Ralph J. Coppola v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RALPH J. COPPOLA,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2022-2192
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-17-0027-M-2.
______________________
Decided: November 18, 2024
______________________
RALPH STEPHEN COPPOLA, Law offices of Ralph
Stephen Coppola, Reno, NV, argued for petitioner.
EMMA E. BOND, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
PATRICIA M. MCCARTHY, NATHANAEL YALE.
______________________
Before DYK, CHEN, and STOLL, Circuit Judges.
Case: 22-2192 Document: 74 Page: 1 Filed: 11/18/2024

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COPPOLA v. DVA 2
STOLL, Circuit Judge.
Dr. Ralph J. Coppola challenges the Merit Systems
Protection Board’s denial of corrective action in his
individual right of action (IRA) appeal. Dr. Coppola
argues that the Board incorrectly determined that,
despite Dr. Coppola establishing a prima facie case of
whistleblowing retaliation, the Department of Veterans
Affairs provided clear and convincing evidence it would
have terminated Dr. Coppola and not selected him for a
full-time position even if he had not made any protected
disclosures.
In his reply brief and at oral argument, Dr. Coppola
focused on his satisfactory performance reviews,
specifically a Focused Professional Practice Evaluation
(FPPE) from March 2012, to argue that the Board failed
to consider all the evidence by not reconciling
Dr. Coppola’s satisfactory FPPE with the subsequent
recommendation by his supervisor, Dr. Lori Rawson, that
he be fired in May 2012. See Pet. Reply Br. 9–19. At the
outset, we do not see where this issue was clearly raised
before the Board, and counsel could provide no citation for
it at oral argument. Moreover, Dr. Coppola did not raise
this issue on appeal until his reply brief, thus forfeiting
the issue twice over. See Oral Arg. at 1:27–4:26,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22
-2192_11122024.mp3; see also Mass. Mut. Life Ins. Co.
v. United States, 782 F.3d 1354, 1369 (Fed. Cir. 2015) (“As
a general principle, appellate courts do not consider issues
that were not clearly raised in the proceeding below.”);
United States v. Ford Motor Co., 463 F.3d 1267, 1276
(Fed. Cir. 2006) (“Arguments raised for the first time in a
reply brief are not properly before this court.”). In any
event, substantial evidence supports the Board’s
determination that the VA would have taken this action
regardless of Dr. Coppola’s whistleblowing activity. The
record shows that events postdating the March 2012
FPPE were similar in nature to earlier examples of
Case: 22-2192 Document: 74 Page: 2 Filed: 11/18/2024

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COPPOLA v. DVA 3
Dr. Coppola’s disrespectful behavior and the continuation
of such conduct after the March FPPE supports the
Board’s decision that Dr. Rawson removed Dr. Coppola
because of his treatment of staff and patients and failure
to follow VA policy, not in retaliation. See, e.g., J.A. 766–
67.
Dr. Coppola also raises various arguments about his
employment status and the 2011 Master Agreement
between the VA and the American Federation of
Government Employees. See, e.g., Pet. Br. 31–37.
However, substantial evidence supports the Board’s
determination that Dr. Coppola was a temporary
employee appointed under 38 U.S.C. § 7405(a)(1)(A) and
thus was not entitled to due process accorded to
employees under the civil service protection laws. See
J.A. 34–39; J.A. 1073. Nor does Dr. Coppola grapple with
the Board’s determination that, even if the VA had been
incorrect in assessing him as an at-will employee, “the
evidence in support of that conclusion was so compelling
as to render any incorrect assessment in that regard [as]
not negatively impact[ing] the strength of the agency’s
evidence supporting the termination action (or reflect[ing]
some additional retaliatory animus by any of the
management officials involved in the action).” J.A. 39.
Furthermore, an IRA appeal is not the proper venue to
enforce the terms of a collective bargaining agreement or
raise purported procedural errors as a defense. See
5 U.S.C. § 7121(d), (g); 5 C.F.R. § 1209.2.
We have considered Dr. Coppola’s remaining
arguments, but we do not find them persuasive. Rather,
we find the Board’s various challenged fact findings
supported by substantial evidence, and we discern no
errors in its legal analysis. For the foregoing reasons, we
affirm.
AFFIRMED
Case: 22-2192 Document: 74 Page: 3 Filed: 11/18/2024

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COPPOLA v. DVA 4
COSTS
No costs.
Case: 22-2192 Document: 74 Page: 4 Filed: 11/18/2024

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