`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`STEVEN J. OLIVA,
`Petitioner
`
`v.
`
`DEPARTMENT OF VETERANS AFFAIRS,
`Respondent
`______________________
`
`2019-1990
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DA-1221-17-0225-P-1.
`______________________
`
`Decided: June 15, 2020
`______________________
`
`JENNIFER CIELUCH, Covington & Burling LLP, New
`York, NY, argued for petitioner. Also represented by HAN
`PARK, RICHARD L. RAINEY, Washington, DC.
`
` IGOR HELMAN, Commercial Litigation Branch, Civil Di-
`vision, United States Department of Justice, Washington,
`DC, argued for respondent. Also represented by JOSEPH H.
`HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
` ______________________
`
`
`
`
`Case: 19-1990 Document: 47 Page: 2 Filed: 06/15/2020
`
`2
`
`OLIVA v. DVA
`
`Before PROST, Chief Judge, MAYER and DYK, Circuit
`Judges.
`Opinion of the court filed PER CURIAM.
`Opinion concurring in part filed by Chief Judge PROST.
`PER CURIAM.
`
`Steven J. Oliva appeals a decision by the Merit Sys-
`tems Protection Board (“Board”). We affirm.
`BACKGROUND
`Mr. Oliva worked as an Associate Director of Pharmacy
`Customer Care at the Department of Veterans Affairs
`(“VA”) Health Resource Center in Waco, Texas. In a series
`of emails beginning on December 30, 2014, Mr. Oliva ac-
`cused his supervisor of preselecting an applicant for a po-
`sition at the agency, which his supervisor contested as an
`allegation that he had acted improperly. On January 9,
`2015, the agency issued Mr. Oliva a letter of reprimand for
`“Inappropriate Conduct.” J.A. 2–3.
`On March 13, 2017, Mr. Oliva filed an individual right
`of action alleging that the agency’s issuance of the retalia-
`tory letter of reprimand was a prohibited personnel action
`under the Whistleblower Protection Act, 5 U.S.C.
`§ 2302(b)(8). Mr. Oliva sought damages for: (1) lost reloca-
`tion incentive pay for a job he alleges he would have re-
`ceived in El Paso absent the letter of reprimand,1 (2) non-
`
`
`1 Mr. Oliva is also seeking damages for loss of the El
`Paso position in a Claims Court case on a different theory—
`that the agency breached a settlement agreement by dis-
`seminating information about the letter of reprimand. Our
`decision in that case is being issued contemporaneously in
`Oliva v. United States, No. 19-2059.
`
`
`
`Case: 19-1990 Document: 47 Page: 3 Filed: 06/15/2020
`
`OLIVA v. DVA
`
`3
`
`pecuniary damages for emotional harm.2 The Board found
`that the agency had taken a prohibited personnel action
`against Mr. Oliva because it perceived him to be a whistle-
`blower, its perception was a contributing factor to the issu-
`ance of the letter of reprimand, and the agency had not
`shown by clear and convincing evidence that it would have
`issued the letter of reprimand absent its perception of Mr.
`Oliva as a whistleblower. The Board awarded Mr. Oliva
`$3,500 in emotional harm damages. The Board denied
`damages for loss of the El Paso opportunity. Mr. Oliva ap-
`peals, and we have
`jurisdiction under 28 U.S.C.
`§ 1295(a)(9).
`
`DISCUSSION
`The scope of our review of the Board decision is limited
`by statute. We may only set aside Board decisions that are
`“(1) arbitrary, capricious, an abuse of discretion, or other-
`wise not in accordance with law; (2) obtained without pro-
`cedures required by law, rule, or regulation having been
`followed; or (3) unsupported by substantial evidence.”
`5 U.S.C. § 7703(c).
`Mr. Oliva argues that the Board should have awarded
`him more damages. The Board may award “foreseeable
`consequential damages” and “compensatory damages” in a
`corrective action for a Whistleblower Protection Act claim.
`5 U.S.C. § 1221(g)(1)(A).
`Mr. Oliva argues that the Board erred when it denied
`him damages for lost relocation incentive pay. Mr. Oliva
`asserted that the agency’s issuance of the letter of repri-
`mand caused him not to be selected for a position at the VA
`Medical Center in El Paso, Texas. Mr. Oliva asserted that
`if he had been selected, he would have received relocation
`
`2 Mr. Oliva also asserted other theories of relief,
`which the Board denied. Mr. Oliva does not challenge
`those aspects of the Board’s decision on appeal.
`
`
`
`Case: 19-1990 Document: 47 Page: 4 Filed: 06/15/2020
`
`4
`
`OLIVA v. DVA
`
`incentive pay. The Board rejected this theory, in part be-
`cause Mr. Oliva had failed to show a causal relationship
`between the issuance of the letter of reprimand and his al-
`leged loss of relocation incentive pay. In other words, it
`was not foreseeable that the issuance of the letter of repri-
`mand would have resulted in its disclosure during Mr.
`Oliva’s employment application process. We discern no er-
`ror in the Board’s conclusion that Mr. Oliva had not estab-
`lished that his lost relocation incentive pay was a
`foreseeable consequence of the issuance of the letter of rep-
`rimand. See Bohac v. Dep’t of Agric., 239 F.3d 1334, 1340–
`41 (Fed. Cir. 2001) (noting that damages for a whistle-
`blower claim are “akin” to contract damages, which are
`rooted in the common law doctrine of foreseeability).
`Mr. Oliva also argues that he was entitled to more com-
`pensatory damages for emotional harm. The Board found
`that Mr. Oliva “established he experienced emotional harm
`as a result of the letter of reprimand.” J.A. 14. “[B]ased on
`the record and taking into account the severity and dura-
`tion of the appellant’s emotional distress and pain related
`to the . . . letter of reprimand,” the Board awarded Mr.
`Oliva $3,500 in compensatory damages. J.A. 16. The
`Board’s award was supported by substantial evidence, and
`we see no error of law.
`AFFIRMED
`COSTS
`
`No costs.
`
`
`
`Case: 19-1990 Document: 47 Page: 5 Filed: 06/15/2020
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`STEVEN J. OLIVA,
`Petitioner
`
`v.
`
`DEPARTMENT OF VETERANS AFFAIRS,
`Respondent
`______________________
`
`2019-1990
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DA-1221-17-0225-P-1.
`______________________
`PROST, Chief Judge, concurring in part.
`I join the per curiam opinion in full but write sepa-
`rately because I would affirm the Board’s decision to deny
`Mr. Oliva damages for lost relocation incentive pay for an
`additional reason that the per curiam decision does not
`reach. The record establishes that the lost relocation in-
`centive pay was available, but not guaranteed, to be offered
`to the selectee of the Associate Medical Director position
`for which Mr. Oliva applied but was not selected. The
`Board found that Mr. Oliva failed to prove by preponderant
`evidence that he would have received this incentive even if
`he had been selected for the position. J.A. 6–8. Indeed, the
`only documentary evidence submitted
`to support
`Mr. Oliva’s claim, merely shows that the selectee for the
`
`
`
`Case: 19-1990 Document: 47 Page: 6 Filed: 06/15/2020
`
`2
`
`OLIVA v. DVA
`
`position was offered a different incentive, which Mr. Oliva
`admits would not have been applicable to him. See J.A. 7–
`8; J.A. 69; see also Appellant’s Reply Br. 14. On appeal,
`Mr. Oliva has not identified any additional evidence
`demonstrating that he would have been offered the reloca-
`tion incentive if he had been selected for the position. See
`Appellant’s Op. Br. 21. Without such evidence, for this ad-
`ditional reason, I would affirm the Board’s denial of dam-
`ages based on lost relocation incentive pay.
`
`