Salazar v. DVA

Opinion

Case: 26-1069 Document: 18 Page: 1 Filed: 08/03/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ANTHONY SALAZAR, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2026-1069 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-1221-15-0660-B-1. ______________________

Decided: August 3, 2026 ______________________

ANTHONY SALAZAR, Pico Rivera, CA, pro se.

STEPHANIE FLEMING, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________

Before PROST, HUGHES, and STOLL, Circuit Judges. PER CURIAM. Case: 26-1069 Document: 18 Page: 2 Filed: 08/03/2026

Anthony Salazar petitions for review of a decision by the Merit Systems Protection Board denying corrective ac- tion under the Whistleblower Protection Act. Because we conclude that substantial evidence supports the Board’s de- termination that the agency would have taken the same personnel actions against Mr. Salazar absent his protected whistleblowing activity, we affirm. I A Mr. Salazar was employed by the Department of Vet- erans Affairs as a Motor Vehicle Operator (MVO) Supervi- sor in the agency’s Greater Los Angeles Healthcare System. Mr. Salazar temporarily assumed the duties of his supervisor, Chief of Transportation Glenda Davidson, after her medical retirement in November 2012 until the posi- tion was filled in July 2014. During that time, Mr. Salazar managed roughly 450 government vehicles and the associ- ated fleet card (credit card) for each vehicle. While serving as Acting Chief of Transportation, Mr. Salazar reported to the agency’s Chief of Engineering Service, Rob- ert Benkeser. In the fall of 2013, issues came to light with the man- agement and oversight of vehicles and fleet cards in the Community Care Homeless Program. On October 10, 2013, Mr. Salazar emailed Mr. Benkeser, reporting “major is- sues” with the fleet and detailing immediate corrective steps already underway. S.A. 144. 1 On October 24, 2013, Mr. Salazar sent a second email, expressing urgency and providing additional updates, including missing vehicles and suspected fleet card fraud. S.A. 152. On January 10,

1 S.A. refers to Mr. Salazar’s separately filed appen- dix. ECF No. 8. SAppx refers to the supplemental appendix included at the end of the Respondent’s Informal Brief. ECF No. 9. Case: 26-1069 Document: 18 Page: 3 Filed: 08/03/2026

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2014, the Administrative Investigative Board (AIB) was convened to investigate the agency’s management of the fleet. The AIB issued a report on March 6, 2014, finding that Engineering Service failed to properly manage the fleet. The AIB recommended various remedial actions and issued a letter of counseling to Mr. Benkeser as Chief of Engineering Service. After the AIB investigation and report, Mr. Benkeser announced revised performance standards applicable to Mr. Salazar’s MVO Supervisor position effective June 2014. Whereas the prior standards were more gener- alized, the revised standards contained details outlining specific duties and permissible error rates. Compare S.A. 150–51, with SAppx 107–10. Around this same time, in March 2014, Mr. Salazar was informed of a fleet man- agement training opportunity and requested to take part. Mr. Benkeser declined his request, explaining that, until more departmental changes were implemented based on the AIB investigation, it was too premature “to take full advantage of the training.” S.A. 175. Mr. Salazar was ulti- mately approved for and underwent the training in Sep- tember 2014. On September 17, 2014, Mr. Benkeser informed Mr. Salazar that his performance under the new standards was unsatisfactory, and he was placed on a Performance Improvement Plan (PIP). See S.A. 178–84; SAppx 103–06. Under the PIP, Mr. Salazar had ninety days to meet the “fully successful” standards or face demotion or removal. S.A. 178. He failed to do so, and the agency removed Mr. Salazar effective February 4, 2015. B On June 29, 2015, Mr. Salazar, then represented by counsel, filed an individual right of action appeal with the Merit Systems Protection Board seeking corrective action under the Whistleblower Protection Act (WPA). Mr. Sala- zar alleged that the agency took four prohibited personnel Case: 26-1069 Document: 18 Page: 4 Filed: 08/03/2026

actions against him in retaliation for his October 2013 emails: (1) denying his requested training, (2) changing the performance standards for his MVO Supervisor posi- tion, (3) placing him on a PIP, and (4) removing him. Mr. Salazar’s request for corrective action was initially denied on the basis that he had failed to prove that his Oc- tober 2013 emails qualified as protected disclosures under the WPA. On review, the Board disagreed, concluding that he had established a prima facie case of whistleblower re- taliation and remanding for an assessment of the agency’s affirmative defense. Salazar v. Dep’t of Veterans Affs., No. SF-1221-15-0660-W-1, 2022 WL 17661583, at *6–10 (M.S.P.B. Dec. 13, 2022) (Remand Order). Specifically, the Board instructed the administrative judge to “giv[e] weight” to certain evidence and reassess the factors set out in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), 2 to determine whether the agency had proven “by clear and convincing evidence that it would have taken the personnel actions in the absence of [Mr. Salazar’s] whistleblowing.” Remand Order, at *9–10. C On remand, the administrative judge assessed each of the Carr factors and concluded the agency met its burden. Salazar v. Dep’t of Veterans Affs., No. SF-1221-15-0660-

2 In determining whether the agency has met its burden, the administrative judge considers all relevant fac- tors, including those set out in Carr. These factors consider “the strength of the agency’s evidence in support of its per- sonnel action,” “the existence and strength of any motive to retaliate” by agency officials involved in the decision, and “any evidence that the agency takes similar actions against employees who are not whistleblowers but who are other- wise similarly situated.” Carr, 185 F.3d at 1323. Case: 26-1069 Document: 18 Page: 5 Filed: 08/03/2026

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B-1, 2024 MSPB LEXIS 1413, at *82 (Mar. 15, 2024) (Deci- sion). For each personnel action, the administrative judge found that: (1) the agency’s evidence in support was “rela- tively strong,” e.g., id. at *12; (2) there was a motive to re- taliate but “it was not strong,” e.g., id. at *25; and (3) the minimal information on whether similar actions were taken with non-whistleblowers was “neutral or at most cut- ting ever so slightly against the agency,” e.g., id. at *42. The administrative judge therefore denied Mr. Salazar’s request for corrective action. This decision became final on September 30, 2025. Mr. Salazar, now proceeding pro se, timely appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II We set aside a Board decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in ac- cordance 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). The petitioner has the burden of establishing re- versible error in the Board’s decision. Sistek v. Dep’t of Vet- erans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020). We review the Board’s legal conclusions de novo and its factual find- ings for substantial evidence. Brenner v. Dep’t of Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021). Substantial ev- idence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (ci- tation omitted). Credibility determinations, however, are “virtually unreviewable” on appeal. Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). III Liberally construing Mr. Salazar’s briefing on appeal, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), Mr. Salazar advances two categories of arguments. First, that the ad- ministrative judge failed to consider certain relevant facts, Case: 26-1069 Document: 18 Page: 6 Filed: 08/03/2026

resulting in a flawed weighing of the Carr factors. Second, that the administrative judge exhibited bias that tainted the proceedings. A 1 We begin with Mr. Salazar’s arguments as they relate to the administrative judge’s analysis of the first Carr fac- tor, which considers the strength of the agency’s reasons for taking the challenged personnel practices. According to Mr. Salazar, the agency’s stated reasons for the personnel actions all stemmed from the AIB investigation, which, in turn, was prompted by his disclosures. Thus, he argues, the agency’s asserted non-retaliatory justifications were not truly independent of his protected disclosures. He contends that the administrative judge’s contrary finding—that his disclosures did not cause the AIB investigation—led the administrative judge to erroneously weigh this factor strongly in the agency’s favor. We disagree. Throughout the proceedings, a factual dispute existed as to whether the fleet issues were first brought to light by Mr. Salazar’s 2013 emails or if agency officials were al- ready aware to some degree. The administrative judge found the latter. He credited testimony that agency offi- cials were already aware of the fleet issues and that the AIB investigation did not occur because of Mr. Salazar’s emails. See Decision, 2024 MSPB LEXIS 1413, at *32 (find- ing Mr. Benkeser’s testimony denying that the AIB inquiry resulted from Mr. Salazar’s disclosures to be “earnest, forthright, plausible, and ultimately believable” and cor- roborated by other credible testimony and evidence). The administrative judge also recognized a meaningful differ- ence between Mr. Benkeser holding Mr. Salazar partially responsible for the AIB’s letter of counseling because he poorly managed fleet operations while serving as Chief of Transportation and holding him responsible because his disclosures triggered the AIB reprimand. Id. at *36–41. Case: 26-1069 Document: 18 Page: 7 Filed: 08/03/2026

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We find that the administrative judge’s findings are supported by substantial evidence, including evidence that Mr. Salazar did not challenge. See id. at *66–67 (noting Mr. Salazar did not challenge or dispute several “identified failures in other sub-elements of his critical job elements”); see also id. at *76–79 (stating Mr. Salazar’s concession that he failed his PIP was, alone, sufficient to prove the charge underlying Mr. Salazar’s removal). Several witnesses tes- tified that Mr. Salazar’s disclosures were not the cause of the AIB investigation. The administrative judge thor- oughly explained why each witness was or was not credible, noting consistency with the record and assessing de- meanor. See, e.g., id. at *31–34. The same is true of the ad- ministrative judge’s findings on the agency’s non- retaliatory evidence in support of each personnel ac- tion—he found that the overwhelming evidence and testi- mony in support of the actions were, on balance, “compelling” and corroborated, and thus strongly sup- ported the personnel actions. See, e.g., id. at *48–50. And the strength of the agency’s evidence was bolstered by the uncompelling or incomplete nature of Mr. Salazar’s argu- ments against the agency’s evidence. See id. at *58 (“Benkeser’s reasoning appeared grounded in legitimacy, and I find the appellant’s contentions otherwise unavail- ing.”). So to the extent that Mr. Salazar asks us to discredit witness testimony and “reweigh the evidence on appeal,” it is not our place to do so. See, e.g., McIntosh v. Dep’t of Def., 53 F.4th 630, 643 (Fed. Cir. 2022); Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997) (explaining that this court will not disturb credibility determinations unless “inherently improbable or discredited by undisputed fact”). We decline to disturb the administrative judge’s findings on this factor. 2 We next consider Mr. Salazar’s arguments implicating Carr factor two, which assesses the existence and strength of any retaliatory motive. In the Remand Order, the Board Case: 26-1069 Document: 18 Page: 8 Filed: 08/03/2026

instructed the administrative judge to assess the Carr fac- tors, “giving weight to [Mr. Benkeser’s] motive to retaliate, as he testified that ‘it didn’t make [Mr. Benkeser’s] day’ that he received the letter of counseling . . . , and re- sponded in the affirmative to the question of whether he held [Mr. Salazar] partially responsible for the letter.” Re- mand Order, 2022 WL 17661583, at *10 (citation omitted). Mr. Salazar argues that this statement “confirm[s Mr. Benkeser’s] motive to retaliate,” and that the Board confirmed as much, but that the administrative judge failed to consider this. Pet. Br. 30–31. We are unconvinced. It is clear from the Decision that the administrative judge considered Mr. Benkeser’s testimony. In fact, the ad- ministrative judge analyzed the exact testimony Mr. Sala- zar believes was ignored and found it did evince a motive to retaliate. See Decision, 2024 MSPB LEXIS 1413, at *25–31. But the administrative judge correctly contin- ued the analysis, contrary to Mr. Salazar’s apparent belief that it should have ended there. See Smith v. Gen. Servs. Admin., 930 F.3d 1359, 1366 (Fed. Cir. 2019) (“[T]he [ad- ministrative judge] cannot ignore record evidence relevant to the existence and strength of any motive to retali- ate . . . .” (emphasis added)). The administrative judge ap- propriately considered other record evidence, including testimony from witnesses he deemed credible, to discern the strength of the agency’s motive to retaliate. See Deci- sion, 2024 MSPB LEXIS 1413, at *31–41. And after consid- ering the record, the administrative judge concluded that, while a motive exists, it was not strong, explaining his rea- soning and evidentiary bases in detail. Id. We find no error in the administrative judge’s analysis, which is supported by substantial evidence. 3

3 Mr. Salazar also argues the administrative judge committed legal error, or acted arbitrarily and capriciously, by minimizing Mr. Benkeser’s alleged retaliatory motive. Case: 26-1069 Document: 18 Page: 9 Filed: 08/03/2026

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3 We finally turn to Mr. Salazar’s argument that Carr factor three, which considers evidence that the agency treated similarly situated non-whistleblowers the same way, should have weighed heavily against the agency. Mr. Salazar argues that the administrative judge ignored relevant evidence—namely, Mr. Salazar’s suggested com- parator, Ms. Davidson. And Mr. Salazar suggests that be- cause he provided a comparator, and the agency did not, this factor should have cut against the agency. Neither ar- gument is persuasive. As an initial matter, we note that the administrative judge’s failure to discuss particular contentions in a case does not mean that they did not consider those contentions in reaching their decision. See Lowder v. Dep’t of Homeland Sec., 504 F.3d 1378, 1383 (Fed. Cir. 2007) (collecting cases); see also Hartman v. Nicholson, 483 F.3d 1311, 1315 (Fed. Cir. 2007) (“That the court did not specifically men- tion the [argument] in its opinion forms no basis for an as- sumption that it did not consider [it] . . . .” (alterations and omission in original)). Accordingly, we will not assume that the administrative judge ignored Mr. Salazar’s suggested comparator. Separately, we are not persuaded by Mr. Salazar’s ar- gument that the agency’s failure to suggest any comparator necessarily warrants weighing this factor heavily against the agency. The administrative judge acknowledged that the agency did not produce detailed evidence of any com- parators: the only evidence was uncorroborated testimony that the same personnel actions were taken with other, un-

We see no such error. See Smith, 930 F.3d at 1366 (recog- nizing analysis includes consideration of entire record to determine strength of retaliatory motive). Case: 26-1069 Document: 18 Page: 10 Filed: 08/03/2026

identified employees at unidentified times. See, e.g., Deci- sion, 2024 MSPB LEXIS 1413, at *61. As such, the admin- istrative judge found that this factor did not favor the agency, explaining it was neutral or “cut[ ] ever so slightly against the agency.” See, e.g., id. So to the extent that Mr. Salazar wishes for us to increase the weight of this fac- tor to be “strongly” against the agency, it again is not our role to reweigh the evidence on appeal. McIntosh, 53 F.4th at 643; Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022). * * * Substantial evidence supports the administrative judge’s conclusion that the agency met its burden to show the personnel actions would have occurred absent Mr. Sal- azar’s disclosures, especially when “considering the evi- dence in the aggregate, including the strength of Carr factor one.” Robinson v. Dep’t of Veterans Affs., 923 F.3d 1004, 1020 (Fed. Cir. 2019). B Finally, Mr. Salazar alleges that the administrative judge was biased against him, and that this bias “tainted” the Decision. Pet. Br. 25. Mr. Salazar cites two statements as evidence of this bias. First, the administrative judge’s statement that Mr. Salazar was “painting himself as [a] helpless rube.” Decision, 2024 MSPB LEXIS 1413, at *37 n.12. Mr. Salazar emphasizes that this was “the [adminis- trative judge’s] personal view” because the statement be- gan with “to my mind,” suggesting that this alone supports a finding of bias. Reply Br. 17. And second, the administra- tive judge’s suggestion that a “cynic might say the appel- lant made disclosures preemptively to cover his own neglect or inefficacy, then doubled-down as the accounta- bility check came due.” Decision, 2024 MSPB LEXIS 1413, at *38. Mr. Salazar argues that the administrative judge’s Case: 26-1069 Document: 18 Page: 11 Filed: 08/03/2026

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alleged bias “harmed his right to a fair and impartial hear- ing,” and he asks that we order that a new administrative judge adjudicate any future proceedings. Pet. Br. 10. Mr. Salazar fails to meet the high standard required to establish bias. Not all comments critical of parties or their cases necessarily constitute impermissible bias. See Liteky v. United States, 510 U.S. 540, 555 (1994). Thus, the party alleging bias has the burden of showing the challenged con- duct or statements “display a deep-seated favoritism or an- tagonism that would make fair judgment impossible.” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002) (quoting Liteky, 510 U.S. at 555). Having reviewed the Decision, we disagree that the administrative judge’s statements demonstrate impermissible bias. Rather, the statements merely reflect the administrative judge’s can- did, independent judgment of Mr. Salazar’s demeanor, credibility, and portrayal of events and his role in those events. Judges necessarily form and express opinions as proceedings unfold, and the mere existence or expression of those opinions does not establish impermissible bias. See Liteky, 510 U.S. at 555. So although the administrative judge’s statements were critical of Mr. Salazar, they do not demonstrate that the administrative judge was unable to adjudicate the matter impartially. IV We have considered Mr. Salazar’s remaining argu- ments and find them unpersuasive. For these reasons, we affirm. AFFIRMED COSTS No costs.