Anthony Salazar v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY SALAZAR,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2026-1069
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-15-0660-B-1.
______________________
Decided: August 3, 2026
______________________
ANTHONY SALAZAR , Pico Rivera, CA, pro se.
STEPHANIE F LEMING, 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 P ROST , HUGHES , and STOLL , Circuit Judges.
P ER CURIAM .
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SALAZAR v. DVA 2
Anthony Salazar petitions for review of a decision by
the Merit Systems Protection Board denying corrective ac-
tion under the Whistleblower Protection Act. Because we
conclude that substantial evidence supports the Board’s de-
termination that the agency would have taken the same
personnel actions against Mr. Salazar absent his protected
whistleblowing activity, we affirm.
I
A
Mr. Salazar was employed by the Department of Vet-
erans Affairs as a Motor Vehicle Operator (MVO) Supervi-
sor in the agency’s Greater Los Angeles Healthcare
System. Mr. Salazar temporarily assumed the duties of his
supervisor, Chief of Transportation Glenda Davidson, after
her medical retirement in November 2012 until the posi-
tion was filled in July 2014. During that time, Mr. Salazar
managed roughly 450 government vehicles and the associ-
ated fleet card (credit card) for each vehicle. While serving
as Acting Chief of Transportation, Mr. Salazar reported to
the agency’s Chief of Engineering Service, Rob-
ert Benkeser.
In the fall of 2013, issues came to light with the man-
agement and oversight of vehicles and fleet cards in the
Community Care Homeless Program. On October 10, 2013,
Mr. Salazar emailed Mr. Benkeser, reporting “major is-
sues” with the fleet and detailing immediate corrective
steps already underway. S.A. 144.1 On October 24, 2013,
Mr. Salazar sent a second email, expressing urgency and
providing additional updates, including missing vehicles
and suspected fleet card fraud. S.A. 152. On January 10,
1 S.A. refers to Mr. Salazar’s separately filed appen-
dix. ECF No. 8. SAppx refers to the supplemental appendix
included at the end of the Respondent’s Informal Brief.
ECF No. 9.
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SALAZAR v. DVA 3
2014, the Administrative Investigative Board (AIB) was
convened to investigate the agency’s management of the
fleet. The AIB issued a report on March 6, 2014, finding
that Engineering Service failed to properly manage the
fleet. The AIB recommended various remedial actions and
issued a letter of counseling to Mr. Benkeser as Chief of
Engineering Service.
After the AIB investigation and report, Mr. Benkeser
announced revised performance standards applicable to
Mr. Salazar’s MVO Supervisor position effective
June 2014. Whereas the prior standards were more gener-
alized, the revised standards contained details outlining
specific duties and permissible error rates. Compare
S.A. 150–51, with SAppx 107–10. Around this same time,
in March 2014, Mr. Salazar was informed of a fleet man-
agement training opportunity and requested to take part.
Mr. Benkeser declined his request, explaining that, until
more departmental changes were implemented based on
the AIB investigation, it was too premature “to take full
advantage of the training.” S.A. 175. Mr. Salazar was ulti-
mately approved for and underwent the training in Sep-
tember 2014.
On September 17, 2014, Mr. Benkeser informed
Mr. Salazar that his performance under the new standards
was unsatisfactory, and he was placed on a Performance
Improvement Plan (PIP). See S.A. 178–84; SAppx 103–06.
Under the PIP, Mr. Salazar had ninety days to meet the
“fully successful” standards or face demotion or removal.
S.A. 178. He failed to do so, and the agency removed
Mr. Salazar effective February 4, 2015.
B
On June 29, 2015, Mr. Salazar, then represented by
counsel, filed an individual right of action appeal with the
Merit Systems Protection Board seeking corrective action
under the Whistleblower Protection Act (WPA). Mr. Sala-
zar alleged that the agency took four prohibited personnel
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SALAZAR v. DVA 4
actions against him in retaliation for his October 2013
emails: (1) denying his requested training, (2) changing
the performance standards for his MVO Supervisor posi-
tion, (3) placing him on a PIP, and (4) removing him.
Mr. Salazar’s request for corrective action was initially
denied on the basis that he had failed to prove that his Oc-
tober 2013 emails qualified as protected disclosures under
the WPA. On review, the Board disagreed, concluding that
he had established a prima facie case of whistleblower re-
taliation and remanding for an assessment of the agency’s
affirmative defense. Salazar v. Dep’t of Veterans Affs.,
No. SF-1221-15-0660-W-1, 2022 WL 17661583, at *6–10
(M.S.P.B. Dec. 13, 2022) (Remand Order). Specifically, the
Board instructed the administrative judge to “giv[e]
weight” to certain evidence and reassess the factors set out
in Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999),2 to determine whether the agency
had proven “by clear and convincing evidence that it would
have taken the personnel actions in the absence of
[Mr. Salazar’s] whistleblowing.” Remand Order, at *9–10.
C
On remand, the administrative judge assessed each of
the Carr factors and concluded the agency met its burden.
Salazar v. Dep’t of Veterans Affs., No. SF-1221-15-0660-
2 In determining whether the agency has met its
burden, the administrative judge considers all relevant fac-
tors, including those set out in Carr. These factors consider
“the strength of the agency’s evidence in support of its per-
sonnel action,” “the existence and strength of any motive to
retaliate” by agency officials involved in the decision, and
“any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are other-
wise similarly situated.” Carr, 185 F.3d at 1323.
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SALAZAR v. DVA 5
B-1, 2024 MSPB LEXIS 1413, at *82 (Mar. 15, 2024) (Deci-
sion). For each personnel action, the administrative judge
found that: (1) the agency’s evidence in support was “rela-
tively strong,” e.g., id. at *12; (2) there was a motive to re-
taliate but “it was not strong,” e.g., id. at *25; and (3) the
minimal information on whether similar actions were
taken with non-whistleblowers was “neutral or at most cut-
ting ever so slightly against the agency,” e.g., id. at *42.
The administrative judge therefore denied Mr. Salazar’s
request for corrective action. This decision became final on
September 30, 2025.
Mr. Salazar, now proceeding pro se, timely appeals. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
We set aside a Board decision only if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance 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.
§ 7703(c). The petitioner has the burden of establishing re-
versible error in the Board’s decision. Sistek v. Dep’t of Vet-
erans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020). We review
the Board’s legal conclusions de novo and its factual find-
ings for substantial evidence. Brenner v. Dep’t of Veterans
Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021). Substantial ev-
idence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (ci-
tation omitted). Credibility determinations, however, are
“virtually unreviewable” on appeal. Hambsch v. Dep’t of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
III
Liberally construing Mr. Salazar’s briefing on appeal,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007), Mr. Salazar
advances two categories of arguments. First, that the ad-
ministrative judge failed to consider certain relevant facts,
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SALAZAR v. DVA 6
resulting in a flawed weighing of the Carr factors. Second,
that the administrative judge exhibited bias that tainted
the proceedings.
A
1
We begin with Mr. Salazar’s arguments as they relate
to the administrative judge’s analysis of the first Carr fac-
tor, which considers the strength of the agency’s reasons
for taking the challenged personnel practices. According to
Mr. Salazar, the agency’s stated reasons for the personnel
actions all stemmed from the AIB investigation, which, in
turn, was prompted by his disclosures. Thus, he argues, the
agency’s asserted non-retaliatory justifications were not
truly independent of his protected disclosures. He contends
that the administrative judge’s contrary finding—that his
disclosures did not cause the AIB investigation—led the
administrative judge to erroneously weigh this factor
strongly in the agency’s favor. We disagree.
Throughout the proceedings, a factual dispute existed
as to whether the fleet issues were first brought to light by
Mr. Salazar’s 2013 emails or if agency officials were al-
ready aware to some degree. The administrative judge
found the latter. He credited testimony that agency offi-
cials were already aware of the fleet issues and that the
AIB investigation did not occur because of Mr. Salazar’s
emails. See Decision, 2024 MSPB LEXIS 1413, at *32 (find-
ing Mr. Benkeser’s testimony denying that the AIB inquiry
resulted from Mr. Salazar’s disclosures to be “earnest,
forthright, plausible, and ultimately believable” and cor-
roborated by other credible testimony and evidence). The
administrative judge also recognized a meaningful differ-
ence between Mr. Benkeser holding Mr. Salazar partially
responsible for the AIB’s letter of counseling because he
poorly managed fleet operations while serving as Chief of
Transportation and holding him responsible because his
disclosures triggered the AIB reprimand. Id. at *36–41.
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SALAZAR v. DVA 7
We find that the administrative judge’s findings are
supported by substantial evidence, including evidence that
Mr. Salazar did not challenge. See id. at *66–67 (noting
Mr. Salazar did not challenge or dispute several “identified
failures in other sub-elements of his critical job elements”);
see also id. at *76–79 (stating Mr. Salazar’s concession that
he failed his PIP was, alone, sufficient to prove the charge
underlying Mr. Salazar’s removal). Several witnesses tes-
tified that Mr. Salazar’s disclosures were not the cause of
the AIB investigation. The administrative judge thor-
oughly explained why each witness was or was not credible,
noting consistency with the record and assessing de-
meanor. See, e.g., id. at *31–34. The same is true of the ad-
ministrative judge’s findings on the agency’s non-
retaliatory evidence in support of each personnel ac-
tion—he found that the overwhelming evidence and testi-
mony in support of the actions were, on balance,
“compelling” and corroborated, and thus strongly sup-
ported the personnel actions. See, e.g., id. at *48–50. And
the strength of the agency’s evidence was bolstered by the
uncompelling or incomplete nature of Mr. Salazar’s argu-
ments against the agency’s evidence. See id. at *58
(“Benkeser’s reasoning appeared grounded in legitimacy,
and I find the appellant’s contentions otherwise unavail-
ing.”). So to the extent that Mr. Salazar asks us to discredit
witness testimony and “reweigh the evidence on appeal,” it
is not our place to do so. See, e.g., McIntosh v. Dep’t of Def.,
53 F.4th 630, 643 (Fed. Cir. 2022); Pope v. U.S. Postal
Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997) (explaining that
this court will not disturb credibility determinations unless
“inherently improbable or discredited by undisputed fact”).
We decline to disturb the administrative judge’s findings
on this factor.
2
We next consider Mr. Salazar’s arguments implicating
Carr factor two, which assesses the existence and strength
of any retaliatory motive. In the Remand Order, the Board
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SALAZAR v. DVA 8
instructed the administrative judge to assess the Carr fac-
tors, “giving weight to [Mr. Benkeser’s] motive to retaliate,
as he testified that ‘it didn’t make [Mr. Benkeser’s] day’
that he received the letter of counseling . . . , and re-
sponded in the affirmative to the question of whether he
held [Mr. Salazar] partially responsible for the letter.” Re-
mand Order, 2022 WL 17661583, at *10 (citation omitted).
Mr. Salazar argues that this statement “confirm[s
Mr. Benkeser’s] motive to retaliate,” and that the Board
confirmed as much, but that the administrative judge
failed to consider this. Pet. Br. 30–31. We are unconvinced.
It is clear from the Decision that the administrative
judge considered Mr. Benkeser’s testimony. In fact, the ad-
ministrative judge analyzed the exact testimony Mr. Sala-
zar believes was ignored and found it did evince a motive
to retaliate. See Decision, 2024 MSPB LEXIS 1413,
at *25–31. But the administrative judge correctly contin-
ued the analysis, contrary to Mr. Salazar’s apparent belief
that it should have ended there. See Smith v. Gen. Servs.
Admin., 930 F.3d 1359, 1366 (Fed. Cir. 2019) (“[T]he [ad-
ministrative judge] cannot ignore record evidence relevant
to the existence and strength of any motive to retali-
ate . . . .” (emphasis added)). The administrative judge ap-
propriately considered other record evidence, including
testimony from witnesses he deemed credible, to discern
the strength of the agency’s motive to retaliate. See Deci-
sion, 2024 MSPB LEXIS 1413, at *31–41. And after consid-
ering the record, the administrative judge concluded that,
while a motive exists, it was not strong, explaining his rea-
soning and evidentiary bases in detail. Id. We find no error
in the administrative judge’s analysis, which is supported
by substantial evidence.3
3 Mr. Salazar also argues the administrative judge
committed legal error, or acted arbitrarily and capriciously,
by minimizing Mr. Benkeser’s alleged retaliatory motive.
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SALAZAR v. DVA 9
3
We finally turn to Mr. Salazar’s argument that Carr
factor three, which considers evidence that the agency
treated similarly situated non-whistleblowers the same
way, should have weighed heavily against the agency.
Mr. Salazar argues that the administrative judge ignored
relevant evidence—namely, Mr. Salazar’s suggested com-
parator, Ms. Davidson. And Mr. Salazar suggests that be-
cause he provided a comparator, and the agency did not,
this factor should have cut against the agency. Neither ar-
gument is persuasive.
As an initial matter, we note that the administrative
judge’s failure to discuss particular contentions in a case
does not mean that they did not consider those contentions
in reaching their decision. See Lowder v. Dep’t of Homeland
Sec., 504 F.3d 1378, 1383 (Fed. Cir. 2007) (collecting
cases); see also Hartman v. Nicholson, 483 F.3d 1311, 1315
(Fed. Cir. 2007) (“That the court did not specifically men-
tion the [argument] in its opinion forms no basis for an as-
sumption that it did not consider [it] . . . .” (alterations and
omission in original)). Accordingly, we will not assume that
the administrative judge ignored Mr. Salazar’s suggested
comparator.
Separately, we are not persuaded by Mr. Salazar’s ar-
gument that the agency’s failure to suggest any comparator
necessarily warrants weighing this factor heavily against
the agency. The administrative judge acknowledged that
the agency did not produce detailed evidence of any com-
parators: the only evidence was uncorroborated testimony
that the same personnel actions were taken with other, un-
We see no such error. See Smith, 930 F.3d at 1366 (recog-
nizing analysis includes consideration of entire record to
determine strength of retaliatory motive).
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SALAZAR v. DVA 10
identified employees at unidentified times. See, e.g., Deci-
sion, 2024 MSPB LEXIS 1413, at *61. As such, the admin-
istrative judge found that this factor did not favor the
agency, explaining it was neutral or “cut[ ] ever so slightly
against the agency.” See, e.g., id. So to the extent that
Mr. Salazar wishes for us to increase the weight of this fac-
tor to be “strongly” against the agency, it again is not our
role to reweigh the evidence on appeal. McIntosh, 53 F.4th
at 643; Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366
(Fed. Cir. 2022).
* * *
Substantial evidence supports the administrative
judge’s conclusion that the agency met its burden to show
the personnel actions would have occurred absent Mr. Sal-
azar’s disclosures, especially when “considering the evi-
dence in the aggregate, including the strength of Carr
factor one.” Robinson v. Dep’t of Veterans Affs., 923 F.3d
1004, 1020 (Fed. Cir. 2019).
B
Finally, Mr. Salazar alleges that the administrative
judge was biased against him, and that this bias “tainted”
the Decision. Pet. Br. 25. Mr. Salazar cites two statements
as evidence of this bias. First, the administrative judge’s
statement that Mr. Salazar was “painting himself as [a]
helpless rube.” Decision, 2024 MSPB LEXIS 1413, at *37
n.12. Mr. Salazar emphasizes that this was “the [adminis-
trative judge’s] personal view” because the statement be-
gan with “to my mind,” suggesting that this alone supports
a finding of bias. Reply Br. 17. And second, the administra-
tive judge’s suggestion that a “cynic might say the appel-
lant made disclosures preemptively to cover his own
neglect or inefficacy, then doubled-down as the accounta-
bility check came due.” Decision, 2024 MSPB LEXIS 1413,
at *38. Mr. Salazar argues that the administrative judge’s
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SALAZAR v. DVA 11
alleged bias “harmed his right to a fair and impartial hear-
ing,” and he asks that we order that a new administrative
judge adjudicate any future proceedings. Pet. Br. 10.
Mr. Salazar fails to meet the high standard required to
establish bias. Not all comments critical of parties or their
cases necessarily constitute impermissible bias. See Liteky
v. United States, 510 U.S. 540, 555 (1994). Thus, the party
alleging bias has the burden of showing the challenged con-
duct or statements “display a deep-seated favoritism or an-
tagonism that would make fair judgment impossible.”
Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362 (Fed. Cir.
2002) (quoting Liteky, 510 U.S. at 555). Having reviewed
the Decision, we disagree that the administrative judge’s
statements demonstrate impermissible bias. Rather, the
statements merely reflect the administrative judge’s can-
did, independent judgment of Mr. Salazar’s demeanor,
credibility, and portrayal of events and his role in those
events. Judges necessarily form and express opinions as
proceedings unfold, and the mere existence or expression
of those opinions does not establish impermissible bias. See
Liteky, 510 U.S. at 555. So although the administrative
judge’s statements were critical of Mr. Salazar, they do not
demonstrate that the administrative judge was unable to
adjudicate the matter impartially.
IV
We have considered Mr. Salazar’s remaining argu-
ments and find them unpersuasive. For these reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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