Opinion

Christian Kreipke v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: May 16, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DR. CHRISTIAN KREIPKE, DOCKET NUMBER

Appellant, CH-1221-15-0284-W-1

DEPARTMENT OF VETERANS DATE: May 16, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shereef Akeel, Esquire, Troy, Michigan, for the appellant.

Amy C. Slameka, Esquire, and Kristi Glavich, Esquire, Detroit, Michigan,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

granted the appellant’s request for corrective action in this individual right of

action (IRA) appeal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

find that the administrative judge should not have ordered interim relief, we

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The appellant, a part-time Health Science Specialist at the Veterans

Administration’s (VA’s) John D. Dingell VA Medical Center, filed this IRA

appeal alleging that the agency terminated him and failed to renew his excepted

service temporary appointment in reprisal for his disclosures of grant fraud at the

agency and at Wayne State University (WSU), where he held a dual appointment

as an Assistant Professor under a Memorandum of Understanding. Initial Appeal

File (IAF), Tab 1 at 6, Tab 8 at 6, 17-20, 23, 78-79, 81, 83. The agency

terminated the appellant, effective October 11, 2013, when his temporary

appointment expired. 2 IAF, Tab 11 at 6-11. The appellant alleged that, in

It appears that the appointment from which the agency terminated the appellant was a

temporary appointment, rather than a term appointment, because the Standard Form 50

indicates that it was time limited for a period of less than 1 year. IAF, Tab 11 at 9; see

Usharauli v. Department of Health and Human Services, 116 M.S.P.R. 383, ¶ 11 n.3

(2011); compare 5 C.F.R. § 316.301(a) (describing term appointments as lasting for

reprisal for his disclosures, WSU and the VA investigated him and charged him

with research misconduct, which led WSU to terminate him in February 2012, and

the VA to later terminate his active Merit Review Award, allow his appointment

to expire, prohibit him from receiving VA research funds for 10 years, and seek

the retraction of two articles published in the journal Neurological Research.

IAF, Tab 1 at 57, Tab 8 at 7, 22. The appellant also asserted that the agency

acted in reprisal for grievances he filed by failing to compensate him for $34,000

in salary and benefits allegedly owed to him under a VA grant, blocking a grant

that would have expired in 2016, preventing him from receiving VA funding for

10 years, and changing his working conditions by confiscating his computer,

erasing his research data, and firing his staff. IAF, Tab 1 at 1, 6, Tab 8

at 8-10, 22, Tabs 9-11, Tab 72 at 4-5.

¶3 In its Administrative Investigation Report, an Administrative Investigation

Board (AIB) found 11 instances in which the appellant falsified research in

publications, articles, and/or award applications by using the same image of

certain tissue, biological processes, graphs, or blots to describe different

experimental conditions. IAF, Tab 1 at 8-9, 10-12, 71. For example, the agency

asserted that the appellant used the same image in a 2011 article published in the

journal Neurological Research, two National Institutes of Health grant

applications, a VA Merit Review application, and VA Research Day posters in

2009 and 2010, to depict sensorimotor cortex tissue, from animals subjected to

traumatic brain injury (TBI), that had been treated with different antagonists or

antibodies administered at different times and obtained at different lengths of

time after TBI. Id. at 11-16. The agency asserted that these images were found

in files located on the appellant’s computer with file names that were inconsistent

with the above depictions. E.g., id. at 18, 25. The AIB recommended the

termination of the appellant’s “active Merit Review Award entitled ‘Poly-trauma

more than 1 year but no more than 4 years), with 5 C.F.R. § 316.401(a) (describing

temporary appointments as those that are not expected to last longer than 1 year).

following brain injury: towards a combinatorial therapy,’” a prohibition on his

receipt of VA research funds for 10 years, and a retraction of the affected articles

that were published in 2010 and 2011 in the journal Neurological Research. Id.

at 57.

¶4 After a 6-day hearing, the administrative judge issued an initial decision

finding that the appellant proved by preponderant evidence that the above actions

constituted appealable personnel actions 3 and that he had a reasonable belief that

he made protected disclosures of a violation of law, rule, or regulation in the form

of grant fraud by the VA and by WSU that involved its dispersal of VA funds.

IAF, Tab 119, Initial Decision (ID) at 2-3, 10, 12, 14-15. She also found that the

appellant engaged in protected activity by filing a grievance that sought a remedy

for a violation of 5 U.S.C. § 2302(b)(8), which prohibits reprisal for

whistleblowing. ID at 12-13. The administrative judge further found that the

appellant proved that his disclosures and protected activity were contributing

factors in the personnel actions because the acting officials knew of the

disclosures and activity and the personnel actions occurred within a period of

time such that a reasonable person could conclude that the disclosures and

protected activity were contributing factors in those actions. ID at 15-16.

¶5 In addition, the administrative judge held that the agency did not prove by

clear and convincing evidence that it would have taken the same personnel

actions absent the appellant’s disclosures. ID at 17. The administrative judge

found that the agency’s evidence was not strong because (1) the evidence did not

support a finding that it was the appellant’s actions, as opposed to those of his

research partner or interns assisting on the research—all of whom had access to

the shared computer on which the research data in question was found—that

resulted in any falsified research, (2) the AIB did not have the authority to

The failure to renew a temporary appointment, as well as the expiration of an

appointment resulting from an agency’s failure to extend the appointment, are

appealable “personnel actions.” Usharauli, 116 M.S.P.R. 383, ¶ 11.

investigate the appellant’s involvement because the research it investigated did

not involve a VA grant or VA funding, and thus did not meet the definition of

medical research under the applicable VA Handbook definition, (3) there was no

evidence that any of the falsified data/graphs were prepared at the VA, as

opposed to at the WSU laboratory, (4) it was unclear what harm the agency

suffered or gain the appellant received even if the data/gr aphs had been falsified,

given that there was no indication that the conclusions would have been different

if the correct data had been used, (5) another researcher’s name also appeared on

the articles who was mainly responsible for the lab and who shared in the lab

oversight responsibilities, and (6) any falsification was not willful and

intentional, as found by the agency, but due to inadvertent inaccuracies and lax

oversight of the lab. ID at 3, 18-30.

¶6 The administrative judge also found that the agency had a motive to

retaliate because it continued to investigate the appellant for the same reasons ,

even though a VA Research Integrity Officer, Dr. K, twice investigated the matter

and found insufficient evidence to convene an AIB, there was a strong academic

relationship between WSU and the VA, and “[a]n inference can clearly be made

that [the acting official] was attempting to appease WSU and protect their

relationship by acquiescing in WSU’s continued interference with the VA’s

employment of the appellant.” ID at 4, 31-37. Thus, the administrative judge

found a motive to retaliate stemming from WSU’s improper influence on the

agency to take actions against the appellant. ID at 37. The administrative judge

found that the agency’s failure to show that it takes similar actions against

employees who are not whistleblowers, including against a nonwhistleblower

co-author of the relevant articles, was a factor weighing against the agency. ID

at 37-38. Finally, the administrative judge found that the appellant proved that

the agency created a hostile work environment in reprisal for his protected

activity, but that “the appellant’s claims that he is still owed money under

grant(s) and was subjected to a hostile work environment are not fully develo ped

as to the appropriate relief and are issues for supplemental proceedings for

consequential and compensatory damages.” ID at 39-40.

¶7 The administrative judge ordered the agency to rescind its decision to

terminate the appellant’s active Merit Review Award, rescind its decision to

terminate his appointment and pay him any monies owed under the VA Merit

Award/VA grants as a result of the termination of his appointment for VA

research, and rescind its decision prohibiting him from receiving VA funds for

10 years. ID at 41. She also ordered the agency to provide interim relief . Id.

ANALYSIS

The administrative judge should not have ordered interim relief in this case.

¶8 The agency asserts on review that the “practical application of the interim

order is not feasible nor is it within the scope of MSPB’s authority” because a

research misconduct investigation committee determined that the appellant

committed research misconduct and the Board cannot overrule that decision, nor

can the agency return him to his former position because “by law,” he can no

longer perform his job functions. Petition for Review (PFR) File, Tab 1 at 10.

The agency also contends that the grant under which the appellant received

funding has expired, and his temporary appointment has expired without an

additional appropriation of research funds. Id. at 11-12. Thus, it asserts that the

interim relief order is inappropriate. Id. at 13. The agency submits a letter

informing the appellant and his attorney that “the practical application of the

interim order is not feasible nor is it within the scope of MSPB’s authority.” Id.

at 67. The letter further provides that the appellant is unable to return to his

former Health Science Specialist position where his purpose is to conduct

research, and that it is “unreasonable per se to place the Appellant on the payroll

when by law he cannot perform the functions of his job.” Id. Thus, the letter

informs the appellant and his attorney that it “is not able to satisfy the

requirement of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B).” Id. at 69.

¶9 The appellant has moved to dismiss the petition for review, asserting that

the agency has not complied with the interim relief order by either returning him

to duty or making a determination that his return would be unduly disruptive and

providing him with pay and benefits. PFR File, Tab 3 at 5-7.

¶10 The appellant’s temporary appointment expired effective October 11, 2013,

before the issuance of the March 10, 2017 initial decision . IAF, Tab 11 at 6-9,

Tab 119 at 1. Similarly, the Merit Review Award, which funded the appellant’s

position, expired 3 years after it had been awarded in October 2010. IAF, Tab 42,

Subtab 7 at 2, Tab 59 at 56-57. An administrative judge should not order interim

relief if, by the date of the initial decision, an appellant’s term appointment has

expired. Herrin v. Department of the Air Force, 95 M.S.P.R. 536, ¶ 16 (2004).

Under these circumstances, we agree with the agency that the administrative

judge should not have ordered interim relief in the form of rescinding the

termination of the temporary appointment and the Merit Review Award , both of

which had expired as of the issuance of the initial decision .

¶11 Further, the decision to grant interim relief is a matter of the Board’s

discretion. 5 U.S.C. § 7701(b)(2)(A)(i). Interim relief may not be appropriate in

all cases in which the appellant prevails, and an administrative judge must

determine this issue based on the facts of the particular case, balancing the

benefits and burdens to the parties anticipated by the process of effecting the

interim relief order. Steele v. Office of Personnel Management, 57 M.S.P.R.

458, 463 (1993), aff’d, 50 F.3d 21 (Fed. Cir. 1995) (Table). Thus, for example,

administrative judges should exercise caution in granting interim relief in Office

of Personnel Management (OPM) retirement appeals because doing so may result

in OPM’s payment of monies in contravention of its statutory authority and may

necessitate OPM’s recovery of the monies paid during the interim relief period if

the Board reverses the initial decision. Id. at 463-64; cf. Paris v. Department of

the Treasury, 104 M.S.P.R. 331, ¶ 8 (2006) (holding that, when an appellant is

receiving Office of Workers’ Compensation Programs compensation when the

initial decision is issued, interim relief generally should not be ordered because

doing so could result in the agency’s payment of monies in contravention of

statute). Similarly, we find here that the administrative judge should not have

ordered interim relief in the form of a termination of the agency’s decision to

prohibit the appellant from receiving VA funds for 10 years because, among other

things, any grant awarded during the interim relief period could result in the early

termination of a funded research project, and the grantor’s concomitant need to

recover monies paid under the award, if the Board were to reverse the initial

decision. We therefore decline to dismiss the agency’s petition for review for

failure to provide evidence of compliance with the interim relief order.

The administrative judge did not improperly require the agency to prove that the

appellant falsified research. 4

¶12 The agency contends that the administrative judge, in finding that the

agency’s evidence in support of its actions was not strong, improperly required it

to meet the Board’s standard for proving a falsification charge, even though it

charged the appellant with research misconduct under a VA directive and its

Handbook, which allegedly “have nothing to do with the MSPB charge of

‘falsification’ or any elements contained therein.” PFR File, Tab 1 at 13-16.

Rather, the agency asserts that its Handbook defines falsification as manipulating

research materials, equipment, or processes, or changing or omitting data or

results such that the research is not accurately represented in the research record.

Id. at 15. The agency also asserts that the administrative judge never informed it

that she would be applying this falsification standard in this case. Id. at 13, 15.

¶13 A memorandum from the Medical Center Director and the report from the

AIB include numerous allegations and references concluding that the appellant

“falsified” research. IAF, Tab 1 at 8-9, 11-15, 20, 22, 24-26, 28-44, 46, 48-55,

The agency does not challenge on review the administrative judge’s findings that the

appellant made protected disclosures that were a contributing factor in the p ersonnel

actions at issue in this case. PFR File, Tab 1 at 10-29.

57. In fact, the AIB report considered whether “the preponderance of the

evidence indicate[d] that the figures and supporting documentation were falsifie d

intentionally, knowingly, or recklessly” by the appellant, and determined that the

falsification was intentional, knowing, and willful. E.g., IAF, Tab 1 at 10, 18-19,

24-25, Tab 65 at 8 (explaining that, under the VA Handbook, research

misconduct, including falsification, must be committed intentionally, knowingly,

or with reckless disregard for the integrity of the research) . Under Carr v. Social

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), when deciding

whether the agency has shown by clear and convincing evidence that it would

have taken the same personnel action in the absence of whistleblowing, the Board

must consider, among other things, the “strength of the agency’s evidence in

support of its personnel action.” The Board must consider the strength of the

agency’s reasons for its action, even in cases such as this when the agency has not

taken a typical disciplinary action against the appellant based on misconduct. See

Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006). Here, as set

forth above, the underlying rationale for the agency’s decisions to terminate the

appellant’s Merit Review Award, terminate his temporary appointment, and

prohibit him from receiving VA funds for 10 years, which were specifically

recommended by the AIB, was its determination that he had engaged in research

misconduct in the form of intentional, knowing, and willful falsification of

research publications, articles, and grant applications . Under these

circumstances, we find that there is no material distinction between falsification

under the VA Handbook and falsification as found by the administrative judge in

this case. Thus, the agency has shown no error in the administrative judge’s

determination that the agency’s allegations that the appellant falsified medical

research was tantamount to a falsification charge, which required the agency to

submit proof that the information submitted included a false statement, the false

statement was material, and the employee acted with the requisite intent . ID

at 23; see Leatherbury v. Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir.

2008).

¶14 Although the agency contends that it had no notice that the administrative

judge would apply this falsification standard in determining whether the agency’s

evidence in support of its action was strong, the administrative judge informed

the agency that it must show by clear and convincing evidence that it would have

taken the same personnel actions absent the disclosures and that the Board would

consider, among other things, the strength of the evidence the agency used in

support of the personnel actions. IAF, Tab 72 at 3. The agency has identified no

Board precedent that required the administrative judge to provide any more

specific notice than that which she provided in this case. PFR File, Tab 1

at 13-16. In any event, the agency does not allege that it would have presented

any additional or different evidence had it known that the strength of its evidence

alleging falsification would depend on whether such evidence showed that the

appellant made a material false statement with the requisite intent. Id.; see

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that

an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision). Accordingly, we find no

error in the administrative judge’s determination that the agency did not present

strong evidence in support of the personnel actions at issue in this case. ID

at 18-31.

The administrative judge’s failure to mention the testimony of one of the

agency’s witnesses does not mean that she did not consider it .

¶15 The agency asserts that the administrative judge did not address the

testimony of Dr. B, the lead research misconduct officer, who testified that the

applicable Handbook the agency followed in its investigation was reissued

without a change in the policies contained therein, which permitted the agency to

investigate the research misconduct at issue in this case. PFR File, Tab 1

at 17-21. The administrative judge found, in addition to the fact that the agency’s

evidence did not show that the appellant engaged in falsification, that the

agency’s evidence was not strong because “[t]here is strong evidence the AIB did

not have authority to investigate the appellant’s involvement because the research

it investigated did not meet the definition of medical research under the

applicable VA Handbook definitions previously discussed.” ID at 23, 29 -30. In

support of that finding, the administrative judge relied on the deciding official’s

testimony that the definition of medical research subject to VA investigation

changed after the AIB convened to investigate the appellant, but before it issued

its report, to include unfunded VA grant applications. ID at 19-22. She found

that the deciding official further testified that the Handbook in effect when the

AIB convened applied to the appellant, and found that the AIB made no findings

as to the only VA funded grant received by the appellant. ID at 21 -22.

¶16 An administrative judge’s failure to mention all of the evidence of record

does not mean that she did not consider it in reaching her decision. Marques v.

Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,

776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, although Dr. B testified on

direct examination that, in his opinion, there was no change when the Handbook

was “reissued,” Hearing Transcript (HT) at 1054-55, 1087, 1193-94 (testimony of

Dr. B), he conceded on cross examination that the new version included different,

additional language, HT at 1152-58 (testimony of Dr. B). We find that the

change in language in the different versions of the Handbook at the very least

clarified the definition of “VA Research” by indicating that such research “may

be funded by VA, by other sponsors, or be unfunded.” Compare IAF, Tab 64

at 122, with IAF, Tab 65 at 11. Here, the administrative judge did not

definitively find that the agency did not have the authority to conduct its

investigation; rather, she merely found that there was strong evidence that it

lacked such authority. ID at 23. Given the ambiguity in the different Handbook

versions in this regard, we find that the agency has shown no error in the

administrative judge’s determination. See 5 C.F.R. § 1209.4(e) (defining “clear

and convincing evidence” as that measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be

established).

¶17 The agency also asserts that the administrative judge did not address

Dr. B’s testimony that the agency’s prior determinations—that there was

insufficient evidence of misconduct to warrant a referral to an AIB—involved

different allegations of research misconduct by the appellant than the allegations

that ultimately led to the subsequent AIB investigation. PFR File, Tab 1 at 18.

¶18 In discussing the agency’s motive to retaliate, the administrative judge

reviewed the history of complaints that WSU brought to the agency’s attention,

including two separate allegations that were found by Dr. K, an agency Research

Integrity Officer, to not warrant convening an AIB investigation due to

insufficient evidence of research misconduct. ID at 4-5, 31-34. The

administrative judge noted Dr. K’s testimony that one of his inquiries “was on the

identical issue the AIB was ultimately charged to investigate.” ID at 33-34. The

administrative judge concluded, however, that based on the strong academic

relationship between the agency and WSU and the interplay among the various

VA and WSU investigative offices, a motive to retaliate “stemmed from the

improper influence of WSU over the VA to take action against the appellant” and

the agency’s attempt to “appease WSU and protect their relationship by

acquiescing in WSU’s continued interference with the VA’s employment of the

appellant.” ID at 37. As set forth above, the administrative judge’s failure to

mention the testimony of Dr. B does not mean that she did not consider it. In any

event, whether the allegations brought to Dr. K differed from the allegations that

led to the AIB investigation does not affect the administrative judge’s finding that

a motive to retaliate existed based on the improper influence of WSU and the

agency’s attempt to appease it. We therefore find that, to the extent that the

administrative judge failed to resolve a contradiction between the testimonies of

Drs. K and B, see Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587,

589 (1980) (finding that an initial decision must identify all material issues of

fact and law, summarize the evidence, resolve issues of credibility, and i nclude

the administrative judge’s conclusions of law and legal reasoning, as well as the

authorities on which that reasoning rests), any such error did not affect the

agency’s substantive rights, see Panter, 22 M.S.P.R. at 282.

¶19 The agency further contends that the administrative judge did not consider

Dr. B’s testimony that the VA was obligated to look into allegations of research

misconduct, and that almost all VA researchers hold appointments at affiliated

universities, like WSU; thus, the agency asserts that there was no motive to

retaliate against the appellant. PFR File, Tab 1 at 19. Even assuming, however,

that the agency was required to investigate all allegations of research misconduct,

that fact alone would not undermine the administrative judge’s explained findings

that the agency otherwise had a motive to retaliate against the appellant based on

his disclosures in this particular case. See Whitmore v. Department of Labor,

680 F.3d 1353, 1370 (Fed. Cir. 2012) (holding that those responsible for the

agency’s performance overall may well be motivated to retaliate even if they are

not directly implicated by the disclosures, and even if they do not know the

whistleblower personally, as the criticism reflects on them in thei r capacities as

managers and employees). Moreover, Dr. B’s testimony regarding appointments

at affiliated universities addressed questions as to whether there was a conflict of

interest on the part of the appointed AIB members. HT at 1079-80 (testimony of

Dr. B). The fact that there may not have been a conflict of interest for the AIB

members under the agency’s Handbook does not mean that the agency did not

have a motive to retaliate based on whistleblowing activity.

¶20 Finally, although the administrative judge found that the agency did not

sufficiently explain the reasons why the agency relieved Dr. K of the

responsibility to investigate the appellant after he twice found insufficient

evidence to convene an AIB, ID at 37, the agency asserts that Dr. B testified that

Dr. K was relieved of that responsibility because of a conflict of interest, namely,

Dr. K’s being called as a witness on behalf of the appellant in his WSU

grievance, PFR File, Tab 1 at 24; HT at 1066-67 (testimony of Dr. B); HT

at 154-55 (testimony of Dr. K). Even assuming that the agency did provide an

explanation for relieving Dr. K of that responsibility, it does not, as explained

above, overcome the administrative judge’s ultimate finding that the agency did

not prove by clear and convincing evidence that it would have taken the same

personnel actions in the absence of the appellant’s disclosures based on its weak

evidence in support of those actions, its motive to retaliate, and its failure to show

that it took similar actions against nonwhistleblowers. ID at 17-39.

The agency did not show that it took similar actions against nonwhistleblowers.

¶21 The agency asserts on review that Dr. B testified that the agency had

permanently prohibited two individuals from receiving VA funds and conducting

VA research because of research misconduct. PFR File, Tab 1 at 22. Thus, it

contends that the administrative judge erred when she found that the agency did

not present evidence that any action was taken against similarly situated

nonwhistleblowers. Id.; ID at 37-38. Moreover, the agency asserts that the

administrative judge erred when she found that the agency did not take action

against Dr. R, a nonwhistleblower who was a lab partner and co-author on the

appellant’s research papers, because Dr. R was no longer a VA employee at the

time of the investigation and the agency therefore could not have taken any action

against him. PFR File, Tab 1 at 22-23.

¶22 When deciding whether an agency has shown by clear and convincing

evidence that it would have taken the same personnel action s in the absence of the

disclosures, the Board will consider, among other things, any evidence that the

agency takes similar actions against employees who are not whistleblowers but

who are otherwise similarly situated. Carr, 185 F.3d at 1323. Although Dr. B’s

testimony was consistent with the agency’s assertions on review, he did not

testify that the two individuals who were permanently prohibited from receiving

funding for VA research were not whistleblowers. HT at 1111, 1122-24

(testimony of Dr. B). Thus, the administrative judge correctly found that the

agency did not provide evidence that it took actions against similarly situated

nonwhistleblowers. ID at 37-38. As found by the administrative judge, an

agency ignores this factor at its own peril, considering the agency’s advantage in

accessing this type of evidence. ID at 38; see Miller v. Department of Justice,

842 F.3d 1252, 1262 (Fed. Cir. 2016). Thus, regardless of the agency’s reasons

for not taking action against Dr. R, the nonwhistleblower co-author of the

relevant articles, it has still failed to submit evidence showing that it took similar

actions against employees who were not whistleblowers but who were otherwise

similarly situated. We therefore discern no error in the administrative judge’s

determination that this factor weighs against the agency. ID at 38.

The administrative judge did not err in discrediting an agency exhibit involving

newly acquired evidence.

¶23 In its closing submission, the agency submitted an exhibit consisting of a

July 13, 2016 retraction notice that it discovered after the close of the record and

that it asserted impeached the appellant’s credibility and showed the effect of his

research misconduct in the scientific community. IAF, Tab 116. The

administrative judge struck the exhibit from the record because the record had

already closed and the document was not relevant to the agency’s burden of

proof, but did not strike the agency’s reference to the exhibit from its closing

submission. IAF, Tabs 114, 117. The administrative judge nevertheless found in

the initial decision that the retraction at issue was actually “consistent with the

appellant’s testimony and evidence of the steps he took once the discrepancy in

data was reported to him by the lab student.” ID at 26. The agency contends on

review that the administrative judge erred because the appellant did not testify

about that retraction notice, but instead testified about a different article, and that

it would have been impossible for the appellant to have testified about a

retraction notice that was issued only after the hearing concluded and that was

included in the agency’s closing submission. PFR File, Tab 1 at 25-26.

¶24 Even assuming that the appellant’s testimony related to a different article

than the one at issue in the July 13, 2016 retraction, the agency has not shown

that the July 13, 2016 retraction notice itself could have impeached the

appellant’s credibility. As of the appellant’s testimony at the hearing on

April 26-28, 2016, the retraction notice in question had not been issued. Thus,

the agency has established no basis for finding that his testimony at the hearing,

that there had been no retractions of his articles or textbooks, HT at 225-26

(testimony of the appellant), was not credible. Moreover, the agency has not

otherwise explained how the July 13, 2016 retraction, which occurred after the

personnel actions at issue in this case and appears to have involved an article that

was not addressed in the AIB report, IAF, Tab 1 at 10-57, constituted evidence

supporting the agency’s ultimate burden of proving by clear and convincing

evidence that it would have taken the same personnel actions in the absence of the

appellant’s protected disclosures.

The agency has not shown that the documents it submits for the first time on

review are new and material to the issues in this case.

¶25 The agency submits on review evidence that four journal articles authored

by the appellant have been retracted after an investigation by WSU. PFR File,

Tab 1 at 27, 31-65. Only two of the four retracted articles were addressed in the

AIB report. Compare PFR File, Tab 1 at 31-36, 38-43, with IAF, Tab 1 at 11.

The agency contends that, although the administrative judge relied upon a lack of

retractions to suggest that the appellant did not engage in research misconduct

and that the agency was retaliating against him, the retraction of the four articles

after the hearing shows the scope of his misconduct. PFR File, Tab 1 at 27-28.

¶26 Evidence offered merely to impeach a witness’s credibility is generally not

considered new and material. Wyeroski v. Department of Transportation,

106 M.S.P.R. 7, ¶ 9, aff’d, 253 F. App’x 950 (Fed. Cir. 2007). Thus, to the extent

that the agency has submitted the retractions to impeach the appellant’s

credibility, it has not shown that this evidence is new and material. Even

assuming, however, that the evidence is new, the Board generally will not grant a

petition for review based on new evidence absent a showing that it is of sufficient

weight to warrant an outcome different from that of the initial decision .

Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661,

¶ 15 (2015). In weighing the agency’s evidence that it would have taken the same

personnel actions in the absence of the appellant’s disclosures, the Board must

assess the evidence as it stood at the time of the actions. Yunus v. Department of

Veterans Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001); Phillips v. Department of

Transportation, 113 M.S.P.R. 73, ¶ 12 (2010). That is because the actions taken

by the agency officials must be weighed in light of what they knew at the time

they acted; later developments cannot be used either to support or undercut the

validity of the actions taken. Yunus, 242 F.3d at 1372. Therefore, the agency’s

proffer of this evidence for the first time on review is not of sufficient weight to

establish by clear and convincing evidence that it would have taken the same

personnel actions in the absence of the disclosures and does not warrant a

different outcome from that of the initial decision. The four retraction articles do

not, therefore, provide a basis for granting the agency’s petition for review. See

5 C.F.R. § 1201.115(a).

¶27 Accordingly, we deny the agency’s petition for review and affirm the initial

decision’s determination to award corrective action in this case.

ORDER

¶28 We ORDER the agency to rescind its decisions to (1) terminate the

appellant’s active Merit Review Award entitled “Poly-trauma following brain

injury: towards a combinatorial therapy,” (2) terminate the appellant’s temporary

appointment, and to pay him any monies owed under the VA Merit award/VA

grants as a result of the termination of his temporary appointment, and

(3) prohibit the appellant from receiving VA funds for a period of 10 years. See

Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The

agency must complete this action no later than 20 days after the date of this

decision.

¶29 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶30 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶31 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶32 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled

to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note

that while any Special Counsel investigation related to this decision is pending,

“no disciplinary action shall be taken against any employee for any alleged

prohibited activity under investigation or for any related activity without the

approval of the Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Boar d does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Cir cuit or any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the