Steven Oliva v. Department of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
STEVEN OLIVA,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-2331
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-16-0338-I-1.
______________________
Decided: May 7, 2026
______________________
J AD H. K HAZEM , Covington & Burling LLP, Washing-
ton, DC, argued for petitioner. Also represented by
RICHARD L. RAINEY .
D OUGLAS G LENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY , YAAKOV R OTH ; T YRUS WILLIAM MORGAN, Office
of General Counsel, Department of Veterans Affairs, New
Orleans, LA.
______________________
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OLIVA v. DVA 2
Before CHEN, BRYSON , and CUNNINGHAM , Circuit Judges.
CUNNINGHAM, Circuit Judge.
Steven Oliva petitions for review of a Merit Systems
Protection Board (“Board”) final order, which denied his pe-
tition for review and affirmed the administrative judge’s
initial decision. Oliva v. Dep’t of Veterans Affs., No. DA-
0752-16-0338-I-1, 2023 WL 4138713, at *1 (M.S.P.B.
June 22, 2023) (“Final Order”); Oliva v. Dep’t of Veterans
Affs., No. DA-0752-16-0338-I-1, 2017 WL 3594506
(M.S.P.B. Aug. 18, 2017) (“Initial Decision”).1 For the rea-
sons discussed below, we affirm.
I. BACKGROUND
On September 23, 2012, Mr. Oliva was appointed as a
Program Manager with the Department of Veterans Af-
fairs (“VA”) Health Resource Center (“HRC”) and was
based in the Waco, Texas office. Initial Decision at 2;
App’x 71. In October 2014, HRC Director Matthew Eitutis
reassigned Mr. Oliva to serve as an Associate Director for
Contact Management. Initial Decision at 2; App’x 71;
App’x 639–40. In this role, Mr. Oliva oversaw staff mem-
bers in both Waco, Texas, and Topeka, Kansas. App’x 71.
On December 30, 2014, Mr. Oliva emailed Mr. Eitutis
and HRC Deputy Director, Rebecca Medved, contending
that Mr. Eitutis pre-selected a Waco employee for a promo-
tion. Initial Decision at 2; App’x 135. In December 2014,
Mr. Oliva also challenged the process that Mr. Eitutis had
used to solicit and select staff for quality step increases.
Initial Decision at 2.
Following Mr. Oliva’s December 2014 criticisms of
Mr. Eitutis, the VA reprimanded Mr. Oliva on January 9,
1 Citations in this opinion are to the pagination in
the version of the Initial Decision in the Appendix. See
App’x 15–70.
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OLIVA v. DVA 3
2015, charging him with “Inappropriate Conduct.” Initial
Decision at 2; App’x 134. Subsequently, Mr. Oliva filed a
whistleblower complaint with the Office of Special Counsel
(“OSC”), exhausted his administrative remedies before the
OSC, and filed two individual right of action (“IRA”) ap-
peals.2 Initial Decision at 2, 35.
Several employees alleged that Mr. Oliva had made in-
appropriate comments, engaged in harassment, and cre-
ated a hostile work environment. See App’x 239–46. The
VA appointed Dr. Michael Russell to chair the Administra-
tive Investigation Board (“AIB”) investigation into
Mr. Oliva. App’x 300–01 at 5:1–6:21; App’x 247. The AIB
stated that there was “little doubt that there were lapses
in professionalism which a reasonable person would feel
contributed to a hostile work environment.” App’x 245; see
also App’x 247–54 (supplemental memo from the conven-
ing authority). Upon receiving the AIB’s findings, Eliza-
beth Johnson, the Acting Director of the HRC, proposed
removal of Mr. Oliva based on a charge of inappropriate
conduct. Initial Decision at 3; App’x 255–58. The deciding
official, after receiving a five-hour oral response from
Mr. Oliva, sustained the charge and removed Mr. Oliva
from his job. Initial Decision at 3, 61; App’x 287–89.
On August 18, 2017, the administrative judge affirmed
the VA’s removal of Mr. Oliva. Initial Decision at 1–2. The
administrative judge sustained the VA’s charge of inappro-
priate conduct, determining that the VA had proven its
charge and the underlying specifications by a
2 Mr. Oliva successfully filed another IRA appeal,
which is not at issue in this appeal, asserting that the VA
“took personnel actions against him in retaliation for per-
ceived activity protected by the” Whistleblower Protection
Act and the Whistleblower Protection Enhancement Act.
Oliva v. Dep’t of Veterans Affs., No. DA-1221-17-0225-W-1,
2017 WL 5569372 (M.S.P.B. Nov. 13, 2017).
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OLIVA v. DVA 4
preponderance of the evidence. Initial Decision at 4–30.
Regarding Mr. Oliva’s first affirmative defense of whistle-
blower retaliation, the administrative judge determined
that Mr. Oliva “engaged in protected activity under 5
U.S.C. § 2302(b)(9)(A)(i) because [his] prior IRA appeals
sought to remedy a violation of 5 U.S.C. § 2302(b)(8).” Id.
at 37; see id. at 31–38. However, the administrative judge
determined that the VA proved “by clear and convincing
evidence that it had strong evidence to support the removal
action.” Id. at 39; see id. at 40–41. Regarding Mr. Oliva’s
second affirmative defense of harmful procedural error, the
administrative judge concluded that Mr. Oliva failed to
prove that the VA committed harmful error. Initial Deci-
sion at 41–45. Moreover, the administrative judge deter-
mined that removal “was within the tolerable limits of
reasonableness for the proven charge.” Initial Decision
at 49.
Mr. Oliva petitioned the Board for review of the admin-
istrative judge’s initial decision. Final Order at *1. On
June 22, 2023, the Board denied Mr. Oliva’s petition for re-
view and affirmed the administrative judge’s initial deci-
sion. Id. The Board “discern[ed] no basis for disturbing the
administrative judge’s well-reasoned findings regarding
the charge or [Mr. Oliva’s] affirmative defenses of discrim-
ination and equal employment opportunity” reprisal. Id.
Furthermore, the Board agreed with the administrative
judge that Mr. Oliva failed to establish his affirmative de-
fenses of whistleblower reprisal and harmful error. Id.
Mr. Oliva timely petitioned for review in this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. STANDARD OF REVIEW
We will set aside the Board’s decision if it is “(1) arbi-
trary, 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.” 5 U.S.C.
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OLIVA v. DVA 5
§ 7703(c); Mouton-Miller v. Merit Sys. Prot. Bd., 985 F.3d
864, 868 (Fed Cir. 2021). We review the Board’s conclu-
sions of law de novo and the Board’s factual findings for
substantial evidence. Brenner v. Dep’t of Veterans Affs.,
990 F.3d 1313, 1322 (Fed. Cir. 2021). “We review the
[B]oard’s decision to exclude witnesses under an abuse of
discretion standard.” Chudson v. EPA, 17 F.3d 380, 384
(Fed. Cir. 1994).
III. D ISCUSSION
Mr. Oliva makes two primary arguments: (1) the
Board erred in determining that the government proved by
clear and convincing evidence that it would have removed
Mr. Oliva absent his whistleblowing, Petitioner’s
Br. 19–47; and (2) the Board erred in overruling
Mr. Oliva’s harmful procedural error defense, id. at 47–57.
We address each argument in turn.
A.
“Analysis of a whistleblower defense takes place within
a burden shifting scheme.” Whitmore v. Dep’t of Lab.,
680 F.3d 1353, 1367 (Fed. Cir. 2012). “[T]he former em-
ployee must prove by a preponderance of the evidence that
he or she made a protected disclosure under § 2302(b)(8)
that was a contributing factor to the employee’s termina-
tion.” Id. “If the employee establishes this prima facie case
of reprisal for whistleblowing, the burden of persuasion
shifts to the agency to show by clear and convincing evi-
dence that it would have taken ‘the same personnel action
in the absence of such disclosure,’” id. (quoting 5 U.S.C.
§ 1221(e)), “which we sometimes refer to as a showing of
‘independent causation.’” Miller v. Dep’t of Just., 842 F.3d
1252, 1257 (Fed. Cir. 2016) (internal citation omitted). In
evaluating whether the government has successfully rebut-
ted an employee’s prima facie case, we look to the factors
set forth in Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999):
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OLIVA v. DVA 6
[T]he strength of the agency’s evidence in support
of its personnel 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.
“To be clear, Carr does not impose an affirmative bur-
den on the agency to produce evidence with respect to each
and every one of the three Carr factors to weigh them each
individually in the agency’s favor.” Whitmore, 680 F.3d
at 1374. Therefore, we “consider the record as a whole and
balance the Carr factors to determine whether substantial
evidence supports the Board’s finding that the [agency]
clearly and convincingly proved it would have removed [the
employee] independent of his protected disclosures.” Rob-
inson v. Dep’t of Veterans Affs., 923 F.3d 1004, 1019
(Fed. Cir. 2019).
Mr. Oliva makes two arguments with respect to this is-
sue: “(1) the Board failed to properly apply the required
Carr analysis,” and “(2) under a proper Carr analysis that
accounts for all relevant evidence, reversal or, at minimum,
vacatur is required.” Petitioner’s Br. 19. As explained be-
low, we disagree.
i.
Contrary to Mr. Oliva’s argument, the Board did not
need to re-analyze the Carr factors because the initial de-
cision became the Board’s final decision when the Board
denied Mr. Oliva’s petition for review. Final Order at *1
(“[W]e DENY the petition for review and AFFIRM the ini-
tial decision, which is now the Board’s final decision.”);
5 C.F.R. § 1201.113(b) (“If the Board denies all petitions for
review, the initial decision will become final when the
Board issues its last decision denying a petition for re-
view.”); see Baker v. Dep’t of Health & Hum. Servs.,
912 F.2d 1448, 1456 (Fed. Cir. 1990) (“The Board may
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OLIVA v. DVA 7
adopt the administrative judge’s decision or modify it.”).
The administrative judge substantively analyzed all three
Carr factors in the initial decision, see Initial Decision
at 38–41, so the Board had no obligation to “reinvent the
wheel,” Gonzales v. Def. Logistics Agency, 772 F.2d 887,
889 (Fed. Cir. 1985); see In re Cree, Inc., 818 F.3d 694, 698
n.2 (Fed. Cir. 2016) (“It is commonplace in administrative
law for a reviewing body within an agency to adopt a fact-
finding body’s findings. On judicial review, the adopted
material is treated as if it were part of the reviewing body’s
opinion.”). Therefore, the Board was not required to rean-
alyze the Carr factors.
ii.
Substantial evidence supports the Board’s analysis of
the Carr factors.
The first Carr factor is “the strength of the agency’s
evidence in support of its personnel action.” Carr,
185 F.3d at 1323. We do not focus our review of
this Carr factor on whether the agency has put for-
ward some evidence purporting to show independ-
ent causation, but instead we focus on whether
such evidence is strong.
Miller, 842 F.3d at 1259.
Substantial evidence supports the Board’s analysis of
the first Carr factor. “[P]roof of one or more, but not all, of
the supporting specifications is sufficient to sustain the
charge.” Burroughs v. Dep’t of Army, 918 F.2d 170, 172
(Fed. Cir. 1990). The administrative judge walked through
extensive testimony regarding inappropriate conduct, find-
ing that each of ten specifications was supported based
largely on credibility determinations that are virtually un-
reviewable on appeal. Initial Decision at 4–30; see Cham-
bers v. Dep’t of Interior, 515 F.3d 1362, 1370 (Fed. Cir.
2008). On appeal, Mr. Oliva does not contest that substan-
tial evidence supports the administrative judge’s decision
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OLIVA v. DVA 8
that each of the ten specifications was proved by a prepon-
derance of the evidence. See generally Petitioner’s Br. Ac-
cordingly, because substantial evidence supports finding
that Mr. Oliva engaged in inappropriate conduct, the first
Carr factor supports the VA’s decision to remove Mr. Oliva.
Mr. Oliva makes two principal arguments with respect
to the first Carr factor: the Board “(i) disregarded material
impeachment evidence and refused to hear testimony from
the lead investigator, in violation of Whitmore” and
“(ii) failed to account for the lack of corroboration as to ac-
cuser testimony and also failed to consider Mr. Oliva’s
strong character and performance evidence, in violation of
Miller.” Petitioner’s Br. 4; see generally id. at 23–40. Each
of these arguments fails to persuade us.
In Whitmore, the petitioner requested the administra-
tive judge’s approval to call certain witnesses to show bias
on the part of the investigator and other officials and to
provide proof that the stated reasons for his removal “were
a mere pretext for his being removed due to his whistle-
blowing disclosures.” 680 F.3d at 1363. The administra-
tive judge excluded these witnesses on relevance grounds,
“stating that the witnesses ‘are not material to the central
issue in this matter, but rather have only peripheral rele-
vance.’” Id. at 1368–69 (citation omitted). We concluded
that the administrative judge abused her discretion be-
cause the petitioner “was entitled to introduce testimony
calling into question the veracity and reliability of [the in-
vestigator’s] report and the interviewees’ statements
therein, since at least some evidence in the record sug-
gest[ed] that [the] report was relied on . . . to remove [the
petitioner].” Id. at 1369. Accordingly, we held “that it is
an abuse of discretion to categorically exclude all witnesses
offered to testify as to evidence under the Carr factors on
relevance grounds” because “[d]oing so prevents whistle-
blowers from effectively presenting their defenses, and
leaves only the agency’s side of the case in play.” Id.
at 1370. We further concluded that the administrative
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OLIVA v. DVA 9
judge erred by discussing “virtually none of the key evi-
dence” relating to petitioner’s theory, leaving the court un-
able to “meaningfully evaluate whether substantial
evidence exists to support the AJ’s conclusions.” Id.
at 1375–76. Mr. Oliva contends that each of these er-
rors—excluding key witness testimony and failing to dis-
cuss much of the pertinent evidence to petitioner’s theory—
occurred in this case. See Petitioner’s Br. 23–36.
First, we disagree with Mr. Oliva’s argument that the
administrative judge violated Whitmore by excluding the
testimony of the AIB lead investigator, Dr. Russell. Peti-
tioner’s Br. 39–40. Whitmore does not stand for the propo-
sition that it is per se an abuse of discretion for an
administrative judge to exclude an investigator and the
witnesses interviewed during an investigation from testi-
fying. Rather, the court held that “it is an abuse of discre-
tion to categorically exclude all witnesses offered to testify
as to evidence under the Carr factors on relevance
grounds.” Whitmore, 680 F.3d at 1370 (emphasis added);
see also Beck v. Dep’t of Navy, 997 F.3d 1171, 1185
(Fed. Cir. 2021) (interpreting Whitmore to hold that “‘it is
an abuse of discretion to categorically exclude all wit-
nesses’ who may be relevant to a plaintiff’s case” (citing
id.)). So long as a whistleblower can “effectively present[ ]
[his] defenses,” Whitmore, 680 F.3d at 1370, a “determina-
tion to allow or exclude witness testimony is within the
sound discretion of the administrative judge.” Guise
v. Dep’t of Just., 330 F.3d 1376, 1379 (Fed. Cir. 2003).
The administrative judge’s decision to exclude testi-
mony from Dr. Russell in this case was within her discre-
tion. As an initial matter, the administrative judge
excluded Dr. Russell at Mr. Oliva’s request. App’x 1028.
At the hearing, the administrative judge agreed with
Mr. Oliva that Dr. Russell’s testimony was not relevant to
the issues before the Board and withdrew the previous ap-
proval of Dr. Russell as a witness. App’x 343. Thus,
Mr. Oliva has waived any argument that the
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OLIVA v. DVA 10
administrative judge erred in excluding Dr. Russell’s testi-
mony. In re Google Tech. Holdings LLC, 980 F.3d 858, 862
(Fed. Cir. 2020) (“Waiver is the intentional relinquishment
or abandonment of a known right.” (cleaned up)). Even if
Mr. Oliva had not waived his arguments regarding
Dr. Russell, they would be unpersuasive. Mr. Oliva had
the full opportunity to present his case, including introduc-
ing the deposition transcript of Dr. Russell. App’x 708.
The administrative judge also approved 15 other witnesses
for Mr. Oliva. App’x 1022; App’x 1028. On appeal,
Mr. Oliva has not shown that the administrative judge’s
exclusion of Dr. Russell was tantamount to the one-sided
exclusion of a petitioner’s witnesses in Whitmore or other-
wise prevented him from presenting a full defense. Thus,
we conclude that the administrative judge did not abuse
her discretion by excluding Dr. Russell as a live witness.
Second, we disagree with Mr. Oliva’s argument that
the administrative judge violated Whitmore by disregard-
ing impeachment evidence. Mr. Oliva’s arguments regard-
ing impeachment evidence invite us to re-weigh evidence
and disregard the administrative judge’s credibility deter-
minations. The administrative judge considered the total-
ity of the evidence, Initial Decision at 39, and was not
required to explicitly explain why she rejected each piece
of evidence. Lowder v. Dep’t of Homeland Sec., 504 F.3d
1378, 1383 (Fed. Cir. 2007); Medtronic, Inc. v. Daig Corp.,
789 F.2d 903, 906 (Fed. Cir. 1986) (“We presume that a fact
finder reviews all the evidence presented unless he explic-
itly expresses otherwise.”). The administrative judge ex-
tensively explained why she found each testifying witness
credible, noting consistency with prior statements, de-
meanor, and lack of motive to lie. See, e.g., Initial Decision
at 7–9, 11, 13, 15, 18. Indeed, the administrative judge
considered and rejected several of the pieces of material ev-
idence that Mr. Oliva contends she overlooked. Compare
Petitioner’s Br. 33 (“Ms. Redd (as well as Ms. Haas) had a
motive to retaliate against Mr. Oliva. Both were based in
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OLIVA v. DVA 11
Topeka while working at the HRC, and both were members
of the ‘group’ that poorly received Mr. Oliva’s praise of
Waco’s policies and practices and his criticism of and ef-
forts to reform the Topeka office.”), with Initial Decision
at 8 (“I have considered the appellant’s contention that the
allegations set forth in the agency’s proposal resulted
[from] a conspiracy among the Topeka employees and that
[Ms.] Redd failed to promptly report the comments.”).
Thus, unlike in Whitmore, the administrative judge did not
“manifestly ignore[ ], overlook[ ], or exclude[ ]” the “consid-
erable countervailing evidence” in this case. 680 F.3d
at 1376.
Mr. Oliva next argues that the Board “failed to account
for the lack of corroboration as to accuser testimony.” Pe-
titioner’s Br. 4; see also id. at 34. We have held that, where
a single witness’s testimony “was the only evidence sup-
porting” the government’s “unusual” theory, “the lack of
corroboration, the dearth of documents, emails, or records,
and even the lack of detail in [the testimony]” rendered it
so unreliable that “no reasonable factfinder could find [the
petitioner’s direct supervisor’s] conclusory testimony . . . to
be strong evidence of independent causation.” Miller,
842 F.3d at 1259–61. However, we carefully cabined our
opinion, clarifying that “we do not hold today that testi-
mony must be corroborated to support a showing of inde-
pendent causation.” Id. at 1261 (emphasis added). This
case is unlike Miller. For every specification, the adminis-
trative judge found that numerous witnesses all credibly
testified to Mr. Oliva’s inappropriate conduct, and
Ms. Redd, Ms. Howley, and Shirley Haas, the Deputy As-
sociate Director of Contact Management for the HRC, had
corroborating evidence for their testimony.3 See Initial De-
cision at 4–40; see, e.g., id. at 11 (relying on the
3 Ms. Haas “testified during the AIB but not at the
hearing.” Initial Decision at 9.
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OLIVA v. DVA 12
“corroborating testimonies of [Ms.] Redd and [Ms.] Haas.”);
id. at 13 (for Ms. Redd, relying on “contemporaneous notes
of the conversation”); id. at 21 (“[Ms. Howley’s] testimony
is also corroborated by her [report] and [Ms.] Redd’s testi-
mony.”); see also id. at 15 (finding Mr. Oliva’s testimony
not credible because he “provided contradictory versions of
events”). Thus, rather than forming the basis for a quan-
tum of proof, the uncorroborated testimony from some wit-
nesses were among many pieces of evidence, which
together provide strong evidence of independent causation.
Substantial evidence supports the administrative judge’s
conclusion that Carr factor one supports the government.
The second Carr factor is “the existence and strength
of any motive to retaliate on the part of the agency officials
who were involved in the decision.” Carr, 185 F.3d at 1323.
When applying this factor, “the Board will consider any
motive to retaliate on the part of the agency official who
ordered the action, as well as any motive to retaliate on the
part of other agency officials who influenced the decision.”
Whitmore, 680 F.3d at 1371 (internal quotation marks and
citation omitted). Here, the administrative judge recog-
nized that the deciding official, Mr. Isaacks, and the pro-
posing official, Ms. Johnson, credibly testified that they
were unaware of Mr. Oliva’s prior “whistleblowing activity”
and thus could not have been motivated to retaliate based
on that activity. Initial Decision at 40. Furthermore, the
administrative judge recognized that Mr. Eitutis had a mo-
tive to retaliate against Mr. Oliva but concluded that once
Ms. Johnson was assigned as the proposing official, Mr. Ei-
tutis was no longer involved in the action against
Mr. Oliva. Id. With respect to Ms. Johnson, Ms. Medved,
HRC Deputy Director, and Ms. Mardon, HRC Chief Busi-
ness Officer, the administrative judge determined that any
motive is weak considering the totality of the evidence, and
nothing in the record established that Mr. Eitutis exerted
any control over them with respect to the action against
Mr. Oliva. Id.
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OLIVA v. DVA 13
Regarding Carr factor two, Mr. Oliva argues the Board
failed to properly address a January 9, 2015, reprimand.4
Petitioner’s Br. 43–45. According to Mr. Oliva, Ms. John-
son received copies of prior disciplinary actions, so she
would have been aware of Mr. Oliva’s whistleblowing his-
tory. Petitioner’s Br. 44–45. Ms. Johnson’s broad state-
ment that she received “information regarding prior
disciplinary actions,” App’x 383, does not inherently con-
tradict her statement that she was unaware of any whis-
tleblowing activity. App’x 407–08. Mr. Oliva’s argument
ultimately amounts to criticizing the Board for not discuss-
ing each piece of evidence. However, the fact that the
Board did not address every piece of evidence does not
mean that the evidence was not considered. Medtronic,
789 F.2d at 906. Substantial evidence supports the
Board’s conclusion that Carr factor two favors the govern-
ment.
With respect to the third Carr factor, the Board consid-
ers “any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are
4 In the January 9, 2015 reprimand, Ms. Medved
stated that Mr. Oliva’s “allegations regarding the preselec-
tion of [an employee] are without merit, can be perceived
as slanderous, and negatively impact our organization.”
App’x 134. On November 13, 2017, in a different IRA ap-
peal, the administrative judge ordered the VA to cancel this
reprimand and expunge all reference to it from Mr. Oliva’s
personnel file. Oliva v. Dep’t of Veterans Affs., No. DA-
1221-17-0225-W-1, 2017 WL 5569372 (M.S.P.B. Nov. 13,
2017). Specifically, the administrative judge concluded
that Mr. Oliva’s perceived whistleblowing activity “was a
contributing factor in issuing the January 9, 2015 letter of
reprimand,” and the VA had failed to prove that it would
have issued the letter of reprimand “if it had not perceived
[Mr. Oliva] as a whistleblower.” Id.
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OLIVA v. DVA 14
otherwise similarly situated.” Carr, 185 F.3d at 1323.
Mr. Oliva argues that “the [g]overnment made no effort to
show that the treatment of Mr. Oliva [was] comparable to
that of similarly situated employees who are not whistle-
blowers.” Petitioner’s Br. 45. Mr. Oliva argues that “this
‘absence of relevant comparator evidence’ means that ‘the
third Carr factor cannot favor the government.’” Id. (quot-
ing Siler v. EPA, 908 F.3d 1291, 1299 (Fed. Cir. 2018)).
Although the absence of evidence regarding similarly situ-
ated employees cannot favor the government, “the absence
of any evidence relating to Carr factor three can effectively
remove that factor from the analysis.” Whitmore, 680 F.3d
at 1374; Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366
(Fed. Cir. 2022) (“Because the agency need not prove every
factor weighs in its favor, the absence of evidence related
to Carr factor three is not fatal to the agency.”). Here, the
administrative judge determined that “[t]he record does
not contain any evidence that would suggest that the
agency failed to take action against other employees who
had engaged in similar misconduct but who had not en-
gaged in protected whistleblowing activity.” Initial Deci-
sion at 40–41. Accordingly, the administrative judge
effectively removed Carr factor three from the analysis
given there was no evidence in the record to construe this
factor in favor of either party.
Considering the record as a whole and balancing the
Carr factors, substantial evidence supports the Board’s
finding that the VA clearly and convincingly proved it
would have removed Mr. Oliva independent of his pro-
tected disclosures. See Robinson, 923 F.3d at 1019.
B.
We next address whether the Board erred in overruling
Mr. Oliva’s harmful procedural error defense. See Peti-
tioner’s Br. 47–57. Mr. Oliva contends that the agency
committed a litany of errors during the AIB investigation,
including declining to speak with character witnesses,
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OLIVA v. DVA 15
failing to speak with Mr. Oliva first, and declining to inter-
view Mr. Oliva’s proposed witnesses. See id. at 51–57 (dis-
cussing conduct by the AIB). The Board concluded that
Mr. Oliva had failed to establish any harmful procedural
error because his argument “that the agency would not
have concluded that he engaged in misconduct if the AIB
had taken additional investigatory measures” was “not per-
suasive in light of the agency proving its case . . . before the
Board.” Final Order at *4. On appeal, Mr. Oliva argues
that: (1) “the Board failed to apply the correct legal stand-
ard to assess Mr. Oliva’s harmful procedural error de-
fense,” Petitioner’s Br. 48–50 (cleaned up); and (2) “the
Board’s harmless error ruling lacks substantial eviden[ce]
support,” id. at 51–57 (cleaned up). We address each argu-
ment in turn.
i.
The Board may not sustain the agency’s decision “if the
employee or applicant for employment shows harmful error
in the application of the agency’s procedures in arriving at
such decision.” 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R.
§ 1201.56(c)(1). Harmful error is “[e]rror by the agency in
the application of its procedures that is likely to have
caused the agency to reach a conclusion different from the
one it would have reached in the absence or cure of the er-
ror.” 5 C.F.R. § 1201.4(r). The focus of this analysis “is the
agency and whether the agency is likely to have reached a
different conclusion in the absence of the procedural error.”
Ward v. U.S. Postal Serv., 634 F.3d 1274, 1282 (Fed. Cir.
2011) (emphasis omitted).
Mr. Oliva argues that the Board failed to apply the cor-
rect legal standard because the Board’s decision “centered
on the perceived merits of the case before the Board rather
than on the likely impact of the procedural errors on the
agency.” Petitioner’s Br. 48. We have previously stated
that the Board may not remedy a procedural error “by per-
forming an independent analysis” to determine whether an
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OLIVA v. DVA 16
agency action was within “the tolerable limits of reasona-
bleness.” Ward, 634 F.3d at 1282 (internal citation omit-
ted). However, we have explained that the Board may
perform “a harmless error analysis,” considering “whether
the agency is likely to have reached a different conclusion
in the absence of the procedural error.” Id. In this case,
the Board properly performed a harmless error analysis. It
assessed the evidence and determined that it “[was] not
persuasive in light of the agency proving its case . . . before
the Board.” Final Order at *4; see id. (citing 5 U.S.C.
§ 7701(c)(2)(A); 5 C.F.R. § 1201.56(c)(1); 5 C.F.R.
§ 1201.4(r)). In other words, given the strength of the evi-
dence, the Board determined that it was unlikely the
agency would have reached a different conclusion absent
the error. We conclude that the Board did not legally err.
ii.
Mr. Oliva also argues that the Board’s harmless error
ruling lacks evidentiary support because the “AIB improp-
erly excluded all character witnesses from its investiga-
tion,” “imped[ed] his ability to provide a full and complete
defense,” and failed to “speak with the subject of the AIB
first.” Petitioner’s Br. 51–57. Mr. Oliva contends that
these errors tainted the investigation and subsequent pro-
ceedings. Substantial evidence supports the Board’s con-
clusion otherwise.
As an initial matter, Mr. Oliva overlooks that the AIB
is an investigative body, not an adjudicative body. “[W]hen
governmental action does not partake of an adjudication,
as for example, when a general fact-finding investigation is
being conducted, it is not necessary that the full panoply of
judicial procedures be used.” Hannah v. Larche, 363 U.S.
420, 442 (1960). For this reason, Mr. Oliva’s citations to
cases involving procedural error at agency hearings or at
the Board are inapposite. See, e.g., Petitioner’s Br. 52 (cit-
ing Litoff v. Dep’t of the Air Force, 1994 WL 521088, at *1–2
(Fed. Cir. Sept. 26, 1994) (unpublished) (procedural error
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OLIVA v. DVA 17
before the Board)); id. at 56 (citing Whitmore, 680 F.3d at
1370) (same)).5 The initial AIB investigation was not re-
quired to follow the same strict procedures that Mr. Oliva
was entitled to receive, and did receive, before the agency
and the Board.
To the extent that Mr. Oliva argues that flaws in the
AIB investigation impeded his ability to provide a full and
complete defense before the agency and the Board, see Pe-
titioner’s Br. 53–54, substantial evidence supports the
Board’s finding that this argument is unpersuasive. Sub-
stantial evidence supports the Board’s finding that before
the AIB Mr. Oliva “discussed all of the documentation that
he provided to the AIB and explained his position through
extensive argument.” Initial Decision at 42;
App’x 219–235 (interview transcript); App’x 315–16
at 20:13–21:2 (Dr. Russell testifying that the AIB “care-
fully” reviewed documents provided by Mr. Oliva). Before
the agency, Mr. Oliva gave a five-hour oral response and
was able to present contrary evidence. See, e.g., App’x 429
at 88:1–24 (Mr. Isaaks testifying that Mr. Oliva testified
for five hours at his oral response meeting, where Mr. Oliva
“presented a large amount of information” and “wanted to
5 For the same reason, Mr. Oliva’s reliance on VA
Handbook 700 for various procedures (that he contends
that the AIB was required to follow) fails. See Petitioner’s
Br. 51, 52 n.4, 53 n.5, 54–56. The VA Handbook explains
that “[b]ecause administrative investigation boards are in-
vestigative bodies and do not determine [due process] in-
terests, such rights are inapplicable to administrative
investigations. The employee, therefore, has no ‘due pro-
cess’ right to advance notice; or to a notice of charges, nor
does the employee have a right to review or to challenge
adverse evidence.” App’x 120 (Dep’t of Veterans Affs., VA
Handbook 0700 app. I, at I-1 (July 31, 2002)) (internal ci-
tations omitted).
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OLIVA v. DVA 18
walk through documents one by one”). Lastly, before the
Board Mr. Oliva was able to present his full case, including
calling numerous witnesses. App’x 1022. At each stage,
the adjudicator determined that the evidence supported his
removal. In the circumstances of this case, Mr. Oliva has
not shown that the application of the procedures would
have been likely to cause the agency to reach a different
conclusion. See, e.g., 5 C.F.R. § 1201.4(r). Substantial evi-
dence supports the Board’s rejection of Mr. Oliva’s proce-
dural error defense.
* * *
While Mr. Oliva has raised a number of challenges to
the Board’s determination, in sum, we affirm because the
Board did its job: It considered the factors and evidence,
made credibility determinations, and did so while following
our precedent.
IV. CONCLUSION
We have considered Mr. Oliva’s remaining arguments
and find them unpersuasive. We affirm.
AFFIRMED
COSTS
No costs.
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