UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAY GINSBERG,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-1221-21-0116-W-1

DATE: April 15, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Shannon Polvi, Esquire, Columbia, South Carolina, for the appellant.

Deetric M. Hicks, Esquire, Decatur, Georgia, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

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

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

appeal. On petition for review, the appellant argues that the administrative judge 

erred in her analysis of the Carr factors, as set forth in Carr v. Social Security 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 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 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 supplement the administrative judge’s findings regarding 

the second and third Carr factors, we AFFIRM the initial decision. 

¶2 We agree with the administrative judge that the appellant made a prima 

facie case of whistleblower reprisal, and that the agency demonstrated by clear 

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

appellant even in the absence of his protected disclosure and protected activity. 

Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 6-13. In determining 

whether the agency met its burden, the administrative judge properly considered 

all relevant factors, including the following: the strength of the agency’s 

evidence in support of its action; the existence and strength of any motive to 

retaliate on the part of the agency officials who were involved in the decision; 

and any evidence that the agency takes similar actions against employees who are 

not whistleblowers but who are otherwise similarly situated. ID at 10-13; Carr, 

185 F.3d at 1323.

¶3 Regarding the first factor, the administrative judge reasoned that all of the 

personnel actions were the result of the appellant’s removal from his 
3

psychologist/neuropsychologist position, the loss of his credentials, and agency 

policy regarding research funding. ID at 11-12. As such, she found that the 

agency’s evidence in support of the personnel actions was strong. ID at 12. We 

discern no error with this finding. 

¶4 Regarding the second Carr factor, the administrative judge found that the 

Director was largely responsible for the personnel actions but that he was simply 

following agency policy. ID at 12. Thus, she found that there was “virtually no 

evidence of motivation to retaliate against the appellant.” Id. However, the U.S. 

Court of Appeals for the Federal Circuit has articulated a broader and more 

flexible approach to this factor. See Miller v. Department of Justice, 842 F.3d 

1252, 1261-62 (Fed. Cir. 2016) (explaining that the second Carr factor should be 

evaluated “more generally” because the factor is directed at agency officia ls 

involved in making the decision, not just at the employee’s direct supervisor); 

Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding 

that those responsible for the agency’s performance overall may be motivated to 

retaliate even if they were not directly implicated by the disclosures or did not 

personally know the whistleblower because the criticism could reflect on them in 

their capacities as managers and employees). 

¶5 Based on this language, we acknowledge that the administrative judge’s 

finding as stated above may have been an overstatement of the record. ID at 12. 

Here, two of the agency officials responsible for or directly involved in several of 

the personnel actions at issue—the Director and the Associate Chief of Staff—are

managers and were aware of the appellant’s protected disclosure and/or protected 

activity.2 Thus, consistent with Miller, Whitmore, and similar cases, a motive to 

retaliate may have existed. Nonetheless, we find no other motive to retaliate 

 

2 Other agency employees, such as an Office of Research & Development employee and 

the Deputy Director also appear to have been involved in the personnel actions, but 

there is no evidence that they were aware of the appellant’s protected disclosure or 

protected activity. IAF, Tab 24 at 64, 70-72. 
4

absent the basic factors listed above, and thus, any motive to retaliate, if it existed 

here, was minimal.

¶6 Regarding the third Carr factor, the administrative judge stated that the 

agency “failed to present evidence of nonwhistleblower comparator employees.” 

ID at 12. In Miller, the court observed that the absence of evidence related to this 

factor could be found to cut slightly against the agency and could cause it to fail 

to prove its case overall. 842 F.3d at 1262; Whitmore, 680 F.3d at 1373. The 

agency, however, did assert that there simply were no similarly situated doctors 

who lost their clinical privileges and their Veterans Affairs (VA) appointments. 

IAF, Tab 24 at 12-15. The appellant does not appear to dispute this assertion. 

PFR File, Tab 1. Thus, the agency would not have been able to produce any 

evidence that it takes similar actions against employees who are not 

whistleblowers but who are otherwise similarly situated. Therefore, this factor is 

neutral.

¶7 Ultimately, we agree with the administrative judge that the suspension of 

the appellant’s credentials, his loss of his 5/8 VA appointment, and the agency’s 

application of the Office of Research & Development Guide 1200.15 provide 

strong evidence to support the agency’s actions. ID at 11-13. Further, although 

certain agency officials did have some motive to retaliate, the appellant’s 

protected disclosures and protected activity did not lead to any negative 

consequences for the agency and did not implicate any of the officials involved in 

the personnel actions. Further, the record establishes that those officials acted on 

the basis of the policy and not retaliatory animus. These factors outweigh any 

dearth of evidence related to the third Carr factor. Therefore, we agree with the 

administrative judge’s conclusion that the agency proved by clear and convincing 

evidence that it would have taken the same actions against the appellant even in 

the absence of his protected disclosure and protected activity. Id. 
5

NOTICE OF APPEAL RIGHTS3

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. 

(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). 

 

3

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 indic ated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

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. ____ , 137 S. Ct. 1975 (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 
7

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 
8

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.4 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). 

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 

 

4

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. 
9

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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board