UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2009 MSPB 33 

Docket No. PH-1221-08-0019-W-1 

Dom Wadhwa, 

Appellant, 

v. 

Department of Veterans Affairs, 

Agency. 

March 13, 2009 

Dom Wadhwa, Moorestown, New Jersey, pro se. 

Stacey Conroy, Esquire, Philadelphia, Pennsylvania, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

OPINION AND ORDER

¶1 The appellant has filed a petition for review (PFR) of the June 26, 2008 

initial decision (ID) that denied his request for corrective action in his individual 

right of action (IRA) appeal. For the reasons discussed below, we find that the 

PFR does not meet the criteria for review set forth at 5 C.F.R. § 1201.115, and we 

therefore DENY it. We REOPEN this case on our own motion under 5 C.F.R. 

§ 1201.118, however, and AFFIRM the ID as MODIFIED by this Opinion and 

Order, still DENYING the request for corrective action. 
2

BACKGROUND

¶2 The appellant, a Physician at the agency’s Philadelphia Veterans 

Administration Medical Center (PVAMC), filed an IRA appeal on October 10, 

2007. He enclosed the Office of Special Counsel’s (OSC’s) September 27, 2007 

letter informing him that he had the right to seek corrective action from the 

Board. Initial Appeal File (IAF), Tab 1. The administrative judge (AJ) found 

that the Board has jurisdiction over the appeal, but denied the appellant’s request 

for corrective action. Id., Tab 59. 

¶3 In denying the appellant’s request for corrective action, the AJ first found 

that the appellant failed to show that he made protected disclosures on July 23, 

2006, when he submitted a letter to the agency’s Inspector General (VA IG) 

alleging safety violations at PVAMC, following an incident during which he was 

threatened by a patient who entered his examination room uninvited. ID at 3, 7-

11. The AJ then found that, even if the appellant’s disclosures were protected, he 

did not show that they were a contributing factor in his reassignment from the 

Primary Care Clinic to the Compensation and Pension (C&P) Section on January 

22, 2007. Id. at 4, 11-14. Finally, the AJ found that, even if the disclosures were 

a contributing factor, the agency showed by clear and convincing evidence that it 

would have reassigned the appellant, anyway. Id. at 14-18. 

¶4 The appellant has filed a PFR. PFR File, Tab 1. The agency has not 

responded to the PFR. 

ANALYSIS

The AJ erred in finding that the appellant’s disclosures were not protected. 

¶5 To prevail on a claim under the Whistleblower Protection Act (WPA), an 

appellant must prove by preponderant evidence that he disclosed information he 

reasonably believed evidenced, inter alia, a substantial and specific danger to 
3

public health or safety.*

 5 U.S.C. § 2302(b)(8)(A); Grubb v. Department of the 

Interior, 96 M.S.P.R. 377, ¶ 12 (2004). The AJ correctly found that the appellant 

raised a specific threat to public health and safety. ID at 10. The appellant 

complained of numerous specific alleged security deficiencies, and drew a 

reasonable causal relationship between them and at least two incidents where he 

or another medical professional was threatened with serious injury by patients. 

IAF, Tab 1, Ex. A. The AJ did not determine whether the threat identified by the 

appellant was substantial. We find, however, that the prospect of bodily injury to 

hospital staff is sufficiently serious to satisfy that prong of the statutory standard. 

See Chambers v. Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 

2008) (stating that “the nature of the harm – the potential consequences – affects 

the substantiality of the danger”). 

¶6 Notwithstanding her finding that the appellant’s alleged safety concerns 

were sufficiently specific, the AJ nonetheless found that the appellant’s July 23, 

2006 letter was not a protected disclosure under Meuwissen v. Department of the 

Interior, 234 F.3d 9, 13 (Fed. Cir. 2000). ID at 7-11. The AJ relied on 

Meuwissen for the proposition that a disclosure of something that is already 

publicly known is not a protected disclosure under the WPA. Id. at 8-9. In 

support, the AJ noted that the issues the appellant raised in the letter had been 

discussed and investigated at PVAMC for several years, culminating in the 

creation of a task force that made certain recommendations, and that some 

changes had been made. Id. at 8-10. The AJ also found that “many of the safety 

devices or strategies, or lack thereof, would have been apparent to anyone who 

 

*

 Although she erred in stating that gross mismanagement requires an “element of 

blatancy,” the AJ correctly concluded that the appellant’s July 23, 2006 letter did not 

disclose gross mismanagement. See IAF, Tab 59 at 9; Swanson v. General Services 

Administration, 110 M.S.P.R. 278, ¶ 11 (2008); Tatsch v. Department of the Army, 100 

M.S.P.R. 460, ¶ 12 (2005) (noting that the U.S. Court of Appeals for the Federal Circuit 

has abolished the “blatancy” requirement). 
4

walked into the hospital, e.g., guards, cameras, metal detectors, room 

configurations, etc.” Id. at 9. 

¶7 We find that the AJ erred in relying on Meuwissen to find that the 

appellant’s July 23, 2006 disclosures were not protected because PVAMC’s staff 

and management were aware of the safety issues. An employee’s decision to go 

outside the chain of command to correct a problem that local management has 

failed to address is a form of protected disclosure under the WPA, 

notwithstanding that local employees and management were aware of the 

problem. See Grubb, 96 M.S.P.R. 377, ¶¶ 27-28 (holding that an employee’s 

complaint to the agency IG that local agency management violated the law was a 

protected disclosure); Johnson v. Department of Health & Human Services, 93 

M.S.P.R. 38, ¶¶ 13-14 (2002) (holding that an employee who went to the agency 

IG after making numerous complaints to his supervisors that he believed were 

ignored made a protected disclosure under the rule that where an employee “goes 

outside the chain of command because he feels that those officials are 

‘unresponsive,’ his disclosures are protected”); Askew v. Department of the Army, 

88 M.S.P.R. 674, ¶¶ 7-9 (2001) (holding that an appellant’s statements to the 

agency IG were protected disclosures, notwithstanding that the facility’s 

management had previously detected the same problem identified by the 

appellant, but failed to act to the appellant’s satisfaction). 

¶8 We also find that the AJ erred on the facts in relying on Meuwissen to find 

that the appellant’s July 23, 2006 disclosures were not protected under the 

“publicly known” exception. As previously noted, the AJ stated that issues that 

the appellant raised in his letter were publicly known because “many of the safety 

devices or strategies, or lack thereof, would have been apparent to anyone who 

walked into the hospital, e.g., guards, cameras, metal detectors, room 

configurations, etc.” ID at 9. However, there was no evidence that members of 

the public generally, as opposed to the potentially dangerous patients from whom 

the appellant sought protection, had access to examination rooms. In addition, 
5

many of the other alleged safety deficiencies raised by the appellant would not 

have been visible to the public, such as the failure to provide panic buttons in 

examination rooms, patient criminal background information to treating 

physicians, special VA Police Officer protection in cases where a patient who 

was known to be potentially violent arrived for treatment, and warnings on the 

charts of potentially violent patients. IAF, Tab 1, Ex. A. 

¶9 Therefore, the appellant here did more than merely restate observable facts. 

Rather, as a physician practicing at the facility, he provided a perspective not 

discernable to members of the visiting public by recognizing the potential threat 

to medical providers’ safety that the lack of security caused. For instance, the 

appellant complained that the examination rooms’ furniture was arranged such 

that a doctor could be pinned against the wall by a patient, that the absence of a 

second exit door in the rooms could trap a doctor, and that the rooms lacked panic 

buttons. IAF, Tab 1, Ex. A. A member of the public would not necessarily 

recognize the potential danger posed by these factors. Consequently, even 

assuming that all of the safety issues raised by the appellant were discernable by 

the public, the public would not have had the additional information necessary to 

recognize the threat to the health and safety of the medical staff posed thereby, 

and therefore could not effectuate the WPA’s remedial purpose of encouraging 

that the threat be disclosed to someone in a position to correct it. 

¶10 In that regard, we further find that the AJ erred in interpreting the “publicly 

known” test too restrictively. In Meuwissen, the appellant, an administrative 

judge, first complained about, and then issued an opinion inconsistent with, an 

agency’s statutory interpretation that had been articulated in published decisions. 

234 F.3d at 11. The court explained that the WPA’s purpose to “correct” abuses 

is not served by “encourag[ing] employees to disclose the illegality of such 

decisions, which are known and readily redressable by appeal.” Id. at 13-14. In 

Huffman v. Office of Personnel Management, 263 F.3d 1341, 1347-50 (Fed. Cir. 

2001), as in Meuwissen, the court explained the requirement that a disclosure be 
6

“unknown” in the context of the legislative intent to encourage employees to 

make disclosures so that wrongdoing can be remedied. Thus, the court opined 

that the statutory purpose of encouraging disclosures that are likely to remedy a 

wrong is not served by making a “disclosure” to the wrongdoer himself. 263 F.3d 

at 1350. Similarly, in Horton v. Department of the Navy, 66 F.3d 279, 282 (Fed. 

Cir. 1995), cert. denied, 516 U.S. 1176 (1996), the court held that an employee’s 

criticism directed to the wrongdoers themselves was not whistleblowing because 

such disclosures do not serve the WPA’s purpose of remedying wrongs. But in 

Horton, the court did not even address whether the information conveyed by the 

employee was unknown or known. See also Mogyorossy v. Department of the Air 

Force, 96 M.S.P.R. 652, ¶¶ 18-20 (2004) (analyzing the “disclosure” requirement 

based on whether the complaints were made to an individual other than the policy 

maker, without considering whether the recipient might also already have been 

aware of the allegedly dangerous policy). 

¶11 In sum, the U.S. Court of Appeals for the Federal Circuit in Meuwissen, 

Huffman, and Horton examined whether the statutory purpose of affording a 

remedy for alleged government wrongdoing would be served in determining that 

the subject statements were not “disclosures” within the meaning of the WPA. In 

contrast, the remedial purpose of the WPA is furthered by encouraging employees 

to bring to the attention of agency IGs alleged threats to safety that are ignored 

by local management, and based upon facts which, even if known to the public, 

do not necessarily indicate a safety threat without also considering additional 

information not publicly known. 

The AJ erred in finding that the appellant’s disclosures were not a contributing 

factor in his reassignment. 

¶12 To prevail on a claim under the WPA, an appellant must also prove by 

preponderant evidence that his disclosure was a contributing factor in a personnel 

action. 5 U.S.C. § 2302(b)(8)(A); Grubb, 96 M.S.P.R. 377, ¶ 12. As the AJ 

found, the appellant’s reassignment was a personnel action. 5 U.S.C. 
7

§ 2302(a)(2)(A)(iv); ID at 7. The most common way of proving the contributing 

factor element is the “knowledge/timing test.” Under that test, an appellant can 

prove the contributing factor element through evidence that the official taking the 

personnel action knew of the whistleblowing disclosure and took the personnel 

action within a period of time such that a reasonable person could conclude that 

the disclosure was a contributing factor in the personnel action. Gonzalez v. 

Department of Transportation, 109 M.S.P.R. 250, ¶ 19 (2008). “Once an 

appellant has satisfied the knowledge/timing test, he has demonstrated that a 

protected disclosure was a contributing factor in a personnel action. Id., ¶ 20. 

¶13 Here, the AJ erred in concluding that the appellant’s disclosures were not a 

contributing factor in the agency’s decision to reassign him, based on an analysis 

of all of the relevant evidence, despite finding that the managers who reassigned 

him were aware of his disclosure and that he was reassigned only 6 months after 

submitting the July 23, 2006 letter to the VA IG. ID at 11-14. Six months is well 

within the range of time between a disclosure and a personnel action from which 

an inference of causation arises. See Gonzalez, 109 M.S.P.R. 250, ¶ 20 (finding 

that a time period of slightly more than 1 year satisfied the timing test, and citing 

cases that also so held); Cosgrove v. Department of the Navy, 59 M.S.P.R. 618, 

623 n.5 (1993) (citing legislative history stating that a 1-year period normally 

would support an inference of reprisal). Because the appellant satisfied the 

knowledge/timing test, the AJ should not have considered any further evidence on 

the issue. Gonzalez, 109 M.S.P.R. 250, ¶ 20. Any contrary evidence may be 

considered in the context of the agency’s burden to show by clear and convincing 

evidence that it would have taken the adverse action notwithstanding the 

appellant’s protected disclosures. An AJ’s consideration of all of the relevant 

evidence when determining whether the whistleblowing was a contributing factor 

in the personnel action has the effect of shifting to the appellant a burden that the 

Board has held should be borne by the agency. 
8

The AJ correctly found that the agency presented clear and convincing evidence 

that it would have reassigned the appellant even absent any protected disclosure. 

¶14 The Board will order corrective action in an IRA appeal where an appellant 

shows by preponderant evidence that he engaged in whistleblowing and that the 

whistleblowing was a contributing factor in the decision to take a personnel 

action, unless the agency shows by clear and convincing evidence that it would 

have taken the personnel action even absent the whistleblowing. Mangano v. 

Department of Veterans Affairs, 109 M.S.P.R. 658, ¶ 19 (2008). 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 

considers 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. Id.

¶15 The AJ correctly concluded that the agency presented clear and convincing 

evidence that it would have reassigned the appellant even absent any protected 

disclosures. In that regard, the AJ relied on the credibility of the agency’s 

witnesses, as demonstrated by the straighforwardness and consistency of their 

statements, their calm and assured demeanor, and the absence of any motivation 

for them to prevaricate or of any bias against the appellant for any improper 

reason. ID at 15-16. The AJ was satisfied that the unrebutted testimony of these 

witnesses established that the appellant was reassigned (1) to address a backlog in 

the department to which he was assigned that had developed during his absence 

from the PVAMC; (2) in response to the appellant’s own request that he not be 

returned to work for the Director of the Primary Care Clinic; (3) in light of the 

large number of patient complaints the appellant had received while working in 

his original department; and (4) to prevent the communication and collaboration 

problems that had arisen between the appellant and the nurses and other staff at 
9

his original department. Id. Significantly, there was evidence that agency 

management believed that the appellant had performance problems before he sent 

his letter to the VA IG. Id. at 17. 

¶16 Thus, notwithstanding the AJ’s errors in the first two prongs of the WPA 

analysis, she correctly found, based on a detailed discussion of the evidence and a 

thorough and persuasively reasoned analysis, that the agency would have 

reassigned the appellant notwithstanding his protected disclosures. Therefore, 

she correctly denied his request for corrective action under the WPA. 

ORDER

¶17 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address: 

United States Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, DC 20439 

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

after your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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). 
10

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 United States Code, section 7703 (5 U.S.C. § 7703). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information 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, and 11. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.