Kerrigan v. Merit System Protection Board

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”) dismiss-
ing, 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 con-
cerns 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. Web-
ber; 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 ac-
tions in adjudicating Mr. Kerrigan’s claims. In 1994, the
OWCP indicated it would refer Mr. Kerrigan for vocation-
al 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 Com-
pensation 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 Decem-
ber 18, 2001—the OWCP referred Mr. Kerrigan for voca-
tional 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 date-
stamp 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. Ker-
rigan 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 ulti-
mately 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 allega-
tion 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 offi-
cials 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, SF-
1221-14-0742-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. Kerri-
gan’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 differ-
ent 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) pro-
vides that benefits determinations are within the exclu-
sive 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 al-
lowing or denying a payment under this subchap-
ter 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 oth-
erwise.
We have previously commented on the “strong door-
closing 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 determina-
tion. 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 determi-
nation, 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 com-
plaint 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 employ-
ee’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 alter-
native rationale for dismissal: it held that Mr. Kerrigan
failed to nonfrivolously allege that his protected disclo-
sure 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 ad-
dresses how the “contributing factor” element of the
whistleblower claim can be established. It provides that:
The employee may demonstrate that the disclo-
sure or protected activity was a contributing fac-
tor 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 con-
clude 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 suffi-
cient as a nonfrivolous allegation that the protected
disclosure was a contributing factor to the adverse per-
sonnel 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 offi-
cials who took the personnel action had knowledge of the
protected disclosure. See id. at 912 n.3 (finding jurisdic-
tion 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 disin-
clined 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 declara-
tion includes a long list of names of OWCP personnel who,
he says, “have been notified in person or by mail regard-
ing 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 close-
ness 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