DOJ DOCTORS v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOJ DOCTORS, DOCKET NUMBER

Appellants, NY-1221-14-0202-W-1 1

v.

DEPARTMENT OF JUSTICE, DATE: June 22, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

F. Michael Daily, Jr., Esquire, Westmont, New Jersey, for the appellants.

Pradip Patel, Columbus, New Jersey, for the appellants.

Kathleen Harne and Tara Chen, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

1

Pursuant to 5 C.F.R. § 1201.36(a)(1), the administrative judge consolidated appeals

filed by Pradip Patel, M.D. and Nicoletta A. Turner-Foster, M.D. MSPB Docket

No. NY-1221-14-0202-W-1, Consolidation Appeal File (CAF), Tab 2; see MSPB

Docket Nos. PH-1221-14-0326-W-1 and PH-1221-14-0325-W-1. While the

administrative judge issued separate initial decisions, we again consolidate these

matters under MSPB Docket No. NY-1221-14-0202-W-1 for consideration of the joint

petition for review.

2

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

2

FINAL ORDER

¶1 The appellants have filed a petition for review of the initial decisions,

which denied their requests for corrective action in their individual right of action

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

following circumstances: the initial decision contains erroneous findings of

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, desp ite 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 s have 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 by

this Final Order to VACATE the administrative judge’s findings concerning one

of appellant Patel’s disclosures and to supplement the administrative judge’s clear

and convincing analysis, we AFFIRM the initial decisions, which are now the

Board’s final decisions. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 On November 12, 2013, the appellants, who are Medical Officers with the

Bureau of Prisons, Federal Correctional Institution (FCI) in Fort Dix, New Jersey,

filed separate IRA appeals alleging that the agency denied their allowance s under

the Physicians Comparability Allowance Program (PCAP) 3 in reprisal for their

3

Pursuant to 5 U.S.C. § 5948, for recruitment and retention purposes, a Government

physician may receive an allowance not to exceed $14,000 if the physician has served

3

prior protected disclosures. Patel v. Department of Justice, MSPB Docket

No. PH-1221-14-0326-W-1, Initial Appeal File (Patel IAF), Tab 1; Turner-Foster

v. Department of Justice, MSPB Docket No. PH-1221-14-0325-W-1

(Turner-Foster IAF), Tab 1. On January 28, 2011, the Warden of Fort Dix

notified appellant Turner-Foster that she intended to withhold her PCAP because

her productivity over the past 12 months was only at 54 % of the required

standard. Turner-Foster IAF, Tab 13, Subtab 4(n). After considering appellant

Turner-Foster’s response, on February 11, 2011, the Warden issued a decisi on to

withhold appellant Turner-Foster’s PCAP. Id., Subtab 4(g).

¶3 Similarly, on February 7, 2011, the Warden notified appellant Patel that she

intended to withhold his PCAP because his productivity over the past 12 months

was only at 66% of the required standard. Patel IAF, Tab 12, Subtab 4(v). On

March 16, 2011, after considering appellant Patel’s response, the Warden issued a

decision to withhold appellant Patel’s PCAP. Id., Subtab 4(j). The appellants

contend that the decisions to withhold their PCAPs were taken in reprisal for

protected disclosures they made during a meeting on September 10, 2010,

concerning, among other things, late laboratory results, which they maintain

posed a substantial and specific danger to public health and safety by preventing

physicians from timely ensuring that patients were appropriately responding to

treatment. Patel IAF, Tab 1 at 6; Turner-Foster IAF, Tab 1 at 6.

¶4 Upon motion by the appellants, the administrative judge consolidated their

appeals. DOJ Doctors v. Department of Justice, MSPB Docket No. NY-1221-14-

0202-W-1, Consolidation Appeal File (CAF), Tab 2; Patel IAF, Tab 20;

Turner-Foster IAF, Tab 25. After holding a 5-day hearing, the administrative

for 24 months or less, or $30,000 if more than 24 months. The agency’s program

statement, which sets forth the terms and conditions for PCAPs, specifies that renewals

are not automatic and any job performance or organizational difficulties must be

addressed prior to renewal. Patel v. Department of Justice, MSPB Docket No. PH-

1221-14-0326-W-1, Initial Appeal File, Tab 12, Subtab 4(ss) at 42.

4

judge issued initial decisions, denying the appellants’ requests for corrective

action. 4 Patel IAF, Tab 21, Initial Decision (ID). The administrative judge found

that, although the appellants had made protected disclosures in September 2010

concerning late laboratory results and had established a prima facie case of

whistleblower reprisal, the agency met its burden of establishing by clear and

convincing evidence that it would have denied the appellants’ PCAPs absent their

protected disclosures. ID at 7-33.

¶5 The appellants have filed a joint petition for review. Petition for Review

(PFR) File, Tab 1. The agency has opposed the appellants’ petition. PFR File,

Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We vacate the administrative judge’s finding that appellant Patel’s disclosure

concerning compensatory time usage was a protected disclosure. 5

¶6 To prove that a disclosure is protected, an appellant must prove by

preponderant evidence 6 that a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by him could reasonably

conclude that the matter disclosed evidenced a violation of law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety. 5 U.S.C.

4

Although the appeal was consolidated, the administrative judge issued separate, but

nearly identical initial decisions. Patel IAF, Tab 21, Initial Decision; Turner-Foster

IAF, Tab 26, Initial Decision. Unless otherwise specified, all references herein are to

the initial decision in Patel.

5

The appellants do not challenge the administrative judge’s findings that they failed to

prove that their disclosures concerning the lack of translation services and violating the

primary care provider team concept were protected disclosures, and we discern no error

in the administrative judge’s analysis. ID at 9-12.

6

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

5

§ 2302(b)(8); Miller v. Department of Homeland Security, 111 M.S.P.R. 312, ¶ 5

(2009). 7

¶7 Appellant Patel testified that he raised concerns that physicians were not

permitted to earn compensatory time while the Clinical Director and her husband

were routinely allowed to earn compensatory time. CAF, Hearing Transcript

(HT) at 63-64. In her initial decision, the administrative judge cited to testimony

by agency officials explaining that the difference in treatment was because the

physicians were GS-15, step 10 employees, and thus, not eligible for overtime or

compensatory time due to limits on premium pay. ID at 12-13. In contrast, the

Clinical Director was a GS-15, step 7, and during the relevant time period may

have been a GS-15, step 3. ID at 13. Without explanation, the administrative

judge found that a reasonable person in the appellant’s positio n would have

believed that granting the Clinical Director and her husband compensatory time

while denying the physicians compensatory time evidenced one of the situations

covered by 5 U.S.C. § 2302(b)(8). ID at 13. We disagree. In his testimony and

pleadings below, appellant Patel failed to specify any details as to the grounds for

his belief that this disclosure evidenced one of the categories of wrongdoing

identified in 5 U.S.C. § 2302(b)(8)(A). Moreover, he did not address this alleged

protected disclosure at all in his closing brief. CAF, Tab 20. Accordingly, we

find that he failed to prove by preponderant evidence that this constituted a

protected disclosure.

The agency proved by clear and convincing evidence that it would have denied

the appellants’ PCAPs in the absence of their protected disclosures.

¶8 If an appellant makes a prima facie showing of whistleblower reprisal, the

burden shifts to the agency to prove by clear and convincing evidence that it

7

All of the relevant events occurred prior to the December 27, 2012 effective date of

the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199,

126 Stat. 1465. However, the provisions of the WPEA do not affect our analysis.

6

would have taken the same personnel action in the absence of the protected

disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu v. Department of Homeland Security,

122 M.S.P.R. 335, ¶ 7 (2015). Clear and convincing evidence is 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; it is a higher standard than the

“preponderance of the evidence” standard. Sutton v. Department of Justice,

94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R.

§ 1209.4(e).

¶9 In determining whether an agency has met this burden, the Board will

consider all of the relevant factors, including the following: (1) the strength of

the agency’s evidence in support of the action; (2) the existence and strength of

any motive to retaliate on the part of the agency officials who were involved in

the decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.

Lu, 122 M.S.P.R. 335, ¶ 7 (citing Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does not view these factors as

discrete elements, each of which the agency must prove by clear and convincing

evidence. Rather, the Board will weigh the factors together to determine whether

the evidence is clear and convincing as a whole. Id. Furthermore, the Board will

consider all the pertinent evidence in the record and will not exclude or ignore

countervailing evidence by only looking at the evidence that supports the

agency’s position. Whitmore v. Department of Labor, 680 F.3d 1353, 1367-70

(Fed. Cir. 2012).

¶10 Regarding the first Carr factor, the administrative judge found that the

agency provided strong evidence that it withheld the appellants’ PCAPs because

they failed to meet the required productivity standard of seeing eight patients per

day. ID at 18-24. Although the appellants testified that they were not aware of

such a standard, the administrative judge credited the Clinical Director’s

testimony that physicians not seeing enough patients per day was a historical

7

issue, the appellants were aware that they were expected to see 8 patients per day,

and the standard had been 10 patients per day but was reduced in response to

complaints from the physicians. Id. The administrative judge further found that

the agency’s evidence that the appellants failed to meet the eight-patients-per-day

standard was strong based on separate analyses which showed that in 2010,

appellant Patel saw an average number of 5.4 patients per day 8 and appellant

Turner-Foster saw an average number of 4.3 patients per day. ID at 24-25;

Turner-Foster IAF, Tab 26, Initial Decision at 21-22. Although the appellants

disputed these numbers, the administrative judge found that they failed to provide

their own calculations and appellant Patel’s testimony concerning his calculations

changed and was conflicting. ID at 27-28.

¶11 On review, the appellants primarily challenge the administrative judge’s

findings concerning the first factor. They contend that the administrative judge

erred in finding that the agency offered strong evidence establishing that they

were required to see eight patients per day or that they failed to meet such a

requirement. First, they contend that the administrative judge failed to consider

that the record is devoid of any documents prior to the date their PCAPs were

denied that set forth an eight-patients-per-day standard. PFR File, Tab 1 at 4-5.

Second, they contend that the administrative judge failed to consider that their

performance reviews prior to the date their PCAPs were denied were satisfactory

and fail to reference any productivity standard. Id.

¶12 We acknowledge the appellants’ contention that, prior to the denial of their

PCAPs, the eight-patients-per-day standard was not specifically memorialized in

any written document. PFR File, Tab 1 at 4-5. Rather, it was not until

February 11, 2011 that the eight-patients-per-day standard specifically appeared

8

A second analysis, considering appellant Patel’s claims that the first analysis failed to

account for various factors, such as patient no-shows and his leave, determined that

appellant Patel saw 5.7 patients per day. ID at 25.

8

in the appellants’ performance objectives. Patel IAF, Tab 12, Subtab 4(u);

Turner-Foster IAF, Tab 13, Subtab 4(h). However, we nonetheless find that the

agency put forth evidence suggesting that such a standard existed prior to 2011.

For example, the record includes separate documents dated February 13, 2009,

signed by the appellants, setting forth performance expectations for medical

officers, which include, among other things, maintaining chronic care clinics

(CCC) 9 up to date. Turner-Foster IAF, Tab 13, Subtab 4(t); Patel IAF, Tab 12,

Subtab 4(qq). The Clinical Director, who supervised all of the medical officers,

including the appellants, testified that medical officers had to see a certain

number of patients per day to maintain their CCCs up to date and that she placed

the specific requirement of eight patients per day on the appellants’ performance

objectives on February 11, 2011, to emphasize that maintaining CCCs up to date

meant that the appellants had to see a certain number of patients per day. HT

at 809. A November 17, 2010 memorandum similarly reflects that eight patients

per day was determined to be the minimum number of patients per day required to

prevent overdue CCC. Patel IAF, Tab 12, Subtab 4(z). 10

9

CCC refers to patients who have conditions like diabetes or hypertension that require

monitoring. HT at 45, 414. During most of the relevant time, the relevant policy

required CCC patients to be evaluated once every 6 months. HT at 45, 415, 702-03.

10

The appellants challenge the validity of this document on review, correctly pointing

out that there are conflicting versions of it in the record. PFR File, Tab 1 at 4, 6-7.

One version indicates, “[e]ight cases per day per provider has been determine d to be the

minimal quota necessary to prevent overdue CCC in FCI Fort Dix. Failure on the part

of the provider to meet this minimum can potentially result in overdue CCC.” Patel

IAF, Tab 14 at 9. In contrast, another version indicates, “[e]ight cases p er day per

provider was agreed upon amongst administration and medical providers during a

September 2010 meeting, to be the minimal quota necessary to prevent overdue CCC in

FCI Fort Dix. Failure on the part of the provider to meet this minimum can potent ially

result in overdue CCC.” Patel IAF, Tab 12, Subtab 4(z); Turner-Foster IAF, Tab 13,

Subtab 4(r). Although the appellants dispute that they were made aware of this

requirement during a meeting in September 2010, the document nonetheless s erves to

show a link between a required number of patients seen per day and preventing overdue

CCCs as set forth in the appellants’ performance expectations as of 2009. The

9

¶13 In addition, the administrative judge credited the Clinical Director’s

testimony that the appellants were aware of the eight-patients-per-day standard,

over the appellants’ testimony to the contrary. In particular, the administrative

judge credited the Clinical Director’s testimony that she initially set the standard

at 10 patients per day, but agreed to decrease it to 8 because the physicians were

having difficulty seeing 10 patients per day. ID at 22. She found that such

testimony was corroborated by a May 13, 2009 memorandum documenting a

meeting with the medical officers in which they requested a modification of the

number of patients seen and, as a result, the requirement was reduced from an

average of 9.2 patients per day to 7.4 patients per day. ID at 22-23; Patel IAF,

Tab 14 at 14-15. The administrative judge further credited the Clinical Director’s

testimony that, while working for other institutions, she never witnessed doctors

seeing fewer than 8 patients per day, but rather generally saw a higher average o f

12, 13, or even 15 patients per day. ID at 27. Finally, the administrative judge

also credited testimony of the Regional Medical Director for the Northeast

Region that, for a Care Level 2 facility like Fort Dix, he would expect doctors to

see between 8 to 12 patients per day. ID at 26. Thus, the appellants’ arguments

on review constitute disagreement with the administrative judge’s credibility

determinations and fail to provide a basis for reversal. 11 See Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding that the Board will give

due deference to the credibility findings of the administrative judge , and will not

grant a petition for review based on a party’s mere disagreement with those

findings).

appellants do not dispute that they were required to keep their CCCs current. HT

at 189.

11

The appellants also contend that the administrative judge erred in crediting the

Clinical Director’s testimony because of her lack of certain professional credentials.

PFR File, Tab 1 at 5-6. However, such criteria are not relevant in assessing witness

credibility. See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (setting

forth the factors generally relevant in making credibility determinations).

10

¶14 On review, the appellants also contend that, in assessing the strength of the

agency’s evidence in support of its action, the administrative judge failed to

consider that their performance reviews were satisfactory. PFR File, Tab 1

at 4-5. We agree with the appellants that their performance reviews contained in

the record are all satisfactory and the record does not contain any written

warnings or discipline advising them that they were failing to meet the

eight-patients-per-day standard in 2010. However, the record does contain some

negative performance references. In particular, appellant Patel’s clinical review

on March 26, 2009, showed that he had over 150 overdue CCCs and his review

dated October 25, 2010, referenced bringing his CCCs up to date and improving

his clinic patient flow. Patel IAF, Tab 4, Subtabs 4(i), 4(pp). Appellant

Turner-Foster’s reviews prior to 2010 are not in the record. However, appellant

Turner-Foster testified that the Clinical Director had talked to her about seeing

more patients and acknowledged that there was a push to see more and more

patients and to maintain CCCs current. HT at 187, 205. Thus, although the

agency may have failed to warn the appellants via their formal performance

reviews that they were not seeing a sufficient number of patients, there is

evidence to show that they needed to increase the number of patients they saw

each day.

¶15 Additionally, the appellants’ production reports prepared by the Clinical

Director indicate that their numbers were below eight patients per day.

Patel IAF, Tab 12, Subtabs 4(k), 4(w); Turner-Foster IAF, Tab 13, Subtabs 4(j),

4(s). Although appellant Patel disputed these calculations and testified that his

own calculations of his productivity showed that he was just as productive if not

more productive than another physician, Dr. C., who received a PCAP, he failed

to provide such calculations. HT at 98-99; ID at 27-28. Similarly, appellant

Patel testified that he calculated appellant Turner-Foster’s productivity and

11

provided it to her; however, such calculations are also not part of the record

below. 12 HT at 98. On review, the appellants dispute the agency’s calculations

and appear to provide calculations and argument establishing error in the

agency’s calculations. PFR File, Tab 1 at 10-14. However, we decline to

consider the appellants’ arguments and evidence challenging the agency’s

calculations raised for the first time on review because they have not shown that

such arguments are based on new and material evidence that was not previously

available prior to the close of the record below. See Banks v. Department of the

Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).

¶16 Regarding the second Carr factor, we agree with the administrative judge

that there was a weak motive to retaliate on the part of the agency officials

involved in denying the appellants’ PCAPs. The appellants’ protected disclosures

concerned patient laboratory results not being processed timely. The appellants

contend that the Health Service Administrator (HSA) had a motive to retaliate

against them because this issue pertained to areas under her responsibility. CAF,

Tab 20 at 28; see Robinson v. Department of Veterans Affairs, 923 F.3d 1004,

1019-20 (Fed. Cir. 2019) (discussing a professional motive to retaliate when

12

The record below only contains a document prepared by appellant Turner-Foster,

which she contends shows that the average number of patients available for her to see

daily ranged from 5.61 to 6.5 for the months of October, November, and December

2010. CAF, Tab 11 at 36. She testified that she was not able to see eight patients per

day because some days she was scheduled to see fewer, or patients did not show up, or

a lockdown prevented her from seeing patients. HT at 224-25. Appellant Patel testified

similarly that he was not always scheduled to see eight patients per day and factors

outside of his control, such as patients not showing up, lockdowns, and double bookings

prevented him from seeing eight patients per day. HT at 70-72, 159-60. However, the

administrative judge credited testimony of the Clinical Director that regardless of these

factors physicians were advised of ways to increase the number of patients seen per

day, such as pulling patients from sick call or having an officer pull a patient from a

unit. ID at 26-27. She also credited the Clinical Director’s testimony that the

appellants never requested more scheduled patients; rather, they requested fewer

scheduled patients. ID at 27.

12

assessing the second Carr factor). However, the HSA arrived at Fort Dix in

August of 2010, approximately 1 month prior to the date of the appellants’

disclosures. Id.; HT at 1002. Thus, as the administrative judge found, she

essentially inherited the problems that the appellants reported. ID at 29.

Although the HSA’s recent arrival does not eliminate the possibility of an

institutional retaliatory motive, see Whitmore, 680 F.3d at 1370-71, we

nevertheless find that the appellants’ disclosures did not reflect on her personally.

¶17 Further, testimony credited by the administrative judge established that late

laboratory results were a longstanding issue prior to the appellants’ disclosures.

For example, the HSA testified that the issue of late laboratory results was

brought to her attention when she first arrived at Fort Dix in August 2010 and, at

that time, a phlebotomist vacancy posting was pending. Id.; HT at 1002-03. She

also testified that they were having difficulties filling the phlebotomist positions

due to the inability of applicants to pass the required background investigation,

and that in the interim she had assigned others to assist with laboratory tests as a

stopgap measure. HT at 1004. Additionally, the Clinical Director testified that,

prior to the appellants’ disclosures in September 2010, she and two other

physicians had complained at meetings about late laboratory results, which were a

well-known problem that dated back to December 2008, when she arrived at Fort

Dix. ID at 32; HT at 749-50, 831. Based on the foregoing, we agree with the

administrative judge that, to the extent the appellants’ disclosures reflected

poorly on the Health Services Department, the HSA, as head of that department,

had little motive to retaliate under these circumstance s in which her own

reputation was not at stake because she had just begun in her role.

¶18 However, even assuming the HSA had a slight motive to retaliate, she did

not make the decision to withhold the appellants’ PCAPs. The administrative

judge credited her testimony that she attended a meeting with the Warden and the

Clinical Director concerning the appellants’ PCAPs at the Warden’s request, but

that she did not provide any input into the decision to withhold their PCAPs. ID

13

at 30. The administrative judge found that such testimony was corroborated by

both the Clinical Director and the Warden. ID at 31.

¶19 Regarding the Clinical Director, we agree with the administrative judge that

she did not have a motive to retaliate based on the appellants’ protected

disclosures concerning late laboratory results, which she agreed were a problem

and had previously raised as an issue herself. ID at 32. Although, as the

administrative judge found, the Warden could have had a slight motive to

retaliate because a backlog of late laboratory results reflects poorly on the

institution which she heads, ID at 31, the Warden testified that she was not aware

of the appellants’ disclosures until after she denied their PCAPs, ID at 15, HT

at 982-83. Thus, we find that she did not have a motive to retaliate.

¶20 Finally, the record reflects that the agency’s treatment of whistleblowers

does not suggest a motive to retaliate because: (1) the administrative judge

credited the testimony of the Warden that, after appellant Patel increased his

average number of patients per day to close to eight, she renewed his PCAP the

following year; and (2) Dr. C and Dr. S, who also similarly complained of the late

laboratory results but saw a higher number of patients per day than the appellants,

both received their PCAPs. ID at 32; see Siler v. Environmental Protection

Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (stating that an agency’s treatment

of other whistleblowers may illuminate any motive to retaliate under the second

Carr factor). 13 On review, the appellants dispute the agency’s calculations

concerning Dr. C’s average number of patients and contend that they fail to show

the actual number of days Dr. C worked. PFR File, Tab 1 at 10-14. They also set

13

Although the administrative judge considered such evidence in her analysis of the

third Carr factor, we find that it is more appropriately addressed under the second Carr

factor. ID at 32; see Siler, 908 F.3d at 1299 (noting that the focus of the third Carr

factor is the agency’s treatment of non-whistleblower employees accused of similar

misconduct and, thus, the Board erred in considering evidence of the agency’s treatment

of other whistleblowers under the third Carr factor).

14

forth their own calculations based on electronic records, which they contend were

presented to the Office of Special Counsel and through discovery. Id. at 12-13.

However, such arguments were not raised in the proceedings below and the

appellants failed to cross examine the agency’s witnesses concerning these

alleged errors in the calculations or introduce any exhibits at the hearing showing

the specific numbers they relied upon in forming their beliefs that Dr. C’s average

number of patients seen was less than 7.9. Thus, we decline to consider these

arguments for the first time on review. See Banks, 4 M.S.P.R. at 271; Avansino,

3 M.S.P.R. at 214; 5 C.F.R. § 1201.115(d).

¶21 Regarding the third Carr factor, the administrative judge found that the

other doctors who were not whistleblowers were not similarly situated because

they had all met the eight-patient-per-day standard. ID at 32. Thus, to the extent

there is no evidence indicating that similarly situated non -whistleblowers were

treated differently than the appellants, the third Carr factor is not a significant

factor in the Board’s analysis. See Whitmore, 680 F.3d at 1374 (noting that the

agency is not required to submit evidence as to each Carr factor and recognizing

that the absence of evidence relating to the third Carr factor “can effectively

remove that factor from the analysis”).

¶22 For the reasons discussed in the initial decision and herein, we find that the

strength of the agency’s evidence in support of its actions outweighs any weak

motive to retaliate and our overall analysis of the Carr factors supports the

conclusion that the appellants are not entitled to corrective action.

The appellants’ remaining arguments do not provide a basis for reversal.

¶23 The appellants contend that the administrative judge erred in not allowing

their attorney to use leading questions when examining agency officials they

called on direct examination. PFR File, Tab 1 at 3-4, 15. They contend that,

pursuant to Federal Rule of Evidence 611, the administrative judge should have

permitted leading questions during examination of these officials. Id. The record

reflects that the administrative judge denied the appellants’ counsel’s request to

15

use leading questions, finding that although the agency officials were adverse

parties, they were not hostile witnesses. HT at 463-64. Federal Rule 611(c)(2)

states that leading questions should ordinarily be allowed “when a party calls a

hostile witness, an adverse party, or a witness identified with an adverse party. ”

¶24 However, the Board regards the Federal Rules of Evidence as nonbinding

guidance and, thus, an administrative judge is not required to strictly adhere to

them. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 35 (2010),

aff’d, 635 F.3d 526 (Fed. Cir. 2011); Arterberry v. Department of the Air Force,

25 M.S.P.R. 582, 583 (1985). Further, administrative judges have broad

discretion in the manner in which they conduct hearings. See Fritz v. Department

of Health and Human Services, 87 M.S.P.R. 287, ¶ 15 (2000); 5 C.F.R.

§ 1201.41(b). Nonetheless, we have reviewed the record and find that to the

extent the administrative judge may have abused her discretion in not permitting

leading questions, any such abuse of discretion was not prejudicial to the

appellants because the record reflects that the agency officials were cooperative

witnesses and the appellants were able to elicit testimony regarding the relevant

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

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

rights provides no basis for reversal of an initial decision) .

¶25 Accordingly, we deny the appellants’ petition for review and a ffirm the

initial decisions, as modified. 14

14

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

16

NOTICE OF APPEAL RIGHTS 15

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 Board 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 yo ur case by your

chosen forum.

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).

15

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.

17

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

18

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

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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 chal lenge 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 e ither with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 16 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).

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

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

16

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction exp ired 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 A ppeals

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.

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

Board neither endorses the services provided by any attorney nor warr ants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

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

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.