Christian Kreipke v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. CHRISTIAN KREIPKE, DOCKET NUMBER
Appellant, CH-1221-15-0284-W-1
v.
DEPARTMENT OF VETERANS DATE: May 16, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shereef Akeel, Esquire, Troy, Michigan, for the appellant.
Amy C. Slameka, Esquire, and Kristi Glavich, Esquire, Detroit, Michigan,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
action (IRA) appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the administrative judge should not have ordered interim relief, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant, a part-time Health Science Specialist at the Veterans
Administration’s (VA’s) John D. Dingell VA Medical Center, filed this IRA
appeal alleging that the agency terminated him and failed to renew his excepted
service temporary appointment in reprisal for his disclosures of grant fraud at the
agency and at Wayne State University (WSU), where he held a dual appointment
as an Assistant Professor under a Memorandum of Understanding. Initial Appeal
File (IAF), Tab 1 at 6, Tab 8 at 6, 17-20, 23, 78-79, 81, 83. The agency
terminated the appellant, effective October 11, 2013, when his temporary
appointment expired. 2 IAF, Tab 11 at 6-11. The appellant alleged that, in
2
It appears that the appointment from which the agency terminated the appellant was a
temporary appointment, rather than a term appointment, because the Standard Form 50
indicates that it was time limited for a period of less than 1 year. IAF, Tab 11 at 9; see
Usharauli v. Department of Health and Human Services, 116 M.S.P.R. 383, ¶ 11 n.3
(2011); compare 5 C.F.R. § 316.301(a) (describing term appointments as lasting for
3
reprisal for his disclosures, WSU and the VA investigated him and charged him
with research misconduct, which led WSU to terminate him in February 2012, and
the VA to later terminate his active Merit Review Award, allow his appointment
to expire, prohibit him from receiving VA research funds for 10 years, and seek
the retraction of two articles published in the journal Neurological Research.
IAF, Tab 1 at 57, Tab 8 at 7, 22. The appellant also asserted that the agency
acted in reprisal for grievances he filed by failing to compensate him for $34,000
in salary and benefits allegedly owed to him under a VA grant, blocking a grant
that would have expired in 2016, preventing him from receiving VA funding for
10 years, and changing his working conditions by confiscating his computer,
erasing his research data, and firing his staff. IAF, Tab 1 at 1, 6, Tab 8
at 8-10, 22, Tabs 9-11, Tab 72 at 4-5.
¶3 In its Administrative Investigation Report, an Administrative Investigation
Board (AIB) found 11 instances in which the appellant falsified research in
publications, articles, and/or award applications by using the same image of
certain tissue, biological processes, graphs, or blots to describe different
experimental conditions. IAF, Tab 1 at 8-9, 10-12, 71. For example, the agency
asserted that the appellant used the same image in a 2011 article published in the
journal Neurological Research, two National Institutes of Health grant
applications, a VA Merit Review application, and VA Research Day posters in
2009 and 2010, to depict sensorimotor cortex tissue, from animals subjected to
traumatic brain injury (TBI), that had been treated with different antagonists or
antibodies administered at different times and obtained at different lengths of
time after TBI. Id. at 11-16. The agency asserted that these images were found
in files located on the appellant’s computer with file names that were inconsistent
with the above depictions. E.g., id. at 18, 25. The AIB recommended the
termination of the appellant’s “active Merit Review Award entitled ‘Poly-trauma
more than 1 year but no more than 4 years), with 5 C.F.R. § 316.401(a) (describing
temporary appointments as those that are not expected to last longer than 1 year).
4
following brain injury: towards a combinatorial therapy,’” a prohibition on his
receipt of VA research funds for 10 years, and a retraction of the affected articles
that were published in 2010 and 2011 in the journal Neurological Research. Id.
at 57.
¶4 After a 6-day hearing, the administrative judge issued an initial decision
finding that the appellant proved by preponderant evidence that the above actions
constituted appealable personnel actions 3 and that he had a reasonable belief that
he made protected disclosures of a violation of law, rule, or regulation in the form
of grant fraud by the VA and by WSU that involved its dispersal of VA funds.
IAF, Tab 119, Initial Decision (ID) at 2-3, 10, 12, 14-15. She also found that the
appellant engaged in protected activity by filing a grievance that sought a remedy
for a violation of 5 U.S.C. § 2302(b)(8), which prohibits reprisal for
whistleblowing. ID at 12-13. The administrative judge further found that the
appellant proved that his disclosures and protected activity were contributing
factors in the personnel actions because the acting officials knew of the
disclosures and activity and the personnel actions occurred within a period of
time such that a reasonable person could conclude that the disclosures and
protected activity were contributing factors in those actions. ID at 15-16.
¶5 In addition, the administrative judge held that the agency did not prove by
clear and convincing evidence that it would have taken the same personnel
actions absent the appellant’s disclosures. ID at 17. The administrative judge
found that the agency’s evidence was not strong because (1) the evidence did not
support a finding that it was the appellant’s actions, as opposed to those of his
research partner or interns assisting on the research—all of whom had access to
the shared computer on which the research data in question was found—that
resulted in any falsified research, (2) the AIB did not have the authority to
3
The failure to renew a temporary appointment, as well as the expiration of an
appointment resulting from an agency’s failure to extend the appointment, are
appealable “personnel actions.” Usharauli, 116 M.S.P.R. 383, ¶ 11.
5
investigate the appellant’s involvement because the research it investigated did
not involve a VA grant or VA funding, and thus did not meet the definition of
medical research under the applicable VA Handbook definition, (3) there was no
evidence that any of the falsified data/graphs were prepared at the VA, as
opposed to at the WSU laboratory, (4) it was unclear what harm the agency
suffered or gain the appellant received even if the data/gr aphs had been falsified,
given that there was no indication that the conclusions would have been different
if the correct data had been used, (5) another researcher’s name also appeared on
the articles who was mainly responsible for the lab and who shared in the lab
oversight responsibilities, and (6) any falsification was not willful and
intentional, as found by the agency, but due to inadvertent inaccuracies and lax
oversight of the lab. ID at 3, 18-30.
¶6 The administrative judge also found that the agency had a motive to
retaliate because it continued to investigate the appellant for the same reasons ,
even though a VA Research Integrity Officer, Dr. K, twice investigated the matter
and found insufficient evidence to convene an AIB, there was a strong academic
relationship between WSU and the VA, and “[a]n inference can clearly be made
that [the acting official] was attempting to appease WSU and protect their
relationship by acquiescing in WSU’s continued interference with the VA’s
employment of the appellant.” ID at 4, 31-37. Thus, the administrative judge
found a motive to retaliate stemming from WSU’s improper influence on the
agency to take actions against the appellant. ID at 37. The administrative judge
found that the agency’s failure to show that it takes similar actions against
employees who are not whistleblowers, including against a nonwhistleblower
co-author of the relevant articles, was a factor weighing against the agency. ID
at 37-38. Finally, the administrative judge found that the appellant proved that
the agency created a hostile work environment in reprisal for his protected
activity, but that “the appellant’s claims that he is still owed money under
grant(s) and was subjected to a hostile work environment are not fully develo ped
6
as to the appropriate relief and are issues for supplemental proceedings for
consequential and compensatory damages.” ID at 39-40.
¶7 The administrative judge ordered the agency to rescind its decision to
terminate the appellant’s active Merit Review Award, rescind its decision to
terminate his appointment and pay him any monies owed under the VA Merit
Award/VA grants as a result of the termination of his appointment for VA
research, and rescind its decision prohibiting him from receiving VA funds for
10 years. ID at 41. She also ordered the agency to provide interim relief . Id.ANALYSIS
The administrative judge should not have ordered interim relief in this case.
¶8 The agency asserts on review that the “practical application of the interim
order is not feasible nor is it within the scope of MSPB’s authority” because a
research misconduct investigation committee determined that the appellant
committed research misconduct and the Board cannot overrule that decision, nor
can the agency return him to his former position because “by law,” he can no
longer perform his job functions. Petition for Review (PFR) File, Tab 1 at 10.
The agency also contends that the grant under which the appellant received
funding has expired, and his temporary appointment has expired without an
additional appropriation of research funds. Id. at 11-12. Thus, it asserts that the
interim relief order is inappropriate. Id. at 13. The agency submits a letter
informing the appellant and his attorney that “the practical application of the
interim order is not feasible nor is it within the scope of MSPB’s authority.” Id.
at 67. The letter further provides that the appellant is unable to return to his
former Health Science Specialist position where his purpose is to conduct
research, and that it is “unreasonable per se to place the Appellant on the payroll
when by law he cannot perform the functions of his job.” Id. Thus, the letter
informs the appellant and his attorney that it “is not able to satisfy the
requirement of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B).” Id. at 69.
7
¶9 The appellant has moved to dismiss the petition for review, asserting that
the agency has not complied with the interim relief order by either returning him
to duty or making a determination that his return would be unduly disruptive and
providing him with pay and benefits. PFR File, Tab 3 at 5-7.
¶10 The appellant’s temporary appointment expired effective October 11, 2013,
before the issuance of the March 10, 2017 initial decision . IAF, Tab 11 at 6-9,
Tab 119 at 1. Similarly, the Merit Review Award, which funded the appellant’s
position, expired 3 years after it had been awarded in October 2010. IAF, Tab 42,
Subtab 7 at 2, Tab 59 at 56-57. An administrative judge should not order interim
relief if, by the date of the initial decision, an appellant’s term appointment has
expired. Herrin v. Department of the Air Force, 95 M.S.P.R. 536, ¶ 16 (2004).
Under these circumstances, we agree with the agency that the administrative
judge should not have ordered interim relief in the form of rescinding the
termination of the temporary appointment and the Merit Review Award , both of
which had expired as of the issuance of the initial decision .
¶11 Further, the decision to grant interim relief is a matter of the Board’s
discretion. 5 U.S.C. § 7701(b)(2)(A)(i). Interim relief may not be appropriate in
all cases in which the appellant prevails, and an administrative judge must
determine this issue based on the facts of the particular case, balancing the
benefits and burdens to the parties anticipated by the process of effecting the
interim relief order. Steele v. Office of Personnel Management, 57 M.S.P.R.
458, 463 (1993), aff’d, 50 F.3d 21 (Fed. Cir. 1995) (Table). Thus, for example,
administrative judges should exercise caution in granting interim relief in Office
of Personnel Management (OPM) retirement appeals because doing so may result
in OPM’s payment of monies in contravention of its statutory authority and may
necessitate OPM’s recovery of the monies paid during the interim relief period if
the Board reverses the initial decision. Id. at 463-64; cf. Paris v. Department of
the Treasury, 104 M.S.P.R. 331, ¶ 8 (2006) (holding that, when an appellant is
receiving Office of Workers’ Compensation Programs compensation when the
8
initial decision is issued, interim relief generally should not be ordered because
doing so could result in the agency’s payment of monies in contravention of
statute). Similarly, we find here that the administrative judge should not have
ordered interim relief in the form of a termination of the agency’s decision to
prohibit the appellant from receiving VA funds for 10 years because, among other
things, any grant awarded during the interim relief period could result in the early
termination of a funded research project, and the grantor’s concomitant need to
recover monies paid under the award, if the Board were to reverse the initial
decision. We therefore decline to dismiss the agency’s petition for review for
failure to provide evidence of compliance with the interim relief order.
The administrative judge did not improperly require the agency to prove that the
appellant falsified research. 4
¶12 The agency contends that the administrative judge, in finding that the
agency’s evidence in support of its actions was not strong, improperly required it
to meet the Board’s standard for proving a falsification charge, even though it
charged the appellant with research misconduct under a VA directive and its
Handbook, which allegedly “have nothing to do with the MSPB charge of
‘falsification’ or any elements contained therein.” PFR File, Tab 1 at 13-16.
Rather, the agency asserts that its Handbook defines falsification as manipulating
research materials, equipment, or processes, or changing or omitting data or
results such that the research is not accurately represented in the research record.
Id. at 15. The agency also asserts that the administrative judge never informed it
that she would be applying this falsification standard in this case. Id. at 13, 15.
¶13 A memorandum from the Medical Center Director and the report from the
AIB include numerous allegations and references concluding that the appellant
“falsified” research. IAF, Tab 1 at 8-9, 11-15, 20, 22, 24-26, 28-44, 46, 48-55,
4
The agency does not challenge on review the administrative judge’s findings that the
appellant made protected disclosures that were a contributing factor in the p ersonnel
actions at issue in this case. PFR File, Tab 1 at 10-29.
9
57. In fact, the AIB report considered whether “the preponderance of the
evidence indicate[d] that the figures and supporting documentation were falsifie d
intentionally, knowingly, or recklessly” by the appellant, and determined that the
falsification was intentional, knowing, and willful. E.g., IAF, Tab 1 at 10, 18-19,
24-25, Tab 65 at 8 (explaining that, under the VA Handbook, research
misconduct, including falsification, must be committed intentionally, knowingly,
or with reckless disregard for the integrity of the research) . Under Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), when deciding
whether the agency has shown by clear and convincing evidence that it would
have taken the same personnel action in the absence of whistleblowing, the Board
must consider, among other things, the “strength of the agency’s evidence in
support of its personnel action.” The Board must consider the strength of the
agency’s reasons for its action, even in cases such as this when the agency has not
taken a typical disciplinary action against the appellant based on misconduct. See
Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006). Here, as set
forth above, the underlying rationale for the agency’s decisions to terminate the
appellant’s Merit Review Award, terminate his temporary appointment, and
prohibit him from receiving VA funds for 10 years, which were specifically
recommended by the AIB, was its determination that he had engaged in research
misconduct in the form of intentional, knowing, and willful falsification of
research publications, articles, and grant applications . Under these
circumstances, we find that there is no material distinction between falsification
under the VA Handbook and falsification as found by the administrative judge in
this case. Thus, the agency has shown no error in the administrative judge’s
determination that the agency’s allegations that the appellant falsified medical
research was tantamount to a falsification charge, which required the agency to
submit proof that the information submitted included a false statement, the false
statement was material, and the employee acted with the requisite intent . ID
10
at 23; see Leatherbury v. Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir.
2008).
¶14 Although the agency contends that it had no notice that the administrative
judge would apply this falsification standard in determining whether the agency’s
evidence in support of its action was strong, the administrative judge informed
the agency that it must show by clear and convincing evidence that it would have
taken the same personnel actions absent the disclosures and that the Board would
consider, among other things, the strength of the evidence the agency used in
support of the personnel actions. IAF, Tab 72 at 3. The agency has identified no
Board precedent that required the administrative judge to provide any more
specific notice than that which she provided in this case. PFR File, Tab 1
at 13-16. In any event, the agency does not allege that it would have presented
any additional or different evidence had it known that the strength of its evidence
alleging falsification would depend on whether such evidence showed that the
appellant made a material false statement with the requisite intent. Id.; see
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision). Accordingly, we find no
error in the administrative judge’s determination that the agency did not present
strong evidence in support of the personnel actions at issue in this case. ID
at 18-31.
The administrative judge’s failure to mention the testimony of one of the
agency’s witnesses does not mean that she did not consider it .
¶15 The agency asserts that the administrative judge did not address the
testimony of Dr. B, the lead research misconduct officer, who testified that the
applicable Handbook the agency followed in its investigation was reissued
without a change in the policies contained therein, which permitted the agency to
investigate the research misconduct at issue in this case. PFR File, Tab 1
at 17-21. The administrative judge found, in addition to the fact that the agency’s
11
evidence did not show that the appellant engaged in falsification, that the
agency’s evidence was not strong because “[t]here is strong evidence the AIB did
not have authority to investigate the appellant’s involvement because the research
it investigated did not meet the definition of medical research under the
applicable VA Handbook definitions previously discussed.” ID at 23, 29 -30. In
support of that finding, the administrative judge relied on the deciding official’s
testimony that the definition of medical research subject to VA investigation
changed after the AIB convened to investigate the appellant, but before it issued
its report, to include unfunded VA grant applications. ID at 19-22. She found
that the deciding official further testified that the Handbook in effect when the
AIB convened applied to the appellant, and found that the AIB made no findings
as to the only VA funded grant received by the appellant. ID at 21 -22.
¶16 An administrative judge’s failure to mention all of the evidence of record
does not mean that she did not consider it in reaching her decision. Marques v.
Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, although Dr. B testified on
direct examination that, in his opinion, there was no change when the Handbook
was “reissued,” Hearing Transcript (HT) at 1054-55, 1087, 1193-94 (testimony of
Dr. B), he conceded on cross examination that the new version included different,
additional language, HT at 1152-58 (testimony of Dr. B). We find that the
change in language in the different versions of the Handbook at the very least
clarified the definition of “VA Research” by indicating that such research “may
be funded by VA, by other sponsors, or be unfunded.” Compare IAF, Tab 64
at 122, with IAF, Tab 65 at 11. Here, the administrative judge did not
definitively find that the agency did not have the authority to conduct its
investigation; rather, she merely found that there was strong evidence that it
lacked such authority. ID at 23. Given the ambiguity in the different Handbook
versions in this regard, we find that the agency has shown no error in the
administrative judge’s determination. See 5 C.F.R. § 1209.4(e) (defining “clear
12
and convincing evidence” as that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be
established).
¶17 The agency also asserts that the administrative judge did not address
Dr. B’s testimony that the agency’s prior determinations—that there was
insufficient evidence of misconduct to warrant a referral to an AIB—involved
different allegations of research misconduct by the appellant than the allegations
that ultimately led to the subsequent AIB investigation. PFR File, Tab 1 at 18.
¶18 In discussing the agency’s motive to retaliate, the administrative judge
reviewed the history of complaints that WSU brought to the agency’s attention,
including two separate allegations that were found by Dr. K, an agency Research
Integrity Officer, to not warrant convening an AIB investigation due to
insufficient evidence of research misconduct. ID at 4-5, 31-34. The
administrative judge noted Dr. K’s testimony that one of his inquiries “was on the
identical issue the AIB was ultimately charged to investigate.” ID at 33-34. The
administrative judge concluded, however, that based on the strong academic
relationship between the agency and WSU and the interplay among the various
VA and WSU investigative offices, a motive to retaliate “stemmed from the
improper influence of WSU over the VA to take action against the appellant” and
the agency’s attempt to “appease WSU and protect their relationship by
acquiescing in WSU’s continued interference with the VA’s employment of the
appellant.” ID at 37. As set forth above, the administrative judge’s failure to
mention the testimony of Dr. B does not mean that she did not consider it. In any
event, whether the allegations brought to Dr. K differed from the allegations that
led to the AIB investigation does not affect the administrative judge’s finding that
a motive to retaliate existed based on the improper influence of WSU and the
agency’s attempt to appease it. We therefore find that, to the extent that the
administrative judge failed to resolve a contradiction between the testimonies of
Drs. K and B, see Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587,
13
589 (1980) (finding that an initial decision must identify all material issues of
fact and law, summarize the evidence, resolve issues of credibility, and i nclude
the administrative judge’s conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests), any such error did not affect the
agency’s substantive rights, see Panter, 22 M.S.P.R. at 282.
¶19 The agency further contends that the administrative judge did not consider
Dr. B’s testimony that the VA was obligated to look into allegations of research
misconduct, and that almost all VA researchers hold appointments at affiliated
universities, like WSU; thus, the agency asserts that there was no motive to
retaliate against the appellant. PFR File, Tab 1 at 19. Even assuming, however,
that the agency was required to investigate all allegations of research misconduct,
that fact alone would not undermine the administrative judge’s explained findings
that the agency otherwise had a motive to retaliate against the appellant based on
his disclosures in this particular case. See Whitmore v. Department of Labor,
680 F.3d 1353, 1370 (Fed. Cir. 2012) (holding that those responsible for the
agency’s performance overall may well be motivated to retaliate even if they are
not directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in thei r capacities as
managers and employees). Moreover, Dr. B’s testimony regarding appointments
at affiliated universities addressed questions as to whether there was a conflict of
interest on the part of the appointed AIB members. HT at 1079-80 (testimony of
Dr. B). The fact that there may not have been a conflict of interest for the AIB
members under the agency’s Handbook does not mean that the agency did not
have a motive to retaliate based on whistleblowing activity.
¶20 Finally, although the administrative judge found that the agency did not
sufficiently explain the reasons why the agency relieved Dr. K of the
responsibility to investigate the appellant after he twice found insufficient
evidence to convene an AIB, ID at 37, the agency asserts that Dr. B testified that
Dr. K was relieved of that responsibility because of a conflict of interest, namely,
14
Dr. K’s being called as a witness on behalf of the appellant in his WSU
grievance, PFR File, Tab 1 at 24; HT at 1066-67 (testimony of Dr. B); HT
at 154-55 (testimony of Dr. K). Even assuming that the agency did provide an
explanation for relieving Dr. K of that responsibility, it does not, as explained
above, overcome the administrative judge’s ultimate finding that the agency did
not prove by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the appellant’s disclosures based on its weak
evidence in support of those actions, its motive to retaliate, and its failure to show
that it took similar actions against nonwhistleblowers. ID at 17-39.
The agency did not show that it took similar actions against nonwhistleblowers.
¶21 The agency asserts on review that Dr. B testified that the agency had
permanently prohibited two individuals from receiving VA funds and conducting
VA research because of research misconduct. PFR File, Tab 1 at 22. Thus, it
contends that the administrative judge erred when she found that the agency did
not present evidence that any action was taken against similarly situated
nonwhistleblowers. Id.; ID at 37-38. Moreover, the agency asserts that the
administrative judge erred when she found that the agency did not take action
against Dr. R, a nonwhistleblower who was a lab partner and co-author on the
appellant’s research papers, because Dr. R was no longer a VA employee at the
time of the investigation and the agency therefore could not have taken any action
against him. PFR File, Tab 1 at 22-23.
¶22 When deciding whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action s in the absence of the
disclosures, the Board will consider, among other things, any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr, 185 F.3d at 1323. Although Dr. B’s
testimony was consistent with the agency’s assertions on review, he did not
testify that the two individuals who were permanently prohibited from receiving
funding for VA research were not whistleblowers. HT at 1111, 1122-24
15
(testimony of Dr. B). Thus, the administrative judge correctly found that the
agency did not provide evidence that it took actions against similarly situated
nonwhistleblowers. ID at 37-38. As found by the administrative judge, an
agency ignores this factor at its own peril, considering the agency’s advantage in
accessing this type of evidence. ID at 38; see Miller v. Department of Justice,
842 F.3d 1252, 1262 (Fed. Cir. 2016). Thus, regardless of the agency’s reasons
for not taking action against Dr. R, the nonwhistleblower co-author of the
relevant articles, it has still failed to submit evidence showing that it took similar
actions against employees who were not whistleblowers but who were otherwise
similarly situated. We therefore discern no error in the administrative judge’s
determination that this factor weighs against the agency. ID at 38.
The administrative judge did not err in discrediting an agency exhibit involving
newly acquired evidence.
¶23 In its closing submission, the agency submitted an exhibit consisting of a
July 13, 2016 retraction notice that it discovered after the close of the record and
that it asserted impeached the appellant’s credibility and showed the effect of his
research misconduct in the scientific community. IAF, Tab 116. The
administrative judge struck the exhibit from the record because the record had
already closed and the document was not relevant to the agency’s burden of
proof, but did not strike the agency’s reference to the exhibit from its closing
submission. IAF, Tabs 114, 117. The administrative judge nevertheless found in
the initial decision that the retraction at issue was actually “consistent with the
appellant’s testimony and evidence of the steps he took once the discrepancy in
data was reported to him by the lab student.” ID at 26. The agency contends on
review that the administrative judge erred because the appellant did not testify
about that retraction notice, but instead testified about a different article, and that
it would have been impossible for the appellant to have testified about a
retraction notice that was issued only after the hearing concluded and that was
included in the agency’s closing submission. PFR File, Tab 1 at 25-26.
16
¶24 Even assuming that the appellant’s testimony related to a different article
than the one at issue in the July 13, 2016 retraction, the agency has not shown
that the July 13, 2016 retraction notice itself could have impeached the
appellant’s credibility. As of the appellant’s testimony at the hearing on
April 26-28, 2016, the retraction notice in question had not been issued. Thus,
the agency has established no basis for finding that his testimony at the hearing,
that there had been no retractions of his articles or textbooks, HT at 225-26
(testimony of the appellant), was not credible. Moreover, the agency has not
otherwise explained how the July 13, 2016 retraction, which occurred after the
personnel actions at issue in this case and appears to have involved an article that
was not addressed in the AIB report, IAF, Tab 1 at 10-57, constituted evidence
supporting the agency’s ultimate burden of proving by clear and convincing
evidence that it would have taken the same personnel actions in the absence of the
appellant’s protected disclosures.
The agency has not shown that the documents it submits for the first time on
review are new and material to the issues in this case.
¶25 The agency submits on review evidence that four journal articles authored
by the appellant have been retracted after an investigation by WSU. PFR File,
Tab 1 at 27, 31-65. Only two of the four retracted articles were addressed in the
AIB report. Compare PFR File, Tab 1 at 31-36, 38-43, with IAF, Tab 1 at 11.
The agency contends that, although the administrative judge relied upon a lack of
retractions to suggest that the appellant did not engage in research misconduct
and that the agency was retaliating against him, the retraction of the four articles
after the hearing shows the scope of his misconduct. PFR File, Tab 1 at 27-28.
¶26 Evidence offered merely to impeach a witness’s credibility is generally not
considered new and material. Wyeroski v. Department of Transportation,
106 M.S.P.R. 7, ¶ 9, aff’d, 253 F. App’x 950 (Fed. Cir. 2007). Thus, to the extent
that the agency has submitted the retractions to impeach the appellant’s
credibility, it has not shown that this evidence is new and material. Even
17
assuming, however, that the evidence is new, the Board generally will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision .
Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661,
¶ 15 (2015). In weighing the agency’s evidence that it would have taken the same
personnel actions in the absence of the appellant’s disclosures, the Board must
assess the evidence as it stood at the time of the actions. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001); Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 12 (2010). That is because the actions taken
by the agency officials must be weighed in light of what they knew at the time
they acted; later developments cannot be used either to support or undercut the
validity of the actions taken. Yunus, 242 F.3d at 1372. Therefore, the agency’s
proffer of this evidence for the first time on review is not of sufficient weight to
establish by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the disclosures and does not warrant a
different outcome from that of the initial decision. The four retraction articles do
not, therefore, provide a basis for granting the agency’s petition for review. See
5 C.F.R. § 1201.115(a).
¶27 Accordingly, we deny the agency’s petition for review and affirm the initial
decision’s determination to award corrective action in this case.
ORDER
¶28 We ORDER the agency to rescind its decisions to (1) terminate the
appellant’s active Merit Review Award entitled “Poly-trauma following brain
injury: towards a combinatorial therapy,” (2) terminate the appellant’s temporary
appointment, and to pay him any monies owed under the VA Merit award/VA
grants as a result of the termination of his temporary appointment, and
(3) prohibit the appellant from receiving VA funds for a period of 10 years. See
Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The
18
agency must complete this action no later than 20 days after the date of this
decision.
¶29 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶30 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶31 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶32 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
19
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
20
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Boar d does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
21
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
22
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
23
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction. 6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
24
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.