Case: 21-1463 Document: 28 Page: 1 Filed: 01/20/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID P. MARANA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1463
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-20-0543-W-1.
______________________
Decided: January 20, 2022
______________________
DAVID P. MARANA, Evans, GA, pro se.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, BRYSON and DYK, Circuit
Judges.
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2 MARANA v. MSPB
PER CURIAM.
David P. Marana seeks review of an order of the Merit
Systems Protection Board dismissing his Individual Right
of Action (“IRA”) appeal for lack of jurisdiction. We affirm
in part and remand in part.
I
Mr. Marana was employed as a nurse at the Dwight
David Eisenhower Army Medical Center at Fort Gordon,
Georgia. In February 2019, he sent an email containing a
patient’s name, partial social security number, and medi-
cations to various persons who were not authorized to re-
ceive that information. Following that action, the agency
suspended Mr. Marana’s access to electronic health records
and conducted an investigation of the incident. In May
2019, the agency proposed to remove Mr. Marana for con-
duct unbecoming a federal employee in connection with his
inappropriate disclosure of personal health information.
He was removed from his position in June 2019.
Mr. Marana subsequently filed a whistleblower retali-
ation complaint with the Office of Special Counsel (“OSC”)
regarding his suspension and removal. In March 2020, the
OSC closed its investigation into his complaint without
taking action. In its closing letter, the OSC identified six
disclosures that Mr. Marana had alleged in his OSC com-
plaint as the basis for his whistleblower retaliation com-
plaint. Those disclosures were: (1) reporting problems with
recordation and infection control at the hospital; (2) inform-
ing the agency that his position could be performed by a
nurse or administrative assistant with a lower GS rating;
(3) accusing the Chief of Medical Management of denying
care to patients; (4) complaining to supervisors about al-
leged favoritism in the Medical Evaluation Board process;
(5) raising concerns about the treatment of “against medi-
cal advice” patients; and (6) making disclosures about the
sterilization of flexible endoscopes.
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MARANA v. MSPB 3
Mr. Marana filed his IRA appeal with the Merit Sys-
tems Protection Board in May 2020. The administrative
judge who was assigned to the case required Mr. Marana
to file a statement establishing Board jurisdiction by show-
ing that he had exhausted his administrative remedies
with the OSC and that his allegations of retaliation for
whistleblowing were non-frivolous.
Mr. Marana, proceeding pro se, filed a large number of
documents in response to the administrative judge’s initial
order and a follow-up order in which the administrative
judge directed him to provide a more specific and concise
account of each of his alleged disclosures. Among those
submissions, Mr. Marana provided additional details re-
garding the six disclosures set forth in the OSC’s closing
letter.
In October 2020, the administrative judge issued a de-
cision dismissing Mr. Marana’s IRA appeal for lack of ju-
risdiction. The administrative judge ruled that Mr.
Marana had exhausted his remedies with the OSC with re-
gard to the six disclosures identified in the OSC’s closing
letter, and that he had non-frivolously alleged that he had
been subjected to covered personnel actions (1) when his
access to electronic health records was suspended, (2) when
the agency proposed his removal, and (3) when it removed
him. With respect to the six identified disclosures, how-
ever, the administrative judge found that Mr. Marana had
failed to show that the Board had jurisdiction over his ap-
peal.
In particular, the administrative judge found that Mr.
Marana had failed to make a non-frivolous allegation that
disclosures number 4 and number 5 constituted protected
disclosures and had failed to show that disclosures number
1, 2, 3, and 6, even if protected, contributed to the person-
nel actions the agency took against him in 2019.
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4 MARANA v. MSPB
Mr. Marana has petitioned for review by this court of
the decision of the administrative judge dismissing his ap-
peal.
II
As was the case before the administrative judge, Mr.
Marana is proceeding pro se in this court, and the precise
nature of the claims Mr. Marana seeks to raise is not easy
to discern. The claims he presented to the OSC and re-
newed before the Board are set forth in the OSC’s closing
letter and in one of Mr. Marana’s submissions to the ad-
ministrative judge. See Supp. App’x 57–71, 134–35.
1. As noted, the administrative judge ruled that Mr.
Marana failed to non-frivolously allege that disclosures
number 4 and number 5 were protected under the Whistle-
blower Protection Act,
5 U.S.C. § 2302(b)(8).
The OSC characterized Mr. Marana’s disclosure num-
ber 4 as follows: “you communicated to various supervisory
employees of the Agency about favoritism in the Medical
Evaluation Process.” Supp. App’x. 134. Before the admin-
istrative judge, Mr. Marana characterized that disclosure
as follows: “MEB [Medical Evaluation Board] is a Haven
for soldiers; Impact Army Readiness; Need review of MEB
policy and procedures.”
Id. at 67. His disclosure, he al-
leged, revealed “[p]ossibly abuse of MEDICAL authority at
the expense of Readiness with impact on National Defense
and Security.”
Id. (emphasis omitted). He added: “Essen-
tially, Unit commanders have limited command and con-
trol over soldiers in the MEB and it impacts Unit
readiness. This is a critical issue if/when soldier has mo-
tives other than genuinely wanting to perform duties as a
soldier including deployment.”
Id.
The administrative judge found Mr. Marana’s explana-
tion of the significance of disclosure number 4 to be “spec-
ulative and vague,” and that Mr. Marana therefore failed
to show that the alleged disclosure met the standard for a
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MARANA v. MSPB 5
non-frivolous allegation for purposes of establishing Board
jurisdiction.
Id. at 8. We agree with that characterization.
See Garvin v. Merit Sys. Prot. Bd., 737 F. App’x 999, 1004
(Fed. Cir. 2018) (non-precedential); Auston v. Merit Sys.
Prot. Bd., 371 F. App’x 96, 102 (Fed. Cir. 2010) (non-prece-
dential); Smart v. Dep’t of the Army, 157 F. App’x 260, 262
(Fed. Cir. 2005) (non-precedential). Notably, Mr. Marana
barely alludes to that disclosure in his brief in this court,
and nothing he says on that score alters our conclusion that
the administrative judge’s characterization of his argu-
ment was correct.
As for disclosure number 5, the OSC characterized Mr.
Marana’s claimed disclosure as follows: “[y]ou communi-
cated to the Chief of Patient Administration about your
concerns with how the ‘against medical advice’ patients
were treated by nurses, and whether the agency had ade-
quate policy to handle them.” Supp. App’x at 134. Before
the Board, Mr. Marana characterized that disclosure as fol-
lows: “Coumadin clinic patient follow-up issues including
backlog and patient non-compliance with treatment plan;
Need for against medical advice (AMA) policy.”
Id. at 69.
As noted by the administrative judge, Mr. Marana stated
that the disclosure revealed “Management issues but not
meet [sic] the following: (a) violation of law, rule, regula-
tion; (b) gross mismanagement; (c) gross waste of funds; (d)
abuse of authority; and/or (e) a substantial and specific
danger to public health and safety.”
Id. at 8, 69. Interpret-
ing that statement as a disclaimer that disclosure number
5 had disclosed conduct falling within the scope of the
Whistleblower Protection Act, the administrative judge
ruled that the disclosure did not meet the standard for a
non-frivolous allegation for purposes of establishing Board
jurisdiction.
It is not entirely clear that Mr. Marana intended that
statement to disclaim reliance on disclosure number 5. In
any event, however, even setting aside the apparent con-
cession in his response to the Board, Mr. Marana has
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6 MARANA v. MSPB
offered nothing of substance to suggest that disclosure
number 5 was sufficient to give rise to a viable whistle-
blower complaint.
2. The administrative judge found that the four re-
maining disclosures were not sufficient to constitute a non-
frivolous showing that they contributed to the actions
taken against Mr. Marana, because they all were made
more than two years before the personnel actions at issue
in this case. The administrative judge concluded that un-
der the circumstances, a period in excess of two years be-
tween the disclosures and the personnel actions was too
long an interval to justify an inference of cause and effect
between the two events.
Id. at 7. In addition, the admin-
istrative judge found that no other relevant factors sup-
ported a finding that those four disclosures contributed to
the personnel actions taken against Mr. Marana.
Id. at 7
n.4.
With respect to three of those four disclosures, i.e., dis-
closures number 1, number 3, and number 6, we agree with
the administrative judge. The disclosures were remote in
time from the personnel actions that Mr. Marana is chal-
lenging. See Costello v. Merit Sys. Prot. Bd.,
182 F.3d 1372,
1377 (Fed. Cir. 1999) (“A two-year gap between the disclo-
sures and the allegedly retaliatory action is too long an in-
terval to justify an inference of cause and effect between
the two . . . .”); Salinas v. Dep’t of the Army,
94 M.S.P.R. 54,
59 (2003) (the disclosure and the allegedly retaliatory act
two years later were “too remote in time” for a reasonable
person to conclude that the disclosure was a contributing
factor to the action taken). Moreover, as the administra-
tive judge noted, Supp. App’x at 7 n.4, the other circum-
stances surrounding those disclosures, i.e., the strength or
weakness of the agency’s reasons for taking the personnel
action, whether the disclosures were personally directed at
the official responsible for the adverse actions, and whether
the responsible official had a motive to retaliate, were not
suggestive of retaliation for whistleblowing.
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MARANA v. MSPB 7
The remaining disclosure, number 2, presents a differ-
ent issue. The administrative judge characterized disclo-
sure number 2 as informing the “Human Resources and
Civilian Personnel Advisory Center (CPAC) that [Mr. Ma-
rana’s] position ‘can be performed by an appropriately
trained nurse or administrative assistant with a lower GS
level.’”
Id. at 6–7. The result, Mr. Marana alleged, was “a
waste and or mismanagement of government personnel
funds.”
Id. at 63. In his submission to the Board, Mr. Ma-
rana also contended that disclosure number 2 revealed
“Backlog of coumadin patient followup—[Dwight D. Eisen-
hower Army Medical Center] patient care neglect.”
Id.
The administrative judge treated disclosure number 2
in the same manner as disclosures number 1, 3, and 6, that
is, as being too remote in time to support a claim of retali-
ation for whistleblowing. As the government acknowledges
in its brief, however, the administrative judge erroneously
characterized disclosure number 2 as having been made
more than two years before the personnel actions against
Mr. Marana. In fact, Mr. Marana alleges that he made that
disclosure, among other times, shortly before the issuance
of the removal letter in June 2019. Therefore, the govern-
ment concedes that the timing factor cannot be relied upon
to support the conclusion that disclosure number 2 fails the
jurisdictional test. In addition, the government acknowl-
edges that the medical center’s Human Resources depart-
ment allegedly revealed Mr. Marana’s disclosure to Major
Orr, the agency official responsible for taking the removal
action against Mr. Marana.
The government argues that even though the adminis-
trative judge’s decision with respect to disclosure number
2 cannot be sustained on the basis of the timing of the dis-
closure, the administrative judge’s decision can be upheld
on an alternative ground not invoked by the administrative
judge. In particular, the government argues that the court
can affirm the Board’s jurisdictional dismissal on the
ground that Mr. Marana failed to non-frivolously allege
Case: 21-1463 Document: 28 Page: 8 Filed: 01/20/2022
8 MARANA v. MSPB
that it was reasonable for him to believe that disclosure
number 2 was protected.
With respect to Mr. Marana’s “staffing mismatch” dis-
closure, the government argues that even if Mr. Marana’s
duties could have been performed by a lower-level em-
ployee, his disclosure “could not plausibly evidence a rea-
sonable belief in a substantial risk of significant adverse
impact on the agency’s ability to perform its mission or a
more-than-debatable expenditure that is significantly out
of proportion with the benefit reasonably expected to ac-
crue to the government.” Appellee’s Br. 19.
The government acknowledges that in his jurisdic-
tional submission Mr. Marana alleged that his disclosure
number 2 included not only a claim of “resource-wasteful
staffing mismatch,” but also claims of “backlog of coumadin
patient followup” and “patient care neglect.”
Id. at 17–18.
With respect to Mr. Marana’s claim of “backlog of
coumadin patient followup,” the government contends that
disclosure number 2 duplicated the contents of disclosure
number 5, which the Board found did not meet the stand-
ard for a nonfrivolous allegation for purposes of establish-
ing Board jurisdiction. The government also argues that
Mr. Marana did not provide specific details regarding “the
nature of the backlog, the number of patients involved, or
what danger the alleged backlog presented to public health
and safety.”
Id. at 20–22.
With respect to the claim of “patient care neglect,” the
government argues that Mr. Marana failed to disclose “any
specific incidents of patient neglect or the nature of the al-
leged neglect.”
Id. at 23. The government notes that Mr.
Marana contended that patients who had received antico-
agulation medicine at the medical center had been injured,
had been hospitalized, or had died because of inadequate
follow-up. But the government argues that in light of Mr.
Marana’s failure “to provide any specific details regarding
his patient care neglect disclosure, he has failed to
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MARANA v. MSPB 9
nonfrivolously allege a reasonable belief that he disclosed
a substantial and specific danger to public health and
safety, or of any of the other types of covered wrongdoing.”
Id. at 23–24.
It is a general principle of administrative law that a
court may not uphold an agency’s decision on grounds dif-
ferent from those employed by the agency in the decision
under review. See Sec. & Exch. Comm’n v. Chenery Corp.,
318 U.S. 80, 87 (1943). Although recognizing that general
principle, the government invokes an exception to that
principle that applies when the reviewing court can uphold
the agency’s decision on a purely legal basis without mak-
ing any factual determination not previously made by the
agency. See Killip v. Office of Pers. Mgmt.,
991 F.2d 1564,
1569 (Fed. Cir. 1993); see also Lisanti v. Office of Pers.
Mgmt.,
573 F.3d 1334, 1340 (Fed. Cir. 2009). 1
It is not necessary for us to decide whether an excep-
tion to the Chenery doctrine would permit us to decide the
jurisdictional issue in this case, because we have deter-
mined that the appropriate course is for us to exercise our
discretion to remand the case for the Board to address that
question in the first instance. See
28 U.S.C. § 2106;
1 An agency’s ruling can also be upheld on a different
ground from the one invoked by the agency if the court con-
cludes that the agency’s error was harmless, i.e., if it is
clear that the agency would have reached the same ulti-
mate result under the proper standard. See Oracle Am.,
Inc. v. United States,
975 F.3d 1279, 1291 (Fed. Cir. 2020);
Grabis v. Office of Pers. Mgmt.,
424 F.3d 1265, 1270 (Fed.
Cir. 2005); Fleshman v. West,
138 F.3d 1429, 1433 (Fed.
Cir. 1998);
5 U.S.C. § 706 (In conducting judicial review,
“due account shall be taken of the rule of prejudicial er-
ror.”).
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10 MARANA v. MSPB
Ericsson GE Mobile Commc’ns, Inc. v. United States,
60
F.3d 778, 783 (Fed. Cir. 1995).
To determine whether the Board has jurisdiction to de-
cide Mr. Marana’s whistleblower claim as to disclosure
number 2, it will be necessary for the Board to determine
whether Mr. Marana’s disclosure went beyond allegations
concerning the staffing level necessary for the duties as-
signed to his position and whether such allegations, if
made, could be viewed as involving a reasonable belief that
what he disclosed evidenced an abuse of authority, gross
mismanagement, or a waste of funds. Depending on
whether the other two facets of disclosure number 2 (i.e.,
“backlog of coumadin patient followup” and “patient care
neglect”) were presented to the OSC and are considered
disclosures independent from the “staffing mismatch” dis-
closure, it may also be necessary for the Board to determine
whether Mr. Marana could reasonably have believed that
the failure to follow up with patients on anti-coagulants
and the denial of patient care constituted a substantial
danger to public health or safety. 2
The record before us does not make resolution of those
questions practicable. The administrative judge, who can
obtain further submissions from the parties if necessary, is
in a much better position to address those issues than we
are, and we therefore remand the issues surrounding dis-
closure number 2 to the Board.
It is open to the administrative judge on remand to con-
sider the government’s arguments as to why disclosure
number 2 is not protected. For example, the administra-
tive judge may consider whether the “staffing mismatch”
2 It is unclear from the materials before us whether
Mr. Marana’s “patient care neglect” allegation was sepa-
rate from his allegation of a “[b]acklog of coumadin patient
followup.” See Supp. App’x 63.
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MARANA v. MSPB 11
disclosure is merely a disagreement with an agency policy
decision that did not reflect gross mismanagement or a
gross waste of funds. See
5 U.S.C. § 2302(a)(2)(D); White v.
Dep’t of the Air Force,
391 F.3d 1377, 1381–82 (Fed. Cir.
2004); Hansen v. Merit Sys. Prot. Bd., 746 F. App’x 976, 981
(Fed. Cir. 2018) (non-precedential). With respect to the
“backlog of coumadin patient followup” facet of disclosure
number 2, the administrative judge may consider whether
that disclosure tracks disclosure number 5 in substance
and can be disposed of on the same grounds as disclosure
number 5. With respect to the “patient care neglect” facet
of disclosure number 2, the administrative judge may con-
sider whether that allegation constituted a separate disclo-
sure or simply part of the “backlog of coumadin patient
followup” allegation, and whether that allegation was fa-
tally lacking in detail, as the government contends.
As part of the proceedings on remand, the Board should
also address the extent to which Mr. Marana exhausted his
administrative remedies before the OSC with respect to
disclosure number 2. In its closing letter to Mr. Marana,
the OSC made clear that he had exhausted his administra-
tive remedies with respect to his claim that the staffing
mismatch was “a waste or mismanagement of government
personnel or funds.” Supp. App’x 134. What is unclear is
whether he exhausted his administrative remedies with re-
spect to the claim he made before the administrative judge
that the staffing mismatch resulted in a “backlog of couma-
din patient followup” and “patient care neglect” in the med-
ical center.
Some or all of those issues will bear on the question
whether Mr. Marana could reasonably believe the conduct
reported in disclosure number 2 was protected and can be
the subject of a whistleblowing claim. But that determi-
nation is one that should initially be made by the Board,
not the court. See, e.g., Hessami v. Merit Sys. Prot. Bd.,
979
F.3d 1362, 1371 (Fed. Cir. 2020) (remanding “for the Board
to assess in the first instance whether [the employee] non-
Case: 21-1463 Document: 28 Page: 12 Filed: 01/20/2022
12 MARANA v. MSPB
frivolously alleged that her disclosures were a contributing
factor to a personnel action against her”); Holderfield v.
Merit Sys. Prot. Bd.,
326 F.3d 1207, 1209–10 (Fed. Cir.
2003) (determinations underlying decision whether Board
has jurisdiction over an IRA appeal are for the Board in the
first instance); Conejo v. Merit Sys. Prot. Bd., No. 2021-
1347,
2021 WL 3891099, at *3 (Fed. Cir. Sept. 1, 2021)
(non-precedential) (“Whether or not we could resolve that
issue [whether certain disclosures met the standards of a
non-frivolous allegation of all elements required for cover-
age under the Whistleblower Protection Act] ourselves, we
deem it appropriate in this case to leave the analysis to the
Board in the first instance.”). We therefore remand the
portion of the case relating to disclosure number 2 to allow
the Board to decide whether disclosure number 2, to the
extent it was preserved for consideration by the Board, is
sufficient to give the Board jurisdiction over Mr. Marana’s
IRA appeal, and for any further proceedings that may be
necessary thereafter.
Each party shall bear its own costs for this appeal.
AFFIRMED IN PART AND REMANDED IN PART
