UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THANH T. VAN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-1221-18-0264-W-1

DATE: July 2, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

David Evans, Esquire, San Antonio, Texas, for the appellant.

Patrick A. Keen, Shreveport, Louisiana, for the agency.

 BEFORE

Cathy A. Harris, Chairman

 Raymond A. Limon, Vice Chairman

 Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

 FINAL ORDER

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

denied corrective action in her individual right of action (IRA) appeal.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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 analysis that the agency established by

clear and convincing evidence that it would have taken the same personnel

actions absent the appellant’s protected activities, we AFFIRM the initial

decision. 

 BACKGROUND

¶2 In November 2009, the appellant was appointed as a staff Physician in the

Imaging Service of the agency’s Audie L. Murphy Memorial Veterans’ Hospital

(Audie Murphy VA) in San Antonio, Texas. 2 Initial Appeal File (IAF), Tab 11

at 18; Hearing Compact Disc, October 17, 2018 (HCD 2), Track 2 at 1:15

(testimony of the appellant). The hospital’s Imaging Service is divided into four

sections – Diagnostic Radiology, Interventional Radiology, Nuclear Medicine,

and Radiation Oncology. Id. at 120. Each section is headed by a Section Chief,

and the Imaging Service as a whole is headed by a Service Chief. HCD 2,

Track 1 at 1:17:55 (testimony of Dr. L). 

2

 The Imaging Service used to be called the “Radiology Service.” Hearing Compact

Disc, October 17, 2018, Track 1 at 2:48:50 (testimony of Dr. L). These terms are used

interchangeably throughout the record.

2
¶3 In the fall of 2014, the agency appointed Dr. A as the new Chief of the

Imaging Service. IAF, Tab 1 at 184. Shortly thereafter, Dr. A personally

selected a physician to work in the Imaging Service on a contract basis, and in

January 2015, the appellant raised concerns about the competency of this

physician based on multiple errors that he had made reading and interpreting

images. Id. at 184-85; Hearing Compact Disc, October 16, 2018 (HCD 1),

Track 1 at 9:10 (testimony of the Radiology Administrator), Track 4 at 6:00

(testimony of Dr. D). These concerns precipitated an inquiry and a formal peer

review that resulted in a delay in the subject physician securing a civil service

appointment, although he was ultimately returned to the Imaging Service with

limited privileges. IAF, Tab 1 at 185; HCD 2, Track 1 at 2:35:30 (testimony of

Dr. L).

¶4 Shortly after Dr. A became aware of the appellant’s disclosures, she and

some of the upper management at the Audie Murphy VA began subjecting her to

a number of personnel actions that the appellant believed to be retaliatory. IAF,

Tab 1 at 185-88. The appellant’s working conditions eventually led her to resign

her position effective June 30, 2015, and pursue a mammography fellowship at

the neighboring university hospital. IAF, Tab 11 at 16, 18; HCD 2, Track 2

at 17:10 (testimony of the appellant). Around the same time, an unrelated

investigation led to Dr. A’s reassignment and removal. HCD 2, Track 1

at 2:59:30 (testimony of Dr. L). Dr. L, who was Deputy Chief of Medical Staff at

the time, stepped in to fill the vacant Service Chief position. HCD 2, Track 1

at 2:47:50 (testimony of Dr. L). In light of this personnel shift, which had

removed Dr. A from her chain of command, the appellant immediately regretted

her decision to resign, but she felt that she had to go through with it because she

had already made a commitment to the university. IAF, Tab 11 at 16; HCD 2,

Track 2 at 19:10 (testimony of the appellant).

¶5 Prior to her resignation, on April 28, 2015, the appellant filed a

whistleblower complaint with the Office of Special Counsel (OSC). Van v.

3
Department of Veterans Affairs, MSPB Docket No. DA-1221-16-0244-W-1,

Appeal File (0244 AF), Tab 1 at 10, Tab 3. The complaint culminated in a

February 24, 2016 Board appeal, which was dismissed as settled on September 6,

2016. 0244 AF, Tabs 1, 18, 20.

¶6 Meanwhile, the witnesses broadly agreed that, when Dr. L took over for

Dr. A in the summer of 2015, the Imaging Service was in disarray: Morale was

low, several physicians had secured legal counsel for various reasons, a

significant backlog of work had accumulated, and the service was severely

understaffed, particularly at the leadership level. IAF, Tab 20 at 76-77; HCD 1,

Track 2 at 3:45 (testimony of Human Resources Specialist); HCD 2, Track 1

at 44:00, 2:14:30 (testimony of Dr. L). In the wake of the appellant’s departure,

Dr. L began the process of rebuilding the Imaging Service, issuing several

vacancy announcements, including the two at issue in this appeal. IAF, Tab 23

at 6; HCD 2, Track 1 at 44:00 (testimony of Dr. L.).

¶7 The first vacancy at issue was for Section Chief of Diagnostic Radiology.

The agency announced the vacancy on September 9, 2016, open to current

Imaging Service employees only. IAF, Tab 1 at 76. The appellant applied for the

position, but because she was no longer a Federal employee, her name was not

referred to Dr. L, the selecting official. IAF, Tab 11 at 94, 99-100; HCD 1,

Track 2 at 7:55 (testimony of Human Resources Specialist). Dr. L selected

Dr. W, who had begun as a staff physician in January 2016, and was the only

internal candidate to apply. IAF, Tab 11 at 94, 100, 117; HCD 1, Track 2

at 36:30 (testimony of Human Resources Specialist), Track 3 at 1:18:45

(testimony of Dr. W); HCD 2, Track 1 at 2:10:50 (testimony of Dr. L). 

¶8 The second vacancy was for Service Chief, announced on April 25, 2017,

through the open competitive process. IAF, Tab 1 at 92. The appellant applied

for this position as well, but after scoring her application, Dr. L determined that

she did not meet the cutoff for an interview, and so she was not selected for that

position either. IAF, Tab 32 at 25; HCD 1, Track 3 at 26:00 (testimony of

4
Supervisory Staff Specialist); HCD 2, Track 1 at 1:53:30 (testimony of Dr. L).

The agency extended offers to multiple applicants who ultimately declined,

before it settled on the same Dr. W, whom it had promoted to Section Chief just

9 months before. HCD 1, Track 3 at 22:00 (testimony of Supervisory Staff

Specialist), 1:14:20 (testimony of Dr. W); HCD 2, Track 1 at 2:51:30, 2:21:30,

3:14:40 (testimony of Dr. L).

¶9 The appellant filed another whistleblower complaint with OSC, claiming

that her nonselections were the product of whistleblower retaliation. IAF, Tab 1

at 164-77. OSC closed its file without taking corrective action, and the appellant

filed the instant IRA appeal. Id. at 5, 203-04.

¶10 After a hearing, the administrative judge issued an initial decision denying

the appellant’s request for corrective action on the merits. IAF, Tab 47, Initial

Decision (ID). She found that the appellant engaged in protected activity that

was a contributing factor in the nonselections, but that the agency proved by clear

and convincing evidence that it would have made the same hiring decisions even

absent the appellant’s protected activity. ID at 7-18.

¶11 The appellant has filed a petition for review, disputing the administrative

judge’s analysis of the agency’s affirmative defense. Petition for Review (PFR)

File, Tab 1. The agency has filed a response to the petition for review, and the

appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.

 ANALYSIS

¶12 In the merits phase of an IRA appeal, the appellant has the burden of

proving by preponderant evidence that she engaged in protected activity described

under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that this activity

was a contributing factor in a personnel action as described under 5 U.S.C.

§ 2302(a)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016). If the appellant meets her burden, the Board will order corrective action

unless the agency proves by clear and convincing evidence that it would have

5
taken the same personnel action in the absence of the protected activity. 5 U.S.C.

§ 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5. In determining whether an agency has

met its burden, the Board will consider all of the relevant factors, including the

following: (1) The strength of the agency’s evidence in support of its action;

(2) the existence and strength of any motive to retaliate on the part of the agency

officials who were involved in the decision; and (3) any evidence that the agency

takes similar actions against employees who are not whistleblowers but who are

otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d

1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs,

116 M.S.P.R. 197, ¶ 36 (2011).

¶13 In this case, the administrative judge found that the appellant proved her

case in chief. ID at 7-9. The appellant alleged retaliation for multiple protected

disclosures and activities, including her disclosures regarding the competency of

her physician coworker, a complaint to the agency’s Office of Inspector General,

her first OSC complaint, and her prior Board appeal. ID at 5. The administrative

judge found that all of these matters were protected under the Whistleblower

Protection Act, as amended. ID at 7. However, she also found that the appellant

only proved contributing factor with respect to her disclosures concerning

physician competency, and that the only relevant official who knew about these

disclosures was Dr. L. ID at 8-9. Neither party disputes these findings, and they

appear to be supported by the record. 

¶14 In assessing the agency’s affirmative defense, the administrative judge

applied the Carr factors, finding that Dr. L had some motive to retaliate, although

such motive was not particularly strong, the agency presented strong evidence in

support of its hiring actions, and the treatment of similarly situated

non-whistleblowers was not a significant factor. ID at 9-18. Weighing these

factors together, the administrative judge found that the agency proved by clear

and convincing evidence that it would not have selected the appellant for either of

the positions at issue, even absent her protected activity. ID at 18.

6
¶15 Regarding the strength of the agency’s evidence in support of its actions,

the administrative judge considered the agency’s explanation for each of its hiring

decisions separately. As stated above, the appellant was not selected for the

Section Chief position because she was not within the area of consideration for

the vacancy announcement, i.e., current employees within the Audie Murphy

VA’s Imaging Service. IAF, Tab 1 at 76. Thus, the issue is essentially whether

the agency intentionally used the internal hiring process to exclude the appellant

from applying. The administrative judge credited the agency’s explanation that

the Audie Murphy VA often uses internal hiring, and the internal hiring process

in this case allowed the agency to avoid creating a new full-time equivalency

(FTE) in the Imaging Service. ID at 14-15. She also credited Dr. L’s explanation

that the internal hiring process was meant to create advancement opportunities for

current employees of the troubled Imaging Service, and she noted that Dr. L made

the decision to hire internally shortly after the appellant resigned and well before

she notified him in June 2016 that she wished to be considered for available

positions. ID at 14; IAF, Tab 1 at 97-98.

¶16 As stated above, the appellant was not selected for the Service Chief

position because her application score did not meet the cutoff for an interview.

The cutoff score was 20, but Dr. L scored the appellant’s application at 13. IAF,

Tab 32 at 25. The main point of contention here is whether the appellant should

have gotten credit for “Assignment as a Radiology Service or Section Chief,” in

light of work that she did in the Nuclear Medicine Section, wherein she “basically

ran” the section for 18 months and filled in at other times while the Section Chief

was occupied with other matters. See HCD 2, Track 2 at 6:30 (testimony of the

appellant). Had she been given credit for this work as “Assignment as a

Radiology . . . Section Chief,” her application score would have made the cutoff

for an interview. IAF, Tab 32 at 25. However, the administrative judge found

that the appellant’s application package did not reflect that she ever had any

leave-approving, disciplinary, hiring, or firing authority, or that she ever

7
negotiated with the union or dealt with bargaining unit employees, and she

credited Dr. L’s testimony that acting as Service Chief periodically while

someone is out of the office is not the same as being officially designated as

Acting Service Chief, with official responsibility and authority to make

management decisions. ID at 17.

¶17 Regarding Dr. L’s motive to retaliate, the administrative judge considered

the declaration of the former Radiology Administrator, who stated that Dr. L had

told him specifically that he did not want the appellant to come back because of

the turmoil that her whistleblowing activity had caused. ID at 10-11; IAF, Tab 1

at 58-62. The Radiology Administrator testified at the hearing consistent with his

declaration, and applying the factors set forth in Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987), including her observation of the witness’s

demeanor, the administrative judge found his testimony to be credible. ID

at 10-11; HCD 1, Track 1 at 12:30, 43:40 (testimony of the Radiology

Administrator). The administrative judge also considered Dr. L’s own deposition

testimony, in which he explained that bringing the appellant back would have

been difficult because it would have exacerbated interpersonal issues already

present in the troubled Imaging Service, which he was then trying to rebuild. ID

at 11-13. The administrative judge further considered that neither Dr. L nor

anyone in his direct supervisory chain at the time was the subject of the

whistleblowing, but as a high-ranking management official with general oversight

responsibilities, he may have been indirectly implicated. ID at 13-14.

Furthermore, as Deputy Chief of Staff, Dr. L worked closely with the Chief of

Staff, who did oversee the Imaging Service directly. Id. The administrative

judge also noted that Dr. L and the appellant were on good terms when she

departed, with no hint of personal animus either way. ID at 14. The

administrative judge concluded that Dr. L had some retaliatory motive, but that

this motive was not particularly strong. ID at 14.

8
¶18 Regarding the agency’s treatment of similarly situated non-whistleblowers,

the administrative judge found that there was no pertinent evidence concerning

this Carr factor, and that it did not figure significantly into the analysis. ID

at 18.

¶19 The appellant disputes these findings on review, arguing that the

administrative judge got several facts wrong, failed to consider other facts, and

weighed the evidence incorrectly. PFR File, Tab 1 at 7. At the outset, we note

that the administrative judge’s failure to mention all of the evidence in this

extensive record does not mean that she did not consider it in reaching her

decision. See Marques v. Department of Health and Human Services,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Nevertheless, the U.S. Court of Appeals for the Federal Circuit has held that

evidence only clearly and convincingly supports a conclusion when it does so in

the aggregate considering all the pertinent evidence in the record, and despite the

evidence that fairly detracts from that conclusion, and that it is error for the

Board to not evaluate all the pertinent evidence in determining whether an

element of a claim or defense has been adequately proven. Whitmore v.

Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Mindful of these

principles, we have closely reviewed the record in this appeal and carefully

considered each of the appellant’s contentions on review. Accordingly, we

supplement the initial decision as set forth below. 

¶20 Regarding the first Carr factor, the appellant argues that the benefits of

internal hiring all applied to her because, even though she was not a current

employee when the Section Chief vacancy was announced, she had only recently

departed. PFR File, Tab 1 at 13-14. This, however, is not unqualifiedly true;

because the appellant had separated from service, she would have had to go

through the pre-employment process just like any other external candidate, and,

depending on applicable expiration dates, she may have had to undergo

recredentialing, a new background check, a new physical, or other

9
pre-employment requirements. HCD 1, Track 2 at 1:21:40 (testimony of the

Human Resources Specialist). The appellant also disputes the administrative

judge’s finding that the internal hiring process allowed the Section Chief

appointment to be FTE-neutral. PFR File, Tab 1 at 10; ID at 4, 14-15. She

argues that Dr. W’s staff Physician position was, in fact, backfilled after he was

promoted to Section Chief. PFR File, Tab 1 at 10; IAF, Tab 20 at 91-92. We

disagree. The Diagnostic Radiology Section Chief was FTE-neutral because it

was created by converting an existing staff Physician position into a Section

Chief position. IAF, Tab 32 at 23; HCD 1, Track 3 (testimony of Dr. W); HCD 2,

Track 1 at 38:25 (testimony of Dr. L). The fact that the agency subsequently

filled another of its vacant FTEs in that section is immaterial because the total

number of FTEs remained the same. In any event, we find that it is simply too

much to expect that the agency should have changed the entire focus of the hiring

process in order to reach a single potential candidate who had not contacted the

agency since her departure more than a year prior and who had never before

expressed any interest in taking a management position. 3 HCD 2 at 1:14:15,

2:07:20, 3:11:10 (testimony of Dr. L). We find it highly unlikely that Dr. L

would have made the decision to recruit internally in order to exclude a candidate

whom he had little or no reason to believe would be applying. Along these lines,

the appellant argues that her June 12, 2015 email put Dr. L on notice that she was

interested in returning to the agency before he made his decision to recruit for the

Section Chief position internally. PFR File, Tab 1 at 7-8, 14; IAF, Tab 11 at 16.

Again, we disagree. In this email, the appellant expressed a desire to keep her

clinical privileges at the Audie Murphy VA and a willingness to help out on an ad

3

 On June 14, 2016, the appellant wrote Dr. L a letter asking to be considered for any

radiology vacancies for which she might be qualified. PFR File, Tab 1 at 8; IAF, Tab 1

at 97-98. However, she wrote this letter after her nonselection for the Section Chief

position and, although she was not selected for the Service Chief position, her

application for it was considered. To the extent that the appellant is arguing that Dr. L

should have noncompetitively appointed her to a staff Physician or other unspecified

position, PFR File, Tab 1 at 8-9, this is beyond the scope of the instant appeal, which

involves only the Section and Service Chief positions.

10
hoc basis.4

 IAF, Tab 11 at 16. We do not read this email as indicating a desire to

return to Federal employment, much less employment as a Section Chief. For the

reasons explained in the initial decision, we agree with the administrative judge

that the agency presented compelling evidence in support of Dr. L’s decision to

recruit internally for Section Chief of Diagnostic Radiology, and we see little

reason to doubt the veracity of the agency’s explanation. ID at 14-15.

¶21 Regarding the Service Chief position, the appellant argues that Dr. L should

have credited her as having been assigned to a radiology Section Chief position

because her application package outlined her extensive supervisory experience as

well as her experience acting as Nuclear Medicine Section Chief in Dr. D’s

absence. PFR File, Tab 1 at 11, 14-15; IAF, Tab 1 at 102-10, Tab 24 at 7. It is

undisputed that, had the appellant received such credit, her application score

would have entitled her to an interview, and the record shows that the appellant

had experience supervising staff and residents. IAF, Tab 32 at 25; HCD 2, Track

2 at 6:15 (testimony of the appellant). Although all physicians at the Audie

Murphy VA supervise staff and residents, the appellant’s experience in this

regard seems to have been more extensive than most. HCD 2, Track 1 at 1:30:16

(testimony of Dr. L); HCD 2, Track 2 at 6:15, 14:20 (testimony of the appellant).

This difference, however, appears to be largely a matter of degree; the appellant’s

supervisory experience did not entail disciplinary authority, hiring and firing,

leave approval, addressing grievances, or business planning, which was the type

of experience that Dr. L was looking for and that the appellant would have

received had she been officially detailed to Section Chief. HCD 2, Track 1

at 1:29:55 (testimony of Dr. L), Track 2 at 22:00 (testimony of the appellant); see

generally 5 U.S.C. § 7103(a)(10) (defining “supervisor” for purposes of Federal

labor-management and employee relations). For the reasons explained in the

4

 Dr. L testified that it would not actually have been possible for the appellant to retain

her clinical privileges at the Audie Murphy VA after her resignation because her change

in employment status would have required recredentialing. HCD 2 at 1:11:10

(testimony of Dr. L).

11
initial decision, we agree with the administrative judge that the agency presented

strong evidence to support its scoring of the appellant’s application for the

Service Chief position. ID at 15-17.

¶22 Regarding the first Carr factor in general, the appellant argues that she was

a good employee during her tenure with the agency and that there was nothing

about her that should have prevented her from being rehired. PFR File, Tab 1

at 7-8. We agree. The record is clear concerning the appellant’s colleagues’ high

regard for her; not a single witness had anything negative to say about the

appellant, but to the contrary testified favorably about her and her supervisory

and clinical skills. HCD 1, Track 1 at 10:50 (testimony of Radiology

Administrator), Track 2 at 1:45 (testimony of Human Resources Specialist),

Track 3 at 51:30 (testimony of Dr. W), Track 4 at 2:00 (testimony of Dr. D),

52:05 (testimony of Dr. F); HCD 2, Track 1 at 3:39:50 (testimony of Dr. L).

However, we find that this is largely immaterial because the appellant’s

competence and good reputation did not put her within the area of consideration

for the Section Chief vacancy, and did not constitute the experience required for

an appointment to Service Chief.

¶23 Regarding the second Carr factor, the appellant argues that the

administrative judge failed to assess accurately the strength of Dr. L’s bias or to

figure it into her overall analysis. PFR File, Tab 1 at 15, 17-18. First, she argues

that Dr. L admitted in his deposition that he was biased against her and for that

reason had recused himself from a previous selection process for a staff Physician

position. Id. at 6-7, 10, 12, 15-17. We disagree with the appellant’s

characterization of Dr. L’s deposition testimony. Dr. L testified that he had the

potential to be biased, and not that he was actually biased against the appellant.

IAF, Tab 20 at 91-92. He later clarified at the hearing that he was referring to the

appearance of bias, and for that reason, he followed the advice of a human

resources official to remove himself from the decision process. HCD 2, Track 1

at 1:48:55, 3:05:15 (testimony of Dr. L). 

12
¶24 In this same vein, the appellant argues that Dr. L testified that the

appellant’s return to the Imaging Service would cause turmoil and that this would

have created an additional problem that he would have to deal with in getting the

Service back into shape. PFR File, Tab 1 at 8, 15-16; IAF, Tab 20 at 77-78,

Tab 22 at 47-48; HCD 2, Track 1 at 3:24:10 (testimony of Dr. L). The appellant’s

characterization of Dr. L’s testimony in this regard is accurate. 5 We find,

however, that Dr. L’s candid admission of his concerns regarding such potential

turmoil must be viewed in the context of his demonstrated knowledge that

management is responsible for setting such considerations aside and addressing

any resulting disharmony in a fair and evenhanded manner. HCD 2, Track 1

at 3:27:50 (testimony of Dr. L). 

¶25 Regarding the administrative judge’s finding that the appellant was on good

terms with Dr. L when she resigned, the appellant argues that this was only

because she was unaware that Dr. L was harboring retaliatory animus against her.

PFR File, Tab 1 at 18; ID at 14. The appellant’s point is well-taken. We find that

the absence of any overt hostility from Dr. L prior to the appellant’s resignation

is a relevant fact to consider, but it does little to show that Dr. L was not actually

harboring animus.

¶26 The appellant also argues that the administrative judge failed to properly

account for the deposition and hearing testimony of the Radiology Administrator,

who stated that he was involved in meetings in which Dr. L expressed his

retaliatory animus towards the appellant. PFR File, Tab 1 at 16, 18; IAF Tab 1

at 58-62; HCD 1, Track 1 at 12:30, 17:10 (testimony of Radiology

Administrator). We agree with the appellant that this evidence weighs in favor of

finding a strong retaliatory motive, particularly in light of the administrative

judge’s favorable demeanor-based credibility determinations. ID at 10-11.

However, we cannot discount the fact that the administrative judge had the

5

 We disagree with this characterization to the extent that the appellant intimates that

Dr. L admitted he was actually biased against her for that reason. PFR File, Tab 1

at 15-16.

13
opportunity to observe Dr. L’s demeanor as well, and that the countervailing

evidence tempered her assessment of the strength of his retaliatory motive. ID

at 13-14. Having reviewed the initial decision and considered the pertinent

evidence of record, particularly Dr. L’s realistic assessment of the consequences

of the appellant’s whistleblowing and his clear understanding of his

responsibilities in that regard, we find that the appellant has not provided a

sufficiently sound basis for us to disturb the initial decision with respect to the

second Carr factor. See Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002).

¶27 Regarding the third Carr factor, the appellant argues that the agency bears

the burden of coming forward with evidence regarding similarly situated

non-whistleblowers, and that the agency bears the risk associated with having no

evidence on record for this factor. PFR File, Tab 1 at 19-20; see Miller v.

Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016). We agree with the

appellant on this point. However, given the idiosyncratic nature of hiring

decisions, it is doubtful that any comparison cases, even assuming they existed,

would be able to shed much light on the instant appeal. 

¶28 The appellant argues that the Radiology Administrator himself serves as a

comparison employee because Dr. L assigned him a very high performance rating

prior to his departure for another facility but began to question his competence

after he submitted a declaration in support of the appellant. PFR File, Tab 1

at 20; IAF, Tab 28; HCD 2, Track 1 at 2:20 (testimony of Dr. L). We find,

however, that Dr. L gave a reasonable explanation for this apparent discrepancy;

he testified that the problems with the Radiology Administrator’s work did not

come fully to light until after his departure, and in any event, he gave all of his

subordinates in the Imaging Department very high performance ratings for the

2015 performance year in light of the difficult situation that they all were facing.

HCD 2, Track 1 at 4:40, 2:43:50 (testimony of Dr. L). Therefore, after having

considered the appellant’s arguments on review, we agree with the administrative

14
judge that the third Carr factor is not significant under the facts of the instant

appeal.

¶29 Having found firm support for the administrative judge’s assessment of each

individual factor, we also agree with her conclusion that, weighing the evidence

as a whole, the agency has met its burden to prove by clear and convincing

evidence that it would have made the same hiring decisions notwithstanding the

appellant’s protected disclosures. ID at 18.

NOTICE OF APPEAL RIGHTS6

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. 

6

 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 indicated in the notice, the

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

15
(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). 

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

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receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (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 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: 

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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

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.7 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 

7

 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. 

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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. 

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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