Michael Mallonee v. Department of the Interior

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL MALLONEE,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2024-2155
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-16-0063-W-1.
______________________
Decided: March 10, 2025
______________________
M ICHAEL KEITH MALLONEE, Conyers, GA, pro se.
LIRIDONA S INANI , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, PATRICIA M. M C CARTHY , LOREN MISHA PREHEIM.
______________________
Before PROST, LINN, and S TOLL, Circuit Judges.
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MALLONEE v. INTERIOR 2
PER CURIAM.
Michael Mallonee appeals the Final Order of the Merit
Systems Protection Board (“Board”) affirming its initial de-
cision to deny corrective action as to Mallonee’s termina-
tion. Mallonee v. Dep’t of Interior, No. DE-1221-16-0063-
W-1, 2024 WL 2814682 (M.S.P.B. May 31, 2024) (“Final Or-
der”). For the following reasons, we affirm.
I. BACKGROUND
On July 28, 2011, Mallonee was tentatively selected by
the Department of the Interior’s (the “agency’s”) Bureau of
Indian Education (“BIE”) as Assistant Principle at the
Cheyenne Eagle Butte School (“CEBS”) subject to a three-
year probationary period. Supp. App’x 73.1 On April 19,
2012, Mallonee’s supervisor, Principal Nadine Eastman,
informed him that he would be removed from his position
effective May 4, 2012. Supp. App’x 85–86.
Mallonee filed an individual right of action (“IRA”) ap-
peal under the Whistleblower Protection Act, contending
that the agency retaliated against him for making multiple
protected disclosures by subjecting him to a hostile work
environment, threatening to charge him as Absent Without
Leave (“AWOL”), terminating his employment, and failing
to select him for various positions. Final Order, 2024 WL
2814682, at *1; see 5 U.S.C. § 1221. Specifically, Mallonee
contended that he made several protected disclosures: dis-
closing that Eastman harassed him; complaining to the Oc-
cupational Safety and Health Administration (“OSHA”)
that CEBS suffered from unsafe building conditions; and
relaying to investigators that a colleague lacked the neces-
sary certification to serve as a kindergarten principal.
Supp. App’x 31.
1 “Supp. App’x” refers to the appendix the Secretary
filed concurrently with its informal response brief.
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MALLONEE v. INTERIOR 3
The administrative judge concluded that while Mal-
lonee’s harassment allegations did not qualify as protected
disclosures, his disclosures of unsafe building conditions
and the appointment of unqualified personnel were pro-
tected. Further, the administrative judge found that Mal-
lonee proved that the agency took personnel actions
against him by threatening him with AWOL status, termi-
nating his probationary employment, and not selecting him
for employment for several positions. Supp. App’x 43–44.
The administrative judge concluded, however, that Mal-
lonee failed to show that his protected disclosures contrib-
uted to the agency’s decisions as to those actions. Supp.
App’x 44–46. The administrative judge concluded that the
threat to charge Mallonee as AWOL predated any of his
protected disclosures. Supp. App’x 45. With respect to the
termination of his employment, the administrative judge
found that Mallonee failed to prove that the deciding offi-
cial, Eastman, knew about his OSHA complaint or his dis-
closures regarding his colleague’s lack of certification.
Supp. App’x 46–47. Further, with respect to his non-selec-
tion for employment, Mallonee failed to identify the decid-
ing officials for each of the positions he sought. Supp.
App’x 47–48. Thus, the administrative judge denied Mal-
lonee’s petition for corrective action.
In the alternative, the administrative judge found that
the agency provided clear and convincing evidence that it
would have sought the same personnel actions had the pro-
tected disclosures not been made. Supp. App’x 49.
Modifying the Initial Decision, the Board vacated the
alternative finding, but otherwise affirmed the denial of
corrective action. Final Order, 2024 WL 2814682, at *4–
5, *7.
Mallonee now appeals to this court. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9).
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MALLONEE v. INTERIOR 4
II. D ISCUSSION
Mallonee argues that the Board failed to properly and
fully consider key pieces of evidence, erroneously prevented
him from calling witnesses, and applied the wrong legal
standard to his case. We address each argument in turn.
A.
Mallonee alleges that the Board failed to consider evi-
dence of Eastman’s retaliatory intent in the form of: (1) an
email in which Eastman commented that “what goes
around comes around;” and (2) an independent CRC & As-
sociates (“CRC”) report describing an investigation into
CEBS personnel and efficiency problems. As to the former,
Mallonee contends that Eastman’s comment, made after
learning that her employment contract would not be re-
newed, shows that she possessed retaliatory intent. But
Mallonee does not explain how this text relates to his pro-
tected disclosures or to the personnel actions against him.
Moreover, substantial evidence supports the Board’s con-
clusion that Eastman was not privy to Mallonee’s disclo-
sures.
As to the CRC report, Mallonee argues that the admin-
istrative judge ignored the CRC report’s warning that
“there is a high probability that any further personnel ac-
tions on [Eastman’s] part may cause BIE lawsuits and ac-
tions.” Appellant’s Br. 7. But Mallonee fails to explain how
this text in any way evinces that his protected disclosures
contributed to the personnel actions taken against him. To
the contrary, the Board found as a matter of fact that Mal-
lonee’s disclosures did not contribute to the agency’s threat
of AWOL status or its decision to remove Mallonee from his
position. Specifically, the Board found that Eastman began
the termination process on January 11, 2012 and threat-
ened to designate Mallonee as AWOL on February 12,
2012, before any of his alleged disclosures. Final Order,
2024 WL 2814682, at *2, *4; Supp. App’x 87–88. Mallonee
has failed to articulate why the evidence he alleges the
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MALLONEE v. INTERIOR 5
Board overlooked would have resulted in a different out-
come. Substantial evidence supports the Board’s conclu-
sion that Mallonee failed to demonstrate that his
disclosures contributed to his removal or the agency’s
threatened AWOL status. See Jones v. Dep’t of Health &
Hum. Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016) (“Sub-
stantial evidence is more than a mere scintilla of evidence,
but less than the weight of the evidence.” (internal cita-
tions and quotations omitted)).
Mallonee argues that the Board failed to consider sev-
eral facts tending to show that the CEBS was mismanaged.
Mallonee argues that the testimonies of Eastman and her
Human Resources contact, Jodie Tomhave, contained sig-
nificant inconsistencies that must be viewed alongside the
general mismanagement of the BIE and CEBS. Mallonee
argues that the administrative judge also overlooked the
fact that Eastman failed to maintain proper documentation
and that Tomhave’s deposition showed that the BIE was
mismanaged, undermining the credibility of the appel-
lant’s removal. Mallonee further contends that the admin-
istrative judge did not acknowledge the CRC report’s
criticism of the CEBS staff’s teaching methods. These ar-
guments exceed the scope of our review on appeal, however,
as we are confined to review the Board’s adjudication of
Mallonee’s whistleblower reprisal claims. See Rockwell v.
Dep’t of Transp., Fed. Aviation Admin., 789 F.2d 908, 913
(Fed. Cir. 1986) (“Congress expressly limited our appellate
review, 5 U.S.C. § 7703(c), to final orders and decisions of
the board on the record.” (emphasis omitted)); Supp.
App’x 81–84 (holding that because he made a non-frivolous
allegation of whistleblower retaliation, Mallonee invoked
the Board’s jurisdiction to hear his IRA appeal).
Mallonee also argues that the administrative judge
failed to consider that the grounds for his removal were
false or unsupported. Specifically, Mallonee contends that
Eastman’s allegations that he failed to timely return refer-
ence checks, engaged in aggressive behavior, and
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MALLONEE v. INTERIOR 6
improperly used an agency cell phone are false and that
there is no documentation to show he inappropriately ap-
proved compensatory time for teachers or that he did not
review all teacher lesson plans. Mallonee also contends
that Eastman prevented him from signing a continued em-
ployment contract during his sick leave. To the extent that
Mallonee seeks to litigate the merits of his removal, his ar-
guments lie outside the scope of this IRA appeal. See Supp.
App’x 81–84. To the extent that he argues that the grounds
of his removal were pretextual and that he was removed in
retaliation for his disclosures, Mallonee does not meaning-
fully challenge the administrative judge’s finding that
Eastman initiated dismissal proceedings before any of his
protected disclosures, thus foreclosing any finding of retal-
iation. See Supp. App’x 25. Accordingly, we see no merit
to these arguments.
B.
Mallonee next contends that the administrative judge
improperly prevented him from calling most of his wit-
nesses. But Mallonee does not indicate what this testi-
mony would show or how this additional testimony would
have made a difference to the outcome of his case. The ab-
sence of such an explanation leaves this argument without
merit. See 28 U.S.C. § 2111.
Mallonee also contends that the administrative judge
improperly characterized his testimony as “vague, uncon-
vincing, and improbable.” Appellant’s Br. 17. Such credi-
bility assessments, however, are committed to the
judgment of the fact finder and are virtually unreviewable
on appeal. Doe v. Sec’y of Health & Hum. Servs., 601 F.3d
1349, 1355 (Fed. Cir. 2010).
C.
Lastly, Mallonee argues that the Board applied the
wrong legal standard by failing to recognize that BIE
teachers and administrative staff are federal employees
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MALLONEE v. INTERIOR 7
protected under the Whistleblower Protection Act. Alt-
hough the agency originally argued that Mallonee was not
a federal employee, the administrative judge ultimately
disagreed and applied the correct legal standard. Supp.
App’x 78 n.2 (noting that Mallonee’s “status as an excepted
federal employee in the federal service distinguishes the
line of cases that involve individuals who were contractors
but not federal employees”). We conclude, therefore, that
Mallonee failed to show that the Board applied the wrong
legal standard to his case.
* * *
Mallonee’s remaining arguments invite this Court to
do what we do not have the power to do and reweigh the
evidence, improperly substituting this Court’s factual find-
ings for those of the Board. See Jones, 834 F.3d at 1369
(“Under the substantial evidence standard of review, we do
not reweigh evidence on appeal.” (internal quotations omit-
ted)). Because none of Mallonee’s arguments on appeal
meaningfully impact the Board’s bases for denying his pe-
tition for corrective action, Mallonee has failed to meet his
burden to show reversible error. For these, we affirm.
AFFIRMED
COSTS
Each party shall bear its own costs.
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