Anthony Gomez v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY GOMEZ,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2025-1266
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-1221-17-0105-B-1.
______________________
Decided: June 17, 2026
______________________
ALAN E DWARD WOLIN, Wolin & Wolin, Jericho, NY, for
petitioner.
SEAN K ELLY G RIFFIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE HOSFORD, P ATRICIA M. MC CARTHY , BRETT SHUMATE.
______________________
Before REYNA, CHEN, and STOLL , Circuit Judges.
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GOMEZ v. DVA 2
P ER CURIAM .
Anthony Gomez appeals a final order from the Merit
Systems Protection Board (Board) denying his petition for
review of his retaliation claims under the Whistleblower
Protection Act (WPA). Gomez v. Dep’t of Veterans Affs., No.
NY-1221-17-0105-B-1, 2024 WL 4564167, at *1 (M.S.P.B.
Oct. 23, 2024) (Final Order). For the reasons below, we
affirm.
BACKGROUND
In 2011, the Department of Veterans Affairs (VA) New
Jersey Health Care System hired Mr. Gomez, a veteran, for
a temporary position of Program Assistant in the Ambula-
tory Care department of its East Orange location.
In early 2012, during Mr. Gomez’s temporary tenure,
the facility began preparations to operate a virtual health
program to administer telehealth services. The Associate
Chief of Staff for Ambulatory Care, Dr. LeDeaux, decided
the program needed two managers to oversee operations.
One leader, the “Lead Facility Telehealth Coordinator,” or
“Lead FTC,” managed the program’s clinical operations.
The other manager, the “Deputy FTC,” oversaw the pro-
gram’s technical operations. The Lead FTC and Deputy
FTC reported to an Administrative Officer (AO), who man-
aged the virtual health program and reported directly to
Dr. LeDeaux.
Around February 2012, the facility hired Sheryl Stern
to be Deputy FTC, and Sheevon Husband Clark to be AO.
Clark eventually resigned during her probationary period.
Stern applied for the AO position. She was interviewed
and hired.
Stern’s promotion left the Deputy FTC position vacant.
Mr. Gomez subsequently applied for and was selected for
the full-time position of Deputy FTC by Dr. LeDeaux.
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GOMEZ v. DVA 3
The Lead FTC position eventually became vacant. To
fill it, Mr. Gomez served as acting Lead FTC until June
2015. Relatedly, Mr. Gomez also requested Dr. LeDeaux to
convert the Lead FTC position, a Title 38 position, to a Ti-
tle 5 position.1 In May 2015, Mr. Gomez filed a grievance
alleging that the VA violated a collective bargaining agree-
ment that required Mr. Gomez to receive higher compensa-
tion during the time he was acting Lead FTC. The VA
denied the grievance.
Mr. Gomez then filed a complaint with the Office of
Special Counsel (OSC) alleging that the VA retaliated
against him for making protected whistleblower disclo-
sures and engaging in protected whistleblowing activity.
In particular, he contends the VA’s failure to convert the
Lead FTC position to a Title 5 position, his denial of a detail
position with the Office of Telehealth Services, and his non-
selection to the position of Supervisor, Patient Representa-
tive were all retaliatory actions for his whistleblowing ac-
tivities. J.A. 1161. His complaint alleged three protected
actions. First, he alleged that he disclosed violations of law
to Dr. LeDeaux and Stern related to an alleged plan by
Dr. LeDeaux and Stern to circumvent veterans preference
hiring requirements. J.A. 186. Second, he alleged that his
previously filed grievance constituted protected whistle-
blower activity. Id. at 187. And third, he alleged he “was
very vocal” in claiming that the facility leadership abused
their authority and engaged in mismanagement by refus-
ing to convert the Lead FTC position to a Title 5 position.
Id. at 186; J.A. 1166.
1 This conversion would put Mr. Gomez in advanta-
geous position to compete for the position on a permanent
basis because he is a veteran. See Scarnati v. Dep’t Of Vet-
erans Affs., 344 F.3d 1246, 1247–48 (Fed. Cir. 2003) (ex-
plaining interplay between Title 5 and Title 38 personnel
systems).
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GOMEZ v. DVA 4
After OSC closed the file in January 2017, Mr. Gomez
filed an Individual Right of Action appeal repeating his al-
legations. The Administrative Judge (AJ) issued an order
finding jurisdiction, conducted an evidentiary hearing, and
issued an initial decision denying Mr. Gomez’s request for
corrective action. The AJ found that Mr. Gomez’s alleged
protected disclosures related to the LeDeaux-Stern con-
spiracy were “vague, nonspecific and speculative” without
“any corroboration.” J.A. 1044. The AJ also found “no in-
dication” that Mr. Gomez’s grievance related to seeking a
higher salary “related to whistleblower reprisal or any al-
leged violation” of the WPA. Id. at 1046.
Mr. Gomez petitioned for Board review. The Board
granted the petition and remanded because the AJ’s initial
decision failed to address Mr. Gomez’s third allegation that
he made protected disclosures related to Dr. LeDeaux’s re-
fusal to convert the Lead FTC position from a Title 38 po-
sition to a Title 5 position. Gomez v. Dep’t of Veterans Affs.,
No. NY-1221-17-0105-W-1, 2023 WL 4711683 at *3–4
(M.S.P.B. July 24, 2023).
On remand, a second AJ dismissed the remanded issue
for lack of jurisdiction. The AJ found that Mr. Gomez’s al-
legations were “vague,” lacked “specificity,” and merely
presented a “disagreement” with management’s discretion-
ary decision. J.A. 1168–69.
Mr. Gomez filed a petition for review of the remand in-
itial decision. Final Order, 2024 WL 4564167, at *1. The
Board denied the petition and modified the initial decisions
to clarify that (1) the claims addressed by the first initial
decision were denied on the merits and (2) the claim ad-
dressed by the second initial decision was properly dis-
missed for lack of jurisdiction because Mr. Gomez failed to
provide nonfrivolous allegations to support the claim. Id.
at *1–2.
Mr. Gomez timely appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
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GOMEZ v. DVA 5
D ISCUSSION
We set aside a decision of the Board only if it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” Rickel v. Dep’t of
the Navy, 31 F.4th 1358, 1363–64 (Fed. Cir. 2022) (quoting
5 U.S.C. § 7703(c)).
Credibility determinations by an administrative judge
are “virtually unreviewable.” Holmes v. United States
Postal Serv., 987 F.3d 1042, 1047 (Fed. Cir. 2021) (citation
omitted). We therefore do not disturb those findings unless
they are “inherently improbable, discredited by undisputed
evidence, or contrary to physical facts.” Id. (citation omit-
ted).
We review de novo whether the Board has jurisdiction
over an appeal. Smolinski v. Merit Sys. Prot. Bd., 23 F.4th
1345, 1350 (Fed. Cir. 2022) (citation omitted).
Mr. Gomez disputes the Board’s conclusions regarding
each of his alleged protected actions. We address each in
turn.
I
Mr. Gomez first argues that he made protected disclo-
sures when he “voiced his objections and concerns” to
Dr. LeDeaux and Stern about their alleged conspiracy to
circumvent veterans hiring preferences. Pet’r’s Br. 17.
Mr. Gomez similarly argues the first AJ’s related findings
were “contrary to the record,” that the AJ “gave too much
credence” to Dr. LeDeaux’s and Stern’s testimonies, and
that the AJ erroneously concluded that Mr. Gomez “failed
to offer any corroborative testimony” that he made the al-
leged disclosures. Id. at 17, 27–30. In turn, he argues that
his protective disclosures were specific enough to demon-
strate a WPA violation. Id. at 28.
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GOMEZ v. DVA 6
We see no error in the AJ’s determination that
Mr. Gomez failed to prove that he made these protected
disclosures. The testimony of Dr. LeDeaux and Stern di-
rectly conflicted with Mr. Gomez’s testimony. Dr. LeDeaux
and Stern denied any knowledge of any conspiratorial
meetings or any disclosure by Mr. Gomez. J.A. 1043. The
AJ found that Mr. Gomez’s testimony “lack[ed] credibility.”
Id. at 1044. In contrast, the AJ found that Dr. LeDeaux’s
and Stern’s testimonies were “straightforward, unequivo-
cal[,] and consistent with one another,” and she determined
them to be “credible witnesses.” Id. Those findings are
“virtually unreviewable,” and as such, we decline to disturb
them. Holmes, 987 F.3d at 1047 (citation omitted).
Mr. Gomez next argues that the AJ failed to consider
corroborating evidence supporting his account of the al-
leged LeDeaux–Stern conspiracy. Mr. Gomez specifically
highlights the AJ’s failure to consider his arbitration
“grievance,” Pet’r’s Br. 31, and the testimony of LaDean
Mitchell, the President of the union which Mr. Gomez was
a member of during the relevant period.
Mr. Gomez’s reliance on this evidence does not under-
mine the AJ’s conclusion that he failed to offer corroborat-
ing evidence regarding the supposed LeDeaux–Stern
conspiracy. Like his contentions above, Mr. Gomez’s argu-
ment reflects disagreement with the AJ’s weighing of the
evidence, but “[i]t is not for this court to reweigh the evi-
dence before the Board.” McMillan v. Dep’t of Justice, 812
F.3d 1364, 1371 (Fed. Cir. 2016) (quoting Henry v. Dep’t of
Navy, 902 F.2d 949, 951 (Fed. Cir. 1990)). We therefore
affirm the Board’s decision regarding the alleged disclo-
sures related to the AO position and the alleged violations
of laws related to veterans hiring practices because sub-
stantial evidence supports the Board’s conclusion.
II
We next address Mr. Gomez’s argument that he en-
gaged in protected activity by filing a grievance seeking a
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GOMEZ v. DVA 7
higher salary under his collective bargaining agreement.
Pet’r’s Br. 20. Mr. Gomez’s opening brief raises the issue
of whether he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9). Pet’r’s Br. 1–2. Mr. Gomez seems to refer to
the AJ’s conclusion that his grievance filed in 2015 seeking
a higher level of pay as acting Lead FTC failed to relate to
any activity related to section 2302(b)(8) of the WPA. See
J.A. 1045–46. But the argument section of his brief fails to
develop this argument. It is therefore waived. Rodriguez
v. Dep’t of Veterans Affs., 8 F.4th 1290, 1296 (Fed. Cir.
2021). In any event, we see no error in the AJ’s determina-
tion that the grievance was unrelated to any alleged pro-
tected disclosure because the grievance arose out of
Mr. Gomez’s collective bargaining agreement.
III
Finally, we address Mr. Gomez’s argument that he
made nonfrivolous allegations of protected disclosures re-
lated to Dr. LeDeaux’s refusal to convert the Lead FTC po-
sition from a Title 38 position to a Title 5 position.
As an initial matter, we disagree with Mr. Gomez that
the Board previously found jurisdiction over the Lead FTC
conversion issue. After reviewing the record, we agree with
the Board’s conclusion that it had not previously made such
a finding.
On the merits, Mr. Gomez asserts he disclosed abuses
of authority and gross mismanagement related to Dr. Le-
Deaux’s refusal to convert the Lead FTC position. Pet’r’s
Br. 48. But he identifies no specific support for those
claims beyond the general allegation that Dr. LeDeaux de-
clined to reclassify the position. Mr. Gomez’s allegation
amounts to simple disagreement with Dr. LeDeaux’s dis-
cretionary decision. He offers no basis for why Dr. Le-
Deaux was required to convert the position other than his
desire to qualify for it. Indeed, Mr. Gomez emphasizes that
he requested Dr. LeDeaux to reclassify the position so that
“he could fairly compete for it.” Pet’r’s Br. 33. We thus see
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GOMEZ v. DVA 8
no error in the AJ’s conclusion that Mr. Gomez failed to
present nonfrivolous allegations that he made protected
disclosures related to this issue.
CONCLUSION
We have considered Mr. Gomez’s remaining arguments
and find them unpersuasive. For the reasons explained
above, we affirm the final order of the Board.
AFFIRMED
COSTS
No costs.
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