Stenson v. DOJ

• Court: Court of Appeals for the Federal Circuit
• Decided: September 4, 2025
• Docket: 24-2003
• Status: Unpublished

Opinion

Case: 24-2003 Document: 52 Page: 1 Filed: 09/04/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

LORNE STENSON, Petitioner

v.

DEPARTMENT OF JUSTICE, Respondent ______________________

2024–2003 ______________________

Petition for review of the Merit Systems Protection Board in No. CH–1221–18–0492–W–1. ______________________

Decided: September 4, 2025 ______________________

LORNE STENSON, Old San Juan, PR, pro se.

SEAN KELLY GRIFFIN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ALBERT S. IAROSSI, PATRICIA M. MCCARTHY, YAAKOV ROTH. ______________________

Before TARANTO, CHEN, and STOLL, Circuit Judges. PER CURIAM. Case: 24-2003 Document: 52 Page: 2 Filed: 09/04/2025

Lorne Stenson served as a Deputy United States Mar- shal for the Department of Justice since February 23, 2007. In the present matter, Mr. Stenson has alleged that the De- partment took various retaliatory actions against him in violation of whistleblower protection laws, 5 U.S.C. § 2302(b)(8) and (b)(9). He sought relief from the Merit Systems Protection Board (Board). A Board-assigned ad- ministrative judge denied his request for corrective action, and the full Board affirmed the administrative judge’s de- cision with modifications. We now affirm. I Mr. Stenson worked as a Deputy United States Mar- shal for the Northern District of Illinois. Respondent’s Supplemental Appendix (S. Appx.) 2, 1359. In September 2012, he testified in a criminal case brought against a col- league, Deputy Linder, in that district. See United States v. Linder, No. 12-cr-00022, 2013 WL 812382 (N.D. Ill. Mar. 5, 2013) (Linder). The indictment in the case charged use of excessive force against a prisoner and attempted con- cealment of information during the investigation of the in- cident at issue. S. Appx. 34–35, 619. On August 13, 2013, Mr. Stenson wrote a memorandum alleging that he ob- served a different colleague, Deputy Kozeluh, using exces- sive force while transporting a prisoner. S. Appx. 44, 689. In October 2013, Mr. Stenson initiated a complaint with the United States Office of Special Counsel (OSC), al- leging that he faced workplace retaliation after testifying in Linder and after writing his August 13, 2013 memoran- dum regarding Deputy Kozeluh. S. Appx. 36–38, 2651. Mr. Stenson amended that complaint on various occasions to include alleged retaliation in the form of a variety of per- sonnel actions, including removal from some warrant-re- lated work, a temporary reassignment to a different work location, a psychological evaluation, two suspensions, re- taliatory investigations, and a hostile work environment. Case: 24-2003 Document: 52 Page: 3 Filed: 09/04/2025

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S. Appx. 37–38, 1729–30. OSC closed its investigation of the incident on June 7, 2018. S. Appx. 37–38. On July 24, 2018, Mr. Stenson timely filed an Individ- ual Right of Action (IRA) appeal with the Board. He al- leged that the Department of Justice (the parent agency of Mr. Stenson’s employer, the United States Marshal Ser- vice) retaliated against him—for his testimony in Linder, his August 13, 2013 memorandum, and (relatedly) his OSC complaint—in contravention of the Whistleblower Protec- tion Act. The Board assigned Mr. Stenson’s appeal to an administrative judge, who interpreted OSC’s closure letter as evidence that Mr. Stenson exhausted the required OSC process for the disclosures involved in his IRA appeal. S. Appx. 39; see 5 U.S.C. §§ 1214(a), 1221. In an initial decision, the administrative judge denied Mr. Stenson’s request for corrective action and held that the extensive factual record did not support his allegations that the personnel actions were made in response to a pro- tected disclosure or a protected activity. S. Appx. 33–34; see 5 U.S.C. § 2302(b)(8)(A)–(b)(9). The administrative judge found that Mr. Stenson’s Linder testimony was tem- porally far removed from his suspension and that the rec- ord did not support his contention that his supervisor took personnel actions with any prior knowledge of his testi- mony. S. Appx. 20, 109, 119. With respect to the August 13, 2013 memorandum and the OSC complaint, the admin- istrative judge found that Mr. Stenson failed to prove that his August 13, 2013 memorandum was a protected disclo- sure, S. Appx. 72, and the administrative judge did not an- alyze Mr. Stenson’s OSC complaint as a protected disclosure separate from the August 13, 2013 memoran- dum. S. Appx. 80. The administrative judge concluded that the factual record revealed numerous instances of Mr. Stenson’s unprofessional conduct, justifying the agency’s personnel actions. See, e.g., S. Appx. 101–02 (lying to Case: 24-2003 Document: 52 Page: 4 Filed: 09/04/2025

supervisors); S. Appx. 99 (leaving work early without au- thorization). Mr. Stenson filed a petition for full Board review of the administrative judge’s initial decision. The Board denied the petition and affirmed the initial decision with modifi- cations. S. Appx. 2. In its final order, the Board modified the administrative judge’s holdings concerning the August 13, 2013 memorandum and the OSC complaint. The Board found that the August 13, 2013 report of excessive force amounted to a protected disclosure under 5 U.S.C. § 2302(b)(8)(A) and that Mr. Stenson’s OSC complaint con- stituted a distinct protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). S. Appx. 2, 4, 8. Nevertheless, the Board determined that the agency would have taken the same personnel actions even in the absence of Mr. Sten- son’s protected disclosures and activities. S. Appx. 2, 9. Mr. Stenson timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II We may set aside the Board’s decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Factual findings are reviewed for sub- stantial-evidence support. McGuffin v. Social Security Ad- ministration, 942 F.3d 1099, 1107 (Fed. Cir. 2019). Substantial evidence is “such relevant evidence as a rea- sonable mind might accept as adequate to support a con- clusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938); see Consolo v. Federal Maritime Commission, 383 U.S. 607, 619–20 (1966). To prevail in his IRA appeal to the Board seeking cor- rective action for alleged whistleblower reprisal, Mr. Sten- son had to demonstrate to the Board that (1) he engaged Case: 24-2003 Document: 52 Page: 5 Filed: 09/04/2025

STENSON v. DOJ 5

in a whistleblowing activity by making a protected disclo- sure or by pursuing a protected activity and that (2) the protected disclosure or activity was a contributing factor in the supervisors’ decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). See 5 U.S.C. § 2302(b)(8)(A)–(b)(9); 5 U.S.C. § 1221(e); Cahill v. Merit Systems Protection Board, 821 F.3d 1370, 1373 (Fed. Cir. 2016). Whistleblowing activity can be shown to have been a contributing factor “through circumstantial evi- dence, such as evidence that . . . (A) the official taking the personnel action knew of the disclosure . . .; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure . . . was a contributing factor in the personnel action.” 5. U.S.C. § 1221(e)(1). Where a complainant demonstrates that the whistleblowing activity was a contributing factor in the personnel action, the agency may nevertheless pre- vail by presenting clear and convincing evidence that it would have taken the same action even in the absence of the protected disclosure or activity. See 5 U.S.C. § 1221(e)(2); Kewley v. Department of Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998)

The Board agreed that Mr. Stenson carried his burden in showing the first element of whistleblower reprisal— that he made a protected disclosures or engaged in a pro- tected activity under 5 U.S.C. § 2302(b)(8)–(b)(9). S. Appx. 3–8. The Board found that the August 13, 2013 report constituted a protected disclosure, S. Appx. 4–5, and that Mr. Stenson’s OSC complaint was a protected activity, S. Appx. 8–9. As to the second element, the Board found that, to the extent Mr. Stenson’s Linder testimony, OSC complaint, and August 2013 memorandum were contrib- uting factors in the agency’s personnel decisions, the agency presented clear and convincing evidence that it would have taken the same actions absent Mr. Stenson’s protected disclosures. S. Appx. 9–23. Case: 24-2003 Document: 52 Page: 6 Filed: 09/04/2025

In this case, there is no dispute about exhaustion or about the sufficiency of the allegation that the agency took qualifying personnel actions (suspensions, removal from warrants). See S. Appx. 8 n.5; 5 U.S.C. § 2302(a)(2)(A). The dispute is limited to the whistleblowing-activity and contributing-factor elements. For the reasons below, we see no basis for setting aside the Board’s decision. III Mr. Stenson’s arguments amount to requests that this court reweigh the evidence relevant to the Board’s findings on the disputed issues. Specifically, he challenges the find- ings that his August 2013 memorandum contained reckless accusations and that he was otherwise engaged in unpro- fessional conduct. Stenson’s Opening Brief at 3–6, 7–10. He challenges the Board’s consideration of hearsay evi- dence from his supervisors regarding his workplace con- duct. Id. at 15. He contends that this court should broadly reconsider the evidence and the Board’s application of law to the evidence. Id. at 18–20. As to Mr. Stenson’s hearsay argument, we see no rea- son to disturb the Board’s factual findings. There is no identified legal error. Hearsay evidence is admissible in these administrative proceedings. See Hayes v. Depart- ment of the Navy, 727 F.2d 1535, 1538 (Fed. Cir. 1984) (“[I]t has long been settled that [hearsay] may be used in administrative proceedings.”). Procedural matters, “such as the admissibility of . . . hearsay, fall within the sound discretion of the Board and its [administrative judges].” Kewley, 153 F.3d at 1364. Mr. Stenson does not show that, in these particular circumstances, the administrative judge abused her discretion in admitting the evidence. Turning to Mr. Stenson’s remaining evidentiary argu- ments, we conclude that substantial evidence supports the Board’s decision. Our task under the substantial evidence standard of review is not to reweigh the evidence and make our own findings. Jones v. Department of Health & Human Case: 24-2003 Document: 52 Page: 7 Filed: 09/04/2025

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Services, 834 F.3d 1361, 1369 (Fed. Cir. 2016). It is only to ensure that the Board, as finder of fact, did not make find- ings beyond what the evidence reasonably allows (even if it also would allow different findings). See Consolo, 383 U.S. at 620 (stating that “the possibility of drawing two incon- sistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence”). Mr. Stenson cites the same evi- dence and raises substantially the same arguments re- jected by the administrative judge and the Board. He does not demonstrate that the administrative judge and Board were unreasonable in reaching their findings. Indeed, he does not identify with specificity other record evidence that would so demonstrate. Unsubstantiated assertions are not evidence. Jones, 834 F.3d at 1369 (citing Poett v. Merit Sys- tems Protection Board, 360 F.3d 1377, 1381 (Fed. Cir. 2004)). Mr. Stenson further argues that the Board incorrectly applied the appropriate legal framework to the factual evi- dence. He contends that the agency did not demonstrate by clear and convincing evidence that it would have taken the personnel actions in the absence of his protected activ- ities. Stenson’s Opening Brief at 9. To carry this burden, agencies properly apply the nonexclusive factors described in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). See Miller v. Department of Justice, 842 F.3d 1252, 1257 (Fed. Cir. 2016). These factors in- clude: “‘[1] the strength of the agency’s evidence in support of its personnel action; [2] the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and [3] any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situ- ated.’” Miller, 842 F.3d at 1257 (quoting Carr, 185 F.3d at 1323). The Board applied the Carr factors and found, with ad- equate support, that the agency successfully rebutted Mr. Case: 24-2003 Document: 52 Page: 8 Filed: 09/04/2025

Stenson’s prima facie case of retaliation. S. Appx. 23. The agency provided substantial evidence detailing Mr. Sten- son’s unprofessional conduct, which gave the agency ample reason to take, and that it would have relied on to take, the personnel actions at issue, wholly apart from the protective disclosures and activity. See, e.g., S. Appx. 673–81 (de- scribing eight specifications of Mr. Stenson’s “conduct un- becoming” charges). Applying Carr, the Board reasonably found that the agency’s slight motive to retaliate against Mr. Stenson was outweighed by Mr. Stenson’s unprofes- sional conduct. See, e.g., S. Appx. 22–23. IV We have considered Mr. Stenson’s other arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s denial of Mr. Stenson’s petition for cor- rective action. The parties shall bear their own costs. AFFIRMED