# Khurshid Muhammad v. Department of Veterans Affairs

> Merit Systems Protection Board · August 31, 2023

URL: https://www.frixlaw.com/law-library/cases/9820203

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 31, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9820203

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9820203. Public record. Not legal advice.