N OTE : This disposition is nonprecedential.



# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

DEBRA TAO,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

______________________

2020

- 1834

______________________

Petition for review of the Merit Systems Protection

Board in No. SF

- 1221

- 19

- 0147

- W

- 1.

______________________

Decided : May 7, 2021

______________________

J AMES S OLOMON , Solomon, Maharaj & Kasimati, P.A., Tampa, FL, for petitioner.

C ALVIN M. M ORROW

, Office of General Counsel, United

States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by T RISTAN L. L EAVITT

, K

ATHERINE M ICHELLE S MITH

.

S HERYL G OLKOW

, United States Office of Special Counsel, Washington, DC , for amicus curiae Office of Special

Counsel . Also represented by E LISABETH R EBECCA B ROWN

, Case: 20-1834 Document: 41 Page: 1 Filed: 05/07/2021TAO v. MSPB 2

E MILEE C OLLIER

, H ENRY J. K ERNER

, L OUIS L OPEZ

, S OPHIA W OLMAN

.

______________________

Before D YK

, M AYER

, and H UGHES

, Circuit Judges

.

P ER C URIAM

.
Dr. Debra Tao petitions for review of a decision by the Merit Systems Protection Board (“Board”) that dismissed an individual right of action appeal for lack of jurisdiction. On review, t he Board and the Office of Special Counsel agree that the administrative judge (“AJ”) erred in multiple respects

. We reverse in part, vacate in part, and remand

.

B ACKGROUND

I

The Whistleblower Protection Act provides a federal employee an individual right of action to seek corrective action from the Board for any personnel action, as defined in the Act, that the employee reasonably believes was taken in retaliation for any act of whistleblowing. Young v. Merit Sys. Prot. Bd. , 961 F.3d 1323, 1328 (Fed. Cir. 2 020) ; see also 5 U.S.C. § 1221

. The statute provides that, s ubject to exhausting administrative remedies with the Office of Special Counsel (or “OSC”)

, see 5 U.S.C. § 1214(a)(3), “an employee .

. . may, with respect to any personnel action taken, or proposed to be taken, against such employee .

. . , as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the [Board]

, ” 5 U.S.C. § 1221(a).

We have descri bed § 2302(b)(8) as covering “reprisal based on disclosure of information” and § 2302(b)(9) as covering “reprisal based upon exercising a right to complain

. ” Serrao v. Merit Sys. Prot. Bd. , 95 F.3d 1569, 1575 (Fed. Cir. 1996) (quoting Spruill v. Merit Sys . Prot. Bd. , 978 F.2d 679, Case: 20-1834 Document: 41 Page: 2 Filed: 05/07/2021TAO v. MSPB 3

690 (Fed. Cir. 1992 ) (specifically discussing § 2302(b)(9)(A))

. Reprisals are any “ personnel action

, ” as defined in 5 U.S.C. § 2302(a) (2), taken “because of .

. . any disclosure” protected under § 2302(b)(8) or “because of” acti vities protected under § 2302(b)(9). 5 U.S.C. § 2302(a)(2), (b)(8)

– (9); s ee also Spruill , 978 F.2d at 681 n.2 (Fed. Cir. 1992) (discussing § 2302’s terminology)

. Under § 2302(b)(8), a protected disclosure is one which the employee “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.” Hessami v. Merit Sys. Prot. Bd. , 979 F.3d 1 362, 1367 (Fed. Cir. 2020) (quoting § 2302(b)(8)).

As relevant to this case, u nder § 2302(b)(9)

, the following are protected activities :

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation

— (i) with regard to remedying a violation of paragraph (8) .

. . ;

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

(C) cooperating with or disclosing information to the Inspector Gen eral (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law

. . . .
5 U.S.C. § 2302(b)(9).

II

At the time of the relevant events of this case, Dr. Tao

had been employed as a pharmacist (Pharmacy Program Manager) at the Department of Veterans Affairs Greater Case: 20-1834 Document: 41 Page: 3 Filed: 05/07/2021TAO v. MSPB 4

Los Angeles Health Care System Pharmacy Service for thirty years. On February 20, 2018

, Dr. Tao filed a complaint alleging prohibited personal pract ice s with OSC

. The retaliatory personnel actions Dr. Tao alleged with OSC

were a three

- day suspension imposed on her on June 17, 2017, her detail to a staff pharmacist position at a different location beginning July 24, 2017, a proposed removal letter

iss ued on February 16, 2018 , and the failure to provide a performance rating

. OSC informed Dr. Tao on October 11, 2018, that OSC was closing its inquiry into her case and

advised her that she “may have a right to seek correcti ve action from the [ Board ]” by filing an individual right of action appeal. J.A. 318

– 19. Dr. Tao filed a timely individual right of action appeal with the Board, making largely the same allegations that she ha d raised in her OSC complaint and supplemental disclosures to OSC while her case was pending

. Before the Board, Dr. Tao raised sixteen actions that she contended were protected under § 2302(b)(8), (9), or

both. The AJ appears to have addressed seven of these

, and the AJ dismissed Dr. Tao’s appeal for lack of jurisdiction because she had not sufficiently alleged making protected disclosures under § 2302(b)(8)

. The AJ’s decision became the final decision of the Board on March 17, 2020.

Dr. Tao petitions for review. We h ave jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).

On review, of the sixteen total items, the Board admits

that the AJ’s ruling was erroneous with respect to five of them, admits that the AJ erroneously failed to consider two
ite ms , and takes no position as to the remainder. OSC has
filed a brief as amicus curiae and argues that the AJ committed reversible error with respect to five of the actions raised by Dr. Tao. OSC did not address the remaining

eleven. Case: 20-1834 Document: 41 Page: 4 Filed: 05/07/2021TAO v. MSPB 5

D ISCUSSION

I

We first describe Dr. Tao’s sixteen allegations, and as to each, the AJ’s ruling, and the position on review of the

Board and OSC. Generally, Tao’s allegations concerned
the conduct of Dr. Yusef Dawoodbh ai, the acting Chief of Pharmacy that Tao reported to, and the conduct of the
Chief of Staff

, Scotte Hartronft. We describe our disposition as to each of these items in Part II of this section

. (1) Dr. Tao alleges that o n June 20, 2017, she advised
Hartronft and human resources offic ial s over email of potential abuses of authority by “ ‘concur [ r ing] ’ with Administrative Officer Elizabeth Luevano’s June 20, 2017 email ,”
which “ convey [ed] that acting Chief of Pharmacy Yusef

Dawoodbhai abused his authority by engaging in unspecified ‘inappropriate abusive treatment

. ’ ” J.A. 2 (citation omitted). 1 Dr. Tao also alleges that she disclosed to OSC

that “ Dawoodbhai yelled at her, pointed his fingers, threatened discipline, and improperly called he r a senior manager.” Id. (citation omitted).

Dr. Tao contends that this item is protected under § 2302(b)(8) and does not assert that it is protected under § 2302(b)( 9 ). The AJ determined that there was no jurisdiction under § 2302(b)(8). Id. at 6. On review, t he Board takes no position on the merits of the AJ’s determination

, nor does OSC

. (2) Dr. Tao alleges that o n June 26, 2017, she “ wrote a
letter to a U.S. Senator [Dianne Feinstein] complaining

1 Dr. Tao replied to Luevano’s email with the statement, “I concur with what Ms. Luevano wrote below. .

. . I have additional Reports of Contact regarding the Acting Chief of Pharmacy’s inappropriate behavior towards me.”

J.A. 2 21

– 22. Case: 20-1834 Document: 41 Page: 5 Filed: 05/07/2021TAO v. MSPB 6

that Dawoodbhai, Hartronft , and HR officials were acting improperly towards her, improperly detailing Dawoodbhai without competition, [and] improperly detailing Dawoodbhai’s spouse to a supervisory HR position creating an ‘improper alliance between the two services’ as set forth in the

record.” Id. at 2 (citation omitted). The AJ determined

that th e se disclosures did not establish jurisdiction under § 2302(b)(8). Id. at 6

– 7. On review, t he Board concedes

that the AJ ’s ruling with respect to the letter to Senator

Feinstein was erroneous , as discussed further in item (8)

below

. OSC takes no position.

(3) Dr. Tao alleges that o n July 13, 2017, she informed the agency’s Office of Accountability and Whistleblower

Protection ( or “ OAWP ” ) “ that Dawoodbhai and Hartronft were improperly disciplining and otherwise taking action against employees that management had not previously

addressed.” Id. at 2. Dr. Tao contends that this action was protected under § 2302(b)(9)(C). T he AJ determined that

this action did not establish jurisdiction under § 2302(b)(8).

The Board appears to concede that the AJ ’s ruling was erroneous because Dr. Tao “provided information to the agency’s OAWP investigatory unit” and that such activity “is likely covered under [§] 2302(b)(9)(A).” Resp’t Br. 16.
OSC contends that “fil[ing] with [the agency’s] OAWP” “ha[s] long been held to be protected under [§] 2302(b)(9). ”

OSC Br. 11.

(4) Dr. Tao allege s that on August 15, 2017, “ she disclosed to the Federal L abor Relations Authority

. . . , through a claim of unfair labor practice

. . . , that the agency improperly ‘stated that [she] was a manager’

. . . even though she ha [d] been detailed to a staff pharmacist position, away from her manager position ,” and, as a result, Dr. Tao was ineligible for union representation.

J.A. 2

– 3 (citation omitted). Dr. Tao asserts that this action was protected under both § 2302(b)(8) and (b) (9) (A)(i)

. The

AJ determined that this item did not establish jurisdiction under § 2302(b)(8). The Board takes no position on the Case: 20-1834 Document: 41 Page: 6 Filed: 05/07/2021TAO v. MSPB 7

merits of the AJ ’s determination with respect to this disclosure. OSC takes the view that Dr. Tao’s act of “filing a

claim of an unfair labor practice with the Federal Labor Relations Authority” is “protected under [§] 2302(b)(9).”

OSC Br. 3.

(5) Dr. Tao alleges that o n November 13, 2017, she “ informed the OSC Disclosure Unit that Dawoodbhai was improperly disciplining employ ees

. ” J.A. 3 (citation omitted)

. Dr. Tao contends this action is protected under § 2302(b)(9)(C). The AJ concluded that this item did not establish jurisdiction under § 2302(b)(8). The Board concedes that the AJ ’s ruling was erroneous because Dr. Tao’s

act of “ fil [ ing ] disclosures with OSC’s Disclosure U nit ” “is explicitly protected under section 2302(b)(9)(C).” Resp’t

Br. 15. OSC takes the same view.

(6) Dr. Tao alleges that o n January 6, 2018, she “ testified in support of Luevano’s request for a restraining orderagainst Dawoodbhai arising from Luevano’s equal employment opportunity (EEO) claim of sexual harassment, in a local court proceeding

, ” J.A. 3 , which Dr. Tao contends is protected under § 230 2(b)(9)(B)

. The AJ determined that this item did not establish jurisdiction under § 2302(b)(8).

Id. at 6. The Board concedes that the AJ erred because

Dr. Tao’s act of “provid[ing] an affidavit supporting

coworker Luevano’s sex discrimination suit in a local court for a restraining order against Dawoodbhai” is “protected under [§] 2302(b)(9)(B), which applies to ‘testifying or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii).’” Resp’t

Br

. 15

– 16 (citation omitted). OSC does not address this
item in its brief.

(7) Dr. Tao alleges that o n February 5 and 21, 2018,

she “ disclosed to a Board administrative judge that management was improperly disciplining employees

, ” J.A. 3

, which Dr. Tao contends is protected under § 2302(b)(9)(B)

. It appears that this activity related to written testimony Case: 20-1834 Document: 41 Page: 7 Filed: 05/07/2021TAO v. MSPB 8

that Dr. Tao provided in support of a former Chief of Pharmacy , Dr. Jeff rey Sayers, who was appealing his removal

to the Board. The AJ determined that this item did not

establish jurisdiction under § 2302(b)(8). The Board concedes that the AJ ’s ruling was erroneous, and that

Dr. Tao’s act of “provid[ing] her written testimon y supporting a former Chief of Pharmacy’s MSPB appeal from his removal” is protected under § 2302(b)(9)(B). Resp’t Br. 15.
OSC takes the same view.

(8) Dr. Tao alleges that she “ disclosed Dr. Dawoodbhai was unqualified for the Chief of Pharmacy positio n , ” Pet’r

Br. 19 , which Dr. Tao asserts is a protected disclosure under § 2302(b)(8)

. This disclosure appears to refer at least in part to Dr. Tao’s June 26, 2017

, letter to Senator Feinstein, discussed above in item (2), in which she complained that Dawoodbhai was unqualified for his position because he lacked the required experience. 2 The Board concedes

that the AJ ’s ruling was erroneous because he “did not recognize the alleged potential violation of law” even though
“it is clear .

. . that the petitioner made a nonfrivolous protected disclosure that the agency’s action in detailing Dawoodbhai to a position that he was unqualified for was a violation of applicable agency regulations.” Resp’t

Br. 19

– 20. OSC takes no p osition.

(9) Dr. Tao alleges that she also “disclosed concerns of nepotism and abuse of authority regarding the detail of

Dr. Dawoodbhai’s spouse” in her letter to Senator Feinstein, Pet’r Br. 19 , which Dr. Tao asserts is a protected disclosure under § 2302(b)(8). Although the AJ analyzed

Dr. Tao’s disclosure that human resource officials had “improperly detail[ed] Dawoodbhai’s spouse to a supervisory

2 The Board notes that there was a violation of agency policy in detailing Dawoodbhai and “[t] he agency did not remedy this violation until November 2017

. ” Resp’t

Br. 19 (citing J.A. 352). Case: 20-1834 Document: 41 Page: 8 Filed: 05/07/2021TAO v. MSPB 9

HR position creating an ‘improper alliance between the two services,’” J.A. 2 (item two above)

, the AJ did not address

Dr. Tao’s allegation of nepotism. The Board and OSC do

not discuss this item in their brief s

. (10) Dr. Tao alleges that she engaged in “formal and informal EEO activity, including contacting the Agency’s EEO counselor on two sepa rate occasions, filing a formal complaint, requesting a hearing, and continuing to engage in the EEO process .” Pet’r Br. 19. This item also appears
to include Dr. Tao ’s “participat[ion]” in an EEO case filed by her coworker, Elizabeth Lu e vano. See id. at 11 (quoting

J.A. 269). Dr. Tao contends that such activity is protected under § 2302(b)(9)(A)(i). The AJ noted that “appellant

ha [d] filed two formal EEO discrimination complaints,”

J.A. 3

, and “allege[d] that she was the victim of EEO discrimination and retaliation,” id. at 6, and concluded that these actions are not protected.

T he Board concedes that the AJ “erred in failing to consider” that during the months of April and May 2017,

Dr. Tao also “provided witness statements for Luevano’sEEO case naming Dawoodbhai as a Responsible Management Official.” Resp’t Br. 16. The Board further concedes

that the AJ erred in that Tao’s testimony in Lue vano’s EEO

case “ appears to be .

. . protected activity.” Id. OSC takes

the same view. Neither the Board nor OSC take a view on the other aspects of this item.

(11) Dr. Tao alleges that she engaged in “submitting and pursuing both a disclosure and a pro hibited personnel practices complaint to the Office of Special Counsel, as well as copying OSC attorneys onto certain Agency emails .”

Pet’r Br. 19. Dr. Tao contends that these activities are protected under § 2302(b)(9)(C). T he AJ did not address

Dr. Tao’s filing of a claim with OSC or copying OSC attorneys onto agency emails, nor do the Board or OSC in their
briefs

. Case: 20-1834 Document: 41 Page: 9 Filed: 05/07/2021TAO v. MSPB 10

(12) Dr. Tao alleges that she engaged in “submission of disclosures to the Agency’s Office of Accountability and

Whi stleblower Protection

. ” Pet’r Br. 20

. Dr. Tao contends that this activity is protected under § 2302(b)(9)(C)

. It is

unclear whether Dr. Tao contends that she made disclosures other than those discussed above as the third item,

which the AJ did address a nd the Board requests remand

on. The Board and OSC d o not separately address this item

in their brief s

.
Dr. Tao contends that the AJ failed to address four

other items : (13) her “participation in an Administrative Investigation Board [looking] into conduct unbecoming and other charges for Dr. Dawoodbhai

, ” (14) her “disclosure that the Agency failed to complete a delegation of authority after Dr. Dawoodbhai was relieved of the position and the identity of the new Acting Chief of Pharmacy was unk nown to pharmacy employees ,” (15) her “email to Ms. Ahnya Slaughter alleging that individuals who participated in the Administrative Investigation Board were retaliated against for their participation,” and (16) her “email to the Privacy Officer disclosing a breach of her own [Personally Identifying Information (“ PII ”)] , as well as the PII of other employees, in violation of the Privacy Act.” Pet’r Br. 20.
Dr. Tao contends that these disclosures and activities are protected under § 2302(b)(8), (b)(9), or both. The AJ did not address these activities and disclosures, nor do the Board
and OSC in their brief s

.

II

We may not set aside a 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.” Parkinson v. Dep’t of Just. , 874 F.3d 710, 715 (Fed. Cir. 2017) (en banc) (quoting 5 U.S.C. § 7703). “We review w hether the Board has jurisdiction de novo.” De Santis v. Merit Sys. Case: 20-1834 Document: 41 Page: 10 Filed: 05/07/2021TAO v. MSPB 11

Prot. Bd. , 826 F.3d 1369, 1373 (Fed. Cir. 2016)

. The Board

does not dispute that Dr. Tao has exhausted her administrative remedies , nor does OSC

.
The Board also concedes that the AJ ’s ruling that

Dr. Tao’s actions were not protected was erroneous with respect to items (5), (6), and (7) , and likely erroneous with respect to item (3)

. The Board concedes as well that the AJ

erred with respect to item s (2) and (8) regarding Dr. Tao’s letter to Senator Feinstein, which the Board concedes contained a protected disclosure under § 2302(b)(8), and item (10), which the Board concedes involved a protected activity under § 2302(b)(9)(B).

We reverse the AJ as to items (2)

, (3), (5)

– (8), and (10),

agree with the Board that they at least in part allege protected activities and disclosures over which the Board has jurisdiction, and remand for further proceedings. Our reversal is limited to the parts of these items as to which the

Board has conceded the AJ erred or likely erred

. As to the parts of these items that the Board has not conceded, we
vacate and remand for the Board to reconsider or consider
in the first instance

.
The Board takes no position o n items (1) , and (4) which

the AJ did address in his ruling

, and (12), which the AJ appears to have addressed at least in part , or items (9), (11), and (13)

– (16 ), which the AJ did not address. We remand these aspect s of Dr. Tao’s claim for the Board to reconsider or consider in the first instance.

On remand, given the magnitude of the AJ ’s errors, reassignment is appropriate. See Alta Wind I Owner Lessor
C v. United States , 897 F.3d 1365, 1382 (Fed. Cir. 2018) ; Contreras v. Sec’y of Health & Hum. Servs. , 844 F.3d 1363, 1369 (Fed. Cir. 2017)

. On remand, the case should be reassigned to a new administrative judge. Case: 20-1834 Document: 41 Page: 11 Filed: 05/07/2021TAO v. MSPB 12

C ONCLUSION

We vacate and remand to the Board for further proceedings consistent with this opinion. On remand, the

Board shall reassign Dr. Tao’s appeal to a different administrative judge.

REVERSED

- IN

- PART, VACATED

- IN

- PART, AND

REMANDED

C OSTS

Costs to Dr . Tao. Case: 20-1834 Document: 41 Page: 12 Filed: 05/07/2021