Roach v. Department of the Army
Roach v. Department of the Army
Opinion of the Court
William M. Roach petitions for review of the June 29, 2001, final decision of the
BACKGROUND
During the period in question, Mr. Roach worked as a financial analyst in the Finance and Accounting Office of the Military District of Washington’s (“MDW” or “agency”) Special Accounting Section (“SAS”) in Alexandria, Virginia. In 1994, the SAS underwent an audit that revealed numerous accounting irregularities. One of these irregularities arose from a $630,000 debit in the SAS’s accounting records; another arose from Mr. Roach and several other employees’ improper receipt of monetary awards during prior years. The agency corrected the accounting entry and garnished the pay of those employees who had received the monetary awards, Mr. Roach included, in order to recoup those sums.
In October of 1995, Mr. Roach’s wife accepted a job in Charleston, South Carolina. Mr. Roach moved there with her, requesting and receiving more than two months of leave while he lived with his family and sought employment in Charleston. Mr. Roach subsequently found a job with the Defense Finance and Accounting Service (“DFAS”) in that city, and his employment with MDW terminated pursuant to his DFAS appointment on December 17,1995.
On December of 1996, Mr. Roach filed a complaint with the Office of Special Counsel (“OSC”) alleging, inter alia, that the agency had garnished his wages and reassigned him after Mr. Roach had informed agency officials that removing the $630,000 debt from the SAS’s accounting records would violate the Anti-Deficiency Act. According to Mr. Roach, the agency’s alleged actions violated 5 U.S.C. § 2302(b), as amended by the Whistleblower Protection Act of 1989. After the OSC terminated its investigation of Mr. Roach’s complaint, Mr. Roach appealed to the Board.
Before the Administrative Judge, Mr. Roach argued that the agency had garnished his wages and forced him to transfer to the DFAS in Charleston in retaliation for Mr. Roach’s alleged whistleblowing activity. The Administrative Judge denied Mr. Roach’s request for corrective action, holding that Mr. Roach had not engaged in whistleblowing activity under 5 U.S.C. § 2302(b)(8) because no disinterested observer could have reasonably concluded that the agency’s correction of the $630,000 debit constituted a violation of the Anti-Deficiency Act.
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We are ‘obligated to affirm the Board’s decision unless we find it 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) (2000); Kewley v. Dep’t of Health and Human Servs., 153 F.3d 1357, 1361 (Fed.Cir. 1998). “Substantial evidence” is that which a reasonable mind might accept as adequate to support a conclusion. See Gallagher v. Dep’t. of Treasury, 274 F.3d 1331, 1336 (Fed.Cir. 2001) (quoting Hogan v. Dep’t of Navy, 218 F.3d 1361, 1364 (Fed.Cir. 2000)).
As a federal employee, Mr. Roach is protected by law from retaliation for whistleblowing activity. See 5 U.S.C. § 2105(a) (1994).
Before this court, Mr. Roach argues that the Administrative Judge erroneously ignored his witness’s testimony, relying exclusively the agency’s own witnesses. Because purported errors such as these all relate to the Administrative Judge’s credibility determinations, however, they are virtually unreviewable by this court, Holloway v. U.S. Postal Serv., 993 F.2d 219, 222 (Fed.Cir. 1993) (citing Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed.Cir. 1986)), and we consequently find these arguments unconvincing. See also Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906, 229 USPQ 664, 667 (Fed.Cir. 1986) (“We presume that a fact finder reviews all the evidence presented unless he explicitly expresses oth
Because the Board’s decision is supported by substantial evidence and does not otherwise contain reversible error, we affirm.
. The Administrative Judge’s June 29, 2001, decision was its third decision on Mr. Roach’s claim, the Board having remanded for further adjudication in Roach v. Dep’t of Army, 86 M.S.P.R. 4 (2000), and Roach v. Dep’t of Army, 82 M.S.P.R. 464 (1999).
. The versions of the statutes in effect in 1995, when the personnel action at issue was taken, are used throughout this opinion.
Reference
- Full Case Name
- William M. ROACH v. DEPARTMENT OF THE ARMY
- Status
- Published