Steven A. McKinnis v. Department of the Interior

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN A. MCKINNIS,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2024-1136
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-18-0200-W-1.
______________________
Decided: January 22, 2026
______________________
K ATHERINE L EASE, Alan Lescht and Associates, PC,
Washington, DC, argued for petitioner. Also represented
by J ENNIE CATHRYNE BLAINE WATSON.
L IRIDONA S INANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ELIZABETH M ARIE HOSFORD, P ATRICIA M. MCCARTHY ,
BRETT SHUMATE.
______________________
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MCKINNIS v. INTERIOR 2
Before D YK, L INN, and HUGHES , Circuit Judges.
HUGHES , Circuit Judge.
Steven A. McKinnis petitions for review of a Merit Sys-
tems Protection Board decision denying corrective action in
his whistleblower retaliation claim. We affirm.
I
A
Mr. McKinnis worked as an auditor for the Depart-
ment of the Interior’s Office of Natural Resources Revenue
from May 9, 2011, until he was removed on January 19,
2018, for failure to demonstrate acceptable performance af-
ter a reasonable opportunity to improve.
Prior to his removal, the agency took several adverse
personnel actions against Mr. McKinnis. In July 2016,
Mr. McKinnis received a letter of reprimand from his then-
supervisor, Adrienne Tomlin, for two instances of failure to
provide accurate information—one related to his attempts
to use leave under the Family and Medical Leave Act
(FMLA) and another related to his attempts to adjust his
work-related travel plans. Less than a week later,
Mr. McKinnis filed a grievance alleging the agency was vi-
olating FMLA and its own travel regulations, and that he
received the letter of reprimand as the result of “something
personal” or “retaliation.” J.A. 104–06. Mr. McKinnis’s
grievance was denied by John Barder, another manage-
ment official, on August 29, 2016.
Mr. McKinnis later applied to and was transferred to a
different team based out of the same office that was super-
vised by a different member of management, Kim Potts.
Shortly after, the agency launched an investigation into
the office’s working conditions. It revealed a “toxic and un-
healthy work environment,” and noted Mr. McKinnis was
a “significant contributor[ ]” to creating that environment.
J.A. 989–90. The final report also emphasized that
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MCKINNIS v. INTERIOR 3
management allowed unhealthy behaviors to manifest and
recommended Ms. Potts attend supervisory training on
dealing with difficult situations and people. Mr. McKinnis
participated in this investigation and submitted a written
statement on March 8, 2017, outlining his concerns with
management and the office.
On April 7, 2017, Ms. Potts proposed suspending
Mr. McKinnis for 14 days based on two charges. First,
Ms. Potts alleged that Mr. McKinnis provided inaccurate
information to supervisors when he stated he was called by
a state auditor about a specific compliance review, when in
fact he had been the one to place the call. Second, Ms. Potts
alleged that Mr. McKinnis exhibited disrespectful conduct
toward a supervisor when, during a conversation regarding
approval of his work credit card statement, he interrupted
Ms. Potts to state “that’s a lie, she is lying.” J.A. 154.
Mr. McKinnis contested those facts, but he was suspended
by the deciding official, Mr. Barder, on May 16, 2017.
On July 6, 2017, Ms. Potts placed Mr. McKinnis on a
performance improvement plan (PIP) because his perfor-
mance fell below a satisfactory level. Mr. McKinnis was not
completing or making timely progress on his assigned au-
dits, which in one instance necessitated transferring the
assignment to another auditor. When Mr. McKinnis did
not sufficiently improve by the end of his review period,
Ms. Potts proposed his removal from federal service.
Mr. McKinnis did not submit a response to his proposed re-
moval, and a different deciding official, John Mehlhoff, re-
moved Mr. McKinnis effective January 19, 2018.
B
On October 14, 2016, Mr. McKinnis filed the underly-
ing whistleblower retaliation complaint with the Office of
Special Counsel (OSC), arguing his letter of reprimand was
retaliation for his administrative grievance and general al-
legations of agency mismanagement through various other
reporting mechanisms. Mr. McKinnis periodically
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MCKINNIS v. INTERIOR 4
amended his OSC complaint, finally alleging that his letter
of reprimand, suspension, PIP, and removal were all the
result of retaliation. On January 10, 2018, OSC advised
Mr. McKinnis it would not be taking any action in his case;
OSC closed the case on January 31, 2018.
On February 16, 2018, Mr. McKinnis filed an individ-
ual right of action (IRA) appeal with the MSPB. After a
two-day hearing, the administrative judge issued an initial
decision denying Mr. McKinnis’s request for corrective ac-
tion. The administrative judge found that several disclo-
sures were protected under the Whistleblower Protection
Act as amended in 2012 (WPA), including his grievance
and March 2017 written statement, and that they contrib-
uted to the personnel actions at issue. But the administra-
tive judge denied corrective action because the agency had
successfully proven its affirmative defense, i.e., that it
would have taken the same actions notwithstanding
Mr. McKinnis’s disclosures.
Mr. McKinnis disagreed and petitioned for Board re-
view. In its review, the Board sua sponte re-assessed the
protected nature of Mr. McKinnis’s asserted disclosures.
As relevant here, the Board determined that Mr. McKin-
nis’s grievance was not a protected disclosure under the
WPA, and that while his March 2017 written statement
was protected, he did not successfully prove it contributed
to any of the asserted personnel actions. Because
Mr. McKinnis had not proven his case in chief, the Board
vacated the administrative judge’s findings regarding the
agency’s affirmative defense. The Board then denied
Mr. McKinnis’s petition for review and affirmed the admin-
istrative judge’s denial of corrective action.
Mr. McKinnis timely appeals. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
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MCKINNIS v. INTERIOR 5
II
Our review of Board decisions is limited. We may only
set aside the Board’s decision if it is “(1) arbitrary, capri-
cious, 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) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c). We re-
view the Board’s legal conclusions de novo and its factual
findings for substantial evidence. See Hansen v. Dep’t of
Homeland Sec., 911 F.3d 1362, 1366 (Fed. Cir. 2018).
Mr. McKinnis raises two general arguments on appeal.
First, he argues the Board erred when it concluded that his
grievance is not a protected disclosure that can support an
IRA claim under the WPA. Second, Mr. McKinnis chal-
lenges the Board’s finding that even though his
March 2017 written statement was protected by the WPA,
he was not entitled to corrective action because he did not
prove it was a contributing factor in his suspension, PIP,
or removal. We address each argument in turn.1
A
Mr. McKinnis argues the Board erred when it found
that his grievance was not a qualifying protected disclosure
under the WPA and thus was outside the Board’s jurisdic-
tion to review as part of his IRA appeal. He contends his
grievance constitutes either a protected disclosure under
section 2302(b)(8) or a protected activity under
1 Mr. McKinnis also made a third argument: that
the agency failed to prove its affirmative defense, i.e., that
it would have taken the same adverse personnel actions
absent his whistleblowing activity. But because the Board
vacated the administrative judge’s findings on that ques-
tion and did not reach the issue during its review, that ar-
gument is not properly before us. See Delalat v. Dep’t of Air
Force, 557 F.3d 1342, 1346 (Fed. Cir. 2009).
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MCKINNIS v. INTERIOR 6
section 2302(b)(9)(A)(i). We disagree.
The WPA gives federal employees an individual right
of action to seek corrective action from the MSPB for per-
sonnel actions based on specified prohibited practices, in-
cluding those outlined in 5 U.S.C. § 2302(b)(8) and
2302(b)(9)(A)(i). See 5 U.S.C. § 1221(a). In relevant part,
section 2302(b)(8) protects a federal employee’s disclosure
of government abuse of authority or violation of law, rule,
or regulation. And Mr. McKinnis argues his grievance
qualifies because it contained disclosures of agency abuse
of authority and violations of FMLA and travel regulations.
Pet. Br. 27–28 (citing 5 U.S.C. § 2302(b)(8)(A)). But our
caselaw is clear: disclosures in grievances, no matter their
substance, are protected by section 2302(b)(9) not sec-
tion 2302(b)(8). See, e.g., Serrao v. Merit Sys. Prot. Bd.,
95 F.3d 1569, 1576 (Fed. Cir. 1996); Spruill v. Merit Sys.
Prot. Bd., 978 F.2d 679, 690–91 (Fed. Cir. 1992). The Board
correctly concluded Mr. McKinnis’s grievance could not
support an IRA appeal under section 2302(b)(8).
Section 2302(b)(9) generally protects against retalia-
tion for exercising a grievance right, but it distinguishes
between (i) exercising a grievance right “with regard to
remedying a violation of [section 2302(b)(8)]” and (ii) exer-
cising a grievance right regarding anything else. Compare
5 U.S.C. § 2302(b)(9)(A)(i), with 5 U.S.C.
§ 2302(b)(9)(A)(ii). Only the former can serve as the basis
for an IRA appeal under the WPA—that is, a grievance
must pertain to remedying an instance of retaliation for
whistleblowing, as described in section 2302(b)(8), for it to
support an IRA appeal to the board. See 5 U.S.C.
§§ 1221(a), 2302(b)(9)(A)(i); Young v. Merit Sys. Prot. Bd.,
961 F.3d 1323, 1329 (Fed. Cir. 2020). Retaliation for filing
a grievance pertaining to any other subject is properly ad-
dressed by other mechanisms, not an IRA appeal. See
Young, 961 F.3d at 1329.
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MCKINNIS v. INTERIOR 7
On appeal, Mr. McKinnis argues his grievance falls un-
der section 2302(b)(9)(A)(i) because it contains assertions
that his letter of reprimand was the result of “retaliation.”
Pet. Br. 27–28. And while he concedes there is no mention
of retaliation for whistleblowing in his grievance, he con-
tends that is inconsequential because (1) his grievance was
filed pro se, and (2) it is the substance of his grievance, not
the label he ascribes to it, that dictates whether it is pro-
tected. Id. While we agree that it is the substance of the
grievance that controls this inquiry, we find that the griev-
ance’s vague and singular assertion of “retaliation” does
not imply retaliation for whistleblowing. Nor could it: the
letter of reprimand could not possibly be retaliation for the
whistleblowing activities Mr. McKinnis alleges on appeal
because he received the letter of reprimand before either
purported disclosure occurred. Therefore, we affirm the
Board’s findings that Mr. McKinnis’s grievance is pro-
tected by section 2302(b)(9)(A)(ii) rather than sec-
tion 2302(b)(9)(A)(i), and that his grievance therefore
cannot serve as the basis for an IRA appeal.
B
Mr. McKinnis also challenges the Board’s determina-
tion that he is not entitled to corrective action with respect
to his March 2017 written statement—which both parties
agree is protected—because he did not prove it contributed
to any of the personnel actions at issue. We also reject this
argument.
To prevail under the WPA, Mr. McKinnis must prove
both that he made a protected disclosure and that it was a
contributing factor in the agency’s personnel actions. See
5 U.S.C. § 1221(a), (e)(1). The statute expressly provides
that the “contributing factor” element can be proven by cir-
cumstantial evidence. 5 U.S.C. § 1221(e)(1). One way to do
so is via the knowledge/timing test, which requires evi-
dence that “(A) the official taking the personnel action
knew of the disclosure or protected activity; and (B) the
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MCKINNIS v. INTERIOR 8
personnel action occurred within a period of time such that
a reasonable person could conclude that the disclosure or
protected activity was a contributing factor in the person-
nel action.” Id. Mr. McKinnis argues the Board erred when
it concluded neither Mr. Barder nor Ms. Potts had
knowledge of his protected disclosure, and that, regardless,
other circumstantial evidence indicates a connection be-
tween his protected disclosure and the agency’s actions.
The Board’s decision is supported by substantial evi-
dence. Regarding Mr. Barder, the deciding official for
Mr. McKinnis’s suspension, the administrative judge ex-
pressly credited Mr. Barder’s testimony that he “did not
perceive [Mr. McKinnis] as a whistleblower and was una-
ware of any protected disclosures [he] may have made.”
J.A. 29. This credibility finding was undisturbed by the
Board in its review, and Mr. McKinnis’s single sentence as-
sertion that “Barder was also aware” of his protected dis-
closure is insufficient to overcome the administrative
judge’s virtually unreviewable credibility determination on
appeal. Pet. Br. 32; see Hambsch v. Dep’t of Treasury,
796 F.2d 430, 436 (Fed. Cir. 1986) (“To the extent that the
petitioner’s claim is based upon a challenge to the presid-
ing official’s credibility determinations, we reiterate our
previous holdings that these determinations are virtually
unreviewable . . . .”).
Regarding Ms. Potts, the official who placed
Mr. McKinnis on a PIP and proposed his suspension and
removal, Mr. McKinnis argues it is clear she knew
Mr. McKinnis engaged in protected activities because she
called Mr. McKinnis a “troublemaker” and referenced him
throughout her written statement to the administrative in-
vestigator. Pet. Br. 29–32. But the relevant inquiry is not
whether Ms. Potts knew Mr. McKinnis engaged in pro-
tected activities generally—the relevant inquiry is whether
she knew of the specific protected activity at issue here: his
March 2017 statement. See 5 U.S.C. § 1221(e)(1). None of
the statements Mr. McKinnis identifies indicate Ms. Potts
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MCKINNIS v. INTERIOR 9
knew of the March 2017 written statement in particular.
And the Board’s conclusion that she had no knowledge is
supported by Ms. Potts’s testimony that she never received
or saw the report or attached statements and by record ev-
idence that she was not copied on any of the related mate-
rials.2
The Board also relied on evidence other than
knowledge and timing. The Board noted the agency had
strong performance-based reasons for suspending
Mr. McKinnis, placing him on a PIP, and removing him. At
the time Mr. McKinnis was placed on a PIP, his timely
completion rate was 0% and improved to only 10% during
the PIP period—the Board emphasized that “fail[ing] to
achieve minimally successful performance . . . by such a
wide margin” supports the agency’s actions. J.A. 8–9. And
the Board emphasized that any retaliatory motive result-
ing from Mr. McKinnis’s participation in the administra-
tive investigation was likely minimal because there was no
indication the investigation resulted in any adverse conse-
quences for any of his supervisors. This is substantial evi-
dence supporting the Board’s finding that Mr. McKinnis’s
March 2017 statement was not a contributing factor to his
suspension, PIP, or removal. Mr. McKinnis’s argument to
the contrary asks us to re-weigh the evidence on appeal,
which we decline to do. See Jones v. Dep’t of Health & Hum.
2 The Board did not err in overturning the adminis-
trative judge’s finding that Ms. Potts “did not deny” that
she was aware Mr. McKinnis participated in the internal
investigation. The administrative judge’s conclusion was
not the result of any demeanor-based credibility determi-
nations, and so the Board was free to re-weigh the evidence
and substitute its own decision as to the facts or law, sub-
ject to our substantial evidence review. See J.A. 30–31;
Haebe v. Dep’t of Just., 288 F.3d 1288, 1302 (Fed. Cir.
2002).
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MCKINNIS v. INTERIOR 10
Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016) (“Under the
substantial evidence standard of review, we do not reweigh
evidence on appeal.” (cleaned up)).
III
We have considered Mr. McKinnis’s other arguments
and find them unpersuasive. The decision of the Board is
affirmed.
AFFIRMED
COSTS
No costs.
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