NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DANA B. GRIESBACH,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2017-1510

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-1221-16-0076-W-1.

______________________ 

Decided: August 9, 2017

______________________ 

 DANA B. GRIESBACH, Tuscaloosa, AL, pro se.

 ISAAC B. ROSENBERG, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

ELIZABETH M. HOSFORD, ROBERT E. KIRSCHMAN, JR., CHAD 

A. READLER. 

______________________ 

Before MOORE, SCHALL, and O’MALLEY, Circuit Judges.
2 GRIESBACH v. DVA

PER CURIAM. 

Dana Griesbach appeals from a Merit Systems Protection Board (“Board”) decision denying her request for 

corrective action pursuant to the Whistleblower Protection Act (“WPA”). For the reasons discussed below, we 

affirm. 

BACKGROUND

Ms. Griesbach was appointed to the position of Nurse 

Practitioner at the Tuscaloosa Veterans Administration

(“VA”) Medical Center in August 2008. She worked in the 

mental health unit, treating patients admitted to the 

center’s homeless domiciliary unit. In September 2014, 

the VA announced a vacancy for the position of Certified 

Registered Nurse Practitioner (“CRNP”) in Research and 

Development Service, to which Ms. Griesbach applied. 

Ms. Griesbach interviewed for the position, but she was 

not selected.

Ms. Griesbach filed a complaint with the Office of 

Special Counsel (“OSC”) on March 14, 2015, alleging 

whistleblower retaliation by the VA when it did not select

her for the CRNP research position and because it allegedly filed an anonymous complaint against her license to

the Alabama Board of Nursing. On August 27, 2015, the 

OSC informed Ms. Griesbach that it had terminated its 

inquiry into her whistleblower retaliation claim and

notified her of her right to seek corrective action from the 

Board.

Ms. Griesbach filed an individual right of action 

(“IRA”) appeal to the Board, alleging the VA retaliated 

against her for protected disclosures. She alleged she 

raised concerns to all levels of management regarding a 

deficit in needed medical services in the mental health 

unit and that a number of these disclosures were made at 

open forum meetings. Among other arguments, she 

asserted the VA changed the job description for the CRNP 
GRIESBACH v. DVA 3

research position after she applied, which gave the selectee preferential treatment. 

On November 2, 2015, the Administrative Judge 

(“AJ”) notified the parties of the requirements to establish 

Board jurisdiction over Ms. Griesbach’s IRA appeal. After 

Ms. Griesbach submitted a response and the VA replied, 

the AJ issued an order closing the record on January 14, 

2015. The AJ determined Ms. Griesbach had exhausted 

her administrative remedies before the OSC. The AJ

determined Ms. Griesbach made non-frivolous allegations 

that she made protected disclosures that were a contributing factor in the VA’s selection decision, but that she 

failed to make a non-frivolous allegation that the VA 

retaliated when someone filed an anonymous complaint 

against her with the Alabama Board of Nursing. 

In the Initial Decision, the AJ considered 

Ms. Griesbach’s assertions that she made protected 

disclosures when she informed her supervisors, Rebecca 

Meyer and Carlos Berry, that she was seeing patients 

that “were more complex than [her] scope of practice,” 

when she informed the director of the facility, Maria 

Andrews, that the “Center was circumventing the screening process for patients,” and when she informed 

Ms. Meyer that she “overloaded patient admissions with 

insufficient coverage.” The AJ found Ms. Griesbach failed 

to prove that she made a protected disclosure that she 

reasonably believed evidences a violation of any law, rule, 

or regulation or a substantial and specific danger to 

public health or safety. The AJ found that even if 

Ms. Griesbach’s disclosures were protected, she failed to 

establish that her whistleblowing activity was a contributing factor to her non-selection for the CRNP research 

position because there was no evidence that Dr. Lori 

Davis, the selecting official, knew of the disclosures. 

Because the AJ determined Ms. Griesbach failed to establish a prima facie case of whistleblower retaliation, it did 

not reach whether the VA would have taken the same 
4 GRIESBACH v. DVA

personnel action in the absence of any protected disclosure under 5 U.S.C. § 1221(e)(2). 

Ms. Griesbach petitioned for review of the Initial Decision. By order dated January 5, 2017, the AJ’s Initial 

Decision became the final decision of the Board pursuant 

to 5 C.F.R. § 1200.3(b). Ms. Griesbach appeals. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of the Board’s decision is limited by statute. We must affirm a final decision of the Board unless 

it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without 

procedures required by law, rule, or regulation having 

been followed; or unsupported by substantial evidence. 

5 U.S.C. § 7703(c). Substantial evidence “means such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Consol. Edison Co. v. 

Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938). 

Whether the Board has jurisdiction over an appeal is a 

question of law we review de novo. Johnston v. Merit Sys. 

Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008).

Under the WPA, an agency employee with authority 

to take a “personnel action” against a government employee or applicant for employment may not do so in 

retaliation for certain protected disclosures. See 

5 U.S.C. § 2302(b)(8)(A). In particular, a personnel action 

may not be taken “because of any disclosure of information by an employee or applicant which the employee 

or applicant reasonably believes evidences (i) any 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 . . . .” Id. The Board will order corrective action if 

the employee or applicant demonstrates that the protected disclosure was a “contributing factor” in the personnel 

action. 5 U.S.C. § 1221(e). An employee or applicant may 
GRIESBACH v. DVA 5

make this showing through circumstantial evidence, such 

as evidence that “the official taking the personnel action 

knew of the disclosure or protected activity” and “the 

personnel action occurred within a period of time such 

that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the 

personnel action.” Id. But corrective action may not be 

ordered after such a showing if “the agency demonstrates 

by clear and convincing evidence that it would have taken 

the same personnel action in the absence of such disclosure.” Id. § 1221(e)(2). 

On appeal, Ms. Griesbach argues her disclosures indicate “consistent management disregard for facility policy 

and the standard of care.” Pet’r. Br. at 2. She argues 

facility policy and the standard of care comprise directives 

and guidelines governing the medical practice of all 

health care providers and the supporting obligations of 

management. She argues the violations of these regulations meet the requirements for protected disclosures.

Substantial evidence supports the Board’s findings 

that Ms. Griesbach failed to identify any law, rule, or 

regulation being violated and failed to offer evidence that 

her statements clearly implicated an identifiable violation 

of law, rule, or regulation. The Board found that 

Ms. Griesbach’s disclosures regarding seeing patients 

more complex than her scope of practice, the circumvention of screening processes for patients, and being overloaded with patient admissions fail to identify any law, 

rule, or regulation that has been violated. The WPA’s 

requirement that an employee identify a specific law, 

rule, or regulation “does not necessitate the identification 

of a statutory or regulatory provision by title or number, 

when the employee’s statements and the circumstances 

surrounding the making of those statements clearly 

implicate an identifiable violation of law, rule, or regulation.” Langer v. Dep’t of the Treasury, 265 F.3d 1259, 

1266 (Fed. Cir. 2001). However, substantial evidence 
6 GRIESBACH v. DVA

supports the Board’s finding that Ms. Griesbach’s disclosures fail to clearly implicate an identifiable violation of 

law, rule, or regulation. 

Ms. Griesbach also argues her disclosures evidence a 

substantial and specific danger to public health or safety, 

especially in light of her email describing concerns for 

managing medically complex patients as the sole medical 

provider in the 48-bed homeless domiciliary unit. She 

argues the Board’s decision inferred that because there 

was disagreement among the health care providers over 

patient stability or because no harm befell a patient 

admitted to the domiciliary, her concerns were exaggerated and her disclosures were unprotected. She argues the

decision did not account for “the unpredictable nature of 

complex medical issues, the limiting confines of the practice setting, and the admonition to ‘do no harm.’” Pet’r. 

Br. at 4. 

Even if Ms. Griesbach’s disclosures did evidence a 

substantial and specific danger to public health or safety, 

Ms. Griesbach failed to establish that the protective 

disclosures were a contributing factor to the personnel 

action. Substantial evidence supports the Board’s finding 

that Ms. Griesbach failed to prove Dr. Davis knew of the 

disclosures. The Board credited Dr. Davis’s declaration 

denying knowledge of Ms. Griesbach’s alleged protected 

disclosures. It credited Dr. Davis’s declaration that when 

she arrived late to an open forum meeting, screening 

irregularities and coverage issues were not being discussed. The Board explained that Ms. Griesbach’s emails

regarding patient safety and quality of care were not sent 

to Dr. Davis, even though they were addressed to several 

individuals, and it credited Dr. Davis’s declaration that 

her supervisor, Dr. Schnier, did not influence her selection. 

In addition to challenging the Board’s denial of corrective action, Ms. Griesbach argues the Board erred in 
GRIESBACH v. DVA 7

excluding her whistleblower retaliation claim based on 

the filing of an anonymous complaint against her license 

to the Alabama Board of Nursing. For IRA appeals, “the 

Board’s jurisdiction is established by nonfrivolous allegations that the [employee] made a protected disclosure that 

was a contributing factor to the personnel action taken or 

proposed.” Johnston, 518 F.3d at 909 (quoting Stoyanov 

v. Dep’t of the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007)). 

We see no error in the Board’s decision to exclude 

Ms. Griesbach’s claim based on the anonymous complaint 

because, as the AJ noted in the order closing the record, 

such a complaint is not a personnel action as defined by 

5 U.S.C. § 2302(a)(2). 

For the foregoing reasons, we affirm the Board’s decision. We have considered Ms. Griesbach’s remaining 

arguments and find them unpersuasive.

CONCLUSION

For the foregoing reasons, the decision of the Board is 

affirmed. 

AFFIRMED

COSTS. 

No costs.