Hawker v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: May 9, 2025
• Docket: 24-1697
• Status: Unpublished

Opinion

Case: 24-1697 Document: 41 Page: 1 Filed: 05/09/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JEFFREY HAWKER, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1697 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-22-0006-W-1. ______________________

Decided: May 9, 2025 ______________________

JEFFREY HAWKER, Gallup, NM, pro se.

ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________ Case: 24-1697 Document: 41 Page: 2 Filed: 05/09/2025

Before TARANTO and STOLL, Circuit Judges, and SCARSI, District Judge. 1 PER CURIAM. Petitioner Jeffrey Hawker filed an Individual Right of Action appeal, alleging that the Department of Veterans Affairs took various personnel actions in reprisal for his protected whistleblowing activity. In the initial decision, an Administrative Judge of the Merit Systems Protection Board dismissed Dr. Hawker’s appeal for lack of jurisdic- tion without a hearing. In the final order, the Board denied Dr. Hawker’s petition for review, modified part of the ini- tial decision, and affirmed. Because the Board did not err in dismissing Dr. Hawker’s appeal, we affirm. BACKGROUND In April 2013, the Department of Veterans Affairs (“VA”) appointed Dr. Hawker to the position of full-time Physician at the VA Medical Center in Salem, Virginia, subject to a two-year probationary period. App’x 14 2; Hawker v. Dep’t of Veterans Affs., No. DC-1221-22-0006-W- 1, 2022 WL 342625, at 2 (M.S.P.B. Feb. 1, 2022) (Initial De- cision). 3 On September 6, 2013, Dr. Hawker’s first-line su- pervisor notified him that the VA was reassigning him and reducing his salary based on alleged performance deficien- cies. Around October 18, 2013, the Chief of Staff and the Medical Center Director informed Dr. Hawker that the VA was suspending his privileges as a result of his

1 The Honorable Mark C. Scarsi, District Judge, United States District Court for the Central District of Cal- ifornia, sitting by designation. 2 “App’x” refers to the Appendix filed with Respond- ent’s Informal Brief. ECF No. 22. 3 The electronic version of the initial decision lacks page numbers, so we cite to the pagination used in the ini- tial decision at App’x 13–33. Case: 24-1697 Document: 41 Page: 3 Filed: 05/09/2025

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performance deficiencies and convening a Professional Standards Board (PSB) to review the alleged deficiencies further. On December 16, 2013, the Medical Center Direc- tor notified Dr. Hawker that, based on the PSB’s recom- mendation, the agency was terminating Dr. Hawker from his position for “substandard care and professional incom- petence,” effective January 3, 2014. Id. On February 25, 2014, Dr. Hawker filed a whistle- blower reprisal complaint with the Office of Special Coun- sel (OSC), alleging that the VA terminated him in retaliation for disclosing patient care issues. Although OSC issued a close-out letter in April 2014, OSC ultimately agreed to reopen its investigation into Dr. Hawker’s com- plaint. On August 4, 2021, OSC notified Dr. Hawker that it had terminated its inquiry into his 2014 whistleblower complaint. On October 4, 2021, Dr. Hawker filed an Individual Right of Action (IRA) appeal, alleging that the VA took a number of personnel actions in reprisal for his protected whistleblowing activity. That same day, the Administra- tive Judge “issued a Jurisdiction Order and provided the parties with a comprehensive discussion of [Dr. Hawker’s] jurisdictional burden for an IRA appeal.” Id. at 4. On Oc- tober 13, 2021, Dr. Hawker filed an affidavit, executed on October 12, 2021, in which he provided a chronology of events occurring between April 2013 and August 2021. In his affidavit, Dr. Hawker claimed to have made the follow- ing disclosures: (1) “concerns” regarding “studies or procedures be- ing performed incorrectly” expressed to individuals in the radiology department; (2) “concern” regarding the safety of his supervi- sor’s performance of “some procedures” expressed to his supervisor; Case: 24-1697 Document: 41 Page: 4 Filed: 05/09/2025

(3) his supervisor performed a carotid artery stent (CAS) without using a cerebral embolic protection device, which placed the patient at a significant risk of a stroke, made to the [VA] Office of Inspector General (OIG); (4) “multiple failures within the [radiology] de- partment, patient safety issues, and studies per- formed that did not meet the standards of care,” made to a[ VA] Human Resources Specialist; and (5) radiologists were performing procedures, such as CAS and transjugular intrahepatic portosys- temic shunts (TIPS), beyond their scopes and the scopes of the facility and staff, made to OIG. App’x 2–3 (second alteration in original); Initial Decision at 9–10. Dr. Hawker did not, however, provide any further “details relating to his whistleblowing activity . . . and he did not submit any additional documentation.” Initial De- cision at 5. The VA moved to dismiss for lack of jurisdiction, argu- ing that Dr. Hawker failed to: (1) “nonfrivolously allege that he made a protected disclosure and/or engaged in pro- tected activity”; (2) “nonfrivolously allege that any of his al- lege[d] whistleblowing activity was a contributing factor to the personnel actions at issue”; and (3) “demonstrate that many of the alleged retaliatory actions qualify as covered personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A).” Id. Although the Administrative Judge determined that Dr. Hawker proved he exhausted his administrative reme- dies with OSC only as to the disclosures summarized in paragraphs (3)–(5), but not paragraphs (1)–(2), he never- theless addressed all five claims. As for the allegations in paragraphs (1) and (4) above, the Administrative Judge determined that Dr. Hawker failed to nonfrivolously allege that he engaged in protected Case: 24-1697 Document: 41 Page: 5 Filed: 05/09/2025

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whistleblower activity and that any such activity could have been a contributing factor in the personnel actions as alleged. With respect to paragraph (2), the Administrative Judge determined that Dr. Hawker failed to nonfrivolously allege that he engaged in protected whistleblowing activ- ity. As for paragraphs (3) and (5), the Administrative Judge determined that Dr. Hawker failed to nonfrivolously allege that these disclosures could have been a contributing factor to any of the alleged retaliatory personnel actions that followed. As such, the Administrative Judge dis- missed the appeal for lack of jurisdiction without a hearing. In the final order, applying the substantive require- ments of exhaustion provided in Chambers v. Department of Homeland Security, No. PH-1221-17-0161-W-1, 2022 WL 1310790 (M.S.P.B. May 2, 2022), which issued af- ter the Administrative Judge’s initial decision, the Board held that “disclosures (1) and (2) [above] were exhausted with OSC as evidenced by OSC’s August 2021 close-out let- ter.” App’x 3. The Board then “agree[d] with the [A]dmin- istrative [J]udge’s findings supporting the conclusion that, for disclosures (1), (3), (4), and (5), [Dr. Hawker] failed to nonfrivolously allege contributing factor through the knowledge/timing test.” App’x 4–5. The Administrative Judge failed to consider whether Dr. Hawker proved con- tributing factor through other evidence, 4 however. But, the Board held, even considering the other methods,

4 The Board provided examples of such evi- dence: “that pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing or protected activity was personally di- rected at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant.” App’x 5 (citing Pridgen v. Off. of Mgmt. & Budget, No. DC-0432-14-0557-I-1, 2022 WL 4138183 (M.S.P.B. Sept. 12, 2022)). Case: 24-1697 Document: 41 Page: 6 Filed: 05/09/2025

Dr. Hawker “still failed to establish contributing factor.” App’x 5. Accordingly, the Board affirmed the Administra- tive Judge’s initial decision to dismiss for lack of jurisdic- tion. Dr. Hawker appeals. We have jurisdiction under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). After filing his opening and reply briefs, Dr. Hawker moved (ECF No. 30) to file a corrected informal reply brief (ECF No. 32) and corrected appendix (ECF No. 31). Re- spondent filed a motion to strike the corrected appendix in part. ECF No. 33. “The portion of ECF No. 30 seeking to file the corrected informal reply brief submitted at ECF No. 32 [wa]s granted.” ECF No. 35. We address the por- tion of Dr. Hawker’s motion (ECF No. 30) seeking to file the corrected appendix (ECF No. 31) below. DISCUSSION “We will uphold the Board’s decision unless it is ‘(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.’” Higgins v. Dep’t of Veterans Affs., 955 F.3d 1347, 1353 (Fed. Cir. 2020) (quoting 5 U.S.C. § 7703(c)). “Whether the [B]oard has ju- risdiction over an appeal is a question of law that this court reviews de novo.” Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). “To establish Board jurisdiction over individual right of action cases, the appellant must make ‘non-frivolous alle- gations’ that he engaged in whistleblowing activity by mak- ing a protected disclosure, and that the protected disclosure ‘was a contributing factor in the agency’s deci- sion to take or fail to take a personnel action.’” Kerrigan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1354 (Fed. Cir. 2016) (quoting Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016)). Satisfaction of the “knowledge/timing” Case: 24-1697 Document: 41 Page: 7 Filed: 05/09/2025

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test—whether the official taking the personnel action knew of the disclosure and the timing of the personnel action was such that a reasonable person could conclude the disclosure was a contributing factor—“establishes, prima facie, that the disclosure was a contributing factor to the personnel action.” Kewley v. Dep’t of Health & Hum. Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). An appellant may also show that the protected disclosure was a contributing factor in the agency’s decision without relying on the knowledge/timing test, e.g., by addressing “the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally di- rected at” the deciding official(s), and whether there was “a desire or motive to retaliate against” the appellant. John- son v. Merit Sys. Prot. Bd., No. 21-2136, 2022 WL 4459926, at *4 (Fed. Cir. Sept. 26, 2022); see also App’x 5. Dr. Hawker first argues that “denying [him] the right to a hearing on the merits of the matter is an inexcusable violation of due process.” Pet. Informal Br. 8; see Pet. In- formal Br. 2, 6. 5 We reject this argument. “[N]either the governing statute [5 U.S.C. § 7701(a)] nor the Due Process Clause of the Fifth Amendment guarantees [Dr. Hawker] a right to an evidentiary hearing on a question pertaining to the Board’s jurisdiction.” Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). Rather, “a hearing is required with respect to jurisdictional questions only if the employee makes a non-frivolous allegation that, if proved, would establish Board jurisdiction.” Id. at 1125. After considering the record and Dr. Hawker’s argu- ments, we see no reason to disturb the Board’s determina- tion that Dr. Hawker failed to make a nonfrivolous

5 We use the pagination assigned by the CM/ECF system for Dr. Hawker’s Informal Brief. Case: 24-1697 Document: 41 Page: 8 Filed: 05/09/2025

allegation that he made a protected disclosure that was a contributing factor in a VA personnel action. First, we see no error in the Board’s determination that, with respect to the allegations in paragraph (2) above, Dr. Hawker failed to nonfrivolously allege that he engaged in protected whistleblowing activity. Dr. Hawker failed to identify the “questionable” and “poor” practices he alluded to, and he did not provide detail on his “concern about the safety of” the performance of “some procedures.” App’x 49 ¶¶ 11–12. As the Board concluded, these allegations are “vague, conclusory, and fail[] to reveal circumstances from which a disinterested person in his position could reasona- bly conclude that the [VA’s] actions evidenced any of the violations described in [5 U.S.C. § 2302(b)(8)].” Sadler v. Dep’t of the Army, 129 F.4th 1339, 1345 (Fed. Cir. 2025). Second, we see no error in the Board’s determination that Dr. Hawker’s disclosures in paragraphs (1), (3), (4), and (5) do not satisfy the knowledge/timing test because his allegations do not indicate that the VA officials who took the actions had knowledge of his disclosures. See App’x 48 ¶¶ 5–6; App’x 49 ¶ 13; App’x 50 ¶¶ 16, 21; Initial Decision at 15 (“the record is silent as to when and to whom he raised these specific concerns”), 18 (“th[e] evidence sug- gests that [Dr. Hawker’s] initial complaint was not pro- cessed and, as such, could not have come to the attention of any [VA] officials outside of the IG’s office”), 19 (“[Dr. Hawker] does not allege or even suggest that [the Human Resources Specialist] had anything to do with the alleged retaliatory personnel actions in this case, nor does he allege that [the Human Resources Specialist] disclosed or otherwise influenced the [VA] officials that actually took the actions”), 20 (“there is nothing in this record to show or even suggest that any of the [VA] officials responsible for taking the complained of actions had knowledge of and/or were otherwise influenced by [Dr. Hawker’s] whistleblow- ing activity”). Case: 24-1697 Document: 41 Page: 9 Filed: 05/09/2025

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Dr. Hawker nonetheless argues that “[t]he Adminis- trative Judge’s assertion that there is no evidence the [of- ficials taking the personnel actions] were aware of [his] whistleblowing activities appears to overlook key facts” be- cause: (1) “it seems reasonable to assume that the Salem VA Medical Center would be notified of a non-confiden- tial[6] disclosure made to the Inspector General’s office,” and (2) a “November 12, 2013 letter from Congressman Forbes to the VA . . . would likely have been disseminated to relevant parties.” Pet. Informal Br. 9–10 (emphases added). But “this court cannot overturn the Board’s deci- sion based on mere speculation.” Royal v. Dep’t of Army, 413 F. App’x 270, 274 (Fed. Cir. 2011); see Ryan v. Dep’t of Def., 760 F. App’x 990, 997 (Fed. Cir. 2019) (“The [Whistle- blower Protection Act] does not give employees carte blanche to announce that their coworkers have committed serious legal violations based purely on speculation . . . .”). Each of Dr. Hawker’s general assertions fails to allege that the official taking the personnel action knew of the disclo- sure. See Resp. Br. 28 (citing 5 C.F.R. § 1201.4(s)(1)); Ker- rigan, 833 F.3d at 1355 (declining to “accept [the petitioner’s] invitation to infer [specific persons’] knowledge based only on a closeness in timing and his con- clusory allegation that their actions were done ‘in retalia- tion’”). Moreover, as Respondent explains, although Dr. Hawker was “represented by counsel before the [Ad- ministrative Judge] and the full Board,” he “did not submit th[e] letter [from Congressman Forbes] to the [Board],

6 We note that, as Respondent points out, the Ad- ministrative Judge stated that “[t]he evidence introduced by [Dr. Hawker] appears to refute his claim that his IG Hotline complaint was ‘non-confidential.’” Initial Decision at 19 n.18; see App’x 158 (“On October 29, 2013, OIG re- ceived a confidential complaint . . . .”). Case: 24-1697 Document: 41 Page: 10 Filed: 05/09/2025

either with his IRA appeal documents or in his October 12, 2021 jurisdictional submission, nor did he appear to draw the [Board’s] attention to this document.” Resp. Br. 29–30. We agree with Respondent that “it is not appropriate for [Dr. Hawker] to make [his corresponding] argument to this Court for the first time on review.” Id. “Our precedent clearly establishes the impropriety of seeking a reversal of the [B]oard’s decision on the basis of assertions never pre- sented to the presiding official or to the [B]oard.” Rockwell v. Dep’t of Transp., Fed. Aviation Admin., 789 F.2d 908, 913 (Fed. Cir. 1986). “Congress expressly limited our ap- pellate review, 5 U.S.C. § 7703(c), to final orders and deci- sions of the [B]oard on the record.” Id. 7 Finally, we see no error in the Board’s determination that Dr. Hawker “failed to establish contributing factor,”

7 For the same reasons, we grant Respondent’s par- tial motion (ECF No. 33) to strike certain pages from Dr. Hawker’s proposed corrected appendix (ECF No. 31). Because the following pages were not part of the adminis- trative record, we strike them from Dr. Hawker’s proposed corrected appendix: 4–9, 11–20, 22–27, 29–44, 48, 50–57, 71–77, 85, 88–89, 91, 150–57, and 159. See ECF No. 33 at 3–4; Laity v. Dep’t of Veterans Affs., 5 F.3d 1504 (Table), 1993 WL 300788, at *2 (Fed. Cir. Aug. 6, 1993) (“[T]he re- spondent now contends that the court should decline to re- view the material in the addendum, because it was not contained in the record before the [Board]. We agree. The Federal Rules of Appellate Procedure limit our review to the record of proceedings before the [Board]. The court will not consider evidence that was not before the Board.” (cita- tion omitted)). We thus grant-in-part the portion of Dr. Hawker’s motion (ECF No. 30) seeking to file the cor- rected appendix (ECF No. 31), i.e., to the extent the mate- rials were already in the administrative record. Case: 24-1697 Document: 41 Page: 11 Filed: 05/09/2025

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under the non-frivolous allegation standard, using meth- ods other than the knowledge/timing test. App’x 5. Dr. Hawker’s allegations summarized in para- graphs (1) and (4) above involve unidentified “failures,” “is- sues,” and “concerns” regarding unidentified “studies” or “procedures.” App’x 48 ¶¶ 5–6; App’x 50 ¶ 16. The Board determined that these allegations are insufficient because they do not indicate “whether the whistleblowing was per- sonally directed at” a deciding official or “a desire or motive to retaliate against” Dr. Hawker. Johnson, 2022 WL 4459926, at *4; App’x 6. We see no error in that conclusion about the significance of what is missing from Dr. Hawker’s submissions, a conclusion not contradicted, but rather reinforced, by what those submissions affirma- tively disclose. The Board observed that the VA’s “reasons for its per- sonnel actions—which all stemmed from [Dr. Hawker’s] lack of competence—were strong.” App’x 5. During his “second week of employment . . . it was suggested that [Dr. Hawker] may need additional training.” App’x 197. The Chief of Staff said, “it would be better if [Dr. Hawker] left on [his] own at that time, as opposed to being termi- nated later.” Id. In “early June,” a couple of months after being hired, Dr. Hawker’s first-line supervisor said that Dr. Hawker “didn’t bring the level of expertise that they had hoped for when they hired [him].” Id.; App’x 5. The Board thus concluded that, “considering the totality of the evidence, including the absence of any indication or allega- tion that [deciding] officials knew of [Dr. Hawker’s] OIG disclosures when they took the alleged personnel actions, the strength of the [VA’s] reasons for its personnel actions,” and the fact that the VA’s “identification of [Dr. Hawker’s] performance issues well preceded any of his alleged disclo- sures, [he] also failed, under methods for establishing con- tributing factor other than the knowledge/timing test, to nonfrivolously allege contributing factor for disclosures (3) and (5).” App’x 6. “We may not reweigh that evidence.” Case: 24-1697 Document: 41 Page: 12 Filed: 05/09/2025

Jones v. Dep’t of Health & Hum. Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016). CONCLUSION We have considered Dr. Hawker’s remaining conten- tions and are unpersuaded. For the foregoing reasons, we affirm the Board’s dismissal of Dr. Hawker’s appeal. AFFIRMED COSTS No costs.