UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ILLYA ERWIN,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-1221-15-0418-W-1

DATE: September 7, 2016

Charles H. Brower, Esquire, and Michael Healy, Esquire, Honolulu, 

Hawaii, for the appellant. 

Dawn Dobbs and Steven J. Shim, Schofield Barracks, Hawaii, for 

the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

Chairman Grundmann issues a separate opinion.

ORDER

¶1 The appellant has filed a petition for review, and the agency has filed a 

cross petition for review of the initial decision, which denied the appellant’s 

request for corrective action under 5 U.S.C. § 1221. The two Board members 

cannot agree on the disposition of the petition for review. Therefore, the initial 

decision now becomes the final decision of the Merit Systems Protection Board in 

this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) 

(5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the 

Board in any other case. 5 C.F.R. § 1200.3(d).
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of the final decision by the U.S. Court 

of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. Additional information about 

the U.S. Court of Appeals for the Federal Circuit is available at the court’s 
3

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, and 11. Additional information about other 

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.

If you are interested in securing pro bono representation for your 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 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board
SEPARATE OPINION OF CHAIRMAN SUSAN TSUI GRUNDMANN

in

Illya Erwin v. Department of the Army

MSPB Docket No. SF-1221-15-0418-W-1

¶1 For the reasons discussed below, I would grant the appellant’s petition for 

review of the initial decision in this appeal and grant his request for corrective 

action under 5 U.S.C. § 1221.

¶2 I agree with the administrative judge’s finding that the appellant made 

protected disclosures when he informed a fellow nurse and a superior that he was 

improperly assigned charge nurse duties when he had not been properly oriented 

as a charge nurse, because the appellant reasonably, albeit incorrectly, believed 

that his floating and charge nurse assignments were in violation of the Hawaii 

Nursing Practice Act. I also believe that the appellant’s disclosure in an 

October 27, 2013 email to the responsible agency officials concerning allegedly 

improper treatment of a patient on October 26 was protected as a disclosure of a 

substantial and specific danger to public health or safety. Moreover, the 

appellant established that these disclosures were a contributing factor in his 

probationary termination. 

¶3 I believe, however, that the agency did not prove by clear and convincing 

evidence that it would have terminated the appellant in the absence of his 

protected disclosures. In determining whether an agency has shown by clear and

convincing evidence that it would have taken the same personnel action in the 

absence of whistleblowing, the Board will consider the following factors: 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. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 
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1999). Our reviewing court has clarified that “[e]vidence 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.” Whitmore v. Department of Labor, 680 F.3d 

1353, 1368 (Fed. Cir. 2012). 

¶4 I agree with the administrative judge that the third Carr factor is neutral in 

this case. I also agree with his finding that the responsible agency officials had 

only a moderate retaliatory motive with respect to the appellant’s disclosures 

concerning floating and charge nurse assignments. However, I believe that these 

officials may have had a significant retaliatory motive with respect to the 

appellant concerning his disclosure of substandard care of an Intensive Care Unit 

patient on October 26, 2013. Although neither official was directly implicated in 

the disclosure, it nonetheless reflected on both officials in their capacity as 

employees and managers. See Chavez v. Department of Veterans 

Affairs, 120 M.S.P.R. 285, ¶ 33 (2013). Thus, the second Carr factor weighs to 

some degree in the appellant’s favor. 

¶5 In evaluating the first Carr factor, i.e., the strength of the reasons in 

support of the agency’s action, the administrative judge found that disciplinary 

action was warranted based on the appellant’s failure to comply with Composite 

Health Care Systems (CHCS) access requirements and his failure to report for 

duty while on a scheduled on-call status. However, although the responsible 

officials cited these issues in their request for disciplinary action, Initial Appeal 

File, Tab 5 at 20‐26, the agency did not choose to take the action on those 

grounds. Instead, the termination letter that was ultimately prepared by the 

Civilian Personnel Advisory Center and signed by one of the responsible officials 

explicitly states that the basis for the action was the appellant’s alleged “lack of 

candor” in his September 17, 2013 statement concerning his lack of CHCS 

access. Accordingly, in considering the first Carr factor, it is appropriate to 
3

consider the strength of the evidence in support of the stated basis for the

agency’s action, i.e., the lack of candor charge.

¶6 To prove lack of candor, the agency must establish the following elements: 

(1) that the employee gave incorrect or incomplete information; and (2) that he 

did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17 

(2016). Here, the agency has provided no evidence whatsoever that the appellant 

knowingly gave incorrect or incomplete information when he stated that he did 

not have access to CHCS. The appellant’s statement was not a misrepresentation, 

as it is undisputed that the appellant did not in fact have access to CHCS at that 

time. Nor has the agency identified any additional information he may have 

improperly withheld. The stated basis of the agency’s action is thus entirely 

without merit. 

¶7 Without evidence to support its action, the agency cannot meet its burden 

of showing by clear and convincing evidence that it would have taken the action 

in the absence of the appellant’s protected disclosures. See Armstrong v. 

Department of Justice, 107 M.S.P.R. 375, ¶ 32 n.10 (2007). Accordingly, I 

would find that the appellant is therefore entitled to corrective action 

under 5 U.S.C. § 1221(e).

______________________________

Susan Tsui Grundmann

Chairman