David Wayne Carson v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID WAYNE CARSON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-1154
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-11-0062-B-2.
______________________
Decided: April 11, 2016
______________________
D AVID WAYNE CARSON, Pleasant View, TN, pro se.
D ANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. K IRSCHMAN, J R.,
ELIZABETH M. H OSFORD.
______________________
Before M OORE, BRYSON, and REYNA, Circuit Judges.

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CARSON v. DVA 2
P ER CURIAM .
David Wayne Carson appeals from an order of the
Merit Systems Protection Board denying his request for
corrective action under the Whistleblower Protection Act
(“WPA”). We affirm.
I
At the time of his retirement, Mr. Carson was a crim-
inal investigator in the Office of the Inspector General of
the Department of Veterans Affairs (“DVA”). Mr. Carson
retired in 2009 after more than 20 years of service. He
completed a “Notice of Retirement” form, in which he
stated that the reason he was retiring was “Desire to
Retire.”
In 2010, Mr. Carson submitted a whistleblower com-
plaint to the Office of Special Counsel alleging that the
DVA had retaliated against him for two protected disclo-
sures: a phone call in 2006 to the legal office of the Inspec-
tor General concerning legal advice he received from his
supervisor, and a phone call questioning the legality of
seizing a computer during a 2008 operation at the offices
of the Kentucky Disabled American Veterans (“DAV”).
He alleged that in retaliation for his disclosures, he had
been coerced into retiring. On September 27, 2010, the
Office of Special Counsel closed its investigation of Mr.
Carson’s whistleblower allegations and informed him that
he could file an individual-right-of-action request for
corrective action with the Board.
Mr. Carson filed an individual-right-of-action appeal
on October, 12, 2010. In her initial decision, the adminis-
trative judge who was assigned to the case found that the
2006 disclosure was not a protected disclosure because
Mr. Carson’s “disclosure concerned possibly erroneous
instructions or rules provided by his supervisor, rather
than any conduct that was violative of any law, rule, or
regulation.” Accordingly, the administrative judge found

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CARSON v. DVA 3
that the Board did not have jurisdiction over Mr. Carson’s
appeal.
The full Board agreed that the Board had no jurisdic-
tion over Mr. Carson’s 2006 disclosure, but it found that
the administrative judge had not addressed his claim
regarding the 2008 disclosure. The Board ruled that Mr.
Carson’s second disclosure raised a non-frivolous claim of
protected disclosure and remanded the case for further
development.
On remand, the administrative judge first analyzed
whether Mr. Carson’s disclosures during the 2008 search
and seizure operation at the offices of the DAV were
protected. During the operation, Mr. Carson had concerns
that the seizure of a particular computer violated the
Fourth Amendment. His concern was based on his belief
that only an employee of the organization had authorized
the seizure, and that the employee was unable to give
effective consent to seize the computer. He expressed his
concerns to two superiors. In fact, it turns out that the
DAV was cooperating with investigators and had author-
ized the search. Mr. Carson argued that the disclosure
was a protected disclosure under the WPA.
After taking the testimony of Mr. Carson and the As-
sistant U.S. Attorney who was involved in the 2008
investigation, the administrative judge determined that,
at the time Mr. Carson raised his concerns, he was una-
ware that DAV was cooperating with investigators and
believed that the agency had only the consent of the
employee. Under the circumstances, the administrative
judge found that Mr. Carson had a reasonable belief that
the agency did not have consent to search or seize the
computer, and therefore his disclosure regarding the
legality of the search was protected by the WPA.
The administrative judge also found, however, that
Mr. Carson had failed to establish that his retirement was
involuntary and therefore did not show that he suffered a

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CARSON v. DVA 4
“personnel action” within the scope of the WPA. Mr.
Carson’s retirement was voluntary, the administrative
judge found, because the adverse circumstances that he
identified were not “so intolerable that a reasonable
person in his position would have felt compelled to retire.”
In support of his claim that he was mistreated, Mr.
Carson pointed to a number of incidents. First, he alleged
that after the 2008 disclosure, his supervisor, Mike Keen,
threatened to fire him. However, Mr. Keen testified that
he never threatened to fire Mr. Carson and that he had no
authority to fire anyone. Mr. Keen’s testimony about his
lacking of firing authority was confirmed by Mr. Keen’s
supervisor, Quentin Aucoin.
Next, Mr. Carson alleged that after the 2008 disclo-
sure, Mr. Keen subjected him to long and abusive case
reviews and required him to re-present cases to prosecu-
tors that they had previously declined to prosecute. He
also alleged that Mr. Keen had treated him poorly by
micro-managing his work, talking down to him, raising
his voice, and interrupting him. Mr. Keen denied subject-
ing Mr. Carson to longer case reviews than were needed
based on the complexity of the case and the progress of
the investigation.
Mr. Carson complained that Mr. Keen allowed anoth-
er employee to stop preparing Mr. Carson’s travel docu-
ments, even though she provided that service for other
agents in the office. The employee testified that she
stopped preparing Mr. Carson’s documents after he spoke
to her in a demeaning manner and that after he apolo-
gized to her she began preparing his documents again.
Mr. Carson also alleged that after his 2008 disclosure,
the agency disapproved his requests for supervisor train-
ing. Mr. Aucoin testified that he did not approve Mr.
Carson’s requests for supervisory training, either before
the disclosure or afterwards, because he thought Mr.

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CARSON v. DVA 5
Carson was “abrasive, abusive, and put his own self-
interests above others.”
On other occasions, as claimed by Mr. Carson and
confirmed by Mr. Keen, the two engaged in heated con-
versations, and on one occasion Mr. Keen ordered Mr.
Carson out of his office.
Finally, Mr. Carson pointed to an incident in 2009.
After Mr. Carson suffered a hand injury, the agency
stripped him of his badge, his weapon, his law enforce-
ment duties, and his government-owned vehicle. Mr.
Carson stated that the reason given by the agency—that
Mr. Carson’s medical restrictions prevented him from
performing law enforcement duties—was pretextual, as
another employee had continued with his law enforce-
ment duties after suffering a hand injury. Mr. Keen
testified that the difference in the agency’s response to the
two situations was that the other employee did not re-
quest any accommodation or indicate that he was unable
to perform any of his normal duties, while Mr. Carson
presented a doctor’s note restricting him from using his
right hand. When the doctor’s restrictions on the use of
his hand were removed, the agency immediately restored
his privileges.
Mr. Keen testified that he never asked Mr. Carson to
retire, and that when the subject came up in conversation,
it was always raised by Mr. Carson. Mr. Aucoin testified
that he informed Mr. Carson that he was welcome to stay
as long as he did the work.
After reviewing the record, the administrative judge
found that Mr. Carson failed to meet his burden to show
that his retirement was involuntary. The administrative
judge accepted as true Mr. Carson’s allegations that Mr.
Keen treated him poorly on occasion, but she did not find
that those circumstances were so difficult as to compel a
reasonable person to resign. The administrative judge did
not consider the denial of training requests or the with-

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CARSON v. DVA 6
drawal of Mr. Carson’s badge, weapon, law enforcement
duties, and vehicle to be ill-treatment, because the agency
established that it had legitimate reasons for those
measures. In sum, the administrative judge found that
Mr. Carson “described no more than difficult and un-
pleasant working conditions,” which were insufficient to
satisfy his burden to show that his retirement was invol-
untary. The administrative judge therefore concluded
that Mr. Carson had failed to establish that he suffered a
“personnel action” within the scope of the WPA and
denied his request for corrective action.
The full Board denied Mr. Carson’s petition for review
and affirmed the administrative judge’s decision.
II
“A decision to resign or retire is presumed to be vol-
untary.” Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340-41
(Fed. Cir. 2001). An employee can overcome that pre-
sumption if he proves by a preponderance of the evidence
that his retirement was involuntary and thus tantamount
to a forced removal. Id. at 1341. A retirement is involun-
tary if the agency creates “working conditions so intolera-
ble for the employee that he or she is driven to
involuntarily resign or retire.” Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc).
To determine whether a reasonable person would have
been driven to resign, the Board considers the totality of
the circumstances, including “events not immediately
preceding the leave of employ.” Shoaf, 260 F.3d at 1342.
Mr. Carson first argues that the administrative judge
failed to consider the totality of the circumstances. He
argues that the administrative judge’s error lay in exclud-
ing the actions as to which the agency was justified—such
as the denial of Mr. Carson’s training requests—from the
totality of the circumstances analysis.

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CARSON v. DVA 7
The administrative judge did not fail to consider that
evidence; she simply explained that she did not consider
those incidents to represent be “ill-treatment” on the part
of Mr. Keen. The administrative judge meticulously
analyzed the record, considering both the details of indi-
vidual events and Mr. Carson’s experience as a whole
before reaching the determination that his retirement
was voluntary. We hold that there was substantial evi-
dence for the Board’s finding that Mr. Carson voluntarily
retired.
Mr. Carson also contends that the Board failed to de-
termine whether the whistleblowing disclosure was a
“contributing factor” to an adverse personnel action, and
failed to require the agency to prove, by clear and convinc-
ing evidence, that it would have had taken the same
personnel action absent the disclosure. In order to make
out a prima facie case, however, the claimant must prove:
(1) that he made a protected disclosure, (2) that he was
subject to an adverse personnel action, and (3) that the
protected disclosure was a contributing factor in the
adverse personnel action. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Because the
Board determined that Mr. Carson voluntarily retired, his
claim fails because he was not subject to an adverse
personnel action. Therefore, there was no reason for the
Board to consider the contributing factor element or the
agency’s possible affirmative defense.
We have considered Mr. Carson’s remaining argu-
ments but find them unpersuasive.
No costs.
AFFIRMED

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