Khurshid Muhammad v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KHURSHID KHAN MUHAMMAD, DOCKET NUMBER

Appellant, AT-1221-20-0342-W-1

v.

DEPARTMENT OF VETERANS DATE: August 31, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Khurshid Khan Muhammad, Artesia, California, pro se.

Tanya Burton, Bay Pines, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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, 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 agency has not established any basis under

section 1201.115 for granting the petition for review. As further stated below,

the appellant has established a basis in his cross peti tion for review for modifying

the relief order in part. Therefore, we DENY the petition for review and GRANT

the cross petition for review. Except as expressly MODIFIED to clarify the

manner in which the appellant satisfied the knowledge/timing test, we AFFIRM

the initial decision.

BACKGROUND

¶2 As relevant here, from October 27 to November 7, 2014, the appellant was

employed by the agency as a Fee Basis Physician at an agency medical facility in

Albuquerque, New Mexico (Albuquerque VA). Initial Appeal Fi le (IAF), Tab 13

at 10, 75, 134. The appellant filed two whistleblower complaints with the Office

of Special Counsel (OSC) stemming from this tenure at the Albuquerque VA, and,

thereafter, two separate IRA appeals with the Board. Muhammad v. Department

of Veterans Affairs, MSPB Docket No. DE-1221-15-0371-W-1, Initial Appeal

File, Tab 1 at 5-6, 8-21; Muhammad v. Department of Veterans Affairs, MSPB

Docket No. DE-1221-16-0182-W-1, Initial Appeal File (0182 IAF), Tab 1 at 5-6,

8-30. The Board joined these two appeals into one consolidated action.

Muhammad v. Department of Veterans Affairs, MSPB Docket No. DE-1221-15-

3

0371-W-2, Appeal File (0371 AF), Tab 3 at 1-2. Following a hearing on the

consolidated matter, the administrative judge issued an initial decision on

December 29, 2016, finding that, although the appellant had established Board

jurisdiction over the matter, he was not entitled to any corrective action.

0371 AF, Tab 61, Initial Decision at 9-10, 20-21. The appellant filed a petition

for review of that initial decision, and the Board subsequently remanded the

matter. Muhammad v. Department of Veterans Affairs, MSPB Docket

No. DE-1221-15-0371-W-2, Remand Order (Feb. 21, 2023).

¶3 On February 24, 2020, the appellant filed the instant appeal with the Board

alleging that the agency had withdrawn a tentative offer of employment for a

Primary Care Physician position at an agency medical facility in Bay Pines,

Florida (Bay Pines VA) because of (1) “unsubstantiated retaliatory remarks”

made by Albuquerque VA agency employees and (2) his prior OSC complaints

and Board appeal. IAF, Tab 1 at 3, 5-6. With his initial appeal form, the

appellant provided a February 10, 2020 close-out letter from OSC. Id. at 33-34.

The letter indicated that the appellant had alleged before OSC that the agency had

withdrawn its offer for the position at the Bay Pines VA because, while employed

at the Albuquerque VA in 2014, he had made a protected disclosure regarding

patient safety issues, which had thereafter been the subject of prior OSC

complaints and a prior Board IRA appeal. Id. at 33. The letter informed the

appellant of his Board appeal rights. Id. at 33-34.

¶4 The administrative judge issued a jurisdictional order wherein she explained

the circumstances under which the Board has jurisdiction to adjudicate IRA

appeals, and she ordered the appellant to file specific evidence and argument

regarding jurisdiction. IAF, Tab 3 at 2-8. Following the appellant’s response, the

administrative judge concluded that the Board had jurisdiction over the matter.

IAF, Tab 18 at 1-3. To this end, she found that the appellant had exhausted his

claim with OSC. Id. at 2. She also found that the appellant had made a

nonfrivolous allegation that Bay Pines VA officials were aware of his prior OSC

4

complaints and his prior Board appeal, both of which constituted protected

activity under 5 U.S.C. § 2302(b)(9). Id. She found, however, that the appellant

had failed to allege that officials at the Bay Pines VA had any knowledge of his

2014 disclosure regarding patient safety. Id. She also implicitly concluded that

the appellant had made a nonfrivolous allegation of a personnel action, i.e., the

agency’s withdrawal of its tentative job offer at the Bay Pines VA. Id. at 3. She

concluded that the issues to be decided, to the exclusion of all other issues, were

whether “Bay Pines VA officials improperly considered [the appellant’s]

OSC/MSPB activity” when it decided to withdraw his tentative job offer. Id.

Neither party objected to the administrative judge’s jurisdictional order.

¶5 Following a 2-day hearing conducted via Zoom for Government, the

administrative judge issued an initial decision granting the appellant’s request for

corrective action. IAF, Tab 42, Initial Decision (ID) at 1, 15. In so doing, the

administrative judge found that “the appellant’s prior whistleblower appeal with

[the Board] constituted protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).” 2

ID at 7. She also concluded that the appellant had demonstrated by preponderant

evidence that his protected activity was a contributing factor in the personnel

action at issue, i.e., the rescission of his tentative offer of employment , insofar as

he had satisfied the knowledge/timing test. ID at 7-9. Lastly, she concluded that

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

rescinded the appellant’s tentative offer of employment in the absence of his

protected activity. ID at 9-15. Accordingly, the administrative judge ordered the

agency to do the following: (1) delete from its internal computer system an entry

made on or about February 13, 2017, wherein an agency management official,

2

The initial decision did not address whether the appellant’s prior OSC complaints

constituted protected activity under 5 U.S.C. § 2302(b)(9); however, this oversight does

not change the outcome of this appeal. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision).

5

Dr. M., indicated that he did not recommend the appellant for appointment; and

(2) rescind the withdrawal of the tentative offer of employment, reconstruct the

hiring process, and determine whether the appellant should be appointed to the

Primary Care Physician position. ID at 15. The administrative judge did not

order any interim relief because she found that “no appropriate relief [was]

available” at the time. Id.

¶6 The agency has filed a petition for review, and the appellant has filed a

response to the petition for review and a cross petition for review. Petition for

Review (PFR) File, Tabs 1, 3. In its petition, the agency argues that (1) the

administrative judge erred in finding that the appellant satisfied the

knowledge/timing test and (2) it is unable to purge the February 13, 2017 entry

from its internal computer system. PFR File, Tab 1 at 4-12. The agency provides

additional documents to support its latter argument. Id. at 13-33. In his response

and cross petition for review, the appellant contends that (1) both of the agency’s

arguments lack merit and (2) he is entitled to additional relief. PFR File, Tab 3

at 4-22.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an

appellant may establish a prima facie case of retaliation for whistleblowing

disclosures and/or protected activity by proving by preponderant evidence 3 that

(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),

and (2) the whistleblowing disclosure or protected activity was a contributing

factor in the agency’s decision to take a personnel action against h im. 5 U.S.C.

§ 1221(e)(1); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015).

3

Preponderant 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).

6

If the appellant makes out a prima facie case, the agency is given an opportunity

to prove, by clear and convincing evidence, 4 that it would have taken the same

personnel action in the absence of the protected disclosure or activity. 5 U.S.C.

§ 1221(e)(1)-(2); Webb, 122 M.S.P.R. 248, ¶ 6. In determining whether an

agency has met this burden, the Board will consider the following factors: (1) the

strength of the agency’s evidence in support of its 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 t akes similar

actions against employees who are not whistleblowers but who ar e otherwise

similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999).

¶8 Here, the agency does not challenge, and we discern no basis to disturb, the

administrative judge’s conclusion that the appellant engaged in protected activity

vis-à-vis his prior Board IRA appeal. ID at 7; see 5 U.S.C. § 2302(b)(9)(A)(i).

Similarly, the agency does not contest, and we discern no basis to disturb, her

implicit conclusion that the agency’s rescission of its tentative job offer at the

Bay Pines VA constituted a personnel action under 5 U.S.C. § 2302(a)(2)(A)(i). 5

ID at 9. Lastly, the agency does not challenge the administrative judge’s

4

Clear and convincing evidence is that measure or degree of p roof 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 preponderant evidence. 5 C.F.R. § 1209.4(e).

5

As noted by the appellant in his response, the agency emphasizes in its petition for

review that it never provided the appellant with a formal tentative offer of employment.

PFR File, Tab 1 at 5, 8 nn.3-4, Tab 3 at 7. The agency avers that the appellant received

a draft copy of his tentative offer letter via a Freedom of Information Act request. PFR

File, Tab 1 at 5; IAF, Tab 13 at 26. To the extent the agency argues that the

administrative judge erred in finding that the appellant identified a cogn izable

personnel action under 5 U.S.C. § 2302(a)(2)(A)(i), we find its argument unavailing.

See Ruggieri v. Merit Systems Protection Board, 454 F.3d 1323, 1325-27 (Fed. Cir.

2006) (explaining that the term “appointment” as used in 5 U.S.C. § 2302(a)(2)(A)(i)

covers an expansive range of acts and failure to act); see also Mattil v. Department of

State, 118 M.S.P.R. 662, ¶ 23 (2012) (reasoning that an agency’s intentional exclusion

of an appellant from specific job opportunities may constitute a personnel action under

5 U.S.C. § 2302(a)(2)(A)(i)).

7

weighing of the Carr factors or otherwise provide a basis to disturb her

conclusion that the agency failed to show by clear and convincing evidence that it

would have rescinded the appellant’s tentative offer of employment in the

absence of his protected activity. ID at 9-15.

We agree with the administrative judge’s conclusion that the appellant satisfied

the knowledge/timing test; however, we modify the initial decision to clarify the

manner by which he satisfied the same.

¶9 The agency argues that the administrative judge erred in finding that the

appellant proved by preponderant evidence that his protected activity, i.e., his

prior Board IRA appeal, was a contributing factor in the agency’s rescission of its

tentative offer of employment. PFR File, Tab 1 at 6-8. To this end, it contends

that the appellant did not satisfy the knowledge/timing test because Dr. M., the

Bay Pines VA management official who elected to rescind the appellant’s job

offer, was unaware of the appellant’s prior IRA appeal; rather, he was aware only

that the appellant had previously been involved in unspecified litigation with the

agency. Id. at 8.

¶10 An appellant’s protected activity is a contributing factor if it in any way

affects an agency’s decision to take, or fail to take, a personnel action. See

Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to

establish contributing factor is the knowledge/timing test. Wadhwa v.

Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435

(Fed. Cir. 2009). Under this test, an appellant can prove the contributing factor

element through evidence showing that the official taking the personnel action

knew of his protected activity and that the personnel action occurred within a

period of time such that a reasonable person could conclude that the activity was

a contributing factor in the personnel action. Id.

¶11 Here, the administrative judge found that the appellant satisfied the

contributing factor criterion vis-à-vis the knowledge/timing test because Dr. M.

had actual knowledge of the appellant’s prior Board IRA appeal. ID at 7-9. In so

8

finding, she explained that there were two avenues through which Dr. M. may

have learned of the appellant’s protected activity. First, on his job application for

the position at the Bay Pines VA, the appellant explained that the nature of his

discharge from the Albuquerque VA was in dispute and indicated that this dispute

“ha[d] been subject to MSPB (whistle blower) proceedings.” ID at 3; IAF,

Tab 13 at 10 (punctuation as in original). Second, an agency employee assigned

to review the appellant’s credentials and work history on behalf of the Bay Pines

VA, B.L., drafted a February 10, 2017 email to agency management personnel,

including Dr. M., that stated, in relevant part, as follows: “[T]he [Albuquerque]

VA credentialer called me and stated though [the appellant] left in 9/2014, 6 they

just finished up litigation with him reference him being ‘let go’ as a Fee Basis

employee and he accusing the VA of falsifying/signing his records (he lost his

case.)” ID at 4; IAF, Tab 13 at 25 (grammar and punctuation as in original).

¶12 In the initial decision, the administrative judge recounted the testimony of

Dr. M., who indicated that he could not recall whether he had seen the language

regarding the appellant’s whistleblowing case on his job application. ID at 8.

The administrative judge reasoned that, notwithstanding this uncertainty, Dr. M.

knew of the appellant’s protected activity because he had received B.L.’s

February 10, 2017 email. ID at 9. The administrative judge acknowledged that

the subject email was devoid of any mention of whistleblowing, but found that

this omission was not dispositive because the email “put [Dr. M.] on notice that

the appellant had been in litigation with the agency concerning his prior

employment.” Id. Thus, she concluded that the appellant had satisfied the

knowledge prong of the knowledge/timing test vis-à-vis Dr. M.’s actual

knowledge of the appellant’s protected activity. 7 We disagree with this finding

6

Insofar as the appellant left the employ of the Albuquerque VA in November 2014,

this statement was erroneous. IAF, Tab 13 at 10, 75, 134.

7

The initial decision did not address the latter prong of the test, i.e., the timing of the

agency’s personnel action; accordingly, we herein address the same.

9

and we modify the initial decision to clarify the basis by which the appellant

satisfied the knowledge/timing test.

¶13 Under the WPEA, the Board has jurisdiction over claims of protected

activity arising under 5 U.S.C. § 2302(b)(9)(A)(i), but not those arising under

(b)(9)(A)(ii). Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7

(2013). Protected activity under section 2302(b)(9)(A)(i) includes “the exercise

of any appeal, complaint, or grievance right granted by any law, rule, or

regulation . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].”

5 U.S.C. § 2302(b)(9)(A)(i) (emphasis added). Section 2302(b)(9)(A)(ii), by

contrast, encompasses “the exercise of any appeal, complaint, or grievance right

granted by any law, rule, or regulation . . . other than with regard to remedying a

violation of [5 U.S.C. § 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(ii) (emphasis

added). Accordingly, a complaint and/or litigation stemming therefrom falls

under the purview of 5 U.S.C. § 2302(b)(9)(A)(i), and therefore within the ambit

of the WPEA, only if it seeks to remedy whistleblower reprisal. See Bishop v.

Department of Agriculture, 2022 MSPB 28, ¶ 15 (explaining that only complaints

seeking to remedy whistleblower reprisal are covered under 5 U.S.C.

§ 2302(b)(9)(A)(i)); see also Mudd, 120 M.S.P.R. 365, ¶¶ 2, 7 (concluding that

the Board lacked jurisdiction over an appellant’s filing of a grievance that did not

seek to remedy a violation of 5 U.S.C. § 2302(b)(8)). Here, because B.L.’s

February 10, 2017 email was devoid of any mention of whistleblowing and made

only a vague reference to an unspecified “case” wherein the appellant had

unsuccessfully accused the agency of falsifying records, IAF, Tab 13 at 25, we

find that the administrative judge erred by relying solely on the same to find that

Dr. M. had actual knowledge that the appellant had engaged in protected activity

under 5 U.S.C. § 2302(b)(9)(A)(i), ID at 9.

¶14 Actual knowledge on the part of the deciding official, however, is not the

only manner in which an appellant may satisfy the knowledge/timing test.

Indeed, an appellant also may satisfy the knowledge prong of the

10

knowledge/timing test by proving that the official taking the action had

constructive knowledge of the protected disclosure, even if the official lacked

actual knowledge. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014).

An appellant may establish constructive knowledge by showing that an individual

with actual knowledge of the disclosure influenced the official accused of taking

the retaliatory action. Id.; see Staub v. Proctor Hospital, 562 U.S. 411, 415-16

(2011) (adopting the term “cat’s paw” to describe a case in which a particular

management official, acting because of an improper animus, influences an agency

official who is unaware of the improper animus when implementing a personnel

action). Indeed, in an IRA appeal, the party before the Board is the agency, not

its individual officials, and lack of knowledge by a particular official is not

dispositive. Nasuti, 120 M.S.P.R. 588, ¶ 7.

¶15 Here, as set forth in the initial decision, in researching the appellant’s work

history, B.L. telephoned and spoke with D.W., an employee at the Albuquerque

VA. ID at 4. At the time of this conversation, D.W. was undoubtedly aware of

the appellant’s prior IRA appeal insofar as she had testified as a witness in the

hearing for the matter on September 21, 2016, approximately 4 months earlier.

ID at 14; 0371 AF, Tab 59, Hearing Recording (HR). B.L. memorialized her

conversation with D.W. in her February 10, 2017 email. ID at 8; IAF, Tab 13

at 25. In addition to conveying the above information regarding the appellant’s

prior litigation with the agency, D.W. also made the following statements to B.L.

during the conversation: (1) the appellant was “lazy”; (2) the appellant was a

“cry-baby”; and (3) the appellant did not have a strong work ethic. IAF, Tab 13

at 25. In a subsequent portion of her analysis, the administrative judge found that

these negative assertions were unsubstantiated by the record and, therefore, that

D.W.’s “provocative language [was] undeniably intended to torpedo the

appellant’s candidacy at the Bay Pines VA.” ID at 12-14. She also concluded

that Dr. M. had given D.W.’s assessment of the appellant “a great deal of

credence.” ID at 13. We discern no basis to disturb either of these conclusions.

11

See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)

(holding that the Board must give deference to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on the

observation of the demeanor of witnesses testifying at a hearing) . Thus, we find

that the appellant showed by preponderant evidence that Dr. M. had constructive

knowledge of the appellant’s protected activity. See Aquino v. Department of

Homeland Security, 121 M.S.P.R. 35, ¶¶ 3-4, 18, 20-21 (2014) (affirming the

administrative judge’s decision to impute knowledge of the appellant’s protected

disclosure to the proposing and deciding officials when the appellant’s supervisor

learned of the appellant’s protected disclosure and shortly thereafter reported

concerns about the quality of his work performance to upper management); see

also Dorney, 117 M.S.P.R. 480, ¶¶ 2-3, 13, 17 (finding that the appellant made a

nonfrivolous allegation of constructive knowledge when she asserted that a

hospital administrator, who was aware of her protected disclosures, had

influenced the selecting official by making disparaging comments about her, to

include stating that she was “slow” and not a “team player”). We also find that

the appellant satisfied the timing prong of the knowledge/timing test; indeed,

Dr. M. elected to rescind the appellant’s tentative job offer on February 13, 2017,

three days after his receipt of B.L.’s email, approximately 4.5 months after the

hearing for the appellant’s prior (consolidated) Board IRA appeal, and 1 year

after the appellant had filed the latter of his two prior Board IRA appeals. IAF,

Tab 13 at 24; HR; 0182 IAF, Tab 1; see Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶ 21 (2015) (explaining that the Board has held that a

personnel action taken within approximately 1 to 2 years of a protected disclosure

satisfies the knowledge/timing test). Accordingly, we affirm as modified the

administrative judge’s conclusion that the appellant satisfi ed the contributing

factor criterion vis-à-vis the knowledge/timing test.

12

The agency’s assertion regarding its inability to purge an entry from its internal

computer system is both unclear and unavailing.

¶16 The agency contends that it is unable to comply with the administrative

judge’s order that it remove a specific entry from its internal computer system,

i.e., an entry made by Dr. M. on or about February 13, 2017, wherein he indicated

that he was not recommending the appellant for appointment. PFR File, Tab 1

at 9-10; ID at 15; IAF, Tab 13 at 33. To this end, the agency seemingly argues

that removing the subject entry from “VetPro,” i.e., its internal computer system,

would violate an internal agency directive. PFR File, Tab 1 at 10. To support

this apparent argument, the agency provides the directive and documents

pertaining thereto. 8 Id. at 10-33.

¶17 We find the agency’s assertions both unclear and unavailing. Indeed, the

agency fails to clearly explain how its compliance with the administrative judge’s

order would violate the subject directive. To this end, the agency indicates only

that the entry at issue is not the type of entry that is “routinely removed/deleted”

from the system, PFR File, Tab 1 at 10, and vaguely avers that the criteria for

removal “does not appear to be met,” id. at 11; see Tines v. Department of the Air

Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must

contain sufficient specificity to enable the Board to ascertain whether there is a

serious evidentiary challenge and concluding that the appellant’s petition

contained neither evidence nor argument demonstrating error by the

administrative judge). The agency also emphasizes that it has previously

removed information from VetPro only because of “typographical/key stroke

8

The agency did not submit this evidence, which predates the initial decision, to the

administrative judge. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)

(finding that the Board generally will not consider evidence submitted for the first time

with the petition for review absent a showing that it was unavailable before the record

was closed despite the party’s due diligence); 5 C.F.R. § 1201.115(d). Regardless, as

set forth herein, these documents are not material to the outcome of this appeal. See

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board

will not grant a petition for review based on new evidence absent a showing that i t is of

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

13

error[s]” and “accidental entr[ies],” and that it cannot remove information “solely

because the [employee] doesn’t like an entry related to a negative finding.” PFR

File, Tab 1 at 10-11. Here, however, the administrative judge did not order the

removal of the entry merely because the appellant did not like it; rather, she

ordered that the entry be purged because she concluded that the appellant proved

that the agency had engaged in whistleblower retaliation under the WPEA. The

agency’s apparent disagreement with this finding does not provide a basis to

disturb the same. See Riggsbee v. Office of Personnel Management, 111 M.S.P.R.

129, ¶ 11 (2009) (explaining that mere disagreement with the administrative

judge’s explained factual findings and legal conclusions therefrom does not

provide a basis to disturb the initial decision). Thus, the agency’s arguments are

unavailing. 9

The appellant’s cross petition for review is granted.

¶18 In his cross petition for review, the appellant asserts that the corrective

action ordered by the administrative judge was inadequate and he requests

additional relief. PFR File, Tab 3 at 20-22. First, he requests that the Board

order the agency to undertake a more comprehensive review of the entries in its

internal computer system, remove any additional unfavorable entries pertaining to

him written by either Dr. M. or another Bay Pines VA employee, S.K., and

provide him with “concrete proof” that any such entries have been purged. Id.

at 20. We agree that the agency must do an additional search and purge any

additional unfavorable entries from Bay Pines VA officials about the appellant’s

fitness for the Primary Care physician position. An appellant that prevails in an

IRA appeal shall be placed, as nearly as possible, in the position that the

9

Absent annotation, the agency has also seemingly highlighted portions of the

documents that it provides regarding the directive, to include a portion stating th at an

initial “denial of clinical privileges does not carry with it any right to due processes.”

PFR File, Tab 1 at 33. However, insofar as the appellant did not raise a due process

claim, the agency’s argument in this regard, if any, is unclear. See Tines, 56 M.S.P.R.

at 92.

14

individual would have been in had the prohibited personnel action not occurred .

5 U.S.C. § 1221(g)(1)(A)(i); Armstrong v. Department of Justice, 107 M.S.P.R.

375, ¶ 34 (2007), overruled on other grounds by Edwards v. Department of

Labor, 2022 MSPB 9. Accordingly, to the extent Bay Pines VA officials made

any additional unfavorable entries in its computer system regarding the

appellant’s fitness for the Primary Care Physician position at issue in this appeal,

as set forth below, such entries must be purged.

¶19 Second, the appellant contends that the administrative judge should have

explicitly ordered the agency to appoint him to the Primary Care Physician

position. PFR File, Tab 3 at 20-21. To this end, he explains that the

administrative judge merely ordered the agency to rescind the withdrawal of the

tentative job offer and reconstruct/continue the hiring process, whereas she

should have ordered the agency to appoint him with a retroactive start date. Id.

We disagree. Here, the record reflects that, prior to Dr. M.’s rescission of the

tentative offer, the agency drafted a letter of intent, which explained that the

appellant’s tentative job offer was conditional on a series of outstanding

prerequisites, to include an endorsement by the agency’s Medical Staff Executive

Board. IAF, Tab 13 at 26. Thus, we find that the administrative judge properly

provided the appellant with status quo ante relief in this regard. See Armstrong,

107 M.S.P.R. 375, ¶ 34.

¶20 Lastly, the appellant avers that he is entitled to financial remuneration.

PFR File, Tab 3 at 21-22. To this end, he avers that he is entitled to unspecified

compensation for lost earnings and damage to his professional reputation. Id. He

also explains that his mental and physical health have suffered as a result of the

agency’s retaliatory actions. Id. at 22. Because the appointment process was not

yet complete, we find that no back pay is warranted here; however, as set forth in

greater detail below, as the prevailing party in this matter, the appellant may

request consequential and/or compensatory damages in an addendum proceeding

within 60 calendar days of the date of this decision. 5 C.F.R. §§ 1201.201-.203.

15

ORDER

¶21 We ORDER the agency to provide the appellant with relief such that he is

placed as nearly as possible in the same situation he would have been in had the

agency had not retaliated against him for whistleblowing. 5 U.S.C.

§ 1221(g)(1)(a)(i); see Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 50

(2013). Accordingly, the agency must purge from its VetPro system (1) the entry

made by Dr. M. on or about February 13, 2017, concerning not recommending the

appellant for appointment and (2) after conducting a comprehensive search and

providing the results of such search to the appellant, any other unfavorable entries

pertaining to the appellant’s fitness for the Primary Care Physician position at the

Bay Pines VA. 10 The agency must also rescind the withdrawal of the appellant’s

tentative job offer and reconstruct/continue the hiring process to determine

whether the appellant is qualified for appointment to the subject position. The

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

decision.

¶22 We further ORDER the agency to tell the appellant promp tly 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).

¶23 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 in this appeal if the appellant

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

should contain the specific reasons why the appellant believes that the agency has

10

In its review of its VetPro system as to such unfavorable entries, the agency must

provide a copy of all the records referring to the appellant’s fitness for the Primary Care

Physician position at the Bay Pines VA. The agency must also provide the appellant

the opportunity to state whether any of these entries are unfavorable. If there is any

dispute as to whether an entry is unfavorable, the appellant may file a petition for

enforcement in accordance with this Order.

16

not fully carried out the Board’s Order, and should include the dates and results

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

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), 1221(g)(1)(A)(ii), 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.

17

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 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.

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.

18

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 cas e, 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 partic ular

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

19

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:

20

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 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).

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 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.

21

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 Fede ral

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.

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.