Case: 19-2232    Document: 32     Page: 1   Filed: 02/04/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

        FRANCISCO CUNANAN PAMINTUAN,
                   Petitioner

                             v.

            DEPARTMENT OF THE NAVY,
                     Respondent
               ______________________

                        2019-2232
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. SF-1221-19-0179-W-1.
                 ______________________

                Decided: February 4, 2020
                 ______________________

     FRANCISCO CUNANAN PAMINTUAN, Port Hueneme, CA,
 pro se.

     NATHANAEL YALE, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
                   ______________________

    Before PROST, Chief Judge, LOURIE and CLEVENGER,
                     Circuit Judges.
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 2                                          PAMINTUAN v. NAVY




 PER CURIAM.
     Francisco Cunanan Pamintuan petitions for review of
 a decision of the Merit Systems Protection Board (“Board”)
 denying Mr. Pamintuan’s request for corrective action un-
 der the Whistleblower Protection Enhancement Act
 (“WPA”) against the Department of the Navy (“agency”).
 See Pamintuan v. Dep’t of the Navy, No. SF-1221-19-0179-
 W-1, 

(M.S.P.B. May 10, 2019) (“Deci-
 sion”). We affirm.
                              I
      Mr. Pamintuan worked as a Supervisory Contract Spe-
 cialist at the agency’s Naval Base Ventura County and
 oversaw a team of Contract Specialists. At the time, Mr.
 Pamintuan had a Contracting Officer warrant, which was
 necessary for him to perform his job as a supervisor.
     During the 2015 fiscal year, Mr. Pamintuan’s team was
 understaffed, had difficulty reaching timeline require-
 ments, and faced internal pressure to meet the timeline re-
 quirements. As a result, Mr. Pamintuan directed his
 subordinates to award contracts without preparing the re-
 quired documentation, including awarding contracts with-
 out Pre or Post Negotiation Memorandums (“PNM”).
      In August 2015, Mr. Pamintuan spoke with a ranking
 officer, Commander Paul Chan, regarding executing con-
 tracts without following the proper procedures. Com-
 mander Chan asked Mr. Pamintuan to prepare a draft
 email for Commander Chan to send to management offi-
 cials to explain they were “not PMAP [Process Manage-
 ment and Audit Program] ready because [they] did not
 have business documentation printed and in the files.” 1




     1  The Administrative Judge (“AJ”) found that PMAP
 ready referred to Mr. Pamintuan’s department being
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 PAMINTUAN v. NAVY                                           

76. On August 27, 2015, Mr. Pamintuan sent the
 requested draft email to Commander Chan. Of relevance,
 this draft email included the language, “I’m tasking . . .
 [Mr. Pamintuan] that execution is more important and to
 just catch-up on business documentations later.” Decision,
 slip op. at 3.
     On September 2, 2015, Commander Chan sent a re-
 vised draft to Mr. Pamintuan and Mr. Pamintuan’s direct
 superior. He never, however, sent the email to manage-
 ment officials. Of relevance, the email noted that Com-
 mander Chan “tasked . . . Mr. Franc Pamintuan . . . to
 execute . . . actions at the risk of business documentations.”
 

Instead of emailing management officials, Com-
 mander Chan called Renae Kvendru, the Chief of Contract-
 ing Office. On this call, Commander Chan told Ms.
 Kvendru that they were not PMAP ready. Ms. Kvendru
 expressed serious concern.
     On September 9, 2015, Ms. Kvendru received an anon-
 ymous email, which Mr. Pamintuan later claimed to have
 sent. The email noted that “we are being told to award con-
 tracts with no business documentation being done. [W]e
 are awarding contracts before we even determaine [sic] fair
 and reasonable.” 

     Upon receiving the September 9, 2015 email, Ms.
 Kvendru ordered an onsite investigation. Following the
 findings of the onsite investigation, a command investiga-
 tion was conducted. As part of this investigation Mr. Pa-
 mintuan was interviewed.           In his interview, Mr.
 Pamintuan provided Commander Chan’s September 2,



 “ready for an internal inspection of the agency’s business
 documentation.” Decision, slip op. at 26 n.7.
      2   We use “App.” to refer to the “Corrected Appendix
 for Informal Brief” submitted by the Government. No other
 appendices were submitted.
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 4                                          PAMINTUAN v. NAVY




 2015 draft email and stated that this email showed that
 Commander Chan improperly tasked him to execute ten-
 ants’ funded actions at the risk of business documentation.
 To Mr. Pamintuan, this meant “to issue contract awards
 although the documentations required by regulation to pro-
 cess the awards were incomplete.” 

Commander
 Chan was also interviewed and stated that he thought that
 “[d]ocuments were not getting printed out in a timely man-
 ner to complete the contract file.” App. 76–77.
     The command investigation ended on November 23,
 2015. The accompanying report concluded, among other
 things, that:
     The allegation that PWD Ventura PEAD was
     awarding contracts without properly documenting
     the business decision was substantiated. The con-
     tract specialists and contracting officers responsi-
     ble for preparing the documents have stated they
     were awarding contracts without first preparing
     the Pre/Post Negotiation Memorandum (PNM).
     The allegation that PWD Ventura Public Works Of-
     ficer (PWO) and Deputy Public Works Officer
     (DPWO) demanded, encouraged, or condoned the
     awarding of contracts without determining pricing
     fair and reasonableness or documenting the busi-
     ness decision is unsubstantiated. While there was
     significant leadership pressure to make execution
     goals even with limited staffing, the evidence did
     not show that leadership demanded, encouraged,
     or condoned deliberate evasion of statutory or reg-
     ulatory requirements.
 Decision, slip op. at 6.
    The investigation report also recommended that the
 agency “[i]ssue appropriate disciplinary action to” Com-
 mander Chan, Mr. Pamintuan, and others, including the
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 PAMINTUAN v. NAVY                                          5



 Deputy Public Works Officer and the FEAD Director. 

    Prior to any disciplinary action, Mr. Pamintuan took a
 two-year Supervisory Contract Specialist position at Guan-
 tanamo Bay. In this role he retained return rights to his
 Supervisory Contract Specialist position at Ventura. His
 Contracting Officer warrant at Ventura, however, was ad-
 ministratively terminated because he was leaving for
 Guantanamo Bay. App. 139.
     On Mr. Pamintuan’s last day working at Ventura he
 received a Letter of Reprimand for Inattention to Duty per-
 taining to his failure to ensure that proper business docu-
 mentation was completed. Others were disciplined as well.
 For instance, the Deputy Public Works Officer received a
 Letter of Reprimand, while Commander Chan and the
 FEAD Director both had their Contracting Officer war-
 rants terminated.
      Mr. Pamintuan exercised his return rights and on Feb-
 ruary 24, 2017, returned to his Supervisory Contract Spe-
 cialist position at Ventura. Mr. Pamintuan was unable to
 return to his former duties, however, because Ms. Kvendru
 refused to grant him a new Contracting Officer warrant.
 On March 6, 2017, feeling “shunned, belittled, and treated
 as a non-entity” because of “deliberate, on-going retaliatory
 harassment,” Mr. Pamintuan sought retirement effective
 September 30, 2017. Decision, slip op. at 15. Mr. Pa-
 mintuan then went on paid leave from March 6, 2017 until
 his effective retirement date.
      Following his retirement, Mr. Pamintuan sought un-
 employment benefits. After being initially denied, Mr. Pa-
 mintuan appealed to the California Unemployment
 Insurance Appeals Board (“CUIAB”). The CUIAB found
 that Mr. Pamintuan was entitled to unemployment bene-
 fits “because he was subjected to an illegal discriminatory
 act” and therefore had good cause for leaving. App. 162–
 63.
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 6                                           PAMINTUAN v. NAVY




     Mr. Pamintuan then filed an individual right of action
 appeal at the Merit Systems Protection Board. After find-
 ing the jurisdiction requirements satisfied, the AJ found
 that Mr. Pamintuan (1) “proved by a preponderance of the
 evidence he engaged in protected activity” when he pro-
 vided the September 2, 2015 email during the command
 investigation; (2) “established he experienced covered per-
 sonnel actions” when he received the Letter of Reprimand,
 was detailed to Contract Specialist duties, and had his re-
 instatement request for his Contracting Officer warrant
 denied; and (3) “established by a preponderance of the evi-
 dence his protected activity was a contributing factor in the
 personnel actions.” Decision, slip op. at 10, 13, 18–19. The
 AJ, however, rejected Mr. Pamintuan’s argument that his
 ‘involuntary’ retirement was a covered personnel action.
 

     The AJ then analyzed the three factors laid out in Carr
 v. Social Security Administration, 

(Fed. Cir.
 1999), to determine whether the agency would have taken
 the same personnel actions if Mr. Pamintuan had not made
 the protected disclosure. After analyzing these factors and
 based on the record before it, the AJ found that the agency
 would have taken the same personnel actions had Mr. Pa-
 mintuan not made his protected disclosure. The AJ also
 rejected Mr. Pamintuan’s argument that because he was
 ordered to execute contracts without PNM, he should not
 be disciplined. Ultimately, Mr. Pamintuan’s request for
 corrective action was denied.
     On June 14, 2019, the initial decision became final and
 Mr. Pamintuan timely petitioned for our review. We have
 jurisdiction under 28 U.S.C. § 1295(a)(9).
                              II
     On petition for review Mr. Pamintuan challenges only
 portions of the decision. He argues that the AJ (1) incor-
 rectly incorporated a mitigation analysis into whether the
 agency met its burden in establishing that it would have
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 PAMINTUAN v. NAVY                                          7



 taken the same actions had he not made his protected dis-
 closure; (2) incorrectly found that his actions were not ex-
 cused when he was allegedly following orders from his
 superior; and (3) incorrectly found that his retirement was
 not a covered personnel action.
                              A
      Our review is limited and requires us to affirm unless
 the Board’s decision is “(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 sub-
 stantial evidence.” 5 U.S.C. § 7703(c). Whether a decision
 is in accordance with the law “refers to the application of
 the wrong legal standard, and the application of the law is
 reviewed de novo.” Rodriguez v. Sec’y of HHS, 

, 1384 (Fed. Cir. 2011). Substantial evidence refers to
 “relevant evidence [that] a reasonable mind might accept
 as adequate to support a conclusion.” McLaughlin v. Office
 of Pers. Mgmt., 

, 1369 (Fed. Cir. 2015) (inter-
 nal quotations removed).
      Under the WPA, “[i]f the employee establishes [a]
 prima facie case of reprisal for whistleblowing, the burden
 of persuasion shifts to the agency to show by clear and con-
 vincing evidence that it would have taken ‘the same per-
 sonnel action in the absence of such disclosure.’” Whitmore
 v. Dep’t of Labor, 

, 1367 (Fed. Cir. 2012)
 (quoting 5 U.S.C. § 1221(e)); see also Nelson v. Dep’t of the
 Army, 658 F. App’x 1036, 1038–39 (Fed. Cir. 2016). To de-
 termine whether the agency would have engaged in the
 same personnel action absent the protected disclosure, the
 Carr factors are analyzed. 

.
 These factors include, (1) “the strength of the agency’s evi-
 dence 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 [took] similar actions
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 8                                           PAMINTUAN v. NAVY




 against employees who [were] not whistleblowers but who
 [were] otherwise similarly situated.” 

.
                               B
     On petition for review Mr. Pamintuan argues that the
 AJ incorrectly incorporated a mitigation analysis into
 whether the agency would have acted the same way absent
 Mr. Pamintuan’s protected disclosure. He argues it was
 improper for the AJ to find that the “agency officials had
 some motive to retaliate against [Mr. Pamintuan], but . . .
 not find that motive to be significant at the time it took the
 personnel actions at issue.” Pet’r’s Br. 4. We disagree.
      The second Carr factor focuses on the existence and
 strength of any motive to retaliate on the part of the agency
 officials who were involved in the alleged reprisal. See
 

. Thus, contrary to Mr. Pamintuan’s
 contentions on petition for review, weighing the strength of
 the motive of those who influenced the alleged reprisal de-
 cision is part of the analysis. See, e.g., Swartwoudt v. Dep’t
 of Homeland Sec., 694 F. App’x 776, 779 (Fed. Cir. 2017)
 (finding that “[a]gency officials had weak motivation to re-
 taliate against [petitioner]”). We find that the AJ’s analy-
 sis is in accordance with the law.
                               C
     Mr. Pamintuan also argues that the AJ improperly re-
 jected his “obey-now, grieve-later” defense. See Pet’r’s Br.
 6. He argues that Commander Chan’s September 2, 2015
 email establishes that Commander Chan ordered him to
 execute contract actions without PNM. Therefore, Mr. Pa-
 mintuan argues that he cannot be disciplined because he
 was following orders. The AJ, however, disagreed that
 Commander Chan ordered Mr. Pamintuan to execute con-
 tract actions without PNM. To support her finding, the AJ
 relied on Commander Chan’s command investigation inter-
 view and Commander Chan’s revisions to the draft email
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 PAMINTUAN v. NAVY                                          9



 that Mr. Pamintuan sent to Commander Chan. The AJ
 found that at most Commander Chan tasked Mr. Pa-
 mintuan with “putting aside filing requirements.” Deci-
 sion, slip op. at 26.
     Mr. Pamintuan’s argument asks us to reweigh the evi-
 dence and credit his positions. For instance, he argues that
 it was improper for the AJ to “simply assume[] Mr. Chan
 [in his command investigation interview] was truthful.”
 Pet’r’s Br. 13–14. He suggests that “[i]t is understandable
 that Mr. Chan wished to fabricate a cover story to protect
 himself . . . .” 

He also argues that the anonymous
 September 9, 2015 email further shows that Commander
 Chan ordered him to execute contracts without proper
 PNM.
     Our review, however, is based on whether substantial
 evidence supports the AJ’s finding. See Hansen v. Dep’t of
 Homeland Sec., 

, 1369 (Fed. Cir. 2018)
 (“[O]ur sole inquiry is whether substantial evidence sup-
 ports the Board’s finding . . . [and] we do not reweigh evi-
 dence.”).    The AJ’s decision demonstrates that she
 considered the command investigation (see Decision, slip
 op. at 25–26) and the revisions that Commander Chan
 made to the draft email (see 

n.6). Upon a review
 of the record, we find that substantial evidence supports
 the AJ’s finding.
                              D
     Mr. Pamintuan also argues that the AJ incorrectly
 found that his retirement was not a covered personnel ac-
 tion. He argues that the AJ improperly required him to
 “always stand [remain on the job] and fight” Pet’r’s Br.
 21–22 (emphasis and bracketed text in original). He also
 argues that the AJ failed to give the CUIAB’s finding pre-
 clusive effect.
    Contrary to Mr. Pamintuan’s argument, the AJ did not
 require Mr. Pamintuan to remain at his job indefinitely to
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 10                                         PAMINTUAN v. NAVY




 fight. Instead, the AJ correctly required Mr. Pamintuan to
 show that he lacked a meaningful choice in his retirement.
 See, e.g., Decision, slip op. at 14 (citing Bean v. U.S. Postal
 Serv., 120 M.S.P.R. 397, ¶ 11 (2013)). Against this stand-
 ard, the AJ found that Mr. Pamintuan “supplied no evi-
 dence the agency did anything other than reassign him and
 treat him as an employee in the reassigned position” and
 that he did not prove that he “was subject to intolerable
 working conditions that would have left a reasonable per-
 son without a choice but to retire.” Decision, slip op. at 18.
 We do not find fault in the AJ’s analysis.
     Mr. Pamintuan also argues that the CUIAB decision
 should have preclusive effect. In addition to disagreeing
 about the preclusive effect a CUIAB decision should have,
 the Government suggests that we lack jurisdiction in this
 case because the CUIAB allegedly found that Mr. Pa-
 mintuan “was subjected to national origin discrimination
 by the Navy.” Resp’t’s Br. 10–12. The Government points
 to Perry v. Merit Systems Protection Board, 

 (2017), for the proposition that if this case includes a na-
 tional origin discrimination claim, then this is a “mixed
 case” over which we lack jurisdiction. 

      While we agree that we would not have jurisdiction if
 this were a mixed case, we find that, given the particular
 facts of this case, this is not a mixed case. As Perry notes,
 “[t]he key to district court review . . . was the employee’s
 clai[m] that an agency action appealable to the MSPB vio-
 lates an antidiscrimination statute listed in § 

(emphasis and internal quotations re-
 moved). Given the record at hand, we do not find Mr. Pa-
 mintuan is claiming that the agency violated an
 antidiscrimination statute listed in § 7702(a)(1).
     First, Mr. Pamintuan provided in his amended Federal
 Circuit Rule 15(c) statement that “[n]o claim of discrimina-
 tion by reason of race, sex, age, national origin, or handi-
 capped condition [i.e., those listed in § 7702(a)(1)] has been
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 PAMINTUAN v. NAVY                                         11



 or will be made in this case” and that “[a]ny claim of dis-
 crimination by reason of race, sex, age, national origin, or
 handicapped condition . . . has been abandoned or will not
 be raised or continued in this or any other court.” Pa-
 mintuan v. Dept’ of the Navy, No. 19-2232, Amended State-
 ment Concerning Discrimination Pursuant to Fed. Cir.
 R. 15(c), ECF No. 24 (Nov. 6, 2019). Moreover, contrary to
 the Government’s suggestion and given the record pro-
 vided, we do not find that the CUIAB decision included a
 finding of national origin discrimination. The CUIAB de-
 cision notes that it awarded Mr. Pamintuan unemployment
 benefits based on an “illegal discriminatory act” but does
 not detail what this act is or if the act would be covered by
 § 7702(a)(1). See App. 162–163. Further, Sanchez v. Cali-
 fornia Unemployment Insurance Appeals Board, the case
 cited in the CUIAB decision (and by the AJ), found an ille-
 gal discriminatory act where the petitioner faced demotion
 in retaliation for union-related activities. 

, 68–
 71 (Cal. 1984). Union-related activities, however, are not
 among the types of discrimination included in § 7702(a)(1).
 Therefore, an “illegal discriminatory act” found by the
 CUIAB may be outside those enumerated in § 7702(a)(1).
 Accordingly, we decline to find that this is a mixed case.
     Similar to what this court and the Merit Systems Pro-
 tection Board have found before, we do agree with the Gov-
 ernment that the CUIAB decision does not have preclusive
 effect on the Board. See, e.g., Wade v. Dep’t of Labor, 212
 F. App’x 995, 997 (Fed. Cir. 2007) (“The CUIAB decision is
 based on California state law and is not binding upon the
 Board.”); see also Herring v. U.S. Postal Serv., 40 M.S.P.R.
 342, 346 (1989) (“decisions by state unemployment tribu-
 nals are not given collateral estoppel effect”). We therefore
 find no error in the AJ’s decision to not give the CUIAB
 decision preclusive effect.
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 12                                        PAMINTUAN v. NAVY




                              III
     We have considered the other arguments raised by Mr.
 Pamintuan and find them unpersuasive. For the foregoing
 reasons, we affirm the AJ’s denial of Mr. Pamintuan’s re-
 quest for corrective action.
                         AFFIRMED
                            COSTS
      The parties shall bear their own costs.