David B. Platt v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID B. PLATT,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2023-2065
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-14-0790-W-2.
______________________
Decided: June 10, 2025
______________________
SERENA K URTZ, Kubicki Draper, Tampa, FL, for peti-
tioner.
T ARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by P ATRICIA M.
MCCARTHY , YAAKOV R OTH .
______________________
Before T ARANTO, STOLL , and STARK, Circuit Judges.
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PLATT v. DHS 2
P ER CURIAM .
David B. Platt petitions for review of a final order of
the Merit Systems Protection Board (“Board”) affirming a
denial of his individual right of action (“IRA”) claim alleg-
ing whistleblower retaliation. See Platt v. DHS, No. AT-
1221-14-0790-W-2 (M.S.P.B. Apr. 17, 2023) (J.A. 24-43)
(“Decision”). For the following reasons, we affirm.
I
Mr. Platt is a Transportation Security Specialist – Ex-
plosives (“TSSE”) for the Transportation Security Agency
(“TSA”). J.A. 26. On December 21, 2011, Mr. Platt made
what both parties agree was a protected disclosure to the
Department of Homeland Security’s Office of Inspector
General (“OIG”). J.A. 27. Specifically, Mr. Platt told the
OIG that on January 6, 2009, Keith Jeffries, an Assistant
Federal Security Director – Screening (“AFSD-S”), allowed
a Department of Defense (“DOD”) contractor to transport
an inert Improvised Explosive Device (“IED”) in the cargo
hold of a passenger aircraft. J.A. 27, 475. Mr. Platt’s IRA
alleges that the TSA took several retaliatory actions by (i)
failing to provide him with a mid-year performance rating
in April 2014, (ii) suspending him in 2014 for seven days
for causing an unprovoked confrontation with a coworker
and for failing to report violations of TSA policy, and (iii)
suspending him in 2013 for seven days for inappropriate
and disruptive behavior. J.A. 26-27.
In the initial decision denying Mr. Platt’s request for
corrective action, an administrative judge (“AJ”) deter-
mined that Mr. Platt’s 2011 protected disclosure was not a
contributing factor in either the agency’s failure to provide
him a mid-year performance rating in April 2014 or its de-
cision to suspend him that same year, as those personnel
actions occurred 2 ½ years after the disclosure. J.A. 9-10,
27. While the disclosure was a contributing factor in the
agency’s decision to suspend Mr. Platt in 2013, the AJ con-
cluded the agency proved by clear and convincing evidence
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PLATT v. DHS 3
that it would have made the same decision even absent the
protected disclosure. J.A. 11-16, 28. Mr. Platt appealed to
the Board, which affirmed. J.A. 27-28, 37.
Mr. Platt then filed this timely appeal. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
II
We must affirm a decision of the Board unless 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). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938).
III
Mr. Platt argues that the Board erred in affirming the
AJ due to errors of both fact and law. We disagree.
A
Mr. Platt contends the Board made multiple fact-re-
lated errors in the course of assessing whether TSA had
proven, by the required clear and convincing evidence, that
it would have suspended him for seven days in 2013 even
if he had not made a protected disclosure. Open Br. at 13–
28. “Clear and convincing evidence is that measure or de-
gree of proof that produces in the mind of the trier of fact a
firm belief as to the allegations sought to be established. It
is a higher standard than ‘preponderance of the evidence’
. . . .” 5 C.F.R. § 1209.4(e). The analysis here concerns the
Board’s assessment of the factors laid out in Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999):
(1) the strength of the agency’s evidence in support
of its personnel action;
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PLATT v. DHS 4
(2) the existence and strength of any motive to re-
taliate on the part of the agency officials who were
involved in the decision; and
(3) any evidence that the agency takes similar ac-
tions against employees who are not whistleblow-
ers but who are otherwise similarly situated.
The Board found that all three factors favor TSA. J.A.
34-35. Substantial evidence supports these findings.
Mr. Platt raises no challenge to the Board’s finding on
the first Carr factor. Regarding the second factor, Mr. Platt
contends that the Board erred in determining that Acting
Federal Security Director (“FSD”) Joseph Samuels, rather
than AFSD-S Jeffries, was the official who approved the
placement of the inert IED on a passenger aircraft in 2009.
Open. Br. at 34-36. According to Mr. Platt, had the Board
found that AFSD-S Jeffries approved the placement of the
IED factor two would have favored him, because this would
provide evidence that AFSD-S Jeffries had a retaliatory
motive against him. Open. Br. at 34, 36. However, the un-
rebutted testimony of two witnesses was that FSD Samuels
was the highest-ranking TSA official present and that he
was the one who made the decision to allow the IED on the
plane. J.A. 10, 27-30, 220-22, 266-70, 383. Mr. Platt as-
serts the Board ignored an incident report, which stated
that “the [device] was ‘allowed to continue per AFSD-S [Jef-
fries].’” Open Br. at 19 (discussing J.A. 29-30). Contrary
to Mr. Platt’s suggestion, the Board did consider the re-
port–but credited the report’s author, who explained that
he only referenced AFSD-S Jeffries because AFSD-S Jef-
fries is the author’s supervisor. J.A. 29-30.
Mr. Platt makes numerous other arguments relating to
the second Carr factor. See Open. Br. at 19-23. They
amount to nothing more than a request that we re-weigh
the evidence, which we cannot do. See Jones v. Dep’t of
Health & Hum. Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016)
(stating that “we do[ ]not reweigh evidence” when applying
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PLATT v. DHS 5
the substantial evidence standard on appeal) (internal ci-
tation and quotation marks omitted)).
As to Carr factor three, Mr. Platt claims that the Board
failed to consider evidence that he was treated differently
than other employees who did not make protected disclo-
sures. Open. Br. at 16-28. But the record reveals that the
Board did consider, and ultimately rejected, Mr. Platt’s ev-
idence, finding it “does not show that the agency treated a
nonwhistleblower more leniently than the appellant.” J.A.
36. This determination was reached after the Board con-
sidered the testimony of several witnesses. See, e.g., J.A.
35-37, 230-32, 285, 293-94, 306-09, 500, 530, 536, 546. The
Board reasoned that any potential differences in discipline
experienced by Mr. Platt were the consequence of his prior
disciplinary record, not his protected disclosure. J.A. 36-
37.
Mr. Platt has failed to show that the Board committed
any factual error.
B
Mr. Platt further contends the Board made errors of
law. Open. Br. at 28-34. First, Mr. Platt argues the Board
improperly “conclud[ed] that an employee must prove that
the proposing or deciding officials were directly impacted
by a whistleblower’s disclosure in order to prove that these
managers had retaliatory motive.” Open. Br. at 29. The
Board made no such legal conclusion, instead recognizing,
correctly, that “those responsible for the agency’s perfor-
mance overall may well be motivated to retaliate even if
they are not directly implicated by the disclosures, as the
criticism may reflect on them in their capacities as manag-
ers and employees.” J.A. 34. It then made a factual deter-
mination, based on its review of the record, that “any
motive to retaliate on the part of these officials was mini-
mal” in Mr. Platt’s case. Id.
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PLATT v. DHS 6
Second, Mr. Platt contends that the Board erred by fail-
ing to give weight to his prima facie showing that his 2009
disclosure was a contributing factor to his 2013 suspension.
Open. Br. at 32-34. However, the Board properly followed
the burden-shifting framework required for evaluating
Mr. Platt’s IRA claim. That is, after finding Mr. Platt had
made out a prima facie case, it shifted the burden to TSA
to show, by clear and convincing evidence, that it would
have taken the same action even absent Mr. Platt’s disclo-
sure, and then found that TSA had met its burden. J.A. 11;
see also 5 U.S.C. § 1221(e) (codifying burden shifting frame-
work). The Board committed no legal error.
IV
Mr. Platt additionally argues that the Board erred by
supplementing the AJ’s Initial Decision with further fac-
tual findings. Open. Br. at 38. We have held that “[t]he
general rule is that the Board is free to substitute its judg-
ment for that of one of its administrative judges” but that
it may not “overturn an administrative judge’s demeanor-
based credibility findings merely because it disagrees with
those findings.” Leatherbury v. Dep’t of the Army, 524 F.3d
1293, 1304 (Fed. Cir. 2008) (citations omitted). Here, the
Board did not overturn any credibility findings by the AJ.
Therefore, the Board acted within its authority to “affirm,
reverse, modify, or vacate the initial decision of the judge.”
5 C.F.R. § 1201.117(b).
V
We have considered Mr. Platt’s remaining arguments
and find them to be without merit. For the foregoing rea-
sons, we affirm the Board.
AFFIRMED
COSTS
No costs.
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