MSPB Must Determine Jurisdiction Over IRA Claims On Face Of Complainant’s Allegations
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The MSPB cannot consider an agency’s interpretation or presentation of evidence to decide whether an individual-right-of-action presents a non-frivolous allegation of whistleblower reprisal, the Federal Circuit clarified in a recent holding.
Beginning in 2012, Dr. Negar Hessami worked as the Chief of Pharmacy at the VA Medical Center in Martinsburg, West Virginia. During her tenure, the first curative therapies for Hepatitis C entered the market. An early therapeutic two-pill regimen, referred to as “S&S,” cost hundreds of dollars per pill. When a newer, significantly less expensive treatment combination was approved in 2014, the regional pharmacy benefits manager recommended all new patients be started on the new products rather than S&S.
One Martinsburg physician chose to not follow the regional recommendation, and continued prescribing S&S to new patients. Beginning on November 2014, Dr. Hessami on multiple occasions raised concerns to the physician and to the Chief of Medicine. Dr. Hessami claimed that prescribing S&S unnecessarily exposed patients to increase adverse drug reactions, and was significantly overspending the Medical Center’s funds dedicated to Hepatitis C treatment.
In late 2015, a pharmacy employee accused Dr. Hessami of misconduct, and VA suspended and later demoted Dr. Hessami for charges of conduct unbecoming a supervisor. Following the demotion, Dr. Hessami filed a complaint with the U.S. Office of Special Counsel (OSC), claiming that VA had punished her in retaliation for her protected disclosures regarding the agency’s spending on Hepatitis C drugs. When OSC declined to take action, Dr. Hessami filed an individual-right-of-action appeal to the Merit Systems Protection Board (MSPB), which assigned her appeal to an Administrative Judge.
VA moved to dismiss Dr. Hessami’s MSPB appeal for lack of jurisdiction, asserting she had failed to adequately establish that her disclosures were protected pursuant to the Whistleblower Protection Enhancement Act. Because VA filed its motion after the parties had completed discovery, its motion cited to affidavits and deposition testimony in support of its arguments.
The Administrative Judge granted VA’s motion to dismiss. The dismissal decision adopted many of VA’s proposed statements of fact and relied heavily on statements from VA’s witnesses. Based on the record evidence, the Administrative Judge concluded that Dr. Hessami failed to make non-frivolous allegations of law, rule or regulation; or gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety. Thus, the Administrative Judge held, the MSPB lacked jurisdiction to hear Dr. Hessami’s appeal.
Dr. Hessami appealed the dismissal decision to the U.S. Court of Appeals for the Federal Circuit. She argued the MSPB erred in crediting VA’s evidence against her in finding that she failed to make non-frivolous allegations of protected disclosure.
In its decision on Dr. Hessami’s appeal, the Federal Circuit first “clarif[ied] the appropriate scope of the Board’s inquiry when evaluating its jurisdiction over a whistleblower appeal.” The Court acknowledged that it had, “on at least one occasion, analogized the standard for establishing non-frivolous allegations to the standard for summary judgment,” a standard that permits consideration of evidence submitted by the parties. But, the Federal Circuit held, the “non-frivolous allegation” standard is more appropriately analogous to the “well-pleaded complaint rule,” which does not consider the defending party’s interpretation of the evidence.
In sum, “the question of whether an appellant has non-frivolously alleged protected disclosures 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,” the Court held. On this clarified standard, the Court determined Dr. Hessami’s disclosures at issue were “non-frivolous” and entitled to whistleblower protections.
The Federal Circuit then remanded Dr. Hessami’s appeal to the MSPB for further proceedings to complete the jurisdictional analysis, by evaluating whether Dr. Hessami’s allegations were sufficient to establish that her protected disclosures were a contributing factor in her demotion.
Read the Federal Circuit’s full opinion in Hessami v. MSPB.
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