dep’t of the Navy, No. SE-1221-03-0101-W-1 (M.S.P.B. June

17, 2004) (“Final Decision”). Mr. Burdge brought his appeal under the individual right of

action (IRA) appeal provisions of the Whistleblower Protection Act, 5 U.S.C. § 1221.

We affirm. DISCUSSION

I.

Mr. Burdge was employed as a Criminal Investigator, GS-1811-11, at the Naval

Criminal Investigative Service office on Whidbey Island, Washington. Burdge v. Dep’t of

the Navy, No. SE-1221-03-0101-W-1, slip op. at 2 (M.S.P.B. Apr. 22, 2003) (“Initial

Decision”). On August 18, 2002, during his probationary period, Mr. Burdge was

terminated from his position based upon an agency determination that he had

demonstrated poor judgment in the exercise of his law enforcement authority through

the unnecessary use of the blue lights on a government-owned vehicle and the

inappropriate display of his badge and weapon.

Following his termination, Mr. Burdge lodged an IRA claim with the Office of

Special Counsel (“OSC”). In seeking corrective action from OSC, Mr. Burdge alleged

that his termination had been in retaliation for protected disclosures he made

concerning an allegedly unlawful search and seizure and the taking, for personal use, of

a document during the search. Specifically, Mr. Burdge charged that on June 15, 2002,

Mr. Burdge and his Field Training Agent, Special Agent Donald Johnston, conducted an

investigation of the medically unattended death of the spouse of a service member (the

“Sparks investigation”). Mr. Burdge alleged that, during the investigation, Special Agent

Johnston engaged in an unconstitutional search of a personal computer hard drive at

the Sparks residence, printed a copy of a document found on the hard drive, and

retained the copy for personal use.

After OSC closed its file in the matter without taking action, Mr. Burdge filed an

appeal with the Board under the individual right of action (“IRA”) appeal provisions of

04-3393 2 the Whistleblower Protection Act.

II.

Before the Board, Mr. Burdge asserted that he had made a protected disclosure

with respect to the Sparks investigation. In that regard, Mr. Burdge testified that

sometime between June 15,2002, and June 20, 2002, he had two conversations about

the Sparks investigation with Mark Pendell, who was the Acting Supervisory Special

Agent at the Whidbey Island office. According to Mr. Burdge, during the first

conversation, he presented the facts relating to the search conducted by Special Agent

Johnston in the form of a hypothetical question, without indicating that an actual case

was involved. Mr. Burdge further testified that he asked Mr. Pendell if the permissive

search form used by the agency during the Sparks investigation would allow the agency

to search a personal computer and seize items found on it. According to Mr. Burdge,

Mr. Pendell responded that seizing items from a computer would not be a problem

pursuant to a permissive search. Mr. Burdge alleges that during a second conversation

with Mr. Pendell, he specifically related what had occurred during the June 12, 2002

search. Initial Decision, slip op. at 9-10.

Before the Board, Special Agent Pendell testified that he recalled a discussion

with Mr. Burdge that was of a general nature and did not involve the specifics of the

Sparks investigation. Id. at 10. Special Agent Pendell also testified that Mr. Burdge had

not alleged that the search conducted during the Sparks investigation was illegal, and

he stated that if such an allegation had been made, he would have reported it up the

chain of command to the agency’s Northwest Field Office. Id.

04-3393 3 In an initial decision, the administrative judge (“AJ”) to whom the appeal was

assigned rejected Mr. Burdge’s claim that he had made protected disclosures. Initial

Decision, slip op. at 12-13. The AJ stated:

I find Special Agent Pendell’s version of his discussion with the appellant to be more credible than the appellant’s. Both Special Agent Campbell and Special Agent Johnston testified that Pendell had a reputation as a stickler and this is consistent with Pendell’s own testimony that he would have investigated and reported any claim of an unlawful search. Further, Special Agent Pendell has no motive to lie about his discussion with the appellant. He was not implicated in the alleged disclosure and nothing in this record suggests that his relationship with Special Agent Johnston was anything more than collegial. In addition, Special Agent Pendell was quite adamant in his denial that anyone had ever claimed the search was unlawful.

Id., slip op. at 10-11.

The AJ dismissed the appeal for failure to state a claim upon which relief could

be granted, finding that Mr. Burdge had failed to establish that he had made a protected

disclosure.1 Id., slip op. at 13. The AJ’s initial decision became the final decision of the

Board on June 17, 2004, after the Board denied Mr. Burdge’s petition for review for

failure to meet the criteria set forth at 5 C.F.R. § 1201.115(d). Final Decision. This

appeal followed. We have jurisdiction pursuant to 28 U.S.C. §1295(a)(9).

III.

Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

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

without procedures required by law, rule, or regulation having been followed; or

1 Such a disclosure is a requirement for an IRA claim. See Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

04-3393 4 unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health

& Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

On appeal, Mr. Burdge argues that the AJ’s credibility determinations are not

supported by substantial evidence because the AJ “misinterpreted” the testimony of

Special Agent Pendell. However, the AJ’s credibility determinations are virtually

unreviewable. See Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002)

(“The credibility determinations of an administrative judge are virtually unreviewable on

appeal.” (citing Pope v. United States Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir.

1997) ("As an appellate court, we are not in [a] position to re-evaluate these credibility

determinations, which are not inherently improbable or discredited by undisputed

fact."))). In this case, we see no reason to disturb the AJ’s assessment of Mr. Pendell’s

credibility. What Mr. Burdge is essentially asking us to do is to disregard the factual

findings and credibility determinations of the Board and to substitute our own weighing

of the evidence. It is not our function to do that. See Bieber, 287 F.3d at 1364. We

conclude that the AJ’s findings of fact are supported by substantial evidence.

Accordingly, the final decision of the Board dismissing Mr. Burdge’s appeal is affirmed.

Each party shall bear its own costs.

04-3393 5