Case: 23-1552 Document: 57 Page: 1 Filed: 01/17/2025
United States Court of Appeals for the Federal Circuit ______________________
NEENA BISWAS, Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________
2023-1552 ______________________
Petition for review of the Merit Systems Protection Board in No. DA-1221-15-0471-W-2. ______________________
Decided: January 17, 2025 ______________________
STERLING DERAMUS, Sterling L. DeRamus Law Offices, Birmingham, AL, argued for petitioner.
KARA WESTERCAMP, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent. Also represented by REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M. MCCARTHY. ______________________
Before DYK, CHEN, and HUGHES, Circuit Judges. CHEN, Circuit Judge. Case: 23-1552 Document: 57 Page: 2 Filed: 01/17/2025
Dr. Neena Biswas petitions for review of the decision of the Merit Systems Protection Board (Board) denying her request for corrective action under the Whistleblower Pro- tection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codi- fied as amended in scattered sections of 5 and 22 U.S.C.) (WPA), for two personnel actions taken against her by the Department of Veterans Affairs (VA). Although the Board held that Dr. Biswas made protected disclosures under the WPA and that these disclosures contributed to the VA’s personnel actions, the Board denied relief because it deter- mined that the VA showed it would have taken the same personnel actions even in the absence of Dr. Biswas’s pro- tected disclosures. For the reasons explained below, we af- firm. BACKGROUND I. Dr. Biswas, a United States citizen, worked as a physi- cian at the VA’s Dallas, Texas facility (Dallas VA) within the Veterans Health Administration (VHA). The VA hired Dr. Biswas in August 2010 in a temporary appointment under 38 U.S.C. § 7405(a)(1)(A), with a not-to-exceed date of July 30, 2012. See J.A. 50; J.A. 82. Originally assigned to Geriatrics, Dr. Biswas was later transferred to the Med- icine Service, Hospitalist Section, effective January 15, 2012. See J.A. 50; J.A. 80. On April 25, 2012, Dr. Biswas’s appointment was converted to a permanent appointment under 38 U.S.C. § 7401(1) with a retroactive effective date of January 15, 2012. See J.A. 50; J.A. 570. Five other Dal- las VA physicians were converted from temporary to per- manent appointments along with Dr. Biswas. Around April 2012, the Dallas VA advertised the posi- tion of Chief of the Hospitalist Section, which, at the time, was held by Dr. Ignatius Oyula, a non-U.S. citizen, under a three-year appointment scheduled to expire later that year. J.A. 50. The VA was prohibited by statute from ap- pointing a non-U.S. citizen to the position unless “the Case: 23-1552 Document: 57 Page: 3 Filed: 01/17/2025
BISWAS v. DVA 3
Under Secretary for Health determine[d] that it [was] not possible to recruit qualified citizens for the necessary ser- vices.” 38 U.S.C. § 7407(a); see id. § 7402(c) (providing that the VA may not appoint a non-citizen to a position listed in 38 U.S.C. § 7401(1) “[e]xcept as provided in section 7407(a)”). Dr. Biswas applied but was not selected for the position, which was given again to Dr. Oyula. J.A. 50. In May 2012, Dr. Biswas began sending emails ques- tioning why she was not selected for the position, including to a human resources (HR) Specialist, Daniel Harper, and to the selecting official for the position, Dr. Daniel Gooden- berger, who was the Chief of the Medical Service at the Dallas VA. J.A. 273–75. On May 21, 2012, Dr. Biswas met with Dr. Goodenberger and an administrative officer, Ruth Kirkland, to discuss her non-selection. J.A. 77. After Dr. Goodenberger explained his reasons for not deeming Dr. Biswas qualified for the position, the meeting became heated, and Dr. Biswas refused to leave Dr. Gooden- berger’s office until he began to call the police. Id. Later that day, Dr. Biswas again emailed Mr. Harper, asserting, among other things, that Dr. Goodenberger “openly is vio- lating the basic principles in the hiring process in a Federal workplace. In addition, I have the basic and many more requirements, including being a US citizen and permanent employee . . . .” J.A. 277. Over the next several months, Dr. Biswas sent numer- ous emails to VA staff, including Dr. Goodenberger, Ms. Kirkland, Mr. Harper, Wanda Jackson (an HR super- visor), Barbara Rogers (Chief of HR Management at the Dallas VA), Dr. Stephen Holt (Deputy Chief of Staff and Acting Chief of Staff at the Dallas VA), and all Dallas VA hospitalists. Dr. Biswas’s emails complained about both the process of hiring Dr. Oyula for the Hospitalist Section Chief position and the scheduling practices within the hos- pitalist section. In more than one instance, Dr. Biswas’s emails transcended civility. In a July 10, 2012, email that Dr. Biswas sent to all Dallas VA hospitalists, for example, Case: 23-1552 Document: 57 Page: 4 Filed: 01/17/2025
Dr. Biswas accused Dr. Oyula of moonlighting and falsify- ing his work schedule and wrote that Dr. Oyula made “stu- pid schedules to suit himself” and was “a total failure at running this group.” J.A. 734. In a July 12, 2012, follow- up email, Dr. Biswas accused Dr. Oyula and three other doctors of being “the reason the rest of the group is being subjected to harassing schedules” and called for the non- renewal of their appointments. Id. at 733–34. In another July 12, 2012, email, Dr. Biswas stated to Ms. Rogers, Mr. Harper, and Drs. Holt and Goodenberger, among oth- ers, that “anyone and everyone[] who is involved in re-ap- pointing Dr[.] Oyula” and the same three other doctors “are betraying the US government.” J.A. 1213. On July 13, 2012, Dr. Goodenberger responded to Dr. Biswas, instructing her that “complaints must ascend the appropriate chain of command” and “not to disseminate inflammatory and accusatory e-mails regarding your col- leagues and superiors.” Id. On July 21, 2012, Dr. Biswas refused to see the patients assigned to her by Dr. Oyula un- til Dr. Oyula called Dr. Holt, who was able to talk her down. On August 6, 2012, Dr. Biswas emailed Ms. Rogers, Mr. Harper, Ms. Kirkland, and Drs. Goodenberger and Holt—in spite of Dr. Goodenberger’s July 13 email—accus- ing Dr. Oyula of “degrading” the program and “harassing citizens with nasty schedules,” while also referring to a “scam to keep Dr[.] Oyula’s position.” J.A. 1240. On August 7, 2012, Dr. Biswas began emailing then- Secretary of the VA, Eric Shinseki, expressing her concerns regarding the Hospitalist Section Chief hiring process and hospitalist scheduling practices. J.A. 1243. The following day, Ms. Kirkland sent Dr. Biswas a memorandum outlin- ing the proper grievance and complaint procedures, which directed staff not to contact Secretary Shinseki directly so as to avoid delays in the grievance process and not compro- mise the Secretary’s role as the VA’s ultimate deci- sionmaker. J.A. 1248. Dr. Biswas emailed Secretary Shinseki again later that same day, J.A. 1247–48, and then Case: 23-1552 Document: 57 Page: 5 Filed: 01/17/2025
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again on August 17, 2012, J.A. 627. On August 18, 2012, Dr. Goodenberger emailed Dr. Biswas, instructing her to stop contacting Secretary Shinseki directly and stop bring- ing her complaints outside her chain of command, and ex- plaining that her emails in contravention of those directives were insubordination. J.A. 626. Meanwhile, on August 10, 2012, Dr. Biswas emailed Drs. Oyula and Goodenberger, among others, stating that she would work day instead of night shifts and “tak[e] the appropriate number of days off to compensate for the hours worked.” J.A. 1250. Dr. Goodenberger responded to Dr. Biswas, instructing her that “you may not unilaterally change your work assignment.” Id. at 1249. Not long after this series of incidents, Ms. Rogers “cor- rect[ed]” Dr. Biswas’s appointment on September 4, 2012, by converting it from permanent back to temporary under 38 U.S.C. § 7405(a)(1)(A), with a not-to-exceed date of Feb- ruary 14, 2013 and effective retroactively to January 15, 2012. J.A. 79. Then, on September 11, 2012, Dr. Biswas was informed by letter that she was being terminated, ef- fective September 25, 2012. J.A. 60. The termination let- ter did not list any specific grounds, though the corresponding notification of personnel action stated the reason for removal as “[c]onduct does not reflect the neces- sary level required for successful government service.” J.A. 57–58. In an email outlining his reasons for deciding to terminate Dr. Biswas’s appointment, Dr. Goodenberger stated four separate bases: (1) insubordination for con- travening an instruction to bring complaints only within her chain of command; (2) insubordination for contraven- ing an instruction to cease disseminating inflammatory and defamatory emails regarding her colleagues; (3) insub- ordination for refusing a patient assignment; and (4) crea- tion of a hostile work environment. J.A. 653. Case: 23-1552 Document: 57 Page: 6 Filed: 01/17/2025
II. Dr. Biswas filed an individual right of action (IRA) ap- peal with the Board, alleging that the VA unlawfully retal- iated against her for engaging in protected whistleblowing by (1) converting her appointment from permanent to tem- porary, and (2) terminating her appointment. The admin- istrative judge conducted a two-day hearing and issued an initial decision denying Dr. Biswas’s request for corrective action. Biswas v. Dep’t of Veterans Affs., No. DA-1221-15- 0471-W-2, 2016 WL 6236460 (M.S.P.B. Oct. 20, 2016) (De- cision). 1 The initial decision found that Dr. Biswas’s May 2012 emails regarding the VA’s process of hiring Dr. Oyula for the Hospitalist Section Chief position were protected dis- closures under the WPA. Id. at 9. Specifically, the admin- istrative judge found that Dr. Biswas had a reasonable belief that these disclosures evidenced a violation of the re- quired priority hiring for U.S. citizens. Id. The adminis- trative judge further found that, under the “knowledge/timing test,” Dr. Biswas’s protected disclo- sures were a contributing factor in both personnel actions at issue. Id. at 10–11; see 5 U.S.C. § 1221(e)(1). The VA does not challenge these findings. The administrative judge next considered the three fac- tors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), and found that the VA proved by clear and convincing evidence that it would have both converted Dr. Biswas to a temporary appointment and terminated her appointment notwithstanding her pro- tected disclosures. Decision at 11–24. As to the termina- tion, the administrative judge was particularly persuaded
1 Because the electronic version of the initial deci- sion lacks page designations, we employ the pagination used in the decision at J.A. 1–29. Case: 23-1552 Document: 57 Page: 7 Filed: 01/17/2025
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by Carr factor one: the strength of the evidence in support of the agency’s action. Id. at 24; see Carr, 185 F.3d at 1323. The Board found that Dr. Biswas engaged in “unprofes- sional and improper acts,” including, for example, refusing to see her assigned patients, threatening to take unsched- uled leave, and continuing to contact Secretary Shinseki after being instructed not to. Decision at 21–22. Sepa- rately, the administrative judge found that “the tone and content of [Dr. Biswas’s] communications, including name- calling, demands for the non-renewal of colleagues’ ap- pointments disseminated throughout the practice group, and accusations of a betrayal of the government, are un- professional on their face, and provide strong support for the [VA’s] action.” Id. at 23. The full Board denied Dr. Biswas’s petition for review and affirmed the initial decision, which became the final decision of the Board. 2 Biswas v. Dep’t of Veterans Affs., No. DA-1221-15-0471-W-2, 2023 WL 105606, at *1 (M.S.P.B. Jan. 4, 2023). Dr. Biswas now petitions this court for review. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION We review decisions of the Board under 5 U.S.C. § 7703(c), which requires that the decision be affirmed un- less it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained with- out procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Einboden v. Dep’t of Navy, 802 F.3d 1321, 1324 (Fed. Cir. 2015) (quoting 5 U.S.C. § 7703(c)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Higgins v. Dep’t of
2 Accordingly, we refer interchangeably to the ad- ministrative judge and the Board. Case: 23-1552 Document: 57 Page: 8 Filed: 01/17/2025
Veterans Affs., 955 F.3d 1347, 1353 (Fed. Cir. 2020) (cita- tion omitted). The petitioner bears the burden of establish- ing reversible error. Sacco v. Dep’t of Just., 317 F.3d 1384, 1386 (Fed. Cir. 2003). I. Background Law Whistleblower retaliation claims under the WPA follow a burden-shifting framework. “Where, as here, the govern- ment does not dispute that whistleblowing contributed to the agency’s decision to take adverse personnel action against an employee, the agency must prove [by clear and convincing evidence] it would have taken the same action absent the whistleblowing.” Siler v. EPA, 908 F.3d 1291, 1298 (Fed. Cir. 2018); 5 U.S.C. § 1221(e)(2). We sometimes refer to the government’s burden as a showing of “inde- pendent causation.” Miller v. Dep’t of Just., 842 F.3d 1252, 1257 (Fed. Cir. 2016). “‘Clear and convincing’ evidence has been described as evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is ‘highly probable.’” Id. at 1257–58 (ci- tation omitted). The three Carr factors are used in evaluating whether the agency has met its burden to demonstrate independent causation: [1] the strength of the agency’s evidence in support of its personnel action; [2] the existence and strength of any motive to re- taliate on the part of the agency officials who were involved in the decision; and [3] any evidence that the agency takes similar ac- tions against employees who are not whistleblow- ers but who are otherwise similarly situated. Carr, 185 F.3d at 1323. “Carr does not impose an affirma- tive burden on the agency to produce evidence with respect to each and every one of the three Carr factors to weigh Case: 23-1552 Document: 57 Page: 9 Filed: 01/17/2025
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them each individually in the agency’s favor.” Whitmore v. Dep’t of Lab., 680 F.3d 1353, 1374 (Fed. Cir. 2012). Rather, “[t]he factors are merely appropriate and pertinent consid- erations for determining whether the agency carries its burden of proving by clear and convincing evidence that the same action would have been taken absent the whistle- blowing.” Id. II. Conversion of Dr. Biswas’s Appointment We begin with the first personnel action at issue: the VA’s conversion of Dr. Biswas’s appointment from perma- nent to temporary. Dr. Biswas contends that the Board erred in finding that the VA had proven that it would have converted Dr. Biswas’s appointment notwithstanding her protected disclosures. Under the first Carr factor, the Board relied on testi- mony by Ms. Rogers to find that the VA presented “very strong evidence that its initial conversion of [Dr. Biswas’s] status to a permanent appointment was erroneous and that its conversion of her status back to a temporary ap- pointment in September 2012 was made to correct that er- ror.” Decision at 13. The Board cited Ms. Rogers’s testimony that conversion of a physician’s appointment from temporary to permanent requires a request by the service chief—here, Dr. Goodenberger—and a review by the Professional Standards Board. See id. at 12; see also J.A. 461–65 (VA handbook describing the Professional Standards Board review process). Ms. Rogers testified that she learned from Dr. Goodenberger that he never re- quested the conversion to a permanent appointment and no Professional Standards Board had been held for the con- version. Ms. Rogers confirmed the appropriate records were not in Dr. Biswas’s file, and thus Dr. Biswas had not been legally converted to a permanent appointment in the first place. Accordingly, Ms. Rogers explained that Dr. Biswas, and five other VA physicians whose Case: 23-1552 Document: 57 Page: 10 Filed: 01/17/2025
appointments were erroneously converted at the same time as hers, were reverted to temporary appointments. For the second Carr factor, the Board acknowledged that Dr. Biswas “presented some evidence of a motive to retaliate” by Dr. Goodenberger and Ms. Rogers. Decision at 12. Dr. Biswas’s protected disclosures regarding illegal hiring practices directly implicated Dr. Goodenberger and the HR department, which Ms. Rogers supervised. Id. On the other hand, having “carefully observed” the demeanor of Dr. Goodenberger and Ms. Rogers during the hearing, the administrative judge found both “to be credible in deny- ing any retaliatory motive.” Id. at 12–13. No reason exists to disturb this credibility finding, which is “virtually unre- viewable on appeal.” Bieber v. Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002); see also Holmes v. U.S. Postal Serv., 987 F.3d 1042, 1047 (Fed. Cir. 2021) (credibility de- terminations “will not be disturbed unless inherently im- probable, discredited by undisputed evidence, or contrary to physical facts” (citation omitted)). Notwithstanding the competing evidence, the Board appeared to weigh factor two slightly in Dr. Biswas’s favor. 3 For the last Carr factor, the Board found that the VA “took similar actions with regard to the status of other phy- sicians whose status had also been erroneously changed, and [Dr. Biswas] presented no evidence in support of her claim that the agency converted the status of the other doc- tors back to temporary appointments solely for the purpose of retaliating against her.” Decision at 13–14. The Board
3 The Board did not expressly state whether it weighed factor two neutrally or in favor of one side. But, after conducting essentially the same analysis for this fac- tor with respect to the VA’s removal action, the Board found that “there was some motive to retaliate on the part of relevant agency officials.” Decision at 24; see also id. at 20. Case: 23-1552 Document: 57 Page: 11 Filed: 01/17/2025
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relied on Ms. Rogers’s testimony that the other physicians were not known to her to be whistleblowers, and the Board noted that Mr. Harper—the HR employee who erroneously converted the physicians to permanent appointments—re- ceived a written admonishment for his negligence. Id. at 13; see J.A. 182–83 at 364:1–365:5. All six physicians, in- cluding Dr. Biswas, were retroactively converted back to temporary appointments. Given that Carr factors one and three weighed strongly in the VA’s favor, the Board found that the VA “presented clear and convincing evidence that it would have converted [Dr. Biswas’s] status to a temporary appointment absent [her] protected disclosures.” Decision at 13. This finding is supported by substantial evidence. The Board was enti- tled to rely on Ms. Rogers’s credible explanation of how the VA came to learn of, and fixed, the erroneous temporary- to-permanent conversions of Dr. Biswas and the other phy- sicians. Dr. Biswas argues that the VA instead reclassified Dr. Biswas as a temporary employee to make it easier to fire her. But this argument, at its base, asks us to discredit the testimony of Ms. Rogers and “reweigh the evidence on appeal, which we cannot do.” McIntosh v. Dep’t of Def., 53 F.4th 630, 643 (Fed. Cir. 2022). Dr. Biswas additionally argues that the Board ignored that the VA violated the ap- propriate conversion procedures when it reclassified Dr. Biswas back to a temporary appointment. Dr. Biswas cites no authority that the VA was required to follow such procedures to undo an unlawful conversion. Regardless, this argument does not undermine the Board’s reliance on Ms. Rogers’s testimony that she was simply correcting what she believed to be a legal nullity in the first place. Decision at 12–13. We thus affirm the Board’s denial of corrective action regarding the VA’s conversion of Dr. Biswas’s appointment from permanent to temporary. Case: 23-1552 Document: 57 Page: 12 Filed: 01/17/2025
III. Termination of Dr. Biswas’s Appointment We turn next to the second personnel action at is- sue: the VA’s termination of Dr. Biswas’s appointment. We agree with Dr. Biswas that the VA unlawfully re- stricted her from making protected disclosures outside her chain of command and that the Board erroneously relied on her failure to comply with that restriction as an act of in- subordination that supported the VA’s personnel action. We conclude, however, that the Board’s error was harm- less. Accordingly, we affirm the Board’s denial of corrective action as to the VA’s removal of Dr. Biswas. A. The WPA, as in effect prior to the amendments enacted by the Whistleblower Protection Enhancement Act of 2012 (WPEA), prohibits an agency employee with the requisite authority from taking, failing to take, or threatening to take or fail to take a personnel action because of “any dis- closure of information by an employee or applicant which the employee or applicant reasonably believes evidences— (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of au- thority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A) (Supp. V 2011) (emphasis added). 4 In Huffman v. Office of Personnel Man- agement, 263 F.3d 1341, 1347–48 (Fed. Cir. 2001), we de- tailed the legislative history of § 2302(b)(8)(A), explaining
4 Dr. Biswas was removed shortly before the enact- ment of the WPEA. See WPEA, Pub. L. No. 112-199, 126 Stat. 1465. We have previously declined to “decide whether . . . the WPEA’s ‘clarification’ of the term ‘disclo- sure’ applies retroactively,” Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318, 1323 n.3 (Fed. Cir. 2016), and we need not do so here, as neither party has argued that the WPEA has any bearing on the issues before us. Case: 23-1552 Document: 57 Page: 13 Filed: 01/17/2025
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that the WPA employed the term “any disclosure” to delib- erately broaden the scope of disclosures protected by the predecessor version of the statute, which merely covered “a disclosure.” Id. at 1347 (quoting 5 U.S.C. § 2302(b)(8)(A) (Supp. III 1979)). The Senate Committee on Governmental Affairs, in particular, stated that the change was intended to empha- size that an employee’s disclosures should not be protected “only if they are made for certain purposes or to certain employees.” Id. at 1347–48 (quoting S. Rep. No. 100-413, at 13 (1988)). Indeed, the plain language of § 2302(b)(8)(A) does not specify to whom the disclosure must be made, in contrast to § 2302(b)(8)(B), which protects disclosures made to only particular recipients. See 5 U.S.C. § 2302(b)(8)(B). In light of the language and legislative his- tory of the WPA—as well as the WPA’s purpose “to encour- age disclosures that are likely to remedy” government wrongdoing—we held in Huffman that § 2302(b)(8)(A) pro- tects disclosures made to any supervisor even if that super- visor lacks actual authority to correct the reported wrongdoing. 263 F.3d at 1350–51; see id. at 1351 (“Any government employee, in a supervisory position, other than the wrongdoer himself, is in a position to ‘correct’ or ‘rem- edy’ the abuse by bringing the matter to the attention of a higher authority.”). Here, the VA’s restrictions on the channels through which Dr. Biswas could make disclosures of alleged govern- ment wrongdoing ran afoul of the WPA. Dr. Gooden- berger—one of Dr. Biswas’s supervisors and the very person that Dr. Biswas had accused of wrongdoing—twice instructed Dr. Biswas that she may not bring her com- plaints to higher-level personnel outside of her direct chain of command. Ms. Kirkland likewise instructed Dr. Biswas that she may not report her concerns directly to Secretary Shinseki. Yet the WPA does not require a protected disclo- sure to be channeled through a whistleblower’s chain of command. Restrictions like those imposed on Dr. Biswas Case: 23-1552 Document: 57 Page: 14 Filed: 01/17/2025
by the VA are contrary to both the text and spirit of the WPA, which plainly protects “any disclosure” falling within the scope of the statute, regardless to whom the disclosure was made. 5 U.S.C. § 2302(b)(8)(A) (emphasis added); see Huffman, 263 F.3d at 1351 (“To be consistent with the stat- ute and its purposes, complaints to supervisors concerning wrongdoing by other employees or other matters within the scope of the WPA should be encouraged and not discour- aged . . . .” (emphases added)). Moreover, as we observed in a non-precedential deci- sion, “[t]he WPA does not permit an agency to discipline an employee for disclosing protected information merely be- cause that information has been reported outside the chain of command.” Detrich v. Dep’t of Navy, 251 F. App’x 679, 680–81 (Fed. Cir. 2007) (per curiam) (emphasis added). The deciding official for Dr. Biswas’s removal, Dr. Gooden- berger, considered Dr. Biswas’s continued emails to Secre- tary Shinseki as a disciplinable act of insubordination. But “[t]he purpose of the WPA is to shield employees who are willing to speak out and criticize government manage- ment,” not to punish them. Greenspan v. Dep’t of Veterans Affs., 464 F.3d 1297, 1305 (Fed. Cir. 2006) (emphasis added). Though an agency might have good reasons for preferring that an employee first report to lower-level su- pervisory personnel, a report of wrongdoing is still pro- tected under the WPA, and may not be prohibited nor retaliated against, if made outside the chain of command or even to the head of the agency. The VA’s errors propagated to the Board, which found that Dr. Biswas’s “contact[ing] [Secretary] Shinseki di- rectly with her complaints after being instructed not to do so” constituted improper, insubordinate conduct weighing in the agency’s favor under Carr factor one. Decision at 21– 22; see also id. at 18–20. We hold that this finding was contrary to the law. Nevertheless, we conclude that the error was harmless. Case: 23-1552 Document: 57 Page: 15 Filed: 01/17/2025
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Courts of appeals review cases “without regard to er- rors or defects which do not affect the substantial rights of the parties.” 28 U.S.C. § 2111; see Shinseki v. Sanders, 556 U.S. 396, 407 (2009). In conducting that review, we ask whether the outcome “could have been different” absent the Board’s error. Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 957 (Fed. Cir. 2020). Dr. Biswas has failed to estab- lish such prejudice. See Shinseki, 556 U.S. at 409 (“[T]he party that ‘seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.’” (citation omitted)). In its analysis of Carr factor one, the Board laid out numerous pieces of evidence—apart from the continuing emails to Secretary Shinseki—that it found provided “strong evidence” in support of the VA’s termination of Dr. Biswas. Decision at 20–23. The Board focused predom- inantly on Dr. Biswas’s “highly inappropriate” and “disrup- tive” refusal to see patients, creation of a hostile work environment, and “unprofessional” communications. Id. (citation omitted). In fact, the Board’s conclusion for its Carr factor one analysis did not rely on the emails to Sec- retary Shinseki, finding that the “tone and content of [Dr. Biswas’s] communications including name-calling, de- mands for the non-renewal of colleagues’ appointments dis- seminated throughout the practice group, and accusations of a betrayal of the government, are unprofessional on their face, and provide strong support for the agency’s action.” Id. at 23. In other words, we need not speculate in this case what the Board would have decided absent the error of con- sidering the emails to Secretary Shinseki because the Board’s ultimate finding that Carr factor one weighed strongly in the VA’s favor was based on other incidents to establish that Dr. Biswas engaged in improper, Case: 23-1552 Document: 57 Page: 16 Filed: 01/17/2025
unprofessional conduct. 5 And for the reasons that follow, we conclude that substantial evidence supports the Board’s findings. Cf. Ironburg Inventions Ltd. v. Valve Corp., 64 F.4th 1274, 1294 (Fed. Cir. 2023) (concluding that any er- ror in admitting testimony was harmless as substantial ev- idence supported the verdict of infringement even without considering that testimony); Munoz v. Strahm Farms, Inc., 69 F.3d 501, 505 (Fed. Cir. 1995) (“Attacking only one piece of evidence among a wide variety of cumulative evidence presented in a jury trial does not provide a reasonable basis for reversal.”). B. Like with the first personnel action, Dr. Biswas con- tends that the Board erroneously found that the VA satis- fied its burden to show it would have terminated Dr. Biswas’s appointment notwithstanding her protected disclosures. We disagree.
5 We also note that Dr. Goodenberger’s “outline” of the four grounds for Dr. Biswas’s termination included cre- ation of a hostile work environment and three categories of insubordinate conduct, just one of which was Dr. Biswas’s disregard of instructions to cease making protected disclo- sures beyond her chain of command. J.A. 653. Accord- ingly, in finding that Dr. Biswas’s “appointment was terminated due to her disruptive and insubordinate con- duct and not due to her whistleblowing,” Decision at 20, the Board viewed Dr. Biswas’s insubordinate conduct as en- compassing more than merely her disregard of those in- structions. See, e.g., id. at 15 (discussing Dr. Biswas’s refusal to see patients as conduct considered by Dr. Goodenberger to be “insubordinate and disruptive to the service, and . . . conduct [that] led to [Dr. Biswas’s] ter- mination”). This further supports our conclusion that the VA’s and the Board’s error was harmless. Case: 23-1552 Document: 57 Page: 17 Filed: 01/17/2025
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Carr Factor One We begin with the first Carr factor. But before we reach the sufficiency of the evidence weighing in favor of the VA’s action under this factor, we must first address Dr. Biswas’s argument that the VA could not carry its bur- den of proof because it is not permitted to support its deci- sion based on conduct not set forth in Dr. Biswas’s termination letter and that letter lists no grounds for re- moval at all. Dr. Biswas relies primarily on our decision in Green- span v. Department of Veterans Affairs, 464 F.3d 1297 (Fed. Cir. 2006). There, we held that “[a] personnel action is re- viewed on the grounds on which the agency based the ac- tion when it was taken” and “[t]he Board cannot change the agency’s grounds from those Noticed by the agency at the time of the discipline.” Id. at 1304–05. This requirement stems from the right to notice of the charges supporting a proposed adverse action, afforded to certain federal govern- ment employees by 5 U.S.C. § 7513(b)(1). See Brook v. Cor- rado, 999 F.2d 523, 526–27 (Fed. Cir. 1993). Section 7513, however, is applicable to only an “employee” as defined in 5 U.S.C. § 7511, which does not apply to an individual “who holds a position within the Veterans Health Administra- tion which has been excluded from the competitive service by or under a provision of title 38, unless such employee was appointed to such position under section 7401(3) of such title.” 5 U.S.C. § 7511(b)(10); see also United States v. Connolly, 716 F.2d 882, 886 (Fed. Cir. 1983) (en banc). Cer- tain title 38 employees do receive separate procedural pro- tections before an adverse action may be taken against them. See 38 U.S.C. § 7461–7464. But these protections apply to only title 38 employees appointed to permanent positions under 38 U.S.C. § 7401(1). See id. Dr. Biswas was a temporary employee of the VHA ap- pointed under 38 U.S.C. § 7405(a)(1)(A), not under § 7401(1). As such, she was excluded from the protections Case: 23-1552 Document: 57 Page: 18 Filed: 01/17/2025
of both 5 U.S.C. § 7513 and 38 U.S.C. §§ 7461–7464. See J.A. 85 (VA Handbook providing that “the procedural re- quirements prescribed for separations . . . do not apply” for “involuntary separations of employees serving under 38 U.S.C. § 7405[(a)(1)(A)]” (alteration in original)). Because temporary VHA employees like Dr. Biswas are not entitled to advance notice of the grounds for their removal, the usual rule that the agency may defend its action on only those grounds noticed is not applicable. 6 Turning now to the Carr factor one evidence support- ing the VA’s termination, the Board found that the VA “presented strong evidence in support of its action.” Deci- sion at 20. The Board relied on evidence of numerous in- stances of disruptive, inappropriate, and insubordinate conduct by Dr. Biswas. For example, the Board discussed the July 2012 incident in which Dr. Biswas refused to see the patients assigned to her until Dr. Holt intervened. Id. at 15, 21. The Board cited Dr. Holt’s testimony, in which he explained that Dr. Biswas’s behavior was “highly inap- propriate” and “argumentative” and the incident was only the second time in his years of leadership that he had to deal with a provider refusing to accept patients. Id.; J.A. 208–10 at 449:16–450:8, 453:20–454:3, 457:6–19. Dr. Holt testified that it was disruptive and “unprecedented” for “an issue of patient care, like this, [to be] elevated to the top physician for a 4,000 plus person hospital.” J.A. 209 at 456:3–13. Following the incident, Dr. Holt emailed Dr. Biswas to explain that the incident was “a sign of
6 We note, too, that Dr. Biswas received informal no- tice on multiple occasions that the VA considered to be in- appropriate and discipline-worthy much of the same conduct relied on by the VA and the Board in support of the VA’s removal action. See, e.g., J.A. 210 at 457:20–458:4; J.A. 243 at 592:9–16; J.A. 251 at 623:22–624:3; J.A. 599; J.A. 626; J.A. 1213. Case: 23-1552 Document: 57 Page: 19 Filed: 01/17/2025
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significant disruption” and “very concerning.” J.A. 599. And Dr. Goodenberger considered the incident to be one of Dr. Biswas’s acts of insubordination, namely, “refusing pa- tient assignment.” J.A. 653. Another incident discussed by the Board as one of Dr. Biswas’s “unprofessional and improper acts” was Dr. Biswas’s announcement to Drs. Oyula and Gooden- berger in August 2012 that she would work day instead of night shifts and “tak[e] the appropriate number of days off to compensate for the hours worked.” Decision at 16, 21 (quoting J.A. 1250). The Board explained that Dr. Gooden- berger understood Dr. Biswas to be threatening not to come to work as scheduled, and Dr. Biswas offered no al- ternative explanation for her email. Id. at 16. Dr. Biswas argues it is undisputed that she eventually saw her assigned patients and that she never took un- scheduled or unapproved leave. But her eventual compli- ance on each occasion, only after counseling by her superiors, does not preclude the Board from considering her initial refusals as misconduct. Dr. Biswas also argues that the Board failed to consider the context of the July 2012 incident, arguing, for example, that Dr. Oyula inequi- tably distributed patient assignments and lied about see- ing his own patients. The Board, however, considered Dr. Biswas’s testimony on this point and nonetheless cred- ited Dr. Holt’s testimony regarding the impropriety and disruptive nature of Dr. Biswas’s actions. See id. at 20–21. Even if we were to agree with Dr. Biswas that her actions were justified, it is not for us to substitute our judgment for the Board’s. The Board additionally relied on evidence of Dr. Biswas’s inappropriate and inflammatory emails. Some of these emails extend well beyond the protected dis- closures argued to the Board—i.e., “[Dr. Biswas’s] May 2012 disclosures regarding the hiring process for the Hos- pitalist Section Chief [to which Dr. Oyula was appointed].” Case: 23-1552 Document: 57 Page: 20 Filed: 01/17/2025
Decision at 9. The protected disclosures relate to Dr. Biswas’s belief that the agency failed to follow proper procedures in appointing Dr. Oyula (a non-citizen) without interviewing her (a citizen) or determining that it was not possible to recruit qualified citizens for the position. The Board explained that Dr. Biswas’s later emails—some dis- seminated widely—included name-calling, accused Dr. Oyula of moonlighting and falsifying his work sched- ule, and demanded that the appointments of several doc- tors not be renewed. See id. at 16–18, 21–23. Two of those doctors complained to Dr. Goodenberger about Dr. Biswas’s emails, reporting that they found her com- ments to be inappropriate, discriminatory, and hostile. As just one example, in an email sent to all Dallas VA hospi- talists, Dr. Biswas called Dr. Oyula a “total failure at run- ning this group” and stated that his scheduling decisions were “stupid.” Id. at 21 (quoting J.A. 734). The Board found that Dr. Biswas’s emails were “disruptive to the work environment” and “unprofessional on their face,” thus providing “strong support for the agency’s action.” Id. at 20, 23. To be sure, some of Dr. Biswas’s emails relate to her protected whistleblower disclosures. For instance, Dr. Biswas stated that Dr. Oyula’s reappointment was a “scam,” J.A. 1240, 1243, and those involved in that decision were “betraying the US government,” id. at 1213. But we have previously explained that “wrongful or disruptive con- duct is not shielded by the presence of a protected disclo- sure.” Greenspan, 464 F.3d at 1305. In other words, the fact that Dr. Biswas’s emails contain or relate to her pro- tected disclosures does not preclude the unprofessional and disruptive “character or nature” of the emails from sup- porting the VA’s action. Kalil v. Dep’t of Agric., 479 F.3d 821, 825 (Fed. Cir. 2007); see also Duggan v. Dep’t of Def., 883 F.3d 842, 846 (9th Cir. 2018) (adopting our “holdings to the effect that an employee may be disciplined for the way in which he or she communicates a protected Case: 23-1552 Document: 57 Page: 21 Filed: 01/17/2025
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disclosure”). 7 The WPA protects Dr. Biswas from being punished for making protected disclosures, not for the way in which she chose to do so. 8 Furthermore, Dr. Biswas’s persistence in sending inflammatory emails regarding her colleagues even after Dr. Goodenberger instructed her to cease doing so was reasonably considered as yet another act of insubordinate conduct supporting her termination. See Decision at 17–18; J.A. 653. In short, we believe that the Board’s Carr factor one analysis—largely divorced from its error in considering her whistleblowing beyond the chain of command to be an act of misconduct—was supported by more than ample evi- dence of Dr. Biswas’s unprofessional, disruptive, and in- subordinate conduct.
7 We recognize that not all protected whistleblowing disclosures are made in a polite way. Such disclosures are “more likely than not to be critical of management, perhaps highly critical.” Greenspan, 464 F.3d at 1305. As we have explained, “the WPA does not contemplate removal of pro- tection when protected subject matter is stated in a blunt manner.” Id. at 1299. In other words, the WPA protects impolite whistleblowing as much as it protects polite whis- tleblowing. It does not, however, shield a whistleblower from being punished for harassment, the creation of a hos- tile work environment, or other improper conduct. See id. at 1305 (“[W]rongful or disruptive conduct is not shielded by the presence of a protected disclosure.”). 8 Although the Board improperly considered Dr. Biswas’s repeated emails to Secretary Shinseki for go- ing outside the chain of command, we note that the Board might have appropriately considered the character of those disclosures. Case: 23-1552 Document: 57 Page: 22 Filed: 01/17/2025
Carr Factor Two The second Carr factor is “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision.” Carr, 185 F.3d at 1323. The Board conducted a similar analysis under this factor for the VA’s removal action as it did for the VA’s conversion action. It found both that Dr. Biswas “presented evidence that [Dr.] Goodenberger had some motivation to retaliate against her in that [Dr.] Goodenberger was directly impli- cated in [Dr. Biswas’s] allegations of hiring improprieties” and that Dr. Goodenberger credibly denied a retaliatory motive. Decision at 20. Despite the competing evidence, the Board found that this factor favors Dr. Biswas. See id. at 24 (“[T]here was some motive to retaliate on the part of relevant agency officials . . . .”). Dr. Biswas argues that “[t]he administrative judge failed to properly weigh evidence of retaliatory motive on the part of the VA officials involved in Dr. Biswas’[s] ter- mination.” Pet’r’s Br. 29. As just explained, we view the Board as having weighed factor two in Dr. Biswas’s favor. To the extent Dr. Biswas contends that the factor should have been weighed even more heavily in her favor, we are unpersuaded by her arguments. Dr. Biswas argues, for example, that the VA’s failure to employ incremental discipline—by beginning with coun- seling or other lesser discipline before termination—is evi- dence of retaliatory motive that the Board did not properly weigh. The Board considered this argument and rejected it, crediting Ms. Rogers’s explanation that “it is not unu- sual for the agency not to attempt lesser sanctions prior to terminating a physician, and there is no requirement that it do so, particularly for a temporary employee.” Decision at 22 n.8 (citing J.A. 179 at 351–52). Ms. Rogers’s testi- mony is consistent with the legal distinction between tem- porary and permanent VHA employees, see supra, and we may not reweigh the evidence. See McIntosh, 53 F.4th at Case: 23-1552 Document: 57 Page: 23 Filed: 01/17/2025
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643. The Board’s analysis weighing the second Carr factor in Dr. Biswas’s favor was reasonable. Carr Factor Three The third Carr factor is “any evidence that the agency takes similar actions against employees who are not whis- tleblowers but who are otherwise similarly situated.” Carr, 185 F.3d at 1323. For this factor, the Board acknowledged evidence that “other hospitalists who complained about scheduling, but who did not complain about allegedly ille- gal hiring practices or otherwise engage in protected activ- ities, were treated more favorably” than Dr. Biswas. Decision at 23. However, the Board found no evidence that any of those hospitalists “engaged in the full range of con- duct that formed the basis of the agency’s decision to ter- minate [Dr. Biswas’s] appointment,” including no evidence that other hospitalists engaged in insubordination such as “refus[ing] to see patients.” Id. at 23–24. The Board fur- ther acknowledged evidence that “one or two emergency room physicians refused to see patients and were disci- plined but not terminated”—i.e., treated more favorably than Dr. Biswas—but “unlike [Dr. Biswas], those physi- cians were permanent employees.” Id. at 24 n.9. Accord- ingly, the Board found “no evidence that similarly situated employees who were not whistleblowers were treated more favorably” and thus weighed the third factor neutrally. Id. at 24. Dr. Biswas asserts that several errors lie in the Board’s Carr factor three analysis, but we do not agree. Dr. Biswas first argues that the Board incorrectly found that she re- fused a patient assignment. As we have already explained, that Dr. Biswas ultimately complied following intervention by Dr. Holt does not change that she at first refused the patient assignment. Dr. Biswas next argues that the Board erred in finding other hospitalists not similarly situated merely because they were permanent rather than temporary employees. Case: 23-1552 Document: 57 Page: 24 Filed: 01/17/2025
As an initial matter, the Board did not rely on the differ- ence in employment status alone but rather found “no evi- dence that any other hospitalist engaged in the full range of conduct” as Dr. Biswas. Decision at 23. Additionally, Dr. Biswas’s argument continues to ignore the material dif- ferences in the process due to permanent versus temporary employees before the VA may remove them—differences that Dr. Biswas herself acknowledges. See supra; Pet’r’s Br. 35, 37; see, e.g., 38 U.S.C. § 7461(a) (providing for the right to appeal an adverse personnel action for a § 7401(1) employee). Because of such differences, it was appropriate for the Board to consider those employees as not “otherwise similarly situated” for purposes of the Carr factor three analysis. Finally, Dr. Biswas contends that the Board improp- erly placed on her the burden to demonstrate a comparator employee. We see no support for this argument in either the Board’s decision or in our precedent. “We have repeat- edly stated that the agency ‘need not produce evidence with regard to each of the [Carr] factors, nor must each factor weigh in favor of the agency for it to carry its burden.’” Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022) (cleaned up). “Indeed, the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis.” Whitmore, 680 F.3d at 1374. In this instance, the Board determined that “the evidence does not support a finding that hospitalists who were not whistleblowers were otherwise similarly situated to [Dr. Biswas],” and thus there was no evidence relevant to Carr factor three. Decision at 24; see, e.g., McIntosh, 53 F.4th at 646 (Carr factor three was “effectively removed from the analysis” where no evidence pertinent to the fac- tor was presented). * * * After reviewing the relevant evidence and considering each Carr factor, the Board concluded that “[w]hile there Case: 23-1552 Document: 57 Page: 25 Filed: 01/17/2025
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was some motive to retaliate on the part of relevant agency officials, evidence of that motive is significantly out- weighed by the strength of the evidence in support of the agency’s termination decision.” Decision at 24. Because of the absence of evidence relevant to factor three, the Board did not weigh that factor in favor of either side. Id. The Board’s findings are supported by substantial evidence, and it reasonably found that the VA met its burden of prov- ing independent causation by clear and convincing evi- dence based on the strength of Carr factor one. See, e.g., Rickel, 31 F.4th at 1366 (affirming the Board’s finding that the agency satisfied its burden to show independent causa- tion, “particularly when ‘considering . . . the strength of Carr factor one’” (quoting Robinson v. Dep’t of Veterans Affs., 923 F.3d 1004, 1020 (Fed. Cir. 2019))). CONCLUSION We have considered Dr. Biswas’s remaining arguments and find them unpersuasive. We therefore affirm the Board’s final decision. AFFIRMED COSTS No costs.