Opinion

Jose Mathews v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: May 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

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

How later courts described this case

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

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSE MATHEWS, DOCKET NUMBER

Appellant, CH-1221-17-0223-W-2

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

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).

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

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,

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).

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

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

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

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.

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

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

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.

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

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.

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

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

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

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

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.

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

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

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,

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

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.

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.

(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. 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).

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.

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