Opinion

Negar Hessami v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEGAR HESSAMI , DOCKET NUMBER

Appellant, PH-1221-17-0271-M-2

DEPARTMENT OF VETERANS DATE: April 29, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kellee B. Kruse , Esquire, and R. Scott Oswald , Esquire, Washington, D.C.,

for the appellant.

Kaitlin Fitzgibbon , Esquire, Buffalo, New York, for the agency.

Shelly S. Glenn , Esquire, Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied her request for corrective action in her individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

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

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

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

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

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

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

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

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

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

VACATE the administrative judge’s analysis of whether the agency proved by

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

actions in the absence of the disclosures, we AFFIRM the initial decision.

The appellant was employed with the agency as the Chief of Pharmacy

Service at the agency’s medical center in Martinsburg, West Virginia. Hessami

v. Department of Veterans Affairs, MSPB Docket No. PH-1221-17-0271-W-1,

Initial Appeal File, Tab 1. In her appeal, she alleged that she was detailed out of

her position, suspended for 14 days, and demoted to a nonsupervisory position in

reprisal for her disclosures concerning the prescribing practices of a particular

physician and the effect those practices had on the agency’s budget for

Hepatitis C treatment. Id. at 17-21. After the administrative judge originally

dismissed her appeal for lack of jurisdiction for failing to nonfrivolously allege

that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), Hessami v.

Department of Veterans Affairs, MSPB Docket No. PH-1221-17-0271-W-2,

Appeal File (W-2 AF), Tab 15, the U.S. Court of Appeals for the Federal Circuit

vacated that finding, found that the appellant nonfrivolously alleged that she

made a protected disclosure, and remanded the appeal for further adjudication,

Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369-71 (Fed. Cir.

2020). On remand, and following a hearing, the administrative judge issued an

initial decision finding that the appellant established jurisdiction over her appeal

by making sufficient nonfrivolous allegations but concluding that she failed to

prove by preponderant evidence that she made a protected disclosure under

5 U.S.C. § 2302(b)(8) that was a contributing factor in her detail, suspension, and

demotion. Hessami v. Department of Veterans Affairs, PH-1221-17-0271-M-2,

Refiled Remand File (M-2 AF), Tab 29, Initial Decision (ID) at 8-18. The

administrative judge further found that the agency proved by clear and convincing

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

appellant’s disclosures, and he denied the appellant’s request for corrective

action. ID at 18-27.

The administrative judge correctly found that the appellant failed to establish a

prima facie case of whistleblower reprisal.

In the initial decision, the administrative judge considered whether the

appellant proved that her disclosures regarding a particular physician’s

prescribing practices and the effect of those practices on the agency’s Hepatitis C

treatment budget constituted disclosures of wrongdoing that she reasonably

believed evidenced a violation of law, rule, or regulation, gross mismanagement,

a gross waste of funds, an abuse of authority, or a substantial and specific danger

to public health or safety pursuant to 5 U.S.C. § 2302(b)(8). ID at 10-18.

He analyzed each of these categories of wrongdoing separately and found that the

appellant failed to prove by preponderant evidence that she reasonably believed

that she was disclosing any of the above-referenced categories of wrongdoing.

Id.

On review, the appellant challenges the administrative judge’s findings as

inconsistent with the Federal Circuit’s opinion, particularly with respect to the

categories of gross mismanagement and a substantial and specific danger to

public health or safety. Petition for Review (PFR) File, Tab 1 at 14-16. 2

Regarding the claim of gross mismanagement, the Federal Circuit stated in its

opinion that “[a] reasonable person could conclude that the [] prescribing practice

constituted gross mismanagement because the unjustified higher cost of therapies

was likely to have a substantial detrimental impact on the [agency’s] ability to

complete its mission of providing care to [Hepatitis C] patients because the

prescriptions were rapidly depleting” the budget. Hessami, 979 F.3d at 1370.

With respect to a substantial and specific danger to public health or safety, the

court found that her alleged disclosure “that a specific [G]overnment physician is

directing patients to take medications with known risks and side effects for an

unnecessarily long period of time, paired with her reasonable belief that there was

no clinical justification for doing so, does not represent a ‘negligible, remote, or

ill-defined peril.’” Id. at 1370 (internal citations omitted). Thus, the appellant

In her petition for review, the appellant also challenges the administrative judge’s

findings that she failed to prove that she reasonably believed she was disclosing a

violation of law, rule, or regulation and a gross waste of funds. PFR File, Tab 1

at 14-15. Regarding her argument that she disclosed a violation of a law, rule, or

regulation, she argues for the first time on review that the agency’s treatment directives

constitute a “rule” under 5 U.S.C. § 551(4). Id. at 14. Generally, the Board will not

consider an argument raised for the first time on review absent a showing that it is

based on new and material evidence that was not previously available despite the

party’s due diligence. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6

(2016). The appellant has not made such a showing. In any event, the appellant has not

provided any authority demonstrating that the Board has interpreted the word “rule” in

the context of the whistleblower reprisal statutes in accordance with 5 U.S.C. § 551(4),

and, beyond her bare assertion, she has not explained how the agency’s Hepatitis C

treatment guidance would qualify under the definition provided there. Thus, this

argument does not provide a basis to disturb the initial decision. We have reviewed her

remaining arguments on review regarding whether her disclosures evidenced a violation

of law, rule, and regulation and a gross waste of funds but find that they also do not

provide a basis to disturb the initial decision. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s

findings when she considered the evidence as a whole, drew appropriate inferences, and

reached well-reasoned conclusions); Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (same). The appellant does not specifically

challenge the administrative judge’s finding that she failed to prove that she reasonably

believed she disclosed an abuse of authority, and we discern no basis to disturb that

finding here.

argues on review that, based on the Federal Circuit’s assessment of her

disclosures, she made protected disclosures of gross mismanagement and a

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

§ 2302(b)(8).

The appellant’s arguments do not persuade us to disturb the administrative

judge’s finding that she failed to make a protected disclosure. Notably, the

court’s statements regarding the disclosures were made as a part of a

jurisdictional finding and, by definition, did not include a weighing of the record

evidence. See id. at 1364 (holding that, when determining whether an appellant

has nonfrivolously alleged that she disclosed information that she reasonably

believed evidenced misconduct under the whistleblower protection statutes, the

Board’s inquiry should be limited to evaluating whether the appellant has alleged

sufficient factual matter, accepted as true, to state a claim that is plausible on its

face). Indeed, as reiterated in Hessami, to establish jurisdiction, an appellant

need only assert nonfrivolous allegations—allegations that are not vague,

conclusory, or facially insufficient—that she made a protected disclosure that was

a contributing factor to a reprisal. Id. at 1367; see 5 C.F.R. § 1201.4(s). When

seeking to prove the merits of a whistleblower reprisal claim, however, an

appellant must show by preponderant evidence—the degree of 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—that she made a

protected disclosure that was a contributing factor in a personnel action taken

against her. Smith v. Department of the Army, 2022 MSPB 4, ¶ 13 & n.7;

5 C.F.R. § 1201.4(q). Thus, at this stage, the administrative judge was tasked—

after weighing both parties’ evidence— with determining whether the appellant

proved by preponderant evidence that she made a disclosure that she reasonably

believed evidenced gross mismanagement or a substantial and specific danger to

public health or safety. See Smith, 2022 MSPB 4, ¶¶ 13-14; 5 C.F.R. § 1201.4(q).

An integral part of a disclosure of gross mismanagement is that the action

or inaction disclosed creates a substantial risk of significant adverse impact on

the agency’s ability to accomplish its mission. Cassidy v. Department of Justice,

118 M.S.P.R. 74, ¶ 8 (2012). Here, the agency’s mission is to treat its veteran

patients. The appellant’s disclosure related directly to a physician’s practices in

treating his patients and did not include allegations that such treatment was

ineffective or medically harmful. Thus, the content of the appellant’s disclosure

failed to demonstrate that the physician’s practices were detrimental to the

agency’s mission to care for and treat veteran patients. W-2 AF, Tab 3 at 21, 23.

To the extent the alleged wrongdoing threatened the agency’s budget and, by

extension, its ability to accomplish its mission, the record also establishes that,

given the appellant’s position with the agency as the Chief of Pharmacy Service

and her involvement in the Hepatitis C treatment program, she would have known

that the prescribing practices and their relationship to the budget were constantly

under review by the agency’s Hepatitis Interdisciplinary Team (HIT), which is

comprised of prescribing providers, representatives from the fiscal offices, social

workers, nursing staff, and representatives from the pharmacy, and that every

dollar and pill was carefully tracked and every prescribing decision thoroughly

considered. Id. at 20-21, 72-75, 157. Given this oversight and the appellant’s

familiarity with the same, we discern no error in the administrative judge’s

finding that the appellant failed to prove that she reasonably believed that the

wrongdoing she disclosed evidenced gross mismanagement. ID at 15.

Regarding a substantial and specific danger to public health or safety,

although we recognize that the appellant’s allegations may have been sufficient to

constitute a nonfrivolous allegation of a protected disclosure adequate to establish

jurisdiction over her claims in the instant appeal, the Federal Circuit has

explained that specific evidence of detailed circumstances giving rise to a

likelihood of impending harm is needed to demonstrate by preponderant evidence

that a disclosure evidences a substantial and specific danger to public health or

safety. See Chambers v. Department of the Interior, 602 F.3d 1370, 1376

(Fed. Cir. 2010). Here, the record does not demonstrate that the appellant could

have reasonably believed that impeding harm to the agency, to its patients, or to

the public was likely. Again, the record demonstrates that the physician

treatment plans for individual patients were regularly reviewed and approved by

the HIT and that the agency regularly monitored the effect the high costs of its

Hepatitis C treatment plans had on the budget. W-2 AF, Tab 3 at 20-22, 157.

Moreover, the appellant conceded that she did not have any information that

patients were put at risk by the physician’s treatment plan, and she admitted that

no patients were denied treatment because of the budget issues she disclosed.

Id. at 57-58. Accordingly, we discern no error in the administrative judge’s

finding that the appellant failed to prove by preponderant evidence that she

reasonably believed that she disclosed a substantial and specific danger to public

safety or health. ID at 15-16.

Based on the foregoing, we agree with the administrative judge that the

appellant failed to establish a prima facie case of whistleblower reprisal. 3

We vacate the administrative judge’s finding that the appellant proved by clear

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

against the appellant even in the absence of her disclosure.

Although the administrative judge correctly found that the appellant failed

to establish a prima facie case of whistleblower reprisal, he nonetheless

proceeded to consider whether the agency met its burden of showing by clear and

convincing evidence that it would have detailed, suspended, and demoted the

In the initial decision, the administrative judge proceeded to consider whether the

appellant proved by preponderant evidence that her disclosures were a contributing

factor in a personnel action. ID at 18-21; see Smith, 2022 MSPB 4, ¶ 13. He concluded

that, although the appellant met the knowledge/timing test, she failed to meet any of the

other factors relevant to determining whether she met the contributing factor element.

ID at 19-21. Although we conclude this finding is in error, see 5 U.S.C. § 1221(e)(1)

(A)-(B) (providing that the knowledge/timing test is sufficient to meet the contributing

factor element), we need not determine the effect of this error because we otherwise

agree with the administrative judge that the appellant failed to prove that she made a

protected disclosure under 5 U.S.C. § 2302(b)(8).

appellant even in the absence of any protected whistleblowing activity.

ID at 21-27 (citing Carr v. Social Security Administration, 185 F.3d 1318

(Fed. Cir. 1999)). Because we agree with the administrative judge that the

appellant failed to establish a prima facie case of whistleblower reprisal, it was

improper for the administrative judge to consider whether the agency met its

burden to show by clear and convincing evidence that it would have taken the

same action in the absence of the appellant’s protected activity. See 5 U.S.C.

§ 1221(e)(2); Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19

n.10 (2014), aff’d per curium, 623 F. App’x 1016 (Fed. Cir. 2015). 4

Accordingly, we vacate the initial decision’s finding that the agency showed by

clear and convincing evidence that it would have detailed, suspended, and

demoted the appellant even in the absence of her disclosures.

NOTICE OF APPEAL RIGHTS 5

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

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

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

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

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

summary of available appeal rights, the Merit Systems Protection 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

Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the

Board’s decision in Clarke, it did so on other grounds. Delgado v. Merit Systems

Protection Board, 880 F.3d 913, 923-25 (7th Cir.), as amended on denial of reh’g and

reh’g en banc (7th Cir. 2018).

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.

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 possible choices of review

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

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

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

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.

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