Stephanie Russell v. Department of the Air Force

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHANIE RUSSELL,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2025-1158
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-22-0436-W-1.
______________________
Decided: September 15, 2025
______________________
S TEPHANIE R USSELL , Crestview, FL, pro se.
SEAN K ELLY G RIFFIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE H OSFORD, P ATRICIA M. MCCARTHY , YAAKOV R OTH .
______________________
Before D YK, HUGHES , and STARK, Circuit Judges.
P ER CURIAM .
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RUSSELL v. AIR FORCE 2
Stephanie Russell appeals the Merit Systems Protec-
tion Board’s final order, which denied Ms. Russell’s request
for corrective action in her individual right of action appeal.
Because the Board’s decision was in accordance with the
law and supported by substantial evidence, we affirm.
I
Ms. Russell was a Logistics Management Specialist at
Eglin Air Force Base in Florida. S.A. 11.1 Ms. Russell’s pri-
mary duties were to serve as a Contracting Officer’s Repre-
sentative (COR) and to oversee the contractors supporting
the F-35 Joint Strike Fighter program. S.A. 11. Her direct
supervisor, Janice McGovern, was located at the headquar-
ters of the Air Force Life Cycle Management Center in Vir-
ginia. S.A. 11.
Ms. Russell alleged that she engaged in protected whis-
tleblowing on two separate occasions in 2017. S.A. 11. Both
alleged disclosures were made to Ms. McGovern, the first
in person and the second via email. S.A. 11, 13–14. First,
Ms. Russell contended that she disclosed that Mr. Robin-
son, a reservist, falsely held himself out as a COR and gave
a contractor unauthorized access to a National Geospatial-
Intelligence Agency (NGA) system. S.A. 11. Second, she al-
leged that Mr. Brown, an Academic Training Center staff
member, improperly represented himself to be a Quality
Assurance Representative (QAR) while interacting with
contractors. S.A. 11. Ms. Russell alleged that after she
made these disclosures, “the agency retaliated against her
for those disclosures by moving her workstation, denying
leave without pay [(LWOP)] requests, changing her alter-
native work schedule, placing her in an [Absence without
Leave (AWOL)] or LWOP status at times, and suspending
her for six-days.” S.A. 12. Ms. Russell was later removed
1 “S.A.” refers to the supplemental appendix submit-
ted in connection with the Respondent’s informal brief.
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RUSSELL v. AIR FORCE 3
for misconduct on June 23, 2021, and we affirmed the re-
moval decision. See Russell v. Dep’t of the Air Force,
No. 2024-1988, 2025 WL 415458, at *1 (Fed. Cir. Feb. 6,
2025).
In May 2018, Ms. Russell filed a complaint with the Of-
fice of Special Counsel (OSC). S.A. 12. In April 2022, OSC
notified Ms. Russell that it was closing its investigation.
S.A. 12. Ms. Russell then filed an individual right of action
(IRA) appeal with the Board. After a hearing, the adminis-
trative judge denied Ms. Russell’s request for corrective ac-
tion, concluding that Ms. Russell did not show that she
made protected whistleblowing disclosures. S.A. 13.
After her petition for review of the initial decision was
denied, S.A. 2, Ms. Russell timely appealed. We have juris-
diction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
§ 1295(a)(9).
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance 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); see also Perlick v. Dep’t of Veterans Affs.,
104 F.4th 1326, 1329 (Fed. Cir. 2024). Substantial evi-
dence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Consol.
Edison Co. v. Nat’l Lab. Rels. Bd., 305 U.S. 197, 229 (1938).
III
A
First, Ms. Russell contends that the Board erred in de-
termining that she did not make protected disclosures. Pe-
titioner’s Informal Br. 7–8. To prevail in an IRA appeal, a
petitioner must show by preponderant evidence that she
made a disclosure that she “reasonably believed evidenced
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RUSSELL v. AIR FORCE 4
a violation of a law, rule, or regulation.” Langer v. Dep’t of
Treasury, 265 F.3d 1259, 1264 (Fed. Cir. 2001) (citation
omitted). A petitioner can show reasonable belief when “a
disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee
or applicant could reasonably conclude that the actions of
the Government evidence the violation, mismanagement,
waste, abuse, or danger in question.” 5 C.F.R. § 1209.4(f).
The administrative judge first considered whether
Ms. Russell made protected disclosures to Ms. McGovern.
The administrative judge determined that it was unlikely
that Ms. Russell made an oral disclosure to Ms. McGovern
because Ms. McGovern testified that she did not remember
any oral allegations and the administrative judge con-
cluded that Ms. Russell’s “resentment towards Ms. McGov-
ern was evident and disproportionate, and [the
administrative judge] found [Ms. Russell’s] answers to be
deliberately oblique at times.” S.A. 16. And the administra-
tive judge ordered relief on the fact that, in the email where
Ms. Russell alleged she made those disclosures, Ms. Rus-
sell also did not reference a prior conversation or
Ms. McGovern’s lack of follow up on a prior conversation.
S.A. 16. In considering the email, though it did not mention
Mr. Robinson or Mr. Brown by name, the administrative
judge found that there was enough written to determine
whether Ms. Russell had a reasonable belief that she was
disclosing wrongdoing. S.A. 17.
The administrative judge then concluded that Ms. Rus-
sell did not establish reasonable belief with respect to her
disclosures. As to her first allegation, the administrative
judge noted that Ms. Russell did not provide any support-
ing documentation for her belief that Mr. Robinson inap-
propriately held himself out as a COR or granted
unauthorized access to NGA systems. S.A. 19. The admin-
istrative judge credited testimony by Mr. Brown that he
and Mr. Robinson were authorized to represent their team
as subject matter experts and QARs, and that they had a
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RUSSELL v. AIR FORCE 5
delegation letter explaining as much. S.A. 18–19. The ad-
ministrative judge also credited testimony that the NGA
system is unclassified, and that there is no requirement
that a COR needs to grant access to the system—any gov-
ernment point of contact or military or civilian “site
holder[]” could grant access. S.A. 19. As to Ms. Russell’s
second allegation, the administrative judge concluded that
it was “vague and largely conclusory with regard to how
the QAR title was misused to improperly influence a con-
tractor,” as “it is undisputed that [Mr.] Brown is a QAR for
the [Academic Training Center] director.” S.A. 19–20.
Ms. Russell’s arguments here essentially amount to
disagreements with the administrative judge’s credibility
determinations, which are “virtually unreviewable” on ap-
peal. Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436
(Fed. Cir. 1986). She primarily argues that the testimony
of Ms. McGovern and Mr. Brown was not reliable and that
the administrative judge erred when weighing it. But
Ms. Russell has not met the high burden required to dis-
turb an administrative judge’s credibility determinations.
See Hanratty v. Dep’t of Transp., 819 F.2d 286, 288
(Fed. Cir. 1987) (stating that the petitioner needs to estab-
lish that the testimony was “inherently improbable or dis-
credited by undisputed evidence or physical fact” to
undermine a credibility determination (quoting Hagmeyer
v. Dep’t of Treasury, 757 F.2d 1281, 1284 (Fed Cir.1985)).
Further, we are not permitted to reweigh evidence in the
way Ms. Russell asks us to. See Bieber v. Dep’t of Army,
287 F.3d 1358, 1364 (Fed. Cir. 2002) (“Bieber basically re-
quests us to re-weigh conflicting evidence; this is not our
function.”). We conclude that substantial evidence supports
the Board’s determination that Ms. Russell failed to estab-
lish that she made protected disclosures.
B
Second, Ms. Russell contends that there is a gap in the
hearing testimony, and that the missing testimony
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RUSSELL v. AIR FORCE 6
“adversely effects [her] substantive rights to a fair hear-
ing.” Petitioner’s Informal Br. 3. Ms. Russell argues that
there is a gap between Ms. McGovern’s testimony in Parts
2 and 3 of the hearing testimony recording. Petitioner’s In-
formal Br. 2. First, we do not discern a significant gap in
the hearing testimony—at the end of Part 2, Ms. McGovern
testified about the need to put Ms. Russell on AWOL status
due to failure to communicate, and at the beginning of Part
3, Ms. McGovern continued to testify about this same is-
sue. Second, Ms. Russell fails to show that she was preju-
diced by the missing testimony. See Harp v. Dep’t of Army,
791 F.2d 161, 163 (Fed. Cir. 1986) (“We . . . reject peti-
tioner’s argument for a rule that the unavailability of a
transcript is harmful per se . . . . Although Mr. Harp al-
leges generally that he is prejudiced by the absence of the
transcript, he has failed to even allege that any particular
testimony . . . was not considered or was misused by the
presiding official and, therefore, might have caused a dif-
ferent result in the case.”). Ms. Russell does not specify
what the missing information is, beyond stating that “there
are probably more example[s] of [Ms. McGovern’s] elusive
behavior.” Petitioner’s Informal Br. 9. We conclude that
this is not a sufficient basis to overturn the Board’s find-
ings.
IV
We have considered Ms. Russell’s remaining argu-
ments and find them unpersuasive. For the reasons above,
we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
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