NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

             ALLEN L. SWARTWOUDT,
                    Petitioner

                           v.

    DEPARTMENT OF HOMELAND SECURITY,
                 Respondent
           ______________________

                      2016-2724
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0752-14-0361-B-1.
                ______________________

                 Decided: June 1, 2017
                ______________________

   ALLEN L. SWARTWOUDT, San Diego, CA, pro se.

    IGOR HELMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-
MILLER.
                 ______________________

    Before DYK, O’MALLEY, and TARANTO, Circuit Judges.
2                                      SWARTWOUDT    v. DHS



PER CURIAM.
    Allen L. Swartwoudt petitions for review of a final or-
der of the Merit Systems Protection Board (“Board”)
sustaining his removal and denying his whistleblower
retaliation affirmative defense. We affirm.
                      BACKGROUND
     Beginning in April 2013, Allen L. Swartwoudt was
employed as a Transportation Security Inspector Explo-
sive Detection Canine Handler with the Transportation
Security Administration (“Agency”). Swartwoudt was
assigned as a team leader over three other Transportation
Security Inspectors. Effective February 7, 2014, the
Agency removed Swartwoudt based on a charge of inap-
propriate conduct. The charged inappropriate conduct
included outbursts directed at management, co-workers,
and members of the public that served as volunteers.
Swartwoudt appealed to the Board, challenging the basis
for his removal and alleging an affirmative defense of
whistleblower reprisal. An administrative judge (“AJ”)
affirmed the removal. On review, the Board agreed with
the AJ that the Agency proved the charge of inappropriate
conduct, but remanded for further consideration of
Swartwoudt’s whistleblower defense (“Remand Order”).
On remand, the AJ again upheld the removal. The AJ
denied the whistleblower defense, finding that the Agency
“has shown by clear and convincing evidence that it would
have taken the same personnel action in the absence of
any whistleblowing by [Swartwoudt].” S. Appx. 58. On
July 26, 2016, the Board affirmed. Swartwoudt petitions
for review. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                       DISCUSSION
    We may set aside a Board decision if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
SWARTWOUDT   v. DHS                                      3



required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
    Swartwoudt’s primary argument on appeal is that the
Board erred in denying his affirmative defense of whistle-
blower reprisal. Swartwoudt maintains that several
months prior to his removal, he made a protected disclo-
sure in the form of an email setting forth concerns regard-
ing the Agency’s canine detection program and
recommending changes. The Board determined that this
disclosure was protected and that it was a contributing
factor to his removal. However, the Board also concluded
that the Agency proved by clear and convincing evidence
that it would have removed Swartwoudt even in the
absence of the disclosure. Accordingly, the Board af-
firmed Swartwoudt’s removal. We see no error in the
Board’s decision.
    “[W]hen determining whether an agency has shown
by clear and convincing evidence that it would have taken
the same personnel action in the absence of whistleblow-
ing, [the Board] will consider the following factors: the
strength of the agency’s evidence in support of its person-
nel action; the existence and strength of any motive to
retaliate on the part of the agency officials who were
involved in the decision; and any evidence that the agency
takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.”
Carr v. Soc. Sec. Admin., 

, 1323 (Fed. Cir.
1999).
    With respect to the first Carr factor, the Board found
that “the Agency presented a variety of strong evidence
reflecting serious misconduct.” S. Appx. 15. The Board
found that Swartwoudt had told members of the team he
led that he “want[ed] to punch them in the throat and
that he was unsure why he left the Marine Corps, where
he was paid to kill people.” S. Appx. 14. The Board found
4                                        SWARTWOUDT   v. DHS



that Swartwoudt had commented that one of his team
members had obtained her position only because of her
“tits and smile.” 

also found that Swart-
woudt had engaged in “expletive-filled outbursts, directed
at or in the presence of management, members of the
public that served as volunteers to help with security
training, and the team members/canine handlers the
appellant was responsible for training.” 

to much of this conduct, and where he disputed
the allegations against him, the Board found that the
allegations were “supported by the credible testimony of
multiple witnesses” and “corroborated by written state-
ments of numerous individuals.” S. Appx. 15. The
Board’s findings with respect to this factor are supported
by substantial evidence.
    Regarding the second Carr factor, the Board deter-
mined that the Agency officials had weak motivation to
retaliate against Swartwoudt based on his disclosure.
Although the Board noted that the disclosure “reflected
poorly” on the program “for which the proposing and
deciding officials bore some responsibility,” S. Appx. 15, it
found that this consideration was mitigated by evidence
that the officials were already aware of the program’s
shortcomings and that the officials agreed with and
adopted many of Swartwoudt’s recommendations.
Swartwoudt argues that the deciding official’s supervisor
stated that the disclosure was a “slap in the face” and
alleges that the supervisor influenced the deciding official
to remove Swartwoudt. Pet. Br. 4. However, the Board
found that Swartwoudt’s evidence was outweighed by
credible testimony from the proposing and deciding offi-
cials averring that Swartwoudt’s misconduct was the sole
reason for his removal. Substantial evidence supports the
Board’s finding that retaliatory motive was weak.
   Finally, the Board determined that there was no evi-
dence in the record relating to the third Carr factor.
Swartwoudt asserts that members of the team he led had
SWARTWOUDT   v. DHS                                     5



previously used profanity and were not removed. Howev-
er, the Board determined that his team members were not
similarly situated because, unlike the conduct of his team
members, Swartwoudt’s “inappropriate conduct was
directed at the team members for which he was responsi-
ble.” S. Appx. 17. Although we acknowledge that Swart-
woudt believes he should not be held to a standard
different from that applied to his team members, we see
no error in the Board’s analysis. See 

(explaining that the third factor was not probative
where the petitioner “held a position of trust and respon-
sibility that was entirely different from the positions of
the employees who made complaints about her”).
    We conclude that substantial evidence supports the
Board’s decision denying Swartwoudt’s whistleblower
defense.
     Swartwoudt also argues that there was insufficient
evidence for the Board to uphold specifications three and
four of the charge of inappropriate conduct. Specification
three stated that Swartwoudt “started cursing and then
‘violently’ threw [a] canine’s reward toward [a] decoy
volunteer” while in public view at an airport. S. Appx.
151. Specification four stated that Swartwoudt referred
to one of his team members and commented “that the only
reason she has gotten where she is in this agency is
because of her tits and smile.” S. Appx. 152. The Board
found that to the extent Swartwoudt identifies inconsist-
encies in the witness statements supporting these specifi-
cations, those inconsistencies were not relevant.
Substantial evidence supports the Board’s findings.
    Swartwoudt also contends that the Board committed
procedural error when it excluded witnesses that would
have supported his whistleblower defense. In the Re-
mand Order, the Board found no abuse of discretion in the
AJ’s exclusion of these witnesses, explaining that the AJ
did approve some of Swartwoudt’s witnesses and that
6                                        SWARTWOUDT   v. DHS



Swartwoudt did “not allege that the disallowed witnesses
were present for any of the specific instances of conduct
giving rise to his removal or that they were otherwise key
figures in his removal action.” S. Appx. 71–72. In the
Final Order, the Board found that Swartwoudt provided
no reason to revisit its earlier decision. We see no error in
the Board’s conclusions.
   We have considered Swartwoudt’s remaining argu-
ments and conclude that they are without merit.
                       AFFIRMED
                           COSTS
    No costs.