Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3162
JACQUES A. DURR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Joseph D. Magri, Merkle & Magri, P.A., of Tampa, Florida, for petitioner.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3162
JACQUES A. DURR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD
Respondent.
Petition for review of the Merit Systems Protection Board in AT1221040293-B-1.
___________________________
DECIDED: October 23, 2008
___________________________
Before RADER, LINN and MOORE, Circuit Judges.
PER CURIAM.
Jacques A. Durr, M.D. (Dr. Durr) appeals the final decision of the Merit Systems
Protection Board (Board) dismissing his individual right of action (IRA) appeal for lack of
jurisdiction. Durr v. Dep’t of Veterans Affairs, MSPB Docket No. AT1221040293-B-1
(Opinion and Order Jan. 24, 2007). This court vacates and remands the Board’s
decision relating to Dr. Durr’s disclosures regarding computer services. However, this
court affirms the Board’s decision relating to Dr. Durr’s disclosures regarding misuse of
research time and money.
Dr. Durr was employed as the Chief of Nephrology at Bay Pines Veterans
Administration Medical Center (VAMC) in Bay Pines, Florida. Patient records at VAMC
are kept via computer. Dr. Durr needed access to these records to perform his job
duties. Frequent problems with VAMC’s computer system hampered Dr. Durr’s job
duties. Although Dr. Durr complained to the Veteran’s Administration Information
Resource Management Services (IRMS) about these technical issues, IRMS failed to
adequately resolve these problems.
On June 17, 2003, in an act of frustration, Dr. Durr placed the non-working
computer in a trash can outside of his office. Dr. Durr intended for this symbolic act to
call attention to his complaint. The next day, Dr. Durr left a voice mail message for
IRMS disclosing this incident. Dr. Durr alleges that his voicemail included a statement
to IRMS that the “total lack of support was hampering patient care.” On July 14, 2003,
Dr. Durr held a meeting with hospital executives to discuss the symbolic act and
concerns regarding the computer system. On July 25, 2003, the VAMC Chief of
Medicine sent a proposed admonishment to Dr. Durr, charging him with misuse of
government property, disrespectful conduct and failure to cooperate during an official
investigation.
In August 2003, Dr. Durr filed a complaint with the Office of Special Counsel
(OSC). This complaint alleges that Dr. Durr made two protected disclosures to hospital
personnel under the Whistleblower Protection Act: 1) that the non-functioning computer
system created a substantial and specific danger to public health or safety; and 2) that
VAMC’s misuse of research funds and failure to give investigators required research
time constituted gross mismanagement. Dr. Durr argued that hospital authorities
threatened him with the proposed admonishment in reprisal for his whistleblowing.
2007-3162 2
The OSC denied Dr. Durr’s complaint on November 18, 2003. In January 2004,
Dr. Durr appealed to the Board. On March 19, 2004, the Administrative Judge (AJ)
dismissed the appeal for lack of jurisdiction finding that the agency had rescinded the
proposed admonishment. On July 18, 2005, the Board vacated the initial decision and
remanded the appeal for further consideration of jurisdictional issues. On April 4, 2006,
the AJ found that Dr. Durr failed to make a protected disclosure, and that there was no
jurisdiction. On appeal for the second time, the Board modified the AJ’s findings on
January 24, 2007. Although the Board agreed that appellant failed to make a non-
frivolous allegation of gross mismanagement, the Board disagreed with the AJ’s
conclusion that appellant had not made a non-frivolous allegation of a substantial and
specific danger to public health or safety. Nevertheless, the Board decided that remand
was not necessary because appellant failed to set forth enough detail explaining how
the protected disclosure contributed to the agency’s proposed admonishment. This
appeal followed.
II
This court must affirm the Board's decision unless it is "(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence." 5 U.S.C. § 7703(c); Forest v. Merit Sys. Prot. Bd., 47 F.3d
409, 410 (Fed. Cir. 1995). Whether the Board has jurisdiction is a question of law which
this court reviews de novo. See id. This court reviews the Board's factual
determinations for substantial evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). Thus, although this court may freely review whether the Board
2007-3162 3
properly possessed jurisdiction, it is bound by the AJ’s factual determinations unless
those findings are not supported by substantial evidence. See id. at 1316.
The Board has jurisdiction over Dr. Durr’s IRA appeal if he first exhausts his
administrative remedies before the OSC and makes non-frivolous allegations that (1) he
engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. §
2302(b)(8), and (2) the disclosure 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). See Yunus v.
Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
A “protected disclosure” is a disclosure which “an employee . . . reasonably
believes evidences (i) a violation of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety." 5 U.S.C. § 2302(b)(8)(a) (2008). The test for
determining whether a whistleblower has a reasonable belief in the disclosure is
objective: Whether a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee would reasonably conclude that the
actions of the government evidence wrongdoing as defined by the Whistleblower
Protection Act. See Giove v. Dep't of Transp., 230 F.3d 1333, 1338 (Fed. Cir. 2000). A
party cannot establish jurisdiction with general assertions but must provide substantive
details. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993).
With regard to the second prong, a protected disclosure is a “contributing factor”
in an agency’s personnel action if it satisfies the knowledge/timing test set forth in 5
U.S.C. § 1221(e)(1):
The employee may demonstrate that the disclosure was a contributing
factor in the personnel action through circumstantial evidence, such as
2007-3162 4
evidence that —
(A) the official taking the personnel action knew of the disclosure; and
(B) the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a
contributing factor in the personnel action.
5 USC § 1221(e)(1) (2008). According to the legislative history, satisfaction of the
“knowledge/timing” test establishes prima facie that the disclosure is a contributing
factor to the personnel action. See Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998).
Here, it is undisputed that Dr. Durr exhausted his remedies before the OSC.
Thus, the jurisdictional analysis focuses on whether Dr. Durr made a non-frivolous
allegation.
A. Dr. Durr’s Disclosure Regarding the Non-Functioning Computer System
The Board found that Dr. Durr made a non-frivolous allegation of a substantial
and specific danger to public health or safety with respect to the non-functioning
computer system. Nevertheless, the Board concluded that remand for further
adjudication was not necessary. This court agrees with the Board’s ultimate conclusion
that Dr. Durr made a non-frivolous allegation. However, the Board’s decision improperly
focuses on Dr. Durr’s September 10, 2003 letter to OSC, which was sent following the
personnel action in question.
On appeal, the Board concedes that Dr. Durr made nonfrivolous allegations of
protected disclosures occurring prior to the personnel action, including his June 18,
2003 voice mail message to the IRMS. Notably, the Board now “confesses error in its
decision” and requests this court to “remand[] the case . . . .” In view of the Board’s
concession, this court grants the Board’s request, vacates-in-part the Board’s decision,
and remands for proceedings on the merits of Dr. Durr’s claim.
2007-3162 5
B. Dr. Durr’s Disclosure Regarding the Misuse of Research Funds and Failure to
Provide Required Research Time
The Board found that Dr. Durr did not make a non-frivolous allegation of gross
mismanagement with respect to the agency’s decisions regarding research funding and
time. On appeal, appellant argues that the VAMC misused research funds.
Specifically, the agency failed to give Dr. Durr protected research time and funds in
violation of agency directives that require “Medical Center Directors . . . [to] ensure that
investigators are allocated appropriate time . . . to conduct funded research.” The
Board rejected appellant’s argument because Dr. Durr failed to identify a misuse of
research funds and time.
This court requires that “substantive details establishing jurisdiction . . . be
alleged in the complaint.” Ellison, 7 F.3d at 1036. Here, appellant failed to disclose
sufficient information to support a reasonable inference of wrongdoing. The Board
found that appellant failed to identify any funded research that Dr. Durr had not been
provided time to conduct and how the money was otherwise used. The AJ concluded
that “[b]ecause the appellant has not been provided time to conduct research does not
necessarily mean that there has been any ‘funded research’ that the appellant was
eligible to conduct.” Similarly, that appellant “was not granted . . . [research] funds does
not necessarily lead to the conclusion that the funds were misused.” Because Dr. Durr
has failed to identify what funded research he was eligible to conduct or how funds were
misused, he has not made a non-frivolous allegation.
III
This court vacates and remands the Board’s decision with respect to the
disclosure of a substantial and specific danger to public health or safety regarding the
2007-3162 6
non-functioning computer system. This court affirms the Board’s decision with respect
to the disclosure of gross mismanagement regarding misuse of research time and
money.
VACATE AND REMAND-IN-PART, AFFIRM-IN-PART
COSTS
Each party shall bear its own costs.
2007-3162 7