FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                            April 26, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JOSEPH MITCHELL CRAINE,

      Petitioner,

v.                                                          No. 16-9536
                                                      (National No. I14040010)
NATIONAL SCIENCE FOUNDATION,                        (National Science Foundation)

      Respondent,

and

KANSAS STATE UNIVERSITY,

      Intervenor - Respondent.
                       _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

      Dr. Joseph Mitchell Craine petitions for review of a decision issued by the

National Science Foundation (NSF) under the National Defense Authorization Act’s

Pilot Program for Enhancement of Contractor Protection from Reprisal for Disclosure

of Certain Information (“Pilot Program”), 41 U.S.C. § 4712. The Pilot Program

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
protects employees of government contractors and grantees from reprisal for making

certain types of disclosures. NSF determined the disclosures made by Dr. Craine, a

former employee of Kansas State University (KSU), did not fall within the Pilot

Program’s whistleblower protections. Proceeding pro se, Dr. Craine now challenges

NSF’s decision. We have jurisdiction under 41 U.S.C. § 4712(c)(5) and deny the

petition for review.

                                           I

      The Pilot Program prohibits government contractors and grantees from

subjecting their employees to reprisal for disclosing gross mismanagement, waste,

and other harms or wrongdoing relating to federal contracts or grants. The statute

provides:

      An employee of a contractor, subcontractor, grantee, or subgrantee or
      personal services contractor may not be discharged, demoted, or
      otherwise discriminated against as a reprisal for disclosing to a person
      or body described in paragraph (2) information that the employee
      reasonably believes is evidence of gross mismanagement of a Federal
      contract or grant, a gross waste of Federal funds, an abuse of authority
      relating to a Federal contract or grant, a substantial and specific danger
      to public health or safety, or a violation of law, rule, or regulation
      related to a Federal contract (including the competition for or
      negotiation of a contract) or grant.

41 U.S.C. § 4712(a)(1). The persons or bodies to whom a protected disclosure must

be made are:

      (A) A Member of Congress or a representative of a committee of
      Congress.

      (B) An Inspector General.

      (C) The Government Accountability Office.

                                           2
      (D) A Federal employee responsible for contract or grant oversight or
      management at the relevant agency.

      (E) An authorized official of the Department of Justice or other law
      enforcement agency.

      (F) A court or grand jury.

      (G) A management official or other employee of the contractor,
      subcontractor, or grantee who has the responsibility to investigate,
      discover, or address misconduct.

      Upon receipt of a complaint by a person who believes he has been subjected to

a prohibited reprisal, the Inspector General of the executive agency involved “shall

investigate the complaint and, upon completion of such investigation, submit a report

of the findings of the investigation to the person, the contractor or grantee concerned,

and the head of the agency.” 

Within thirty days of receiving the

Inspector General’s report, the agency head must “determine whether there is

sufficient basis to conclude that the contractor or grantee . . . has subjected the

complainant to a reprisal prohibited by subsection (a) and shall either issue an order

denying relief” or remedy the reprisal. 

The controlling burdens of

proof are set forth at 5 U.S.C. § 1221(e). 41 U.S.C. § 4712(c)(6). These burdens

require an employee to show that a protected disclosure contributed to the adverse

personnel action. 5 U.S.C. § 1221(e)(1). Even if the employee meets that burden,

the employer need not take any corrective action if it presents “clear and convincing

evidence that it would have taken the same personnel action in the absence of such

disclosure.” 

                                            3
                                           II

      Dr. Craine was a Research Assistant Professor in KSU’s Division of Biology.

In 2012, he attended a graduate student’s presentation on the growth of plant species

at a Long-Term Ecological Research (LTER) site, known as the Konza Prairie. The

site is funded by grants from NSF. The student’s preliminary analysis found that one

type of plant species experienced an abrupt, non-linear growth jump in one year. At

the end of the presentation, Dr. Craine questioned whether the growth jump might be

explained by “observer bias,” or a change in the researchers at the LTER site, R. at

754. The student, Zak Ratajczak, apparently denied that his findings were skewed by

observer bias, but he incorrectly assumed that just one researcher had monitored the

plant growth throughout the research period. After the presentation, Dr. Craine

confronted the student’s supervisor, Dr. Jesse Nippert, who refused to talk with

Dr. Craine because he believed Dr. Craine was denigrating his student. Eventually,

Mr. Ratajczak, Dr. Nippert, and another colleague submitted a manuscript of their

findings to an academic journal, Ecology, for publication.

      On October 19, 2013, while the manuscript was under prepublication review,

Dr. Craine sent an e-mail to Ecology’s editor in chief, Dr. Donald Strong, accusing

the paper’s authors of fraud:

      Hi Don,

      If you are considering a paper by Ratajczak et al. regarding woody
      species at Konza, you might want to reconsider it.

      It pains me to say this, but I think the paper is fraudulent.


                                           4
       I think you can understand that it would be better for me to address this
       discretely [sic] during the review process. I would prefer not to force a
       retraction publicly.

       If this paper is not currently within Ecology, I apologize. If I can
       provide more information, please let me know.

       --Joe

       In response, another editor at Ecology, Dr. Debra Peters, asked Dr. Craine to

review the manuscript. The same day, Dr. Craine wrote back:

       Recommendation: Reject (not worthy of publication)

               ....

       The authors write[,] “Since 1996, the data collection has been
       performed by one individual with extensive knowledge of the local flora
       (e.g. Towne 2002, Craine et al. 2012), ensuring that changes in shrub
       cover were not related to change in observer . . . [.]”

       This is false.

               ....

       If you correct for observer bias, there is little if any abrupt transition in
       woody species cover. No abrupt transition, . . . [j]ust a smooth, steady
       increase in woody cover.

       I used the word “fraudulent” in my initial email—and take my word for
       it, I don’t like to—because this paper at the very least represents
       deliberate ignorance. . . . [S]ince being alerted, there has been no effort
       by the authors to correct for this.

       Dr. Peters responded that she was “not concerned about observers changing

through time.” 

Nevertheless, after learning of Dr. Craine’s allegations,


                                             5
Dr. Nippert and Mr. Ratajczak reanalyzed their data but found no impact on their

conclusions. Thus, they corrected their appendices to accurately reflect the number

of observers and on February 19, 2014, resubmitted their manuscript to Ecology.

      On February 28, Dr. Craine again e-mailed Dr. Strong at Ecology, stating, “I’d

like to see the appendices in order to know whether the authors are still making false

statements.” 

He suggested that the authors had lied in their manuscript,

that others in the program had committed misconduct, and that he might reach out to

NSF’s Office of Inspector General (OIG):

      [T]he issue is rooted deep enough in the LTER (observer data has been
      taken off-line, the [Principal Investigator] of the LTER accused one of
      their staff (not me) of providing the anonymous review on the paper and
      then threatening them against ever doing so) that I may need to involve
      NSF OIG.

Dr. Strong wrote, “Joe: Ask the authors. Regards, Don.” 

Dr. Craine’s allegations soon reached Dr. John Blair, the Principal

Investigator at the LTER site, whom Dr. Craine had accused of misconduct in his

earlier e-mail. On March 27, not knowing that Dr. Craine had threatened to involve

OIG, 

Dr. Blair e-mailed Dr. Craine to request a meeting to discuss his

accusations as well as KSU’s policy on making allegations of academic misconduct.

Dr. Blair wrote:

      [Y]ou have now raised serious allegations of scientific misconduct
      involving . . . LTER scientists and LTER data (re[:] knowingly
      misrepresenting or misinterpreting LTER data in peer-reviewed
      publications). This was apparently done without actually discussing
      your concerns with the scientists involved. Further, it appears that you
      implied in correspondence with the [editors at Ecology] that I tried to
      “cover-up” this alleged misconduct by threatening an LTER staff

                                           6
       member and by removing LTER data from our on-line database. Those
       allegations are patently false. Accusing a scientist of this kind of
       misconduct is serious business, and will not be taken lightly. I quote
       from the University Handbook, Appendix O: Policy on Integrity in
       Research and Scholarly Activity[:] “It should be emphasized that
       reporting misconduct in scholarly work is a responsibility shared by
       everyone at the University. However, frivolous, mischievous, or
       malicious misrepresentation in alleging misconduct cannot be tolerated.
       Misconduct in scholarly work may take many forms, but it does not
       include honest error or honest differences in interpretations or
       judgments of data.”

In preparing for this meeting, Dr. Blair discovered on March 31, 2014 that

Dr. Craine threatened to involve OIG. 

       On April 7, 2014, Dr. Blair and several KSU officials met with Dr. Craine.

Dr. Craine failed to justify his accusations. But later that day, Dr. Craine e-mailed

OIG. According to the OIG intake memo, Dr. Craine claimed he was being subjected

to reprisal “for alerting an editor of a journal that a manuscript he reviewed contained

a false statement.” 

As he had done before, Dr. Craine specifically identified

this erroneous statement in the manuscript regarding the number of observers:

“Since 1996, the data collection has been performed by one individual with extensive

knowledge of the local flora (e.g. Towne 2002, Craine et al. 2012), ensuring that

changes in shrub cover were not related to change in observer . . . [.]” 

(internal quotation marks omitted). He also claimed he was facing reprisal for

supposedly breaching KSU’s “policy and procedure in reporting the alleged false

statement to university officials first.” 

       On April 14, 2014, the director of KSU’s biology division, Dr. Brian Spooner,

notified Dr. Craine that he was initiating an action against him under the University

                                             7
Handbook, Appendix O. He based this action on Dr. Craine’s having made

unsubstantiated allegations of fraud and misconduct without first presenting his

concerns to the persons involved or university officials as required by Appendix O.

Dr. Spooner advised that the action would encompass whether the manuscript authors

had indeed committed academic misconduct and whether Dr. Craine engaged in

frivolous, mischievous, or malicious conduct by alleging fraud and misconduct.

      A KSU Inquiry Team composed of university professors investigated and

found no academic misconduct by the manuscript’s authors. In addition, the Inquiry

Team determined that Dr. Craine had maliciously misrepresented that the manuscript

was fraudulent and frivolously misrepresented that Dr. Blair had engaged in

misconduct. For this, the Inquiry Team recommended that Dr. Craine be terminated

from employment. On September 8, 2014, KSU’s Provost, Dr. April Mason, met

with Dr. Craine to afford him “a full opportunity to dispute the Inquiry Team’s

findings and conclusions.” R. at 897. She allowed him to present his side of the

matter but later concurred with the Inquiry Team’s conclusion. She terminated

Dr. Craine’s employment effective October 24, 2014. Dr. Craine contested his firing

before a KSU Grievance Panel composed of different professors, but after two days

of open hearings, the panel unanimously upheld Provost Mason’s decision.

      Meanwhile, OIG also investigated. During an interview with an OIG lawyer,

Dr. Craine acknowledged that he had not reported a violation of a rule, regulation, or

condition tied to NSF’s funding of the LTER site. Instead, Dr. Craine said, he had

complained about a false statement of “a scientific issue.” 

The OIG

                                          8
report did not conclude whether Dr. Craine was subjected to a prohibited reprisal.

But the report did note that his termination centered on his violation of Appendix O,

for failure to “report his concerns to his department head, dean, or provost prior to

going to the Journal.” 

Further, the report concluded that Dr. Craine had

presented “no direct evidence that the Inquiry Team or Provost acted with a

retaliatory motive.” 

      Later NSF issued a summary ruling concluding that Dr. Craine’s e-mails to the

Ecology editor were not protected disclosures under the Pilot Program, and even if

they had been, NSF found insufficient evidence that Dr. Craine had been subjected to

a prohibited reprisal. Dr. Craine appealed, and we remanded to NSF because its

summary ruling was inadequate to permit judicial review. See Craine v. Nat’l Sci.

Found., 647 F. App’x 871, 872 (10th Cir. 2016) (unpublished). NSF issued a

detailed amended decision denying relief, and Dr. Craine now seeks review.

                                           III

       We review NSF’s decision under the standards set out in the Administrative

Procedure Act (APA), 5 U.S.C. § 701-06. See 41 U.S.C. § 4712(c)(5). “Under the

APA, a ‘reviewing court shall hold unlawful and set aside agency action found to be

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.’” Copar Pumice Co. v. Tidwell, 

, 793 (10th Cir. 2010) (quoting

5 U.S.C. § 706(2)(A) (ellipses omitted). “This standard requires us to determine

whether the agency considered the relevant data and rationally explained its



                                           9
decision.” WildEarth Guardians v. EPA, 

, 927 (10th Cir. 2014). We

will not disturb the agency’s action unless it

       relied on factors which Congress has not intended it to consider, entirely
       failed to consider an important aspect of the problem, offered an
       explanation for its decision that runs counter to the evidence before the
       agency, or is so implausible that it could not be ascribed to a difference
       in view or the product of agency expertise.

In conducting our review, “we accord agency action a

presumption of validity [and put the burden] on the petitioner to demonstrate that the

action is arbitrary and capricious.” Copar 

.

       NSF gave four reasons why Dr. Craine’s allegations of fraud and misconduct

sent to the Ecology editor did not fall within the Pilot Program’s protection: (1) the

editor is not an enumerated person or body under the statute; (2) Dr. Craine’s

allegations did not qualify as protected disclosures; (3) Dr. Craine did not reasonably

believe his allegations related to the subject matter of the statute; and (4) Dr. Craine

was not subjected to a prohibited reprisal. We next examine Dr. Craine’s challenges

to these rulings.1

       1. Enumerated Persons or Bodies

       Dr. Craine contends that KSU subjected him to reprisal for his e-mails to the

editor of Ecology, Dr. Strong, on October 19, 2013 and February 28, 2014. NSF

ruled that these communications were not protected because “[e]ditors of academic

journals are simply not qualifying persons under the statute.” R. at 966. We agree.


       1
       We construe Dr. Craine’s pleadings liberally but do not act as his attorney.
See Merryfield v. Jordan, 

, 924 n.1 (10th Cir. 2009).
                                           10
      The statute lists seven qualifying categories of persons or bodies, none of

which include editors of periodicals. See 41 U.S.C. § 4712(a)(2). “[W]hen the

statute’s language is plain, the sole function of the courts—at least where the

disposition required by the text is not absurd—is to enforce it according to its terms.”

United States v. Collins, 

, at *5 (10th Cir. Feb. 14, 2017) (internal

quotation marks omitted). Although Dr. Craine did eventually involve OIG, a body

listed under the statute, he claimed he was facing reprisal—not for contacting them—

but for contacting the editor at Ecology. This failed to qualify him for relief.

      Dr. Craine argues that the editor should be considered a “management official”

of KSU under § 4712(a)(2)(G) because Ecology reviewed the manuscript and

effectively acted as a contractor for KSU.2 He posits that Ecology’s parent

corporation receives money from KSU, a portion of which is used to pay its editors’

salaries. But Dr. Craine acknowledges that Ecology’s parent corporation (not KSU)

pays its editors. Because Dr. Craine has failed to show that the Ecology editor is a

qualifying person under the statute, NSF’s conclusion was not arbitrary or capricious.

      2. Protected Disclosures

      NSF also concluded that Dr. Craine’s allegations were not protected

disclosures because they did not pertain to the subject matter of the Pilot Program.

Again, we agree.



      2
       Dr. Craine does not identify any specific KSU “management official or other
employee . . . who has the responsibility to investigate, discover, or address
misconduct.” 41 U.S.C. § 4712(a)(2)(G).
                                           11
       The statute requires the disclosure of “gross mismanagement of a Federal

contract or grant, a gross waste of Federal funds, an abuse of authority relating to a

Federal contract or grant, a substantial and specific danger to public health or safety,

or a violation of law, rule, or regulation related to a Federal contract . . . or grant.”

41 U.S.C. § 4712(a)(1). NSF correctly concluded that Dr. Craine’s communications

did not fall within the statute. Dr. Craine pointed to the error in the manuscript that a

single observer had monitored the LTER site. Dr. Craine questioned Mr. Ratajczak’s

findings at the initial presentation based on this error; he told Dr. Strong that the

manuscript was fraudulent on this basis; he recommended to Dr. Peters that the

manuscript be rejected on this basis; he suggested to Dr. Strong in his second e-mail

that the authors had made false statements on this point; and he told OIG that he was

facing reprisal for reporting this error. Yet reporting a research error is not a

statutory basis for protection under the Pilot Program.

       On appeal, Dr. Craine offers a new theory: He says that by reporting the

academic error, he was, in effect, disclosing a violation of 45 C.F.R. § 689, which

addresses misconduct in NSF-funded research. We need not consider this argument,

however, because Dr. Craine did not cite this regulation before the agency, nor did he

contend that he was reporting a regulatory violation related to an NSF grant. In fact,

he affirmatively disavowed that theory to the OIG investigator, stating that “the terms

of grants and conditions of grants was not something I was thinking about.” R. at

175. Under these circumstances, we will not consider an argument Dr. Craine failed

to make before the agency. See Ariz. Pub. Serv. Co. v. EPA, 

, 1127

                                             12
(10th Cir. 2009) (refusing to consider argument that petitioner failed to raise before

the agency).

      3. Reasonable Belief

      Next, NSF determined that Dr. Craine did not reasonably believe that his

e-mails to Dr. Strong were protected under the Pilot Program. We conclude that this

was neither arbitrary nor capricious.

      The Pilot Program requires that employees “reasonably believe[]” that they are

disclosing information evincing gross mismanagement, waste, or other harms relating

to federal contracts or grants. See 41 U.S.C. § 4712(a)(1). When considering the

term “reasonable belief” in a separate federal whistleblower statute, we have

explained that the term includes “both a subjective and an objective component,”

which means “an employee must actually believe in the unlawfulness of the

employer’s actions and that belief must be objectively reasonable.” Lockheed Martin

Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 

, 1132 (10th Cir.

2013) (examining whistleblower provision of the Sarbanes-Oxley Act, 18 U.S.C.

§ 1514A(a)(1)). “Objective reasonableness is evaluated based on the knowledge

available to a reasonable person in the same factual circumstances with the same

training and experience as the aggrieved employee.” 

marks

omitted).

      NSF focused on the objective prong, asking whether “a disinterested observer

with knowledge of the facts readily ascertainable by the employee could reasonably

conclude that there has been misconduct.” R. at 967 (internal quotation marks

                                          13
omitted). NSF ruled that Dr. Craine could easily have learned that the manuscript’s

authors had corrected the error, had reanalyzed their data, and had found no impact

on their conclusions. It further ruled that Dr. Craine could have learned that Dr. Blair

had not removed any data from KSU’s on-line database and that the raw data

regarding the number of observers at the LTER site was still available. Dr. Craine

asserts these facts are untrue, but substantial evidence in the record supports these

findings. See, e.g., 

(Nippert Decl.); 

(Blair Decl.).3



      3
        Dr. Nippert signed a declaration acknowledging that Mr. Ratajczak had
incorrectly assumed that just one person acted as an observer for the specific dataset
used in their research. R. at 754-55. But Dr. Nippert explained their assumption was
based on previous comments by Dr. Craine, who apparently used the same dataset in
his own manuscript without regard for observer bias. Dr. Nippert stated he and
Mr. Ratajczak “reanalyzed all of the data[, and] found multiple lines of evidence that
supported the [manuscript’s] conclusions, such that observer bias was not (and never
was), an issue.” 

Accordingly, they removed an incorrect statement
from their manuscript’s appendices, which had not been in the manuscript itself. 

      Dr. Blair also signed a declaration in which he agreed that observer bias did
not impact the manuscript’s findings. Additionally, he explained why Dr. Craine
could not find the on-line information he was seeking:

      If Dr. Craine had contacted me or . . . the former Konza LTER
      information manager . . ., we could have explained to him that changes
      in the Konza LTER database were made due to the LTER Network’s
      new standards for data management and NSF’s expectations regarding
      standardization of data across all LTER sites.

      The database changes involved moving from flat ascii text files, which
      had been used since the early 1980s, to a relational database format
      using SQL Server software. This transition began in 2004 . . . and has
      continued through the present. In the SQL Server data, there is no field
      for observer ID in the PVC021 dataset. And because [a researcher] later
      made minor changes to the data gathered by other observers, [the
                                           14
      4. Reprisal

      Finally, NSF concluded that KSU had not subjected Dr. Craine to a prohibited

reprisal. Applying the burden-shifting framework from 5 U.S.C. § 1221(e), NSF

concluded that Dr. Craine had failed to show that a protected disclosure contributed

to his termination, and that even if it had contributed, KSU presented clear and

convincing evidence that it would have fired him anyway. This conclusion was

neither arbitrary nor capricious.

      NSF provided a rational explanation for its conclusion that a protected

disclosure did not contribute to Dr. Craine’s termination. NSF observed that KSU

fired him because he violated Appendix O of the University Handbook by making

malicious and frivolous allegations of fraud to the editor of Ecology without first

consulting University officials. See R. at 968. Dr. Blair invoked Appendix O in his

e-mail to Dr. Craine on March 27, 2014, before he or any other KSU faculty member

knew that Dr. Craine had threatened to contact OIG. See 

first learned of

Dr. Craine’s reference to OIG on March 31, 2014. See id.; see also 

822.

      information manager] determined that it would be inappropriate to
      associate the original observer IDs with modified data.

      [The] LTER’s online data files are consistent with how other LTER
      sites maintain their online data files for similar datasets.

      If any investigator (including Dr. Craine) were to request archival data,
      Konza LTER can and will provide access to all of the raw data,
      including copies of the original archived field data sheets, the original
      ascii text files with uncorrected data and notes detailing any subsequent
      modifications, and modified files with . . . corrections.

                                          15
And Dr. Craine did not actually involve OIG until after meeting Dr. Blair on April 7,

by which time it was apparent that he was facing discipline—not for making a

protected disclosure, but for violating Appendix O. As the agency concluded, a

protected disclosure was not a contributing factor to his termination from

employment.

      Further, even if Dr. Craine had made a protected disclosure, NSF explained

that KSU presented clear and convincing evidence that he would have been fired

anyway for violating Appendix O. 

As NSF explained, the KSU Inquiry

Team concluded that Dr. Craine had provided no evidence to support his accusations,

had made no attempt to uncover such evidence, and in fact, had used the same data he

alleged to be fraudulent in his own earlier publication. NSF noted that the Inquiry

Team concluded Dr. Craine had violated Appendix O by failing “to exercise

reasonable caution” before making external allegations of fraud to a prestigious

academic journal without first conferring with the authors of the manuscript. 

56. Based on these and other findings, the Inquiry Team recommended that he be

fired. Provost Mason concurred and terminated him, saying afterwards that she never

heard of OIG until she met with Dr. Craine and that his “reference to OIG was

inconsequential.” 

She stated that she would have fired him for his

“egregious” conduct, even if he had made a protected disclosure. 

Moreover, NSF recognized that the Grievance Panel voted unanimously to uphold his

termination, with full knowledge of Provost Mason’s statements and Dr. Craine’s

earlier threat to involve OIG. This is clear and convincing evidence that Dr. Craine

                                          16
would have been fired for violating Appendix O, regardless of whether he made a

protected disclosure. Given such evidence, NSF’s conclusion was not arbitrary or

capricious.4

      5. Dr. Craine’s Arguments

      Notwithstanding the foregoing analysis, Dr. Craine advances three additional

arguments. First, he says the Pilot Program required NSF to notify him of his rights

under the statute, and that NSF’s failure to do so rendered its decision arbitrary and

capricious. But whether or not he had notice of his statutory rights is entirely

irrelevant to whether NSF’s decision is arbitrary or capricious. Dr. Craine contends

the failure to provide such notice can interfere with an employee’s rights under other

federal statutes, in particular the Family Medical Leave Act (FMLA), 29 U.S.C.

§§ 2601-54, and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. See

29 C.F.R. § 825.300(e) (addressing consequences for failing to give requisite notice

under FMLA); 29 U.S.C. § 203(m) (conditioning wage determination for tipped


      4
         Dr. Craine contends NSF should have considered three factors in assessing
whether KSU would have taken the same action if he made a protected disclosure:
the strength of the employer’s evidence supporting its action, whether the employer
had a retaliatory motive, and whether there was evidence of similar adverse action
against non-whistleblowers. See Pet’r Br. at 44-53. Dr. Craine offers no authority
for applying these factors, but the Merit Systems Protection Board weighs these
factors when assessing reprisal under 5 U.S.C. § 1221(e). See Alarid v. Dep’t of
Army, 122 M.S.P.R. 600, 609 (M.S.P.B. 2015). Assuming it was appropriate for NSF
to weigh these factors, the agency detailed the evidence and expressly ruled that
Dr. Craine’s “firing had nothing to do with OIG, and everything to do with [his]
having impugned the reputation of [his] colleagues to the editors of an academic
journal.” R. at 968. NSF did not discuss evidence of similar adverse action against
non-whistleblowers because there was none. We perceive no error.

                                           17
employees in part on providing requisite notice under FLSA). But Dr. Craine cites

no analogous authority under the Pilot Program. And in any event, he was not

prejudiced by any lack of notice because he understood as early as February 28,

2014, that he could involve OIG. That was the date he sent a second e-mail to

Dr. Strong indicating he might need to reach out to OIG. Thus, whether or not NSF

provided notice, Dr. Craine knew he could involve OIG, and yet he elected to contact

the editor instead.5

       Dr. Craine’s second argument raises a due-process challenge to the agency’s

decision-making process, which challenge is reviewable under the APA. See Robbins

v. U.S. Bureau of Land Mgmt., 

, 1085 (10th Cir. 2006). Dr. Craine

focuses on some 200 pages of evidence that KSU compiled during and after his

termination proceedings. This evidence includes letters that KSU sent to Dr. Craine

notifying him of the status of proceedings and the conclusions of the Inquiry Team,

Provost Mason, and the grievance panel; e-mails between Dr. Craine, KSU faculty,

and the editors at Ecology; sworn declarations by Dr. Nippert, Dr. Blair, and Provost

Mason; the academic manuscript coauthored by Dr. Craine and Dr. Nippert;

Appendix O of KSU’s handbook; and transcripts of OIG interviews. KSU attached

this evidence to a twenty-six page letter that KSU sent to NSF to give the agency its


       5
         In his reply brief, Dr. Craine insists he was prejudiced because he would have
directly contacted OIG rather than the editor if he had known of his rights and
remedies under the Pilot Program. He says he did not know about the statute until
after he contacted OIG. His second e-mail to the editor refutes this argument,
however, as does the OIG intake memo, which clearly indicates that Dr. Craine was
alleging retaliation and “requesting federal whistleblower protection,” R. at 2.
                                          18
side of the case. Except for the declarations, it appears this evidence was already

part of the record compiled by OIG. Dr. Craine contends NSF violated his due

process rights by admitting this evidence during the administrative decision-making

process.

      Once again, however, Dr. Craine cannot show prejudice. See 5 U.S.C. § 706

(“[T]he court shall review the whole record or those parts of it cited by a party, and

due account shall be taken of the rule of prejudicial error.”); St. Anthony Hosp. v.

U.S. Dep’t of Health & Human Servs., 

, 698-99 (10th Cir. 2002)

(rejecting due process challenge to administrative proceeding absent showing of

prejudice); see also St. Anthony 

(“The duty of establishing

prejudice rests upon [the party seeking to set aside the agency’s decision].”). None

of the contested findings in NSF’s decision, all of which we have considered and

found immaterial to his rights under the statute, establish that the editor of Ecology is

a statutorily enumerated person or body, that Dr. Craine’s allegations qualify as

protected disclosures, that Dr. Craine reasonably believed his emails were protected,

and that he was subjected to a prohibited reprisal.

      Finally, Dr. Craine asserts NSF should have independently assessed whether

his termination violated his First Amendment rights. But resolving this argument is

not within the purview of the agency’s statutory authority under § 4712(c)(1), and in

any event, he failed to raise this argument before NSF, see Ariz. Pub. Serv. 

.

                                           IV

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The petition for review is denied.

                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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