Note: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3162 

JACQUES A. DURR, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Joseph D. Magri, Merkle & Magri, P.A., of Tampa, Florida, for petitioner. 

Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems 

Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad 

Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3162 

JACQUES A. DURR, 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD 

 Respondent. 

Petition for review of the Merit Systems Protection Board in AT1221040293-B-1. 

 

___________________________ 

 DECIDED: October 23, 2008 

___________________________ 

Before RADER, LINN and MOORE, Circuit Judges. 

PER CURIAM. 

 Jacques A. Durr, M.D. (Dr. Durr) appeals the final decision of the Merit Systems 

Protection Board (Board) dismissing his individual right of action (IRA) appeal for lack of 

jurisdiction. Durr v. Dep’t of Veterans Affairs, MSPB Docket No. AT1221040293-B-1 

(Opinion and Order Jan. 24, 2007). This court vacates and remands the Board’s 

decision relating to Dr. Durr’s disclosures regarding computer services. However, this 

court affirms the Board’s decision relating to Dr. Durr’s disclosures regarding misuse of 

research time and money. 

 Dr. Durr was employed as the Chief of Nephrology at Bay Pines Veterans 
Administration Medical Center (VAMC) in Bay Pines, Florida. Patient records at VAMC 

are kept via computer. Dr. Durr needed access to these records to perform his job 

duties. Frequent problems with VAMC’s computer system hampered Dr. Durr’s job 

duties. Although Dr. Durr complained to the Veteran’s Administration Information 

Resource Management Services (IRMS) about these technical issues, IRMS failed to 

adequately resolve these problems. 

 On June 17, 2003, in an act of frustration, Dr. Durr placed the non-working 

computer in a trash can outside of his office. Dr. Durr intended for this symbolic act to 

call attention to his complaint. The next day, Dr. Durr left a voice mail message for 

IRMS disclosing this incident. Dr. Durr alleges that his voicemail included a statement 

to IRMS that the “total lack of support was hampering patient care.” On July 14, 2003, 

Dr. Durr held a meeting with hospital executives to discuss the symbolic act and 

concerns regarding the computer system. On July 25, 2003, the VAMC Chief of 

Medicine sent a proposed admonishment to Dr. Durr, charging him with misuse of 

government property, disrespectful conduct and failure to cooperate during an official 

investigation. 

 In August 2003, Dr. Durr filed a complaint with the Office of Special Counsel 

(OSC). This complaint alleges that Dr. Durr made two protected disclosures to hospital 

personnel under the Whistleblower Protection Act: 1) that the non-functioning computer 

system created a substantial and specific danger to public health or safety; and 2) that 

VAMC’s misuse of research funds and failure to give investigators required research 

time constituted gross mismanagement. Dr. Durr argued that hospital authorities 

threatened him with the proposed admonishment in reprisal for his whistleblowing. 

2007-3162 2
 The OSC denied Dr. Durr’s complaint on November 18, 2003. In January 2004, 

Dr. Durr appealed to the Board. On March 19, 2004, the Administrative Judge (AJ) 

dismissed the appeal for lack of jurisdiction finding that the agency had rescinded the 

proposed admonishment. On July 18, 2005, the Board vacated the initial decision and 

remanded the appeal for further consideration of jurisdictional issues. On April 4, 2006, 

the AJ found that Dr. Durr failed to make a protected disclosure, and that there was no 

jurisdiction. On appeal for the second time, the Board modified the AJ’s findings on 

January 24, 2007. Although the Board agreed that appellant failed to make a nonfrivolous allegation of gross mismanagement, the Board disagreed with the AJ’s 

conclusion that appellant had not made a non-frivolous allegation of a substantial and 

specific danger to public health or safety. Nevertheless, the Board decided that remand 

was not necessary because appellant failed to set forth enough detail explaining how 

the protected disclosure contributed to the agency’s proposed admonishment. This 

appeal followed. 

II 

 This court must affirm the 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." 5 U.S.C. § 7703(c); Forest v. Merit Sys. Prot. Bd., 47 F.3d 

409, 410 (Fed. Cir. 1995). Whether the Board has jurisdiction is a question of law which 

this court reviews de novo. See id. This court reviews the Board's factual 

determinations for substantial evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 

1316 (Fed. Cir. 1998). Thus, although this court may freely review whether the Board 

2007-3162 3
properly possessed jurisdiction, it is bound by the AJ’s factual determinations unless 

those findings are not supported by substantial evidence. See id. at 1316. 

 The Board has jurisdiction over Dr. Durr’s IRA appeal if he first exhausts his 

administrative remedies before the OSC and makes non-frivolous allegations that (1) he 

engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 

2302(b)(8), and (2) the disclosure was a contributing factor in the agency's decision to 

take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See Yunus v. 

Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 

 A “protected disclosure” is a disclosure which “an employee . . . reasonably 

believes evidences (i) a 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." 5 U.S.C. § 2302(b)(8)(a) (2008). The test for 

determining whether a whistleblower has a reasonable belief in the disclosure is 

objective: Whether a disinterested observer with knowledge of the essential facts 

known to and readily ascertainable by the employee would reasonably conclude that the 

actions of the government evidence wrongdoing as defined by the Whistleblower 

Protection Act. See Giove v. Dep't of Transp., 230 F.3d 1333, 1338 (Fed. Cir. 2000). A 

party cannot establish jurisdiction with general assertions but must provide substantive 

details. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993). 

 With regard to the second prong, a protected disclosure is a “contributing factor” 

in an agency’s personnel action if it satisfies the knowledge/timing test set forth in 5 

U.S.C. § 1221(e)(1): 

The employee may demonstrate that the disclosure was a contributing 

factor in the personnel action through circumstantial evidence, such as 

2007-3162 4
evidence that — 

 (A) the official taking the personnel action knew of the disclosure; and 

 (B) the personnel action occurred within a period of time such that a 

reasonable person could conclude that the disclosure was a 

contributing factor in the personnel action. 

5 USC § 1221(e)(1) (2008). According to the legislative history, satisfaction of the 

“knowledge/timing” test establishes prima facie that the disclosure is a contributing 

factor to the personnel action. See Kewley v. Dep’t of Health & Human Servs., 153 

F.3d 1357, 1361 (Fed. Cir. 1998). 

 Here, it is undisputed that Dr. Durr exhausted his remedies before the OSC. 

Thus, the jurisdictional analysis focuses on whether Dr. Durr made a non-frivolous 

allegation. 

A. Dr. Durr’s Disclosure Regarding the Non-Functioning Computer System 

The Board found that Dr. Durr made a non-frivolous allegation of a substantial 

and specific danger to public health or safety with respect to the non-functioning 

computer system. Nevertheless, the Board concluded that remand for further 

adjudication was not necessary. This court agrees with the Board’s ultimate conclusion 

that Dr. Durr made a non-frivolous allegation. However, the Board’s decision improperly 

focuses on Dr. Durr’s September 10, 2003 letter to OSC, which was sent following the 

personnel action in question. 

On appeal, the Board concedes that Dr. Durr made nonfrivolous allegations of 

protected disclosures occurring prior to the personnel action, including his June 18, 

2003 voice mail message to the IRMS. Notably, the Board now “confesses error in its 

decision” and requests this court to “remand[] the case . . . .” In view of the Board’s 

concession, this court grants the Board’s request, vacates-in-part the Board’s decision, 

and remands for proceedings on the merits of Dr. Durr’s claim. 

2007-3162 5
B. Dr. Durr’s Disclosure Regarding the Misuse of Research Funds and Failure to 

Provide Required Research Time 

The Board found that Dr. Durr did not make a non-frivolous allegation of gross 

mismanagement with respect to the agency’s decisions regarding research funding and 

time. On appeal, appellant argues that the VAMC misused research funds. 

Specifically, the agency failed to give Dr. Durr protected research time and funds in 

violation of agency directives that require “Medical Center Directors . . . [to] ensure that 

investigators are allocated appropriate time . . . to conduct funded research.” The 

Board rejected appellant’s argument because Dr. Durr failed to identify a misuse of 

research funds and time. 

This court requires that “substantive details establishing jurisdiction . . . be 

alleged in the complaint.” Ellison, 7 F.3d at 1036. Here, appellant failed to disclose 

sufficient information to support a reasonable inference of wrongdoing. The Board 

found that appellant failed to identify any funded research that Dr. Durr had not been 

provided time to conduct and how the money was otherwise used. The AJ concluded 

that “[b]ecause the appellant has not been provided time to conduct research does not 

necessarily mean that there has been any ‘funded research’ that the appellant was 

eligible to conduct.” Similarly, that appellant “was not granted . . . [research] funds does 

not necessarily lead to the conclusion that the funds were misused.” Because Dr. Durr 

has failed to identify what funded research he was eligible to conduct or how funds were 

misused, he has not made a non-frivolous allegation. 

III 

 This court vacates and remands the Board’s decision with respect to the 

disclosure of a substantial and specific danger to public health or safety regarding the 

2007-3162 6
2007-3162 7

non-functioning computer system. This court affirms the Board’s decision with respect 

to the disclosure of gross mismanagement regarding misuse of research time and 

money. 

VACATE AND REMAND-IN-PART, AFFIRM-IN-PART 

COSTS

 Each party shall bear its own costs.