Salazar v. DVA — Federal Circuit upheld denial of whistleblower corrective action

Case
Anthony Salazar v. Department of Veterans Affairs
Court
U.S. Court of Appeals for the Federal Circuit
Judge
Judge Prost (George W. Bush, 2001); Judge Hughes (Barack Obama, 2013)
Date Decided
August 3, 2026
Docket No.
26-1069
Topics
Whistleblower retaliation; Federal employment; MSPB; Administrative review
Source
Read the full opinion

Background

Anthony Salazar worked for the Department of Veterans Affairs as a Motor Vehicle Operator Supervisor and temporarily performed the duties of Chief of Transportation. In October 2013, he reported problems involving the agency’s vehicle fleet, including missing vehicles and suspected fleet-card fraud. An Administrative Investigative Board later found that the Engineering Service had failed to manage the fleet properly.

After the investigation, the VA revised Salazar’s performance standards, initially denied him requested fleet-management training, placed him on a performance improvement plan, and ultimately removed him after he failed the plan. Salazar sought corrective action under the Whistleblower Protection Act, alleging that these four actions were retaliation for his disclosures. On remand from the Merit Systems Protection Board, an administrative judge found that the VA had shown by clear and convincing evidence that it would have taken the same actions without Salazar’s whistleblowing. The decision became final, and Salazar petitioned for Federal Circuit review.

The Court’s Holding

The Federal Circuit affirmed in a nonprecedential per curiam opinion. It held that substantial evidence supported the Board’s determination that the VA would have denied the training request, revised Salazar’s performance standards, placed him on a performance improvement plan, and removed him even absent his protected disclosures.

The court upheld the administrative judge’s analysis of the Carr factors. The agency presented strong evidence supporting its actions, including evidence that officials already knew about fleet-management problems, that Salazar’s disclosures did not cause the investigation, and that Salazar failed the performance improvement plan. Although Salazar’s supervisor had some motive to retaliate, substantial evidence supported the finding that the motive was not strong. The limited comparator evidence was neutral or weighed only slightly against the agency, and the appellate court would not reweigh evidence or disturb supported credibility findings.

The court also rejected Salazar’s claim that critical statements in the administrative judge’s decision demonstrated bias. The comments reflected the judge’s assessment of Salazar’s credibility and portrayal of events, not the deep-seated antagonism required to establish impermissible bias.

Key Takeaways

  • An agency can defeat a prima facie whistleblower-retaliation claim by proving with clear and convincing evidence that it would have taken the same personnel actions without the protected disclosures.
  • The Federal Circuit generally will not reweigh evidence or disturb an administrative judge’s supported credibility determinations on appeal.
  • Critical judicial comments do not establish bias unless they demonstrate deep-seated favoritism or antagonism making fair judgment impossible.

Why It Matters

The decision illustrates how strong, independently supported evidence of performance deficiencies can sustain an agency’s same-action defense even when a supervisor had some retaliatory motive. It also underscores the difficulty of overturning MSPB factfinding and credibility assessments under substantial-evidence review.

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