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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14771
Non-Argument Calendar
____________________
CHARLES E. ABRAHAMSEN,
Petitioner,
versus
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
____________________
Petition for Review of a Decision of the
Merit Systems Protection Board
Agency No. AT-1221-17-0435-W-3
____________________
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2 Opinion of the Court 20-14771
Before JORDAN, BRANCH, and BLACK, Circuit Judges.
PER CURIAM:
Charles Abrahamsen petitions for review from the decision
of an administrative judge of the Merit Systems Protection Board
(MSPB) denying Abrahamsen’s request for corrective action in a
Whistleblower Protection Act (WPA) case brought under
5 U.S.C.
§ 2302(b)(8)-(b)(9). Abrahamsen raises two issues in his petition:
(1) the MSPB erred by ignoring Abrahamsen’s disclosures of abuse
of authority and substantial and specific danger related to bullying
in the healthcare setting, and (2) the MSPB erred by applying the
wrong legal standard to Abrahamsen’s disclosures of substantial
and specific danger to public health and safety. For the reasons de-
tailed below, we deny Abrahamsen’s petition.
I. BACKGROUND
On May 3, 2016, Abrahamsen filed a complaint with the Of-
fice of Special Counsel (OSC) alleging that the Department of Vet-
erans Affairs, specifically his supervisor at Bay Pines VA Healthcare
System, Dr. Patricia Baumann, retaliated against him for making
six protected disclosures on various dates over a four-year period
from 2013 to 2016.
In Disclosure A, Abrahamsen alleged his disclosure was
“[t]hat it was [his] decision when to operate on a hip fracture on a
weekend or holiday. That if [he] believed it endangered a patient’s
safety to wait until normal business hours, [he] would operate after
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20-14771 Opinion of the Court 3
hours.” This disclosure took place on September 3, 2013, the day
after Abrahamsen performed an operation on the Labor Day holi-
day, when Baumann pulled Abrahamsen aside to tell him, “[y]ou
have to stop operating on weekends. We could get dinged.” This
disclosure also identified another incident on September 12, 2013,
where Abrahamsen and Baumann had a disagreement witnessed
by other employees concerning consulting a hospitalist for a med-
ication assistance. Abrahamsen alleged these incidents evidenced
both abuse of authority and substantial and specific dangers to pub-
lic health or safety.
In Disclosure B, Abrahamsen alleged his disclosure was
“[t]hat there is scientific evidence that spinal anesthesia is safer than
general anesthesia for total knee and hip replacements.” This dis-
closure took place on July 10, 2014, when Abrahamsen told Dr. Du-
bravka Jovanovic, an anesthesiologist, that he had requested spinal
anesthesia for a patient. After a disagreement, Jovanovic “stormed
out of the room,” and another anesthesiologist had to supervise the
surgery. Abrahamsen believed Jovanovic then went to Baumann
to complain about the incident. Abrahamsen alleged this incident
evidenced a substantial and specific danger to public health or
safety.
In Disclosure C, Abrahamsen alleged his disclosure was
“[t]hat veterans receiving total knee and hip replacement surgery
were all being done under general anesthesia.” This disclosure
took place on March 12, 2015, at a Morbidity and Mortality (M&M)
Conference where Abrahamsen presented evidence that spinal
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4 Opinion of the Court 20-14771
anesthesia was safer than general anesthesia, with less risk of surgi-
cal site infection. Abrahamsen presented this evidence because one
of the presentations on that date was a patient of Baumann who
developed a surgical site infection after a total knee replacement.
Abrahamsen represented that after an investigation of that pa-
tient’s case, an email was sent on April 9, 2015, confirming that
“100% of the total knee and total hip replacements at Bay Pines
were being done under general anesthesia.” Abrahamsen alleged
this incident evidenced a substantial and specific danger to public
health or safety.
In Disclosure D, Abrahamsen alleged his disclosure was that
he “presented scientific evidence that there is a 5-fold increased in-
cidence of stroke when a total hip or knee replacement is per-
formed under general anesthesia.” This disclosure took place on
April 14, 2016, at a M&M Conference where Abrahamsen pre-
sented this evidence in response to a case presented of a patient
who died from a stroke after a total hip replacement performed by
Baumann. Abrahamsen alleged this incident evidenced a substan-
tial and specific danger to public health or safety.
In Disclosure E, Abrahamsen alleged his disclosure was his
“concern of unnecessary general anesthesia being performed on a
veteran.” This disclosure took place on September 17, 2013, during
morning rounds when Baumann was working on a consent for sur-
gery for the reduction of a dislocated shoulder and Abrahamsen
asked Baumann, “any consideration for a shoulder CT scan?” Abra-
hamsen’s intent was to suggest more information was needed
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20-14771 Opinion of the Court 5
before subjecting a patient to a potentially unnecessary general an-
esthetic. This caused Baumann to lose her temper and blow up at
Abrahamsen, saying “[d]o you want to take over the care of this
patient?” Baumann then turned her back on Abrahamsen and fin-
ished the consent for surgery. Abrahamsen alleged this incident
evidenced an abuse of authority and a substantial and specific dan-
ger to public health or safety.
In Disclosure F, Abrahamsen alleged his disclosure was “his
concern that chest x-rays must be ordered and performed, with the
accompanying radiation exposure, on all veterans preoperatively,
even when they are unnecessary.” This disclosure took place on
July 23, 2014, to Dr. Edward Hong, who responded “I don’t think
that’s a battle worth fighting.” Abrahamsen believes Hong’s re-
sponse and lack of action were related to Baumann’s frequent re-
taliation with personal attacks and her inability to control her tem-
per. Abrahamsen alleged this incident evidenced an abuse of au-
thority and a substantial and specific danger to public health or
safety.
Abrahamsen alleged Baumann took various actions against
him in reprisal for the protected disclosures, specifically that she
extended his Focused Professional Practice Evaluation period, is-
sued written counseling statements, and changed his job duties and
working conditions by precluding him from performing certain
surgeries. On February 15, 2017, the OSC notified Abrahamsen
that it was terminating its investigation into his complaint and pro-
vided him with appeal rights to the MSPB.
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6 Opinion of the Court 20-14771
Abrahamsen then filed an individual right of action (IRA) ap-
peal to the MSPB, citing the same six disclosures. After engaging
in discovery, the MSPB held a six-day hearing with 13 witnesses. In
a thorough 32-page decision issued after the hearing, the MSPB de-
termined that Abrahamsen failed to establish a prima facie case for
whistleblower reprisal because none of his disclosures were pro-
tected under the WPA. Rather, Abrahamsen’s disclosures “consti-
tute mere observations, questions, arguments, or disagreements
with management policies, positions, or practices, without an ac-
companying showing that such matters constitute a report of
wrongdoing of the type specified by the statute.” The MSPB found
Abrahamsen had not established that the disclosures were pro-
tected by disclosing a substantial and specific danger to public
health and safety or by showing an abuse of authority. Abraham-
sen filed a petition for review in this court on December 23, 2020.
II. STANDARD OF REVIEW
In the past, this Court had jurisdiction over petitions for re-
view in “mixed” cases where whistleblower claims were coupled
with discrimination claims. See Kelliher v. Veneman,
313 F.3d
1270, 1274 (11th Cir. 2002). The U.S. Court of Appeals for the Fed-
eral Circuit had exclusive jurisdiction over petitions for review of
MSPB decisions that involved only whistleblower claims. Id.;
5
U.S.C. § 7703(b) (effective Oct. 30, 1998). This changed when Con-
gress passed the Whistleblower Protection Enhancement Act
(WPEA), Pub. L. No. 112-199, § 108(a),
126 Stat. 1465 (2012) (codi-
fied as amended at
5 U.S.C. § 7703(b)(1)). In 2012, Congress,
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20-14771 Opinion of the Court 7
through the WPEA, expanded this jurisdiction to include “any
court of appeals of competent jurisdiction.”
5 U.S.C.
§ 7703(b)(1)(B). The WPEA did not amend the standard of review
provided in
5 U.S.C. § 7703(c), which applies to “any case filed in
the United States Court of Appeals for the Federal Circuit.”
This Court previously determined that non-discrimination
claims in mixed cases should be reviewed under the same deferen-
tial statutory standard of § 7703(c). See Kelliher,
313 F.3d at 1275.
Under § 7703(c), we review “only to ensure that the [MSPB’s] de-
termination is (1) not arbitrary or capricious, (2) [not] made with-
out regard to law, or (3) not based on substantial evidence.” Id. at
1276. We do not substitute our judgment for that of the MSPB,
but rather only seek to ensure the decision was “reasonable and
rational,” and “[w]e do not re-weigh or re-examine the credibility
choices made by the fact finder.” Id. at 1276-77. We use that same
§ 7703(c) standard in this case and rely on caselaw from the Federal
Circuit.
III. DISCUSSION
The WPA provides a federal agency cannot take “a person-
nel action with respect to any employee” because of the em-
ployee’s disclosure of information that the employee reasonably
believes evidences “an abuse of authority, or a substantial and spe-
cific danger to public health or safety,” which the statute protects.
5 U.S.C. § 2302(b)(8)(A)(ii). To establish a prima facie case of re-
prisal for whistleblowing, Abrahamsen had the burden to establish
(1) the acting official had the authority to take any personnel action;
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8 Opinion of the Court 20-14771
(2) the aggrieved employee made a protected disclosure; (3) the
acting official used his authority to take, or refuse to take, a person-
nel action; and (4) the protected disclosure was a contributing fac-
tor in the agency’s personnel action. Chambers v. Dep’t of the Int.,
602 F.3d 1370, 1376 (Fed. Cir. 2010) (Chambers III).
The MSPB determined that Abrahamsen failed to establish
the second factor—that any of his six disclosures were actually pro-
tected disclosures. To prevail on a claim under the WPA, Abra-
hamsen must show he disclosed information he reasonably be-
lieved “evidences (i) a violation of law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of au-
thority, or a substantial and specific danger to public health or
safety.” Chambers v. Dep’t of the Int.,
515 F.3d 1362, 1367 (Fed.
Cir. 2008) (Chambers II). Abrahamsen must prove by a preponder-
ance of the evidence that he made a protected disclosure. Cham-
bers III,
602 F.3d at 1376-77. Abrahamsen asserted he reasonably
believed his disclosures evidenced both an abuse of authority and
a substantial and specific danger to public health or safety.
A. Whether the MSPB erred by ignoring Abrahamsen’s disclosures
of bullying in the healthcare setting.
Abrahamsen contends the MSPB ignored his disclosures of
abuse of authority and substantial and specific danger related to
bullying in the healthcare setting when it found that his weekend
surgery disclosure (Disclosure A) was not statutorily protected. He
asserts he detailed these disclosures in his claims before the OSC,
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20-14771 Opinion of the Court 9
his submissions to the MSPB, during his hearing, and in closing ar-
gument.
Specifically, Abrahamsen contends:
Abrahamsen explained in his OSC Complaint (Discl.
A, Part 4) the personnel actions started with a memo,
which was the counseling with a threat. In his sub-
missions to the OSC, Abrahamsen provided his
memo to Wright, the Chief of Surgery, on September
13, 2013 detailing bullying and intimidating behavior
from Baumann toward Abrahamsen and other staff.
Statements and other documents provided enough
clarity and precision for the OSC to recognize Abra-
hamsen’s complaint of “bullying and intimidating be-
havior” as a basis for Abrahamsen’s request for cor-
rective action. As reflected in the OSC’s closure let-
ter, Abrahamsen exhausted the part of Disclosure A
directed towards Baumann’s abuse of authority re-
lated to bullying: “Subsequently, you filed a com-
plaint with Chief of Surgery Dr. Terry Wright about
Dr. Baumann’s alleged bullying and intimidating be-
havior toward you and other staff members, which
you also believe to have been part of a retaliatory hos-
tile work environment.” That same evidence showed
that the bullying in the healthcare setting was a sub-
stantial and specific danger to health and safety.
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10 Opinion of the Court 20-14771
Abrahamsen contends the MSPB “completely ignored” this evi-
dence of bullying.
Abrahamsen argues the MSPB erred by failing to consider
certain evidence concerning the purported bullying behavior by
Baumann, including a September 13, 2013, letter that identified
three specific incidents. The fact the MSPB did not recount Abra-
hamsen’s arguments as thoroughly as Abrahamsen would have
preferred does not mean the MSPB did not sufficiently consider
them. See Snyder v. Dep’t of Navy,
854 F.3d 1366, 1373 (Fed. Cir.
2017). As to Disclosure A, the MSPB determined Abrahamsen’s
statement to Baumann that it was his call when to operate on a hip
fracture was “in the nature of a mere disagreement with his super-
visor’s statement that he needed to stop operating on hip fractures
on the weekends.” The MSPB detailed much of Abrahamsen’s ev-
idence relevant to this disclosure, concluding the disclosure could
not reasonably be seen as Baumann forbidding Abrahamsen from
doing emergency surgeries on the weekends. The MSPB con-
cluded Abrahamsen did not make a protected disclosure by disa-
greeing with Baumann on this basis. The MSPB also determined
Abrahamsen’s contention of potential future harm to patients
based on Disclosure A “to be purely speculative.” The MSPB spe-
cifically determined Disclosure A did not constitute a substantial
and specific danger to public health and safety and did not consti-
tute an abuse of authority by Baumann with regard to the state-
ment. Although the MSPB did not specifically identify each
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20-14771 Opinion of the Court 11
incident of bullying, the MSPB’s overall findings regarding the pro-
tected nature of the disclosure cover those incidents. See
id.
The MSPB’s decision as to Disclosure A was not arbitrary or
capricious, was not made without regard to law, and was based on
substantial evidence. Therefore, we deny Abrahamsen’s petition
as to this issue.
B. Whether the MSPB erred by applying the wrong legal standard
to Abrahamsen’s disclosures of substantial and specific danger to
public health or safety and whether substantial evidence supports
the MSPB’s decision .
Abrahamsen contends the MSPB erred by applying the
wrong legal standard of substantial and specific danger to his anes-
thesia-related disclosures (Disclosures B-D). However, his argu-
ments on this issue focus on the MSPB’s weighing of the evidence.
The MSPB applied the “reasonable belief” test and the Chambers
factors to Abrahamsen’s disclosures of substantial and specific dan-
ger. Lachance v. White,
174 F.3d 1378, 1380-81 (Fed. Cir. 1999);
Chambers II,
515 F.3d at 1369; Chambers III,
602 F.3d at 1376.
The MSPB “must look for evidence that it was reasonable to
believe that the disclosures revealed misbehavior described by sec-
tion 2302(b)(8).” Lachance,
174 F.3d at 1380. The test is: “could a
disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee reasonably conclude
that the actions of the government evidence gross
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12 Opinion of the Court 20-14771
mismanagement? A purely subjective perspective of an employee
is not sufficient even if shared by other employees.”
Id. at 1381.
A “variety of factors” help “determine when a disclosed dan-
ger is sufficiently substantial and specific to warrant protection un-
der the WPA.” Chambers II,
515 F.3d at 1369. First is the likeli-
hood of harm resulting from the danger—"[i]f the disclosed danger
could only result in harm under speculative or improbable condi-
tions, the disclosure should not enjoy protection.”
Id. Another fac-
tor is when the alleged harm may occur—“[a] harm likely to occur
in the immediate or near future should identify a protected disclo-
sure much more than a harm likely to manifest only in the distant
future.”
Id. Also important is the nature of the harm—“the poten-
tial consequences.” Chambers III,
602 F.3d at 1376. Further, a dis-
closure may be protected if it disclosed harm that has already oc-
curred.
Id.
Abrahamsen cites the Chambers cases throughout his argu-
ment on appeal, and while he does not cite Lachance, he does not
argue the “reasonable belief” test was incorrectly used. Thus, we
will review the MSPB’s decisions regarding Disclosures B-D to see
if they are supported by substantial evidence. See Kelliher,
313 F.3d
at 1276.
As to the anesthesia-related disclosures, the MSPB discussed
various medical journal articles submitted by Abrahamsen and tes-
timony by Abrahamsen and other Bay Pines medical personnel.
While the medical literature generally supported Abrahamsen’s
claim that general anesthesia is associated with an incidence of
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20-14771 Opinion of the Court 13
various potentially serious complications, including stroke, there
was not dispute that the overall risk of such complications was
“very, very low.” Thus, even in a situation where a patient was
about to undergo surgery with general anesthesia, there was a low
“likelihood of impending harm,” and the harm was not “likely to
result in the reasonably foreseeable future.” See Chambers III,
602
F.3d at 1376; Chambers II,
515 F.3d at 1369. Additionally, the evi-
dence showed that Abrahamsen merely assumed other surgeons
were not using spinal anesthesia when performing total knee and
hip replacement surgeries at Bay Pines, when testimony proved
otherwise. Thus, Abrahamsen did not have a reasonable belief
that all total knee and hip replacements were being performed un-
der general anesthesia as the facts known to or reasonably ascer-
tainable to him showed the statement was incorrect. See Lachance,
174 F.3d at 1381. Further, the general statements of scientific evi-
dence at the M&M conferences did “not constitute an allegation of
wrongdoing sufficient to constitute a protected disclosure.” See
Chambers III,
602 F.3d at 1376. And, as to the specific patients dis-
cussed at the M&M conferences, there was no evidence of a causal
correlation between the use of general anesthesia and the patients’
negative outcomes. See
id.
Because there was no dispute that using general anesthesia
for such procedures met the accepted standard of care in the ortho-
pedic community, the MSPB declined to find that Abrahamsen
made a protected disclosure of a substantial and specific danger to
public health or safety. This conclusion on Disclosures B-D was
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14 Opinion of the Court 20-14771
supported by substantial evidence, was not arbitrary or capricious,
and applied the correct law. See Kelliher,
313 F.3d at 1276.
IV. CONCLUSION
The MSPB’s decision was not arbitrary or capricious or
made without regard to law and was based on substantial evi-
dence. Therefore, we deny Abrahamsen’s petition for review.
PETITION DENIED.
