The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. REED, DOCKET NUMBER
Appellant, CH-1221-17-0153-W-1
v.
DEPARTMENT OF VETERANS DATE: August 24, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kurt Cummiskey, Esquire, St. Louis, Missouri, for the appellant.
Erin E. Milligan, Esquire, St. Louis, Missouri, for the agency.
Mark B. Zorfas, Esquire, North Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for lack of jurisdiction .
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 cas e; 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 mater ial
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 by
this Final Order to clarify that we have considered whether the appellant
nonfrivolously alleged that he made a protected disclosure to agency officials and
not to the Office of Special Counsel (OSC), we AFFIRM the initial decision. 2
BACKGROUND
¶2 The agency appointed the appellant to a Staff Nurse position pursuant to
38 U.S.C. § 7401(1). Reed v. Department of Veterans Affairs, MSPB Docket
No. CH-0752-16-0151-I-1, Initial Appeal File (0151 IAF), Tab 5 at 20-23. 3 His
nursing license was suspended on September 30, 2015. 0151 IAF, Tab 7 at 10.
The agency’s Employee/Management Relations Handbook requires that
employees maintain all qualifications required for employment and provides that
2
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.
3
Pursuant to 38 U.S.C. § 7401(1), the agency converted the appellant’s appointment to
the excepted appointment of Nurse/Staff Nurse on October 3, 1993. 0151 IAF, Tab 5 at
20. On September 14, 2008, the agency changed his position title to Nurse Staff
RN-Outpatient. Id. at 23.
3
employees who fail to do so will be separated. Id. at 16. Thus, on October 5,
2015, upon notification that the appellant failed to maintain his license, the
agency terminated him pursuant to its authority under 38 U.S.C. § 7403(b)(4).
0151 IAF, Tab 5 at 24-25. The appellant appealed the termination to the Board.
0151 IAF, Tab 1. The administrative judge dismissed his appeal for lack of
jurisdiction because the appointment statute did not provide for chapter 75 appeal
rights. 38 U.S.C. §§ 7401(1), 7403(b)(4); Reed v. Department of Veterans
Affairs, MSPB Docket No. CH-0752-16-0151-I-1, Initial Decision (Apr. 15,
2016); 0151 IAF, Tab 9.
¶3 On August 1, 2016, the appellant filed an OSC complaint. Reed v.
Department of Veterans Affairs, MSPB Docket No. CH-1221-17-0153-W-1,
Initial Appeal File (0153 IAF), Tab 1. According to the November 3, 2016 letter
from OSC notifying the appellant that it was closing the inquiry into his
allegations, the appellant asserted that he was terminated for his disclosure in
June 2015 to the Associate Chief of Nursing that the new PACT system 4 at his
facility had not been fully and properly implemented. Id. OSC informed the
appellant of his right to file an IRA appeal with the Board, and the appellant’s
appeal was timely filed. Id.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. 0153 IAF, Tab 10, Initial Decision (0153 ID). She found
that the appellant exhausted his administrative remedy regarding his allegation
that he was terminated in retaliation for his disclosure that the PACT system had
not been fully and properly implemented. 0153 ID at 4-5. However, she
4
According to the agency’s website, “PACT” stands for “Patient Aligned Care Team.”
PACTs focus on “Partnerships with Veterans,” “Access to care using diverse methods,”
“Coordinated care among team members,” and “Team-based care with Veterans as the
center of their PACT.” Department of Veterans’ Affairs, Patient Aligned Care Team
(PACT)–Patient Care Services, http://www.patientcare.va.gov/primarycare/PACT.asp
(last visited Aug. 23, 2023).
4
considered only the information that the appellant provided to OSC and found
that it was insufficient to find a nonfrivolous allegation to OSC of a disclosure of
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health and safety. 0153 ID at 6-10.
¶5 The appellant has filed a petition for review and the agency has responded
in opposition to the appellant’s petition. Petition for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to clarify that we have considered whether the
appellant nonfrivolously alleged that he made a protected disclosure to agency
officials and not to OSC.
¶6 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosu re or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish the matter at issue. Lewis v.
Department of Defense, 123 M.S.P.R. 255, ¶ 7 (2016); 5 C.F.R. § 1201.4(s). An
allegation generally will be considered nonfrivolous when, if an individual makes
such an allegation under oath or penalty of perjury, it is more than conclusory,
plausible on its face, and material to the legal issues in the appe al. Id.
¶7 The appellant declared under penalty of perjury that, at a meeting in June
2015, he disclosed to the Associate Chief of Nursing, the Nurse Manager selectee,
and the departing Nurse Manager that the new PACT system at the facility in
which he worked had not been fully and properly implemented, that adequate
clerical support was not provided, and that licensed practical nurses (LPNs)
5
working in the facility did not have basic resources, such as telephone lines, to
perform their jobs. 0153 IAF, Tab 1, Tab 4 at 10-12. A protected disclosure is
any disclosure of information that the appellant reasonably believes evidences
any violation of any law, rule, or regulation, gross mismanagement, a gross waste
of funds, an abuse of authority, or a substantial and specific dange r to public
health or safety. 5 5 U.S.C. § 2302(b)(8); Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 7 (2016). The proper test for determining whether
an employee had a reasonable belief that his disclosures were protected is
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8).
Bradley, 123 M.S.P.R. 547, ¶ 7. Here, the appellant asserted, in his Board appeal,
that he made his disclosure to agency officials. 0153 IAF, Tab 4 at 10-12.
Nevertheless, the administrative judge appears to have assessed the appellant’s
disclosures on the basis of the information he disclosed to OSC. 6 0153 ID
at 5-10.
¶8 Pursuant to 5 U.S.C. § 2302(b)(8)(B)(ii), an appellant may seek corrective
action on the basis of retaliation for disclosures to OSC of gross mismanagement,
a gross waste of funds, an abuse of authority, or a substanti al and specific danger
to public health or safety. 7 However, the appellant is not asserting retaliation on
5
The appellant does not reassert that he made protected disclosures of a gross waste of
funds or an abuse of authority. PFR File, Tab 1; 0153 ID at 7 -8. Accordingly, we do
not address these claims on review.
6
The administrative judge specifically found that the appellant exhausted his
administrative remedy regarding these claims. 0153 ID at 4 -5. Thus, her assessment of
the adequacy of the claims was unrelated to the eleme nt of exhaustion.
7
An appellant may also seek corrective action in an IRA appeal based on a claim that
he was retaliated against for “cooperating with or disclosing information to . . . the
Special Counsel, in accordance with applicable provisions of law .” 5 U.S.C.
§ 2302(b)(9)(C). As noted herein, however, the appellant is alleging that he was
retaliated against for his disclosures to agency management officials, and not for
6
the basis of such disclosures and is instead asserting that he made a protected
disclosure to agency officials. Accordingly, we modify the initial decision to
clarify that we are instead considering, pursuant to 5 U.S.C. § 2302(b)(8),
whether the appellant nonfrivolously alleged that he made a protected dis closure
to agency officials.
The appellant failed to nonfrivolously allege that he made a protected disclosure.
¶9 The appellant asserts that, in considering his allegation of gross
mismanagement, the administrative judge improperly ignored his specific
statements to the Associate Chief of Nursing. PFR File, Tab 1 at 8. He points to
his precise reports of deficiencies in the implementation of the PACT system,
including a lack of “adequate clerical support” and that LPNs did not have phone
lines to adequately care for their patients. Id. at 7-8. He disagrees that he
disclosed matters that were debatable because he asserts that failing to maintain
the ability to receive calls from physicians, coworkers, or patients is “grossly
negligent” and having staff that are unable to communicate with one another or
their patients would render them “all-but useless” in caring for patients. Id. at 8.
He notes, as he did below, that when he made his disclosure in June 2015,
everyone in the room fell silent. Id. at 9; 0153 IAF, Tab 4 at 11.
¶10 Under the Whistleblower Protection Enhancement of Act 2012, Pub. L.
No. 112-199, 126 Stat. 1465 (WPEA), general philosophical or policy
disagreements with agency decisions or actions are not protected disclosures
unless there is a reasonable belief that the disclosures evidence one of the
categories of wrongdoing listed in section 2302(b)(8)(A) . See Webb v.
Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015). Gross mismanagement
means a management action or inaction that creates a substantial risk of
significant adverse impact upon the agency’s ability to accomplish its mission.
communications with OSC; thus, we need not analyze his claim under
section 2302(b)(9)(C).
7
Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 12 (2013); White v.
Department of the Air Force, 63 M.S.P.R. 90, 95 (1994). 8
¶11 Here, the appellant has offered his disagreement with the implementation of
the PACT system and the allocation of resources, such as LPN access to phone
lines and clerical support, but he has not disclosed any action or inaction that
created a substantial risk of significant adverse impact upon the agency’s ability
to accomplish its mission. We find that, a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the appellant could
not reasonably conclude that the disclosure evidenced gross mismanagement.
Accordingly, we find that the appellant has failed to nonfrivo lously allege that he
made a disclosure that he reasonably believed evidenced gross mismanagement by
agency officials. See Francis, 120 M.S.P.R. 138, ¶ 12 (finding that the appellant
failed to nonfrivolously allege that she made a protected disclosure of gross
mismanagement because her disclosure of training deficiencies of interns merely
expressed her disagreement with job-related issues).
¶12 The appellant next cites Chambers v. Department of the Interior, 515 F.3d
136 2, 1368-69 (Fed. Cir. 2008), for the proposition that, even if the Board fi nds
that he did not make a nonfrivolous allegation that he disclosed gross
mismanagement, the Board still must consider his claim of a threat to public
health and safety. PFR File, Tab 1 at 9-10. We agree that we must consider this
claim; however, as discussed below, we find that, under the standard set forth in
Chambers, the appellant has failed to nonfrivolously allege that he made a
protected disclosure. 9 In Chambers, the Federal Circuit reiterated that, to
8
The Board decided White prior to the enactment of the WPEA; however, subsequent
changes in the law do not affect the relevant holding in that case.
9
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act (Pub. L. No. 115-195), appellants may file petitions for
judicial review of Board decisions in whistleblower reprisal cases with any circuit court
8
constitute a protected whistleblowing disclosure, a disclosed danger must be
substantial and specific. 515 F.3d at 1369; see Miller v. Department of Homeland
Security, 111 M.S.P.R. 312, ¶ 6 (2009). The court also set forth the following
factors for determining whether such a disclosure is protected: (1) whether the
disclosed situation “could only result in harm under speculative or improbable
conditions”; (2) whether the harm will occur in the “immediate or near future” or
is “likely to manifest only in the distant future”; and (3) the potential
consequences of the situation that was disclosed. Chambers, 515 F.3d at 1369.
¶13 In support of his claim that he disclosed a substantial and specific danger to
public health and safety, the appellant argues that there was a “looming threat to
public safety” and “it strains logic” to conclude that healthcare professionals who
lack basic resources to perform their work do not put patient safety at risk when
those resources are unavailable. PFR File, Tab 1 at 9-11. He reasserts that
nurses did not have adequate clerical support and LPNs did not have adequate
phone lines to assist with patient-care tasks. Id. at 9. Additionally, he states that
it is not unreasonable to foresee a situation when a patient would be unable to
reach clinic staff due to lack of telephone access when the patient would be in
need of medical care, medical advice, or even the basic instruction to call 911.
Id. at 10.
¶14 We find that the appellant has failed to nonfrivolously allege that he made a
protected disclosure of a substantial and specific danger to public health and
safety. He has described the possibility that the agency’s policies, as
implemented at the time of his disclosure, could eventually have a negative effect
on the care of a patient. Id. We do not question that issues with the
implementation of policies and procedures for patient care could evidence a
of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we
must consider these issues with the view that the appellan t may seek review of this
decision before any appropriate court of appeal.
9
substantial and specific danger to public health and safety as such issues can lead
to severe consequences. Thus, in Peterson v. Department of Veterans Affairs,
116 M.S.P.R. 113, ¶ 12 (2011), we found that the appellant nonfrivolously
alleged that she disclosed a substantial and specific danger to public health and
safety when, among other things, she disclosed to the Chief Nurse Executive that
ongoing improper patient care and procedures jeopardized and adversely affected
the health and safety of patients and, in some extreme cases, led to strokes, heart
attacks, and death of patients. Here, however, the appellant contends that lack of
resources, including clerical support and phone lines, could lead to patient danger
at some point in the future. PFR File, Tab 1 at 9-11. We find that his assertion is
speculative and that there is no indication of specific consequences in the
immediate or near future. See Chambers, 515 F.3d at 1369; Miller, 111 M.S.P.R.
312, ¶ 6. Accordingly, we find the appellant failed to nonfrivolously allege that
he made a protected disclosure. See Schoenig v. Department of Justice,
120 M.S.P.R. 318, ¶ 10 (2013) (finding that the appellant failed to nonfrivolously
allege that she made a protected disclosure when she stated that fire sprinklers in
her building were similar to sprinklers that had been subject to recall because
such a disclosure was only speculative).
¶15 Having found that the appellant failed to nonfrivolously allege that he made
a protected disclosure, we need not address whether his disclosu re was a
contributing factor to his termination. See El v. Department of Commerce,
123 M.S.P.R. 76, ¶ 13 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).
Accordingly, we find that the appellant has not established jurisdiction over his
IRA appeal. 10
10
The administrative judge also found that a determination as to whether the agency
proved by clear and convincing evidence that it would have terminated the appellant’s
employment absent his disclosure would be premature. 0153 ID at 11. Because the
appellant has not established jurisdiction over his appeal, we agree. See MaGowan v.
Environmental Protection Agency, 119 M.S.P.R. 9, ¶ 11 (2012) (finding that the
10
NOTICE OF APPEAL RIGHTS 11
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 your case by your
chosen forum.
Please read carefully each of the three main possibl e 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).
administrative judge should not have considered whether the agency established by
clear and convincing evidence that it would have taken the same personnel action in the
absence of the appellant’s alleged whistleblowing without first finding jurisdiction).
11
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.
11
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
12
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
13
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 Circuit or any court of appeals of
competent jurisdiction. 12 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
12
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 b y 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 c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
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.
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.