# Jose Mathews v. Department of Veterans Affairs

> Merit Systems Protection Board · May 28, 2024

URL: https://www.frixlaw.com/law-library/cases/9975232

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 28, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9975232

## How later opinions describe it (automated extraction)

- recognizing those factors as relevant in determining whether a disclosure qualifies as a substantial and specific danger to public health or safety

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JOSE MATHEWS, DOCKET NUMBER
Appellant, CH-1221-17-0223-W-2

v.

DEPARTMENT OF VETERANS DATE: May 28, 2024
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ariel E. Solomon , Esquire, Washington, D.C., for the appellant.

Beth K. Donovan , Esquire, St. Louis, Missouri, 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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
clarify the appropriate standard for disclosures of gross mismanagement, we
AFFIRM the initial decision.

BACKGROUND
The appellant is the Chief of Psychiatry for the agency’s St. Louis Medical
Center. E.g., Mathews v. Department of Veterans Affairs , MSPB Docket No. CH-
1221-17-0223-W-1, Initial Appeal File (IAF), Tab 1 at 6; Mathews v. Department
of Veterans Affairs, MSPB Docket No. CH-1221-17-0223-W-2, Refiled Appeal
File (RAF), Tab 13 at 20. In April 2014, he filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency engaged in whistleblower
retaliation by placing him in a detail assignment while it conducted an
investigation about complaints from subordinates. RAF, Tab 6 at 6-21, Tab 13
at 21-31. In December 2016, OSC closed its investigation. RAF, Tab 8 at 4.
After OSC’s closeout, the appellant filed this timely IRA appeal. IAF,
Tab 1. At his request, the administrative judge dismissed the appeal, without
prejudice and for automatic refiling at a later date, to accommodate scheduling
conflicts. IAF, Tab 10. After that refiling, the administrative judge developed
the record and dismissed the appeal for lack of jurisdiction, without a hearing.
RAF, Tab 16, Initial Decision (ID). She found that the appellant met the
3

exhaustion requirement for nine disclosures and one personnel action but no
others. ID at 3-6. She further found that the appellant failed to nonfrivolously
allege that any of the disclosures he exhausted with OSC were protected. ID
at 6-11.
The appellant has filed a petition for review. Mathews v. Department of
Veterans Affairs, MSPB Docket No. CH-1221-17-0223-W-2, Petition for Review
(PFR) File, Tab 4. The agency has filed a response. PFR File, Tab 8.

ANALYSIS
The appellant met his burden of proving the timeliness of his petition for review.
The initial decision noted that it would become final on September 4, 2017,
unless the appellant filed a petition for review by that date. ID at 12. Days
before that deadline, the appellant requested an extension. PFR File, Tabs 1-2.
The Office of the Clerk of the Board granted the request, permitting the appellant
to file his petition on or before October 5, 2017. PFR File, Tab 3. The Board did
not receive the appellant’s petition until October 24, 2017, well after that
deadline. PFR File, Tab 4 at 1.
The appellant bears the burden of showing that his petition for review was
timely filed. Corum v. U.S. Postal Service, 118 M.S.P.R. 288, ¶ 12 (2012).
Given the unexplained late receipt of the appellant’s petition, the agency argued
that we should dismiss it as untimely filed without good cause. PFR File, Tab 8
at 11-12. The Clerk of the Board issued an order instructing the appellant to
present argument and evidence regarding the timeliness of his petition. PFR File,
Tab 9. In doing so, he suggested that the appellant address several pertinent
facts. These facts included that the envelope accompanying the petition
suggested that the appellant or his attorney used their own equipment to print a
1-day priority shipping label on October 4, 2017, a day before the designated
deadline, but the envelope contained no postmark to show when he placed the
package in the stream of mail or otherwise explain the Board’s receipt 20 days
4

later. PFR File, Tab 4 at 32. He also noted, inter alia, that the agency’s copy of
the petition contained similar discrepancies when comparing the date the shipping
label was printed, the speed of service selected, and the ultimate receipt of the
package. PFR File, Tab 6 at 4, 6, 10, 12.
The appellant’s attorney responded to the timeliness order with a sworn
affidavit. PFR File, Tab 10 at 6-9. Among other things, appellant’s counsel
asserts that he deposited the petition for review into the stream of mail on
October 4, 2017, using a U.S. Postal Service collection box within just a few
blocks of both his office and the offices of the Board. Id. at 7, 9. He suggests
that any delay between that October 4 deposit into the stream of mail and the
Board’s receipt, on October 24, must have been caused by the Postal Service. Id.
at 8-9.
Although the agency continues to argue that we should reject the
appellant’s petition for review as untimely, it has not presented any evidence to
rebut the sworn statement of appellant’s counsel. PFR File, Tab 11. Therefore,
that sworn declaration is sufficient to establish that the petition was timely filed.
See Jordan v. Department of Justice, 54 M.S.P.R. 609, 611 (1992) (explaining
that sworn statements that are not rebutted are competent evidence of the matters
asserted therein). Accordingly, we find that the appellant has met his burden to
prove that his petition for review was timely filed.

The appellant met his burden of proving exhaustion for only nine disclosures.
As previously mentioned, the administrative judge found that the appellant
met his burden of proving exhaustion concerning nine alleged disclosures. ID
at 3-6. On review, the appellant does not specifically identify any other alleged
disclosures that were exhausted. PFR File, Tab 4 at 10-11. However, he alludes
to a sworn statement that he submitted below, RAF, Tab 5 at 4-19, and the
administrative judge’s conclusion that he failed to prove exhaustion for any
additional disclosures discussed within that statement, ID at 6 (referencing IAF,
Tab 1 at 17-20; RAF, Tab 5 at 11-12, 14-19).
5

To establish the Board’s jurisdiction over an IRA appeal, such as this, an
appellant must have exhausted his administrative remedies before OSC and
present nonfrivolous allegations of the following: (1) he engaged in
whistleblowing by making a protected disclosure under 5 U.S.C. § 2302(b)(8), or
engaged in other protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(a); Williams v. Department of
Defense, 2023 MSPB 23, ¶ 8.
The Board recently clarified the substantive requirements of exhaustion.
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The
requirements are met when an appellant has provided OSC with sufficient basis to
pursue an investigation. Id., ¶ 10. The Board’s jurisdiction is limited to those
issues that have been previously raised with OSC. Id. (citation omitted).
However, an appellant may give a more detailed account of his whistleblowing
activities before the Board than he did to OSC. Id. (citation omitted).
An appellant may demonstrate exhaustion through his initial OSC
complaint or correspondence with OSC. Id., ¶ 11. An appellant may also
establish exhaustion through other sufficiently reliable evidence, such as an
affidavit or declaration attesting that the appellant raised with OSC the substance
of the facts in the Board appeal. Id. (citation omitted). To establish Board
jurisdiction, the appellant must prove exhaustion with OSC by preponderant
evidence, not just present nonfrivolous allegations of exhaustion. Id.; 5 C.F.R.
§ 1201.57(c)(1).
We agree that the appellant met his burden of proving exhaustion for the
nine disclosures identified by the administrative judge. ID at 3-6. The
exhaustion of those matters was proven by the appellant’s initial OSC complaint,
which he provided. RAF, Tab 6 at 16-20. The question that remains is whether
the appellant proved that he exhausted any other disclosures with OSC—ones not
6

identified in his initial OSC complaint. Like the administrative judge, we find
that he did not.
With his initial appeal, the appellant attached a lengthy narrative and
argument in support of his whistleblower retaliation claim. IAF, Tab 1 at 15-22.
Among other things, the narrative describes a number of alleged disclosures and
retaliatory personnel actions in varying detail. Id. at 16-20. However, most
importantly, this recounting of alleged disclosures and retaliatory personnel
actions does not indicate whether the appellant exhausted the same with OSC. 2
Id. at 15-22.
The appellant’s next substantive pleading summarily asserts that he
exhausted his administrative remedies with OSC, while citing to a sworn
statement and his initial OSC complaint. RAF, Tab 4 at 13 (referencing RAF,
Tabs 5-6). The sworn statement describes numerous alleged disclosures and
retaliatory personnel actions, once again in varying detail. RAF, Tab 5 at 8-19.
Among other things, the statement is rather ambiguous about whether the
appellant made all of the described disclosures. The appellant specifically takes
responsibility for some disclosures, while he is less clear as to others. In an
example to illustrate the latter, the appellant alleged that “many of the below
disclosures were also investigated by the Office of Inspector General . . .:
psychiatrists were not respecting their tour of duty time commitments.” Id. at 11.
Aside from the ambiguity regarding who made some of the disclosures
described in the appellant’s sworn statement, it goes on to include the following
assertion regarding the exhaustion requirement:
Through counsel, I filed a complaint with the Office of Special
Counsel (OSC) on or around May 22, 2014, and I amended my
complaint as necessary following additional retaliation July 18,

2
Even if this statement did address the exhaustion requirement, it would be of little
consequence because the statement is undated, unsigned, unsworn, and seemingly
drafted by the appellant’s attorney. IAF, Tab 1 at 15-22; see Hendricks v. Department
of the Navy, 69 M.S.P.R. 163, 168 (1995) (recognizing that the statements of a party’s
representative in a pleading do not constitute evidence).
7

2014, and April 20, 2015. In each complaint and amended
complaint, I specifically delineated my protected disclosures and the
myriad of prohibited personnel practices to which I was subjected as
a result of those disclosures.
Id. at 19.
We first note that while this statement may imply that additional
disclosures and personnel actions were exhausted through amendments to his
initial OSC complaint, it does not clearly articulate and evidence the same. The
statement is, instead, noticeably ambiguous. It does indicate that the appellant
“specifically delineated [his] disclosures” in each of his OSC complaints, but it
does not clearly indicate whether that includes each and every disclosure
discussed in his sworn statement, some of them, or just those presented in his
original OSC complaint. RAF, Tab 5 at 4-19. And as discussed below, the
appellant failed to present supportive evidence that would have cleared up that
ambiguity.
Although the appellant cited a July 18, 2014 amendment to his initial OSC
complaint, he failed to submit a copy of that document or describe its contents.
Id. at 19. The appellant did submit a letter from his attorney to his employing
agency dated August 5, 2014, alleging various improprieties. RAF, Tab 7 at 4-6.
However, to the extent that this letter could be associated with his alleged
July 18, 2014 amendment to his OSC complaint, the appellant did not claim that
he provided the letter to OSC. Compare RAF, Tab 5 at 19, with RAF, Tab 7
at 4-6.
Turning to his alleged April 20, 2015 amendment to his OSC complaint, the
appellant submitted a letter from his attorney to his employing agency with the
same date. RAF, Tab 5 at 19, Tab 7 at 7-12. The letter includes what appears to
be the email address of an individual at OSC as a recipient to be carbon copied,
but we found no corresponding email message or other indication that the letter
was actually provided to that individual. RAF, Tab 7 at 11-12. Assuming,
without deciding, that the letter to his employing agency was provided to
8

someone at OSC, that individual is not the investigator who signed off on OSC’s
close-out letter. Compare RAF, Tab 7 at 11-12, with RAF, Tab 8 at 4. Further
calling into question the relevance of this letter to the exhaustion requirement, it
does not include pertinent information, such as the appellant’s OSC file number,
MA-14-2840, instead referencing “Our File No. 13-1091.” Compare RAF, Tab 7
at 7-12, with RAF, Tab 8 at 4. Next, while the letter does describe three alleged
disclosures, they appear unrelated to those identified in the appellant’s sworn
statement. Compare RAF, Tab 5 at 8-12, with RAF, Tab 7 at 8-9. Finally,
although the appellant did submit this letter, he did not reference it when arguing
that he met the exhaustion requirement. Instead, when arguing that he met the
exhaustion requirement, the appellant referenced only the pleading containing his
initial OSC complaint and his sworn statement. RAF, Tab 4 at 13 (referencing
RAF, Tabs 5-6). His petition for review is similarly silent as to the relevance of
the April 20, 2015 letter, citing only his sworn statement for purposes of
exhaustion. PFR File, Tab 4 at 11 (referencing RAF, Tab 5 at 4-19).
The final piece of evidence provided for purposes of the exhaustion
requirement is OSC’s close-out letter. IAF, Tab 1 at 23; RAF, Tab 8 at 4.
However, that letter is silent as to the substance of the matters the appellant
raised before OSC. The close-out letter references OSC’s predetermination letter,
“that set forth [OSC’s] factual and legal determinations,” but the
predetermination letter is not in the record, so we are unable to consider it for
purposes of exhaustion. IAF, Tab 1 at 23; RAF, Tab 8 at 4.
After considering the appellant’s arguments and evidence, we agree with
the administrative judge that the appellant did not meet his burden of proving
exhaustion for any disclosures beyond those described in his initial OSC
complaint. Although the appellant’s sworn statement could be read as indicating
that additional disclosures were exhausted with OSC, it does not clearly articulate
and evidence the same. RAF, Tab 5 at 4-19. The letter to his employing agency
with a carbon copy to an OSC email address fares no better, given the ambiguity
9

of whether that letter reached relevant officials and its inconsistency with the
allegations presented in this IRA appeal. RAF, Tab 7 at 7-12.
Both below and on review, the appellant indicated that he is awaiting the
results of a pending Freedom of Information Act (FOIA) request with OSC to
obtain materials relevant to the exhaustion requirement. RAF, Tab 4 at 13; PFR
File, Tab 4 at 29-30. However, the appellant failed to present any corresponding
documentation, such as his initial FOIA request or a response from OSC.
Moreover, the appellant has failed to adequately explain why he cannot prove
exhaustion without the results of his FOIA request. Among other things, the
appellant has not explained why he lacks copies of OSC’s predetermination letter
or other correspondence with OSC, despite being represented by an attorney since
filing his initial OSC complaint. RAF, Tab 5 at 19.
In sum, the appellant met his burden of proving exhaustion for the nine
disclosures identified by the administrative judge because those were included in
the initial OSC complaint he provided below. He has not met his burden of
proving that he exhausted any additional disclosures by preponderant evidence. 3

The appellant failed to nonfrivolously allege that the disclosures he exhausted
with OSC were protected.
The administrative judge found that the appellant failed to present
nonfrivolous allegations that the nine alleged disclosures exhausted before OSC
(Disclosure A through Disclosure I) were protected. ID at 6-11. The
administrative judge found that Disclosures A, B, C, D, and G were emails
discussing policy in which the appellant did not claim wrongdoing under
section 2302(b)(8). ID at 8-9. For Disclosures E and H, the administrative judge
found that the appellant made recommendations about managerial actions, with
no indication that the agency’s proposed alternative approaches fell within any

3
Because we find that the appellant failed to nonfrivolously allege that any of the
disclosures he exhausted with OSC were protected, we need not address the appellant’s
arguments concerning exhaustion of additional personnel actions beyond the one
identified by the administrative judge. PFR File, Tab 4 at 19-22.
10

category of wrongdoing protected under section 2302(b)(8). ID at 9. Finally, she
found that Disclosure F was a robust discussion of what approach or policy to
apply, but not a protected disclosure, and Disclosure I was not a disclosure at all
because the appellant was merely a passive participant in the email discussion.
ID at 10-11.
A protected disclosure is a disclosure of information that an appellant
reasonably believes evidences a violation of any 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. Linder v. Department of Justice,
122 M.S.P.R. 14, ¶ 12 (2014). To establish that an appellant made a protected
disclosure, he need not prove that the matter disclosed actually established one of
the categories of wrongdoing listed under 5 U.S.C. § 2302(b)(8); rather, he must
show that the matter disclosed was one that a reasonable person in his position
would believe evidenced any of the specified categories of wrongdoing. Webb v.
Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). Again, for purposes of
establishing jurisdiction, the appellant need not prove that he made a protected
disclosure, but he must present nonfrivolous allegations of a protected disclosure.
Supra p. 5; see 5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as one
that, if proven, could establish the matter at issue). As the U.S. Court of Appeals
for the Federal Circuit explained, “the question of whether the appellant has non-
frivolously alleged protected disclosures [or activities] that contributed to a
personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369
(Fed. Cir. 2020). 4
4
The Hessami decision further held that the Board “may not deny jurisdiction by
crediting the agency’s interpretation of the evidence as to whether the alleged
disclosures fell within the protected categories or whether the disclosures were a
contributing factor to an adverse personnel action.” Hessami, 979 F.3d at 1369. In this
instant appeal, the agency submitted just a single pleading about Board jurisdiction,
RAF, Tab 13, and the administrative judge only cited it to give some background
11

On review, the appellant argues that he met his jurisdictional burden of
presenting nonfrivolous allegations because he reasonably believed that the
agency’s actions constituted gross mismanagement, violations of law, rule or
regulation, abuses of authority, and dangers to public health or safety. PFR File,
Tab 4 at 12-19. He broadly asserts, among other things, a “depraved indifference
for human life,” “knowing and continuing malpractice,” “knowing and
uncorrected misdiagnoses of life threatening diseases,” and “unnecessary
surgeries.” PFR File, Tab 4 at 18-19. We are not persuaded. As further detailed
below, the appellant has overstated the significance and content of his
communications, which he submitted while attempting to meet his jurisdictional
burden. E.g., RAF, Tab 6 at 17-19; PFR File, Tab 4 at 13-14.
The appellant described Disclosure A as one referencing excessive wait
times and the willful failure of management to initiate corrective measures. E.g.,
RAF, Tab 6 at 17-18; PFR File, Tab 4 at 13. Like the administrative judge, we
find that this mischaracterizes what the appellant actually revealed. ID at 4 &
n.3. The email the appellant identified as Disclosure A is one to the Chief of
Staff, discussing plans of flexibly deploying one psychiatrist, psychiatrist
salaries, and the appellant’s hopes of making his department run more effectively.
RAF, Tab 6 at 17-18, Tab 15 at 26-28. On that last point, the email does refer to
his department as “a total disaster” and a “mess.” RAF, Tab 15 at 27. It also
generally references a history of individuals not being held accountable. Id.
However, these references were in the context of the appellant’s plans to oversee
improvement. Nothing in this email reveals specific wrongdoing protected under
section 2302(b)(8). See, e.g., Mc Corcle v. Department of Agriculture,
98 M.S.P.R. 363, ¶ 24 (2005) (recognizing that vague allegations of wrongdoing
do not rise to the level of nonfrivolous allegations of a protected disclosure).

information, ID at 2. Consistent with Hessami, the administrative judge relied on the
appellant’s arguments and evidence, not the agency’s, to find that the appellant did not
establish jurisdiction. ID at 3-11.
12

The appellant described Disclosure B as revealing inadequate medical care
to veterans. RAF, Tab 6 at 18; PFR File, Tab 4 at 16. But again, the actual email
at issue contains no revelation of the type of wrongdoing protected under
section 2302(b)(8). As the administrative judge recognized, when the appellant
took over as Chief of Psychiatry, he proposed changes that would effectively
place more emphasis on quantitative measures, such as the number of patients
seen per day. ID at 2; e.g., RAF, Tab 15 at 32-33. When one clinician emailed
him concerns that this might negatively impact the quality of care rendered, RAF,
Tab 15 at 31-32, the appellant responded with an explanation of his “vision for
[the] Department,” id. at 30-31. That email, Disclosure B, does make arguments
about how he believed it was both possible and ethically required that the agency
serve more patients per day, rather than provide extraordinary care to some at the
expense of others having “unacceptable” wait times. Id. But the email is best
summarized as a general discussion of how the agency should balance quantity
and quality of care, not a disclosure of specific wrongdoing cognizable under
section 2302(b)(8). Id. Such general philosophical or policy disagreements are
not protected unless they separately constitute a protected disclosure of one of the
categories of wrongdoing under section 2302(b)(8). Webb, 122 M.S.P.R. 248, ¶ 8
(finding further that an appellant’s disagreement with the agency’s directive
separating and reassigning duties of an agency subunit did not evidence the type
of wrongdoing specified in section 2302(b)(8)). 5
The appellant described Disclosure C as revealing a dangerous failure to
increase access to care and a failure of management to address poor performance.
RAF, Tab 6 at 18; PFR File, Tab 4 at 16. The actual email at issue is one that

5
To the extent that the administrative judge suggested that the appellant’s policy
disagreements must be more than “debatable,” we modify this finding. ID at 8, 11. An
appellant alleging gross mismanagement is not required to prove that it is not
“debatable among reasonable people.” Webb, 122 M.S.P.R. 248, ¶ 9. Although the
administrative judge referred to such a requirement, she did not discount any disclosure
on this basis. ID at 9. Instead, she found that the appellant did not disclose any
wrongdoing under section 2302(b)(8). ID at 9-11.
13

further discusses his plans for quantitative measurements of performance,
indicates that clinicians had expressed resistance to such measurements, and
requests input about his plan for achieving quantitative goals. RAF, Tab 15
at 35-37. So, again, the communication is a discussion of policy, but there
appears to be nothing in that discussion that evidences the type of wrongdoing
protected by section 2302(b)(8).
The appellant described Disclosure D as revealing the improper and
unethical denial of care to a particular veteran. RAF, Tab 6 at 18; PFR File,
Tab 4 at 16. The actual emails at issue explain how a patient seeking hormone
replacement therapy to transition a gender identity was contesting the
recommendations of a psychologist and, as a result, the appellant was asked to
review the psychologist’s report. RAF, Tab 6 at 41-45, Tab 15 at 46-47. The
appellant’s messages describe perceived shortcomings in the psychologist’s
evaluation or, more precisely, the psychologist’s report about the evaluation.
RAF, Tab 6 at 41-45. One example of the perceived shortcomings is that the
psychologist first referred to this patient by using the title, “Mr.,” before
apologizing for having done so. Id. at 44. Another example, which the appellant
described as the “most troubling aspect” of the psychologist’s evaluation, is that
she reportedly failed to corroborate the patient’s claim that the patient’s family
supported the patient’s desire to undergo hormone therapy. Id. at 45.
In another case involving patient care, the Board found that several
disclosures made by a nurse were protected because they revealed a substantial
and specific danger to public health and safety. Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285 (2013). Some examples of those protected
disclosures included a failure to properly maintain medical carts, which was
likely to cause harmful delays for patients in need of immediate treatment; a
failure to change patient dressings, which was likely to result in infections; and a
coworker’s request that the appellant in that case administer both narcotics and
other pre-drawn syringes that had been prepared by another nurse, which was
14

likely to cause patients to receive the wrong medications. Id., ¶¶ 9, 19-21, 23.
The Board reached a similar conclusion in another case involving patient care.
Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197 (2011). The
appellant therein disclosed several specific instances of misdiagnoses and patients
receiving treatment that was not commensurate with the severity of their
conditions, e.g., staff misdirecting a patient to the general medical floor instead
of the intensive care unit, resulting in that patient deteriorating to the point that
he required intubation. Id., ¶¶ 12-18 .
Disclosure D, which amounted to a recommendation that the patient’s
request for a second opinion be granted, appears to be notably dissimilar—less
serious—when compared to those examples in terms of the likelihood of harm,
whether such harm is expected in the foreseeable future, and its anticipated
severity. See Chambers v. Department of the Interior , 602 F.3d 1370, 1376 (Fed.
Cir. 2010) (recognizing those factors as relevant in determining whether a
disclosure qualifies as a substantial and specific danger to public health or
safety). The appellant did not, for example, indicate that the patient was
misdiagnosed or denied urgently needed treatment. In fact, the appellant
concluded his message by emphasizing that he was not commenting on the
patient’s diagnoses or suitability for hormone replacement, but rather was
expressing concern that the psychologist’s report did not adequately answer
pertinent questions. RAF, Tab 6 at 45. Accordingly, while the appellant’s
messages may reveal valid disagreement with the sufficiency of another
clinician’s evaluation report, they do not reveal a substantial and specific danger
to public health and safety or any other wrongdoing protected under the
whistleblower statute.
The appellant described Disclosure E as revealing the deaths of two
veterans related to their denial of medical care and the absence of a proper
investigation into those deaths. RAF, Tab 6 at 18; PFR File, Tab 4 at 16. The
actual email at issue acknowledges the appellant’s prior request for a root cause
15

analysis of two veterans’ cases. RAF, Tab 15 at 50. It further acknowledges that
a root cause analysis was occurring for one but officials determined that no such
analysis was indicated for the other. Id. The message generally refers to the
appellant’s feeling “that there were systemic issues that needed to be resolved,”
and refers to one of the veterans being “not assessed appropriately,” but provides
little else in terms of details. Id. It does not contain specific allegations of
wrongdoing. See Mc Corcle, 98 M.S.P.R. 363, ¶ 24.
The appellant described Disclosure F as revealing that certain agency
officials improperly turned away a veteran seeking care. RAF, Tab 6 at 19; PFR
File, Tab 4 at 17. The actual email chain at issue reflects a less troublesome
story. The email chain begins with an outpatient clinic note documenting a
veteran’s interaction with a registered nurse who also served as a mental health
treatment coordinator. RAF, Tab 15 at 55-56. That note indicates that the patient
was taking medications as prescribed and he denied any mental health issues at
the time, but arrived as a walk-in because he needed to schedule an appointment
and get medication refills. Id. at 55. During this visit, the veteran complained
that he tried to schedule the appointment over the telephone but was unable to
reach the proper person or leave a message, resulting in his hanging up in
frustration. Id. The note concludes with the nurse authorizing a clerk to schedule
an appointment for the veteran and more broadly recommending that the clinic
reinstate a voicemail answering service. Id. at 55.
The appellant responded to the message containing the aforementioned note
by asking a couple of agency employees to contact the veteran, make sure his
needs had been met, and explain how he can get in touch in the future. Id. at 54.
The appellant further asked for an explanation as to what strategy would prevent
recurrence of this type of complaint and improve access. Id. A recipient of the
appellant’s email replied, suggesting that nursing staff should have tried to have
the veteran seen by his treating clinicians on the spot, during his walk-in visit,
rather than scheduling an appointment for him at a later date. Id. at 54. The
16

appellant then asked that recipient to look into the matter further by determining
how busy the providers were at the time. Id. at 53. However, we note that the
complaint itself does not clearly indicate that the veteran wanted to be seen that
day; the veteran is quoted as arriving at the clinic in person “so [he] could make
an appointment.” Id. at 55. Moreover, while the email chain indicates that the
veteran was not seen on that particular day, it contains no indication that the
veteran was altogether denied care or subjected to a wait that endangered his
health. Again, the veteran denied mental health issues and indicated that he was
taking medications as prescribed. So while Disclosure F may call into question
whether the agency could have provided more efficient service, it does not
disclose the type of wrongdoing protected under the whistleblower statute.
The appellant described Disclosure G as revealing unethical treatment of a
hallucinating veteran that later assaulted another veteran and agency errors that
led to that assault. RAF, Tab 6 at 19; PFR File, Tab 4 at 17. In fact, the email
was instead the appellant’s response to another clinician’s message about the
incident in the context of ongoing discussions about measuring care quantitatively
versus qualitatively. RAF, Tab 15 at 61-67. The appellant’s message was yet
another instance of him discussing plans to increase the number of patients seen
per day. Id. at 61-63. More specifically, the appellant’s message described how
psychiatrists were seeing an average of 6.1 patients per 8 hours of work, but he
wanted that number to more than double, so the clinic could reduce the average
wait time for patient visits below its current 24.35 to 29.5 days, 6 and possibly
6
The appellant has not identified, and we are not aware of, any law, rule, or regulation
setting the maximum allowable wait time when the appellant sent this June 2013 email.
The agency has since implemented regulations generally setting a wait time goal of
30 days or less from the date a patient wishes to be seen. Expanded Access to Non-VA
Care Through the Veterans Choice Program, 79 Fed. Reg. 65571, 65585 (Nov. 5, 2014)
(codified as amended at 38 C.F.R. § 17.1505). The agency set this goal pursuant to the
Veterans Access, Choice, and Accountability Act of 2014, Pub. L. No. 113-146,
§ 101(s), 128 Stat. 1754, 1764-65. Even assuming a 30-day wait time goal existed in
June 2013, and that failure to meet this goal was a regulatory or statutory violation, the
information the appellant provided in his email suggests that his unit was exceeding the
goal. RAF, Tab 15 at 61.
17

reduce attrition. Id. at 61-62. The appellant acknowledged that this would
require psychiatrists to spend less time with patients during each visit. Id.
at 62-63. But according to the appellant, veterans would be better served by
seeing them more often, even if it required that their visits be more cursory. Id.
We recognize that the message at issue in this disclosure, like several
others, includes language indicating that the appellant was attempting to portray
his view emphatically. For example, the appellant suggests that employees
should visualize a loved one when considering whether they are providing the
best care possible, and he indicated that they “MUST know ALL of [their]
patients,” they “MUST know” which ones need more intensive care, and “[t]his
can ONLY happen” by increasing the frequency of patient visits, even if doing so
resulted in shorter visits. Id. Ultimately, though, the message amounts to general
philosophical or policy disagreement with other clinicians in terms of balancing
quality and quantity of patient visits, not the type of specific wrongdoing
protected under section 2302(b)(8). Webb, 122 M.S.P.R. 248, ¶ 8; cf. Parikh,
116 M.S.P.R. 197, ¶¶ 12-15, 19-22 (finding that disclosures of systemic problems
at an agency medical center that resulted in untimely and inadequate patient care,
with specific examples, were protected).
The appellant described Disclosure H as revealing the agency’s attempt to
cover up a suicide attempt, the lack of corresponding investigation, and the
failure to implement corrective measures the appellant suggested. RAF, Tab 6
at 19; PFR File, Tab 4 at 17. The actual email chain at issue is one between the
appellant and the Acting Chief of Mental Health (ACMH) the day after the
suicide attempt, wherein the appellant recommended the probationary termination
of a particular employee. RAF, Tab 15 at 70-75.
The email chain began with the appellant recounting that the agency
admitted a patient for inpatient treatment following suicidal ideations. Id. at 73.
One afternoon, following several days of treatment, the patient reported to a nurse
that he was again experiencing suicidal ideations. Id. That nurse evaluated the
18

patient, talked with him at length, and paged a psychiatrist to inform her of the
patient’s condition. Id. Without personally seeing the patient, the psychiatrist
changed his status so that the patient would receive one-on-one observation,
presumably to ensure his safety. Id. At some unidentified time that same
afternoon or evening, the patient began to pull down a ventilation grate, in an
apparent attempt to prepare to hang himself. Id. at 74. The observing nurse
diffused the situation, reported it to the psychiatrist, and continued to observe
him. Id. As of a 9:00 a.m. huddle with the appellant the next morning, the
psychiatrist had not yet seen the patient. Id. However, according to the
appellant, the psychiatrist first claimed that she had, then claimed that she had
not. Id. According to the appellant, the psychiatrist also indicated that the
appellant had been unable to view her report about the incident because she
simply failed to close the report by signing it, but that simply was not true. Id.
at 74-75. The appellant recommended probationary termination of the
psychiatrist based on his concerns about her delivery of care and candor. Id.
at 75.
The ACMH responded to the appellant’s message by recommending that he
counsel the psychiatrist, closely monitor her work, and take care to document her
shortcomings. Id. at 72. He also expressed some agreement that probationary
termination may be appropriate. Id. The appellant replied, expressing a
reluctance to counsel the psychiatrist or otherwise delay removing her. Id.
at 71-72. The ACMH then responded, again, noting some possible pitfalls in
moving forward with termination based on this one incident, but suggesting that
they could seek input from the Chief of Staff before making a final determination.
Id. at 71.
Although the appellant has suggested that this email chain shows that he
disclosed an attempt to conceal a suicide attempt, it actually reflects management
discussions of human resources decisions—discussions that all occurred just
1 day after the suicide attempt. We are cognizant of the grave consequences that
19

could result depending on the sufficiency of the probationary psychiatrist’s
treatment. However, by the appellant’s own recounting, the psychiatrist
responded to the patient’s suicidal ideations by placing him under one-on-one
observation, which may have saved his life. While the appellant’s emails suggest
that the psychiatrist also should have visited the patient and completed her report
hours earlier than she did, we are unable to conclude that this amounts to
wrongdoing protected under the whistleblower statute.
The appellant described Disclosure I as revealing a clinician’s delay that
was contrary to agency regulation and protocol. RAF, Tab 6 at 19. As the
administrative judge recognized, and the appellant appears to no longer dispute,
the actual emails identified as Disclosure I were sent to the appellant, not from
the appellant. ID at 10; RAF, Tab 15 at 77-79. Therefore, regardless of their
content, they do not constitute a disclosure of any kind by the appellant.
In an argument that appears to implicate Disclosure E and Disclosure H,
the appellant asserts that a protected disclosure does not lose its protected status
just because the disclosure also includes a proposed fix to the violation of law,
rule, regulation, or other wrongdoing, and the administrative judge erred in
finding otherwise. PFR File, Tab 4 at 15; ID at 9. However, this argument
mischaracterizes the administrative judge’s findings. The administrative judge
did not find that an otherwise protected disclosure lost its protected status
because the appellant proposed corrective measures; she found that the
appellant’s communications were not protected because they simply discussed the
exercise of managerial discretion or policy disagreements, without any specific
assertion of wrongdoing protected under section 2302(b)(8). ID at 4-11.
In another argument that appears to implicate Disclosure A through
Disclosure H, the appellant asserts that the administrative judge erroneously
replaced her judgment with that of the appellant, a trained forensic psychiatrist,
for purposes of determining whether he had a reasonable belief that he was
disclosing the type of wrongdoing covered under section 2302(b)(8). PFR File,
20

Tab 4 at 15-16. He suggests that expert testimony from a medical provider would
support his conclusions. Id. at 18. But again, the appellant’s argument
mischaracterizes the administrative judge’s findings. As our discussion above
demonstrates, the appellant has overstated the content and significance of his
disclosures. The administrative judge’s analysis reflects the same, and she
applied the correct standard of a reasonable person in the appellant’s position. ID
at 4-11; see supra p. 10.

The appellant’s remaining arguments are unavailing.
On review, the appellant argues that he has established the contributing
factor criterion. PFR File, Tab 4 at 22-24. But we need not address the
contributing factor criterion in the absence of a nonfrivolous allegation of a
protected disclosure. Chianelli v. Environmental Protection Agency, 86 M.S.P.R.
651, ¶ 17 (2000), aff’d per curiam, 8 F. App’x 971 (Fed. Cir. 2001).
The appellant also argues that the administrative judge erred in closing the
record on jurisdiction before providing him an opportunity to rebut the agency’s
arguments. PFR File, Tab 4 at 24-25 (referencing 5 C.F.R. § 1201.59(c)
(providing that once the record closes, additional evidence and argument will not
be accepted unless, as relevant here, it is in rebuttal to new argument or evidence
submitted by the other party just before the close of record)). However, that
argument misrepresents the record, by implication. In fact, while the
administrative judge’s jurisdictional orders did contemplate generally only the
appellant’s argument and evidence to meet his burden and the agency’s response,
it also noted that the Board’s regulations required that a party be able to rebut
new argument or evidence presented just before the close of record. IAF, Tab 3
at 7-8; RAF, Tab 3 at 7-8; see 5 C.F.R. § 1201.59(c). There is nothing in the
record suggesting that the appellant attempted to do so.
Finally, the appellant argues that due process requires that he be allowed to
engage in discovery on the issue of jurisdiction. PFR File, Tab 4 at 25-26. The
administrative judge informed the parties that they could immediately begin
21

engaging in discovery approximately 4 months prior to the ultimate deadline for
his jurisdictional response. IAF, Tab 2 at 3; RAF, Tab 3 at 7-8. Thus, in the
absence of a motion to compel, the appellant does not state a basis to grant
review. See Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5
(2005) (declining to consider an appellant’s argument on review that the agency
failed to respond to his discovery requests because he did not file a motion to
compel), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).

NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main 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.

7
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.
22

(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
23

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.
24

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. 8 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).

8
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.
25

If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9975232. Public record. Not legal advice.