Case Explained: 25-1266: GOMEZ v. DVA [OPINION], Nonprecedential

Court: United States Court of Appeals for the Federal Circuit Filed: 2026-06-17 The Federal Circuit affirmed the Merit Systems Protection Board’s final order denying Anthony Gomez’s petition for review of his retaliation claims under the Whistleblower Protection Act (WPA). The court applied the standard of review set forth in 5 U.S.C. § 7703(c), which permits setting aside a Board decision only if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, obtained without required procedures, or unsupported by substantial evidence. Regarding the credibility determinations made by the Administrative Judge (AJ), the court applied the rule that such findings are “virtually unreviewable” unless they are inherently improbable or discredited by undisputed evidence. The court found substantial evidence supported the AJ’s conclusion that Gomez failed to prove he made protected disclosures regarding an alleged conspiracy to circumvent veterans’ hiring preferences, as the AJ credited the testimony of agency officials over Gomez’s and found his testimony lacked credibility. The court also held that Gomez waived any argument concerning his grievance for higher salary because he failed to develop the legal basis in his brief, and noted that even if considered, the grievance was unrelated to protected disclosures under 5 U.S.C. § 2302(b)(8). Finally, the court affirmed the dismissal of Gomez’s claim regarding the refusal to convert a position from Title 38 to Title 5 status, ruling that his allegations amounted to a mere disagreement with management’s discretionary decision rather than nonfrivolous allegations of protected disclosures concerning abuse of authority or gross mismanagement. The practical consequence is that the Board’s final order denying corrective action remains in effect, and Gomez receives no relief for his alleged retaliation. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.