Peter R. Cali v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER R. CALI,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2024-1722
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-23-0197-W-1.
______________________
Decided: December 5, 2024
______________________
PETER R. CALI, Saint Augustine, FL, pro se.
CHRISTOPHER BERRIDGE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represented
by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
PATRICIA M. MCCARTHY.
______________________
Before MOORE, Chief Judge, PROST and STOLL, Circuit
Judges.
Case: 24-1722 Document: 28 Page: 1 Filed: 12/05/2024

-- 1 of 10 --

CALI v. NAVY 2
PER CURIAM.
Peter R. Cali has appealed the Merit Systems
Protection Board’s (“MSPB”) decision denying Mr. Cali’s
request for corrective action of his removal. Cali v. Dep’t of
the Navy, No. DC-1221-23-0197-W-1 (M.S.P.B. Jan. 12,
2024) (“Decision”). For the following reasons, we affirm.
BACKGROUND
Mr. Cali was appointed to a career conditional,
competitive service position as a Supervisory Engineer, GS-
13-01 in the Department of the Navy’s (“agency”) Public
Works Department (“PWD”) Sigonella, located on the U.S.
Naval Air Station (“NAS”) in Sigonella, Italy. PWD
Sigonella is under the command of the agency’s Naval
Facilities Engineering Systems Command (“NAVFAC”)
Europe, Africa, Central’s (“EURAFCENT”) Facilities
Management Division. Mr. Cali’s appointment was subject
to completion of a two-year probationary period beginning
January 28, 2020.
On September 7, 2021, the Department of Defense
(“DoD”) issued a memorandum entitled: Force Health
Protection Guidance (Supplement 23)—Department of
Defense Guidance for Coronavirus Disease 2019 (“COVID-
19”) Vaccination Attestation and Screening Testing for
Unvaccinated Personnel (“Supplement 23”). J.A. 755. The
memorandum required DoD civilian employees to attest to
their COVID-19 vaccination status and required
unvaccinated civilian employees (or employees who
declined to attest to their vaccination status) to participate
in COVID-19 testing at least weekly. The memorandum
denied access to DoD facilities for civilian employes and
contractor personnel who refused to participate in the
required screening testing. Additionally, the memorandum
authorized DoD agencies to initiate adverse employment
actions, up to and including removal, against unvaccinated
civilian employees who refused COVID-19 testing and
further authorized DoD agencies to bar such employees
Case: 24-1722 Document: 28 Page: 2 Filed: 12/05/2024

-- 2 of 10 --

CALI v. NAVY 3
from their worksites on agency installations or facilities to
protect the health of all DoD personnel and their
communities, and to preserve total force readiness. J.A.
761–62. The DoD issued subsequent revisions to
Supplement 23 on October 18, October 29, and December
20, 2021—each required the same testing for unvaccinated
personnel. Decision, at J.A. 4–5.
In November 2021, Mr. Cali submitted a “reasonable
accommodation” request to his first-line supervisor seeking
religious exemption from the COVID-19 vaccination
mandate. Decision, at J.A. 5. Mr. Cali also discussed his
concern regarding the then-available COVID-19 test kits,
which had received an Emergency Use Authorization
(“EUA”) from the Food and Drug Administration (“FDA”),
rather than the full FDA approval. Mr. Cali expressed
particular concern that the agency’s testing policy
appeared to lack a required “informed consent” for
employees that were ordered to test with EUA kits, which
he believed was mandated by federal statute.1
On December 3, 2021, NAVFAC’s Commander issued a
memorandum entitled: Guidance for Coronavirus Disease
2019 Screening and Testing (“NAVFAC Memorandum”).
J.A. 856. The NAVFAC Memorandum established a
COVID-19 screening program for NAVFAC, including
weekly COVID-19 testing for unvaccinated civilian
employees regularly entering government facilities. If
these employes refused testing, the NAVFAC
Memorandum authorized DoD agencies to “bar DoD
1 Mr. Cali invokes 21 U.S.C. § 360bbb-3, which
empowers the Secretary of Health and Human Services to
“authorize the introduction into interstate commerce,
during the effective period of [an emergency] declaration
. . . , of a drug, device, or biological product intended for use
in an actual or potential emergency.” 21 U.S.C. § 360bbb-
3(a)(1).
Case: 24-1722 Document: 28 Page: 3 Filed: 12/05/2024

-- 3 of 10 --

CALI v. NAVY 4
civilian employees who refuse required screening tests
from their worksites on the installation or facility to protect
the safety of others, including while any progressive
disciplinary actions are pending.” J.A. 858.
On January 13, 2022, Mr. Cali corresponded with the
U.S. Naval Hospital Sigonella’s Commanding Officer to
determine if the hospital had FDA approved COVID-19 test
kits and to address informed consent regarding the use of
EUA products. Decision, at J.A. 6–7. The Sigonella
hospital’s Commanding Officer confirmed that only EUA
test kits were available at the hospital and that informed
consent was not required before performing the test. In a
January 26, 2022 email to his first-line supervisor, Mr. Cali
stated that he would participate in the COVID-19 testing
program if provided an FDA-approved test. Mr. Cali was
notified by the NAVFAC EURAFCENT Business Director
that Mr. Cali’s insistence upon using only an FDA-
approved test would be considered a refusal to submit to a
COVID-19 test. Mr. Cali acknowledged that he
understood. J.A. 2875.
On January 27, 2022, the agency issued Mr. Cali a
Notice of Termination During Probationary Period for
“failure to comply with COVID-19 testing, command policy,
and host nation law, especially given [Mr. Cali’s]
supervisory role, [Mr. Cali’s] conduct is considered unfit for
continued Federal employment.” J.A. 633. Mr. Cali
appealed his probationary termination to the MSPB on
February 24, 2022; that appeal was dismissed for lack of
jurisdiction. After the dismissal, Mr. Cali filed a
whistleblower complaint with the Office of Special Counsel
(“OSC”) alleging that the agency had retaliated for his
engagement in protected whistleblowing activities when it
terminated him and ordered his return to the United
States. On November 3, 2022, OSC notified Mr. Cali that
it closed its investigation without making any findings of
whistleblower retaliation. Mr. Cali then filed an Individual
Right of Action (“IRA”) appeal before the MSPB.
Case: 24-1722 Document: 28 Page: 4 Filed: 12/05/2024

-- 4 of 10 --

CALI v. NAVY 5
Afterward, the MSPB Administrative Judge (“AJ”) found
that Mr. Cali had exhausted his administrative remedies
and met his burden of establishing MSPB jurisdiction over
his IRA appeal.
In its initial decision, the AJ denied Mr. Cali’s request
for corrective action, finding that the agency had met its
clear and convincing burden of proof to support that it
would have terminated Mr. Cali notwithstanding his
protected disclosures, activities, or perceived
whistleblower status. Decision, at 48. The initial decision
became final on February 21, 2024.
Mr. Cali timely appealed, and this court has
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
In review of MSPB final decisions, we are required to
affirm the decision unless “any agency action, findings, or
conclusions [are] found to be—(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). “The petitioner
bears the burden of establishing error in the [MSPB]’s
decision.” Harris v. Dep’t of Veterans Affs., 142 F.3d 1463,
1467 (Fed. Cir. 1998).
Mr. Cali argues that (1) the agency did not meet its
burden to prove it would have terminated Mr. Cali absent
his whistleblowing activities; (2) the AJ made grave errors
of omission in its consideration of the evidence; (3) Mr. Cali
never made a decision whether or not he would submit to
an EUA COVID-19 test; and (4) Mr. Cali should not have
been terminated because the agency’s order to require
COVID-19 testing was unlawful. We disagree and address
each of Mr. Cali’s arguments in turn.
Case: 24-1722 Document: 28 Page: 5 Filed: 12/05/2024

-- 5 of 10 --

CALI v. NAVY 6
I
We start with Mr. Cali’s arguments regarding the
agency’s purported failure to meet its burden to prove a
termination absent whistleblowing activities. The
Whistleblower Protection Act (“WPA”) protects several
types of communications, to include “any disclosure of
information by an employee or applicant which the
employee or applicant reasonably believes evidences—(i)
any violation of any law, rule, or regulation, or (ii) . . . a
substantial and specific danger to public health or safety.”
5 U.S.C. § 2302(b)(8). And an employee may seek
corrective action with respect to a personnel action taken
by the agency, such as termination, as the result of such
disclosures. To show entitlement to corrective action, “the
former employee must prove by a preponderance of the
evidence that he or she made a protected disclosure under
§ 2302(b)(8) that was a contributing factor to the
employee’s termination.” Whitmore v. Dep’t of Labor, 680
F.3d 1353, 1367 (Fed. Cir. 2012). “If the employee
establishes this prima facie case of reprisal for whistle-
blowing, the burden of persuasion shifts to the agency to
show by clear and convincing evidence that it would have
taken the same personnel action in the absence of such
disclosure.” Id. (cleaned up).
The AJ determined that Mr. Cali’s disclosures to his
first-line supervisor and to the hospital’s Commanding
Officer were protected because Mr. Cali had a reasonable
belief that, should the agency require him to take an EUA
COVID-19 test kit (which it did), the agency must provide
him with informed consent related to the administration of
the test (which it did not). Decision, at J.A. 22–29. The AJ
further determined that Mr. Cali’s protected disclosures
were a contributing factor in the agency’s decision to
terminate him because after Mr. Cali’s first-line supervisor
notified the Business Director and second-line supervisor
that Mr. Cali believed he needed to be provided with
informed consent prior to taking a non-FDA approved
Case: 24-1722 Document: 28 Page: 6 Filed: 12/05/2024

-- 6 of 10 --

CALI v. NAVY 7
COVID-19 test, Mr. Cali was terminated the following day.
Decision, at J.A. 33–35.
Given the AJ’s determination that Mr. Cali had
established by a preponderance of the evidence that he had
made a protected disclosure under § 2302(b)(8), and that
this disclosure was a contributing factor to his termination,
the burden of persuasion shifted to the agency to show by
clear and convincing evidence that it would have
terminated Mr. Cali in the absence of the disclosure. In
making its finding that the agency would have terminated
Mr. Cali regardless of his protected disclosures, the AJ
considered the Carr factors:
[1] [T]he 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
situated.
Carr v. SSA, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Mr. Cali argues that the AJ made “clearly erroneous”
findings and that “the [a]gency’s actions and inactions
provide substantial evidence that their motive was not to
address Mr. Cali’s concerns” or to ensure Mr. Cali’s
participation in the testing program. Appellant’s Br. 32,
see also id. at 20–47.
In its weighing of the Carr factors, the AJ found that
(1) the agency offered strong evidence in support of its
termination action given Mr. Cali’s written refusal to
participate in the agency’s required testing program; (2)
the agency had little to no motive to retaliate against Mr.
Cali based on his disclosure, because it was Mr. Cali’s
refusal to obey a command order that created a loss of trust
which ultimately supported the agency’s termination
Case: 24-1722 Document: 28 Page: 7 Filed: 12/05/2024

-- 7 of 10 --

CALI v. NAVY 8
decision; and (3) the lack of comparator evidence weighed
neutrally. Mr. Cali disputes the AJ’s factual findings and
interpretation of the record. But we must affirm the AJ’s
factual findings unless they are “unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). And, on this
record, Mr. Cali has not shown that a reasonable factfinder
could not have found that the agency would have
terminated him in the absence of his protected disclosures.
We thus reject this argument.
II
We now turn to Mr. Cali’s argument that “the AJ made
grave errors of omission.” Appellant’s Br. at 6. Specifically,
Mr. Cali contends that the AJ failed to reconcile “numerous
inconsistencies” in the record, to include false and
contradictory statements. Mr. Cali does not show, however,
that substantial evidence does not support the AJ’s
findings on this record. See Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966) (“[T]he possibility of drawing two
inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being
supported by substantial evidence.”). Therefore, we find no
error in the AJ’s determination.
III
Next, we address Mr. Cali’s argument that he never
made a decision regarding whether or not he would submit
to an EUA COVID-19 test. Specifically, Mr. Cali alleges
that “[n]o decision was made by Mr. Cali at that point (or
any point thereafter) to accept of [sic] refuse
administration of an EUA product.” Appellant’s Br. 23.
And from his testimony, Mr. Cali contends that “I’m not
refusing here . . . I asked for FDA approved tests”; “I’m not
refusing to test, but—but I believe I have the right as an
American to refuse.” Id.
But, Mr. Cali also concedes that he understood that his
insistence would be considered a refusal to test. Indeed,
Case: 24-1722 Document: 28 Page: 8 Filed: 12/05/2024

-- 8 of 10 --

CALI v. NAVY 9
the Business Director told Mr. Cali that “if you insist upon
using FDA-approved tests, you understand that the
Command will . . . . interpret that as a refusal—as a
blanket refusal to test,” to which Mr. Cali responded “in the
affirmative again, that [he] understood.” J.A. 2875. Mr.
Cali was aware of the then-unavailable FDA-approved
tests, and aware that his refusal to take the EUA COVID-
19 test would be interpreted as a refusal to test. Mr. Cali
does not offer any evidence or reasoning that demonstrates
that the AJ’s finding that Mr. Cali’s insistence on taking
only an FDA approved COVID-19 test was functionally a
refusal to submit to COVID-19 testing lacked substantial-
evidence support. We again do not see error in the AJ’s
findings, supported by Mr. Cali’s own admission.
IV
Finally, Mr. Cali argues that he should not have been
terminated because the agency’s order for unvaccinated
employees to take COVID-19 tests was unlawful. In
Mr. Cali’s view, either FDA approved COVID-19 tests
should have been provided, or alternatively, informed
consent was required under 21 U.S.C. § 360bbb-3 prior to
subjecting personnel to the EUA COVID-19 tests.
Therefore, “Mr. Cali maintains [that] the [a]gency violated
5 U.S.C. § 2302(b)(9)(D) when they executed an adverse
personnel action due to him allegedly refusing to obey an
order that required him to violate a law, rule, or
regulation.” Appellant’s Br. 59–60. We disagree.
When Supplement 23, its revisions, and the NAVFAC
Memorandum issued, only EUA COVID-19 tests were
available at NAS Sigonella. J.A. 200. As to Mr. Cali’s
statutory arguments, 21 U.S.C. § 360bbb-3 governs the
conduct of the Secretary of Health and Human Services,
not the Navy. See 21 U.S.C. § 321(d).
Additionally, as the AJ correctly determined, 5 U.S.C.
§ 2302(b)(9)(D) does not apply in Mr. Cali’s situation. The
right-to-disobey provisions of the WPA applies when an
Case: 24-1722 Document: 28 Page: 9 Filed: 12/05/2024

-- 9 of 10 --

CALI v. NAVY 10
employee “refus[es] to obey an order that would require the
individual to violate a law, rule, or regulation.” 5 U.S.C.
§ 2302(b)(9)(D). Here, Mr. Cali would not have been in
violation of any law, rule, or regulation had he undergone
EUA COVID-19 testing without informed consent, and
Mr. Cali has not demonstrated that the AJ’s decision
lacked substantial evidentiary support.
CONCLUSION
We have considered Mr. Cali’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
Case: 24-1722 Document: 28 Page: 10 Filed: 12/05/2024

-- 10 of 10 --