United States Court of Appeals 

for the Federal Circuit ______________________ 

PHILIP J. KERRIGAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3200

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-1221-14-0742-W-1.

______________________ 

Decided: August 17, 2016

______________________ 

PAUL DAVID MARGOLIS, Jenner & Block LLP, Chicago, 

IL, argued for petitioner. Also represented by LISA MARIE 

SCHOEDEL, JONATHON STUDER.

KATHERINE MICHELLE SMITH, Office of the General 

Counsel, Merit Systems Protection Board, Washington, 

DC, argued for respondent. Also represented by BRYAN G.

POLISUK. 

______________________ 

Before PROST, Chief Judge, BRYSON and STOLL, Circuit 

Judges.
2 KERRIGAN v. MSPB

PROST, Chief Judge. 

Philip Kerrigan appeals the final decision of the Merit 

Systems Protection Board (“Board” or “MSPB”) dismissing, for lack of jurisdiction, his claim that his workers’ 

compensation benefits were improperly terminated in 

retaliation for protected whistleblowing activity. See 

Kerrigan v. Dep’t of Labor, No. SF-1221-14-0742-W-1, 

2015 WL 3622799 (M.S.P.B. June 11, 2015). While we 

disagree with the Board that 5 U.S.C. § 8128(b) bars its 

review of Mr. Kerrigan’s appeal, we conclude that Mr. 

Kerrigan failed to make a nonfrivolous allegation that his 

protected disclosure was a contributing factor in the 

agency’s action, and therefore affirm.

I 

From August 1985 until May 1986, Mr. Kerrigan held 

a temporary appointment as a carpentry worker with the 

Department of the Navy’s Public Works Center in San 

Diego, California. During his appointment, he injured his 

back while at work and applied for, and was granted, 

workers’ compensation benefits by the Department of 

Labor’s (“DOL’s”) Office of Workers Compensation 

(“OWCP”). Mr. Kerrigan received these benefits without 

incident for many years. 

Beginning in 1993, Mr. Kerrigan began raising concerns regarding the administration of his benefits. Over 

the next several years, Mr. Kerrigan’s claims included a 

request to be treated by his choice of physician, Dr. Webber; requests for a determination of his wage-earning 

capacity, a lump sum settlement, and a schedule award; 

and a claim for an emotional condition. 

In the ensuing years, the OWCP took a number of actions in adjudicating Mr. Kerrigan’s claims. In 1994, the 

OWCP indicated it would refer Mr. Kerrigan for vocational training (though it is unclear whether he was actually 

referred at that time). In 1996, the OWCP denied Mr. 
KERRIGAN v. MSPB 3

Kerrigan’s request to see Dr. Webber, which was affirmed 

by its reviewing board within DOL, the Employees Compensation Appeals Board (“ECAB”), in 1998. Following 

that decision, the OWCP referred Mr. Kerrigan for an 

evaluation with an orthopedic surgeon. In 2001, that 

surgeon returned two reports and the opinion that Mr. 

Kerrigan could return to full-time work, with restrictions. 

Also in 2001—and particularly relevant here, on December 18, 2001—the OWCP referred Mr. Kerrigan for vocational rehabilitation. Mr. Kerrigan refused to attend the 

training and, on March 19, 2002, the OWCP notified Mr. 

Kerrigan that his benefits were being reduced to zero 

based on his refusal to participate in the training. That 

decision was affirmed by ECAB in 2003. 

Of these actions, Mr. Kerrigan took particular issue 

with the denial of his request to see Dr. Webber. On 

November 21, 2001, Mr. Kerrigan sent a letter to the 

DOL’s Office of Inspector General alleging that the denial 

was based on illegal actions by DOL employees—namely, 

that the OWCP and ECAB persons who had denied his 

request had done so based on a physician election form 

that they either falsified, destroyed, or both. The Office of 

Inspector General (“OIG”) elected not to investigate, 

though it did forward the letter on to the OWCP. A datestamp indicates that OWCP received the forwarded letter 

on December 18, 2001, the same day OWCP referred him 

to vocational training. 

Following OIG’s decision not to investigate, Mr. Kerrigan pursued, over the next several years, two actions in 

district court. One was brought against the DOL for 

illegal termination of benefits; the other was brought 

against the physician who reviewed his medical records 

during the administrative proceedings. Both were ultimately dismissed. 

In 2013, Mr. Kerrigan filed a complaint with the U.S. 

Office of Special Counsel. That office chose not to investi-
4 KERRIGAN v. MSPB

gate his claims but, construing his complaint as an allegation of reprisal for whistleblowing activity, referred him to 

the MSPB. 

In 2014, Mr. Kerrigan initiated this individual right of 

action appeal before the MSPB. His initial submissions 

alleged retaliatory termination of benefits following his 

November 21, 2001 letter to DOL alleging document 

forgery and destruction in denying his request to see Dr. 

Webber. The agency filed a motion to dismiss for lack of 

jurisdiction, arguing, inter alia, that Mr. Kerrigan’s 

conclusory allegations failed to comprise a nonfrivolous 

claim under the Whistleblower Protection Act. The 

administrative judge ordered Mr. Kerrigan to make the 

requisite jurisdictional showing, explaining that he must 

make “a detailed factual allegation that . . . agency officials responsible for the personnel action were aware of 

[his] disclosure . . . and acted within such time that a 

reasonable person could find that the disclosure . . . 

contributed to the action.” Kerrigan v. Dep’t of Labor, SF1221-14-0742-W-1, at *4 (M.S.P.B. Oct. 24, 2014). Mr. 

Kerrigan responded with a number of documents and a 

sworn declaration in which he repeated his allegations of 

retaliatory action by the DOL. J.A. 190-94. 

The administrative judge then dismissed Mr. Kerrigan’s appeal for lack of jurisdiction. The administrative 

judge held that the Whistleblower Protection Act only 

covers actions taken by an agency concerning its own

employees and, because Mr. Kerrigan was never an 

employee with the DOL, jurisdiction was lacking. J.A. 

238-39. Mr. Kerrigan petitioned for review, and the 

Board agreed that jurisdiction was lacking, but for different reasons. The Board held that it had no jurisdiction 

because Mr. Kerrigan’s challenge was a challenge to the 

termination of his benefits, and 5 U.S.C. § 8128(b) provides that benefits determinations are within the exclusive jurisdiction of the DOL and are unreviewable. 

Kerrigan, 2015 WL 3622799, at *547-49. The Board also 
KERRIGAN v. MSPB 5

noted that, even if jurisdiction were not barred under 

§ 8128(b), Mr. Kerrigan had failed to nonfrivolously allege 

that his protected disclosures were a contributing factor 

in the agency’s decision to terminate his benefits. Id. at 

*549 n.2.

Mr. Kerrigan appealed to us. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. 

§ 7703(b)(1)(B). Whether the Board has jurisdiction over 

a particular matter is a question of law that this court 

reviews de novo. Herman v. Dep’t of Justice, 193 F.3d 

1375, 1378 (Fed. Cir. 1999).

II 

We begin with the primary rationale of the Board’s 

decision—that 5 U.S.C. § 8128(b) precludes the Board 

from exercising jurisdiction over Mr. Kerrigan’s appeal. 

On this point, we hold that the Board erred.

Under the Federal Employees’ Compensation Act 

(“FECA”), decisions from the DOL on whether to allow or 

deny benefits are protected from further review by 5 

U.S.C. § 8128(b). Specifically, § 8128(b) of FECA provides 

that: 

The action of the Secretary or his designee in allowing or denying a payment under this subchapter is— 

(1) final and conclusive for all purposes and with 

respect to all questions of law and fact; and

(2) not subject to review by another official of the 

United States or by a court by mandamus or otherwise. 

We have previously commented on the “strong doorclosing language” of this provision. Pueschel v. United 

States, 297 F.3d 1371, 1374 (Fed. Cir. 2002). But by its 

plain terms, § 8128(b) applies only to actions by the 

Secretary or his designee “in allowing or denying a pay-
6 KERRIGAN v. MSPB

ment.” It does not close the door on review of all decisions 

that may overlap or touch on a DOL benefits determination. For example, in Minor v. Merit Systems Protection 

Board, 819 F.2d 280, 281-82 (Fed. Cir. 1987), a petitioner 

who had been receiving workers’ compensation benefits 

was both removed by her employing agency and denied 

further benefits by OWCP after it came to light that her 

injury claim had been false. In her appeal to us seeking 

restoration, we explained that § 8128(b)’s bar “obviously 

relates only to the Labor Department’s decisions on the 

making or denying of compensation awards” and does not 

bar the Board from otherwise “acting within its own 

separate statutory sphere” of authority. Id. Thus, “even 

though much of the same facts and evidence” went into 

both the benefits determination and the removal determination, the two were separate legal questions, the latter of 

which was within the Board’s jurisdiction. Id.1

The same principle is true here. Mr. Kerrigan’s complaint in this case is that the DOL’s actions—referring 

him to vocational training and then terminating his 

benefits for failure to attend—were done in retaliation for 

his letter alleging forgery and destruction of evidence in 

the earlier denial of his request to see Dr. Webber. The 

question of whether the DOL retaliated against Mr. 

Kerrigan in reprisal for whistleblowing activity is a 

different one than whether the DOL correctly terminated 

his benefits for failure to attend vocational training. 

Section 8128(b) only precludes the Board’s review of the 

1 We cited with approval the Board’s decision in 

Miller v. U.S. Postal Service, 26 M.S.P.R. 210, 213 (1995), 

which likewise held that “[w]hile the issue of [an employee’s] entitlement to FECA benefits is within the exclusive 

jurisdiction of the OWCP, the issue of the [employee’s] 

fraudulent conduct in those proceedings is not.” 

 
KERRIGAN v. MSPB 7

latter. While it is true that this case differs from Minor in 

that the appellant here seeks review of a decision by DOL 

rather than his employing agency, that distinction does 

not warrant a different result. In both cases, the Board’s 

jurisdiction stems from challenges that are separate and 

distinct from a simple appeal of benefits denial, and thus 

are not barred by § 8128(b).

III 

Section 8128(b) was not the only ground upon which 

the Board dismissed Mr. Kerrigan’s action, however. In a 

footnote of its decision, the Board also provided an alternative rationale for dismissal: it held that Mr. Kerrigan 

failed to nonfrivolously allege that his protected disclosure was a contributing factor in the agency’s action. 

Specifically, the Board concluded that Mr. Kerrigan 

“failed to allege that the official who made the decision to 

terminate his OWCP compensation benefits had any 

knowledge of his protected disclosures or was influenced 

by someone who did.” Kerrigan, 2015 WL 3622799, at 

*549 n.2. On this point, we agree with the Board.

To establish Board jurisdiction over individual right of 

action cases, the appellant must make “non-frivolous 

allegations” that he engaged in whistleblowing activity by 

making a protected disclosure, and that the protected 

disclosure “was a contributing factor in the agency’s 

decision to take or fail to take a personnel action.” Cahill 

v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 

2016). The statute, 5 U.S.C. § 1221(e)(1), expressly addresses how the “contributing factor” element of the 

whistleblower claim can be established. It provides that: 

The employee may demonstrate that the disclosure or protected activity was a contributing factor in the personnel action through circumstantial 

evidence that— 
8 KERRIGAN v. MSPB

(A) the official taking the personnel action knew of 

the disclosure or protected activity; and 

(B) the personnel action occurred within a period 

of time such that a reasonable person could conclude that the disclosure or protected activity was 

a contributing factor in the personnel action. 

5 U.S.C. § 1221(e)(1).

Here, Mr. Kerrigan has certainly shown a closeness in 

timing between the alleged protected disclosure and the 

personnel action, as described in subsection (B). His 

letter alleging illegal actions by the OWCP and ECAB 

was sent to the DOL’s Office of Inspector General on 

November 21, 2001, and forwarded on to the OWCP on 

December 18, 2001. On that same day, December 18, 

2001, the OWCP referred him to vocational training. A 

few months later, on March 19, 2002, the OWCP reduced 

his benefits to zero for failure to attend the training. We 

agree with Mr. Kerrigan that, from a timing perspective, 

the adverse personnel actions came right on the heels of 

his accusatory letter.

But closeness in timing, in and of itself, is not sufficient as a nonfrivolous allegation that the protected 

disclosure was a contributing factor to the adverse personnel action. In addition to closeness in timing, the 

statute also describes a knowledge component: “that the 

official taking the personnel action knew of the disclosure 

or protected activity.” 5 U.S.C. § 1221(e)(1) (emphasis 

added). This knowledge factor can be determinative on 

the question of the Board’s jurisdiction. See Cahill, 821 

F.3d at 1376 (reversing the Board’s finding that the 

contributory factor had not been sufficiently alleged when 

“the only disputed issue [was] whether any of the agency 

officials taking the challenged personnel actions knew of 

the March 2012 disclosure”) (emphasis added). It is here, 

at the knowledge component, where Mr. Kerrigan has 

failed to make a nonfrivolous allegation.
KERRIGAN v. MSPB 9

Nowhere in Mr. Kerrigan’s papers does he allege that 

his November 21, 2001 letter was known to the OWCP 

persons who referred him to vocational training and 

terminated his benefits for failure to attend. Rather, the 

most Mr. Kerrigan has shown is that someone within 

OWCP was aware of his letter on the same day he was 

referred to vocational training. But the generalized 

assertion that someone within the agency—without any 

accompanying allegations as to the size, composition, or 

structure of that agency—is insufficient to establish that 

the specific agency official taking the personnel action 

knew of the disclosure or protected activity. Cf. Cahill, 

821 F.3d at 1374-75 (finding jurisdiction when appellant 

alleged both knowledge and action by agency personnel 

whom he identified by positions, when the record reflected 

those positions were occupied by only one person). 

That is not to say that, at the jurisdictional stage, an 

appellant must prove knowledge by the acting official. We 

have previously explained that “[a]t the jurisdictional 

threshold, . . . the employee’s burden is significantly 

lower” than at the merits stage. Johnston v. Merit Sys. 

Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). To pass the 

jurisdictional hurdle, we require only that an appellant at 

least have made non-frivolous allegations that the officials who took the personnel action had knowledge of the 

protected disclosure. See id. at 912 n.3 (finding jurisdiction based on appellant’s affidavit stating that the acting 

official knew of her protected disclosure). Here, Mr. 

Kerrigan has made no allegations that the specific OWCP 

persons who referred him to training and terminated his 

benefits knew of his November 21, 2001 letter. And we do 

not accept his invitation to infer their knowledge based 
10 KERRIGAN v. MSPB

only on a closeness in timing and his conclusory allegation 

that their actions were done “in retaliation.”2 

The record of this case makes us particularly disinclined to infer knowledge from closeness in timing. Here, 

the OWCP’s referral to vocational training was not a 

sudden occurrence untethered in time to anything but Mr. 

Kerrigan’s letter. To the contrary, the OWCP’s referral 

was just the latest in a long list of many actions that it 

had been taking in efforts to adjudicate Mr. Kerrigan’s 

benefits claims. Most notably, the referral for training 

came just a few months after an orthopedic surgeon

recommended that Mr. Kerrigan could return to full-time 

work. It is therefore not, as Mr. Kerrigan contends, as if 

the only basis for the agency’s referral must have been 

knowledge of his letter. In these circumstances, where 

2 At oral argument, Mr. Kerrigan focused for the 

first time on the sworn declaration that he submitted in 

response to the administrative judge’s order to make the 

requisite jurisdictional showing. See J.A. 190-94. We find 

this declaration both late to the table and insufficient to 

satisfy the knowledge component. Although the declaration includes a long list of names of OWCP personnel who, 

he says, “have been notified in person or by mail regarding fraud or will be shown to have perpetrated fraud 

against appellant with reckless and willful disregard for 

any harm that has resulted from their individual and/or 

collective illegal conduct,” J.A. 191, the statement is 

written in the disjunctive, asserting that the identified 

people either knew of the disclosures or perpetrated fraud 

against him—but not both. Further, like most of Mr. 

Kerrigan’s filings in the record below, the declaration 

seems focused more on his complaint about the allegedly 

forged or destroyed physician election form used to deny 

his request to see Dr. Webber, not the termination of 

benefits that is the focus of this appeal.

 
KERRIGAN v. MSPB 11

there are other plausible, indeed likely, reasons for the 

agency’s action, we will not infer knowledge from closeness in timing. 

For these reasons, we conclude that Mr. Kerrigan 

failed to make a nonfrivolous allegation that the OWCP 

persons who referred him to vocational training and 

terminated his benefits knew of his November 21, 2001 

letter. We therefore affirm the Board’s dismissal for lack 

of jurisdiction. 

AFFIRMED