Swartwoudt v. Department of Homeland Security, 060117 FEDFED, 2016-2724

Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
Attorney:Allen L. Swartwoudt, San Diego, CA, pro se. Igor Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Allison Kidd-Miller.
Judge Panel:Before Dyk, O'Malley, and TARANTO, Circuit Judges.
Opinion Judge:Per Curiam.
Party Name:ALLEN L. SWARTWOUDT, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent
Case Date:June 01, 2017
Docket Nº:2016-2724
 
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ALLEN L. SWARTWOUDT, Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY, Respondent

No. 2016-2724

United States Court of Appeals, Federal Circuit

June 1, 2017

         This disposition is nonprecedential.

         Petition for review of the Merit Systems Protection Board in No. SF-0752-14-0361-B-l.

          Allen L. Swartwoudt, San Diego, CA, pro se.

          Igor Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Allison Kidd-Miller.

          Before Dyk, O'Malley, and TARANTO, Circuit Judges.

          Per Curiam.

         Allen L. Swartwoudt petitions for review of a final order of the Merit Systems Protection Board ("Board") sustaining his removal and denying his whistleblower retaliation affirmative defense. We affirm.

         Background

         Beginning in April 2013, Allen L. Swartwoudt was employed as a Transportation Security Inspector Explosive Detection Canine Handler with the Transportation Security Administration ("Agency"). Swartwoudt was assigned as a team leader over three other Transportation Security Inspectors. Effective February 7, 2014, the Agency removed Swartwoudt based on a charge of inappropriate conduct. The charged inappropriate conduct included outbursts directed at management, co-workers, and members of the public that served as volunteers. Swartwoudt appealed to the Board, challenging the basis for his removal and alleging an affirmative defense of whistleblower reprisal. An administrative judge ("AJ") affirmed the removal. On review, the Board agreed with the AJ that the Agency proved the charge of inappropriate conduct, but remanded for further consideration of Swartwoudt's whistleblower defense ("Remand Order"). On remand, the AJ again upheld the removal. The AJ denied the whistleblower defense, finding that the Agency "has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of any whistleblowing by [Swartwoudt]." S. Appx. 58. On July 26, 2016, the Board affirmed. Swartwoudt petitions for review. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

         Discussion...

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