Hessami v. MSPB ( 2020 )

Case: 19-2291 Document: 46 Page: 1 Filed: 11/09/2020
United States Court of Appeals
for the Federal Circuit
______________________
NEGAR HESSAMI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2019-2291
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-1221-17-0271-W-2.
______________________
Decided: November 9, 2020
______________________
KELLEE BOULAIS KRUSE, The Employment Law Group,
Washington, DC, argued for petitioner. Also represented
by ROBERT SCOTT OSWALD.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by KATHERINE
MICHELLE SMITH, TRISTAN LEAVITT.
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
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2 HESSAMI v. MSPB
REYNA, Circuit Judge.
The petitioner, Dr. Negar Hessami, a former Chief of
Pharmacy for a Department of Veterans Affairs medical
center, challenges the Merit Systems Protection Board’s
dismissal of her whistleblower appeal for lack of jurisdic-
tion. We hold that for purposes of the Board’s jurisdiction
under the Whistleblower Protection Act (“WPA”), when de-
termining whether an appellant has non-frivolously al-
leged that she disclosed information that she reasonably
believed evidenced misconduct under the statute, the
Board’s inquiry should be limited to evaluating whether
the appellant has alleged sufficient factual matter, ac-
cepted as true, to state a claim that is plausible on its face.
Because the Board erroneously relied on the testimony of
agency witnesses in dismissing Dr. Hessami’s appeal for
lack of jurisdiction, we vacate and remand for further pro-
ceedings.
BACKGROUND
Between 2012 and 2016, Dr. Hessami served as the
Chief of Pharmacy at the VA Medical Center in Martins-
burg, West Virginia (“the Center”). During that time, the
first curative therapies for Hepatitis C Virus infection
(“HCV”) entered the market, and the Center grappled with
the challenge of providing patients with access to the enor-
mously expensive but life-saving new therapies. The new
medications were funded through a budget assigned by the
Regional Veteran Integrated Service Network (“VISN”)
specifically for HCV patients at the Center. Hessami Affi-
davit, J.A. 989–94 (“Aff.”), ¶ 4. Along with the budget, the
regional VISN provided treatment guidelines for admin-
istration of HCV therapies. Id. at ¶ 16. Dr. Hessami was
responsible for overseeing the ordering and dispensing of
the HCV medications at the Center. Id. at ¶ 19. As part of
her role, she became familiar with HCV treatment guide-
lines, monitored all purchases of HCV medications, and
provided weekly reports of purchases and relevant
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HESSAMI v. MSPB 3
treatment information to the VISN. Id. at ¶¶ 7–11. She
also served as the pharmacy’s point of contact for the re-
gional VISN, and worked with the Center’s Chief of Staff,
Jonathan Fierer, and the Chief of Medicine, Deborah Ben-
nett, to assemble a hepatitis interdisciplinary team (“HIT”
or “IDT”) that met weekly to coordinate the treatment of
HCV patients at the facility. Id. at ¶¶ 5–6.
The first of the curative HCV medications, simeprevir
and sofosbuvir, were approved by the FDA in 2013. These
drugs, which were often prescribed together in a regimen
referred to as “S&S,” were priced at hundreds of dollars per
pill. According to national guidelines and manufacturing
prescribing information, the typical length of therapy was
12 weeks, but patients could be treated for longer periods
under certain circumstances. Id. at ¶ 11. In the fall of
2014, two new combination therapies for the treatment of
HCV were approved under the brand names Viekira and
Harvoni. Id. at ¶ 15. The newer drugs were available to
the Center at a fraction of the cost of S&S. The regional
VISN pharmacy benefits manager recommended that all
new patients be started on the new products rather than
S&S beginning in January 2015. Id. at ¶¶ 37, 40.
A. Whistleblower Disclosures
Between November 2014 and February 2015, Dr. Hes-
sami on multiple occasions raised concerns about the pre-
scribing practices of Dr. Trent Nichols, M.D., one of the
physicians at the Center who treated HCV patients. Ac-
cording to Dr. Hessami, Dr. Nichols did not have any expe-
rience prescribing HCV drugs to patients before he began
working at the Center around September of 2014. Id. at
¶¶ 17–18. Dr. Hessami raised concerns that Dr. Nichols
was departing from the recommended treatment protocols
by continuing to prescribe S&S when the guidelines recom-
mended using the newer therapies, and by prescribing S&S
to patients for longer than the typical 12-week course. Id.
at ¶¶ 20–26, 28–30, 33–34, 38, 42–44. According to Dr.
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4 HESSAMI v. MSPB
Hessami, in multiple meetings, one-on-one discussions,
and emails, she informed senior members of the clinical
and financial staff at the VISN and at the Center that Dr.
Nichols’s treatment decisions were (1) unnecessarily expos-
ing patients to increased risk of adverse drug reactions and
side effects, and (2) overspending the Center’s HCV funds.
Id.
For example, Dr. Hessami alleges that during IDT
meetings, she directly and publicly confronted Dr. Nichols
and “asked that [he] at least justify why he was going be-
yond the length of treatment guidelines.” Id. at ¶¶ 23, 43.
Following one such meeting, she sent an email, dated Feb-
ruary 17, 2015, to Dr. Bennett and several others regarding
Dr. Nichols’s decision to continue prescribing S&S to new
patients. She explained that the VISN was “adamantly
asking the facilities to start new patients on Harvoni or
Viekira,” and was “not funding [the Center] for the patients
newly started on S&S.” She further explained the financial
consequences of Dr. Nichols’s decisions:
The cost of S&S drugs combined is ~$52,000.00 vs.
for Viekira is ~$8,000.00 and Harvoni is
~$14,000.00 per month/per patient.
Since the beginning of February, Dr. Nichols has
started 4 patients on the old two drugs (S&S) for
total cost of almost $208,000.00 that the medical
center has to absorb since VISN is not reimbursing
Martinsburg for the old drugs.
Last Thursday, in our weekly meetings, I brought
this issue to Dr. Nichols[’s] attention again and yet
he has started a new patient on S&S on Friday (02-
13-2015). This is $52,000.00 that we are not going
to get reimbursed for.
I would like to humbly ask you to monitor his or-
dering practices regarding Hep C medications,
which will compromise the reimbursement funds
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HESSAMI v. MSPB 5
and providing an excellent patient care that we all
strive for.
J.A. 125. Dr. Bennett responded to the group that when
Dr. Nichols had previously been asked not to start new pa-
tients on S&S, he had appeared to understand. She sug-
gested that one option for addressing the problem was to
ask Dr. Nichols to provide a written explanation for the
new S&S prescriptions and another was to simply not fill
the new prescriptions. She later informed the team that
she had decided to block S&S prescriptions going forward
and that any discussions regarding “necessity” would need
to be discussed with her directly. J.A. 122–23.
In other emails and meetings, Dr. Hessami voiced more
general concern that the Center was overspending on HCV
medication, including that it had spent $9 million of its $13
million annual budget for HCV medication by January
2015. J.A. 9, 297–98. After one such meeting during which
Dr. Hessami raised the issue, Dr. Fierer instructed her not
to mention the $9 million publicly again. J.A. 10, 977.
Dr. Hessami alleges that she continued to voice her
concerns throughout 2015 and that her comments were at
times met with hostile, derogatory statements by Dr.
Fierer. Aff. ¶ 29.
B. Suspension and Demotion
In late 2015, a pharmacy employee accused Dr. Hes-
sami of misconduct, and Dr. Hessami was suspended and
later demoted for charges of conduct unbecoming a super-
visor. Following her demotion, Dr. Hessami filed a com-
plaint with the Office of Special Counsel (“OSC”) under the
WPA alleging that she had been accused of wrongdoing and
punished as reprisal for her protected disclosures regard-
ing the agency’s spending on HCV drugs. When OSC de-
clined to take action, she filed an individual-right-of-action
(“IRA”) appeal to the Merit Systems Protection Board un-
der 5 U.S.C. § 1221.
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6 HESSAMI v. MSPB
The VA moved to dismiss her appeal for lack of juris-
diction, asserting that Dr. Hessami had failed to ade-
quately establish that she had made protected
whistleblower disclosures pursuant to the Whistleblower
Protection Enhancement Act (“WPEA”). 1 J.A. 39–42. Be-
cause the parties had already completed discovery, the
Agency set forth a statement of facts as part of its motion
that cited to affidavits and deposition testimony from both
parties’ witnesses as well as documentary evidence. See
J.A. 33–38.
The Board granted the VA’s motion to dismiss. In its
decision, the Board adopted many of the VA’s proposed
statements of fact, relying heavily on statements from
Agency witnesses. In particular, the opinion set forth the
following representations from Dr. Bennett as “essentially
undisputed”:
• The appellant did not raise with [Dr. Bennett], nor
was there ever a concern over, patient safety with
Dr. Nichols’s prescribing practices.
• Dr. Nichols’s treatment plans were discussed with
the HIT, wherein he would always present research
and documentation to support his treatment ap-
proach; and the HIT always approved his treatment
plans and medications chosen.
• With respect to length of treatment, only a small
number of patients were extended beyond the typi-
cal course, but those cases presented complex
1 The WPA, effective since 1989, provides the gen-
eral framework of the whistleblower protection pro-
cess. The WPEA of 2012 made certain amendments to the
existing WPA framework regarding, as relevant to this
case, the scope of protected disclosures and the definition
of “personnel action.”
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HESSAMI v. MSPB 7
clinical issues and Dr. Nichols looked at their clini-
cal needs based on his long history and experience.
• Dr. Nichols monitored the patients’ lab values, and
all cases were presented, justified by research, and
approved by the HIT.
• Dr. Nichols’s treatment choices were recognized as a
standard of care and cited in current literature
sources.
• There were clinical reasons to support the use of the
older drugs over the newer, less expensive drugs.
J.A. 6.
Based on the record evidence, the Board concluded that
Dr. Hessami failed to make non-frivolous allegations of a
violation of law, rule or regulation; or gross mismanage-
ment, gross waste of funds, abuse of authority, or a sub-
stantial and specific danger to public health or safety. The
Board found that Dr. Hessami’s disclosures constituted
mere disagreement over “fairly debatable” “questions of
policy” and were thus “not the type of communications pro-
tected by the WPEA.” J.A. 14–16. With respect to the
waste of funds and danger to public health or safety factors,
the Board found that Dr. Hessami had failed to explain
why the expenditures she discussed were out of proportion
to the expected benefits of the treatment and had further
failed to identify any patients who were actually harmed
by Dr. Nichols’s prescribing practices. J.A. 13–14. On
these grounds, the Board dismissed Dr. Hessami’s appeal
for lack of jurisdiction.
Dr. Hessami petitioned for review in this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board has jurisdiction over an IRA appeal under
the WPA, 5 U.S.C. § 1221, if the appellant has exhausted
her administrative remedies before the OSC and makes
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8 HESSAMI v. MSPB
“non-frivolous allegations” that (1) she engaged in whistle-
blowing activity by making a protected disclosure under
5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action. 5 U.S.C. § 1221; Yunus v. Dep’t of Vet-
erans Affairs, 242 F.3d 1367, 1371–72 (Fed. Cir. 2001). A
protected disclosure under Section 2302(b)(8) is one which
the employee “reasonably believes evidences (i) any viola-
tion of any law, rule, or regulation, or (ii) gross mismanage-
ment, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.”
5 U.S.C § 2302(b)(8).
Dr. Hessami contends that the Board erred in crediting
the agency’s evidence against her in finding that she failed
to make non-frivolous allegations of a protected disclosure.
Whether the Board has jurisdiction over an appeal is a
question of law we review de novo. Forest v. Merit Sys.
Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
A. Non-Frivolous Allegation
We first clarify the appropriate scope of the Board’s in-
quiry when evaluating its jurisdiction over a whistleblower
appeal. In Spruill v. Merit Sys. Prot. Bd., this court held
that the threshold question of whether an appellant has in-
voked the Board’s jurisdiction should be assessed under a
“non-frivolous allegation” standard analogous to the “well-
pleaded complaint rule” used to evaluate federal question
jurisdiction in federal court. 978 F.2d 679, 687–89 (Fed.
Cir. 1992). We explained that “under the ‘well-pleaded
complaint rule,’ whether a district court has federal-ques-
tion jurisdiction over a claim ‘must be determined from
what necessarily appears in the plaintiff’s statement of his
own claim in the bill or declaration.’” Id. at 688 (quoting
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
809 (1988)).
Our subsequent cases have evaluated jurisdiction in
whistleblower cases based on whether allegations were
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HESSAMI v. MSPB 9
facially sufficient. See Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 910 (Fed. Cir. 2008); Yunus, 242 F.3d at
1372. This court has consistently treated “a non-frivolous
allegation” of an element as one that, “‘if proven, can estab-
lish the Board’s jurisdiction.’” Cahill v. Merit Sys. Prot.
Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016) (quoting Garcia
v. Dep’t of Homeland Sec., 437 F.3d 1322, 1330 (Fed. Cir.
2006) (en banc)). Most recently, in Piccolo v. Merit Sys.
Prot. Bd., we stated that “at the jurisdictional stage, a pe-
titioner need only assert non-frivolous allegations—allega-
tions that are not ‘vague, conclusory, or facially
insufficient,’ and that the petitioner ‘reasonably believe[s]’
to be true—of a protected disclosure that was a contrib-
uting factor to a reprisal.” 869 F.3d 1369, 1371 (Fed. Cir.
2017) (quoting Johnston, 518 F.3d at 910). We held there
that evidence concerning “a petitioner’s credibility includ-
ing . . . consideration of affidavits submitted by an allegedly
retaliatory supervisor . . . ‘relates to the merits of the
claim’” rather than jurisdiction. Piccolo, 869 F.3d at 1371
(quoting Johnston, 518 F.3d at 911).
In 2015, the Board codified the non-frivolous allegation
standard in its regulations at 5 C.F.R. §§ 1201.57(b) and
1201.4. See Practices and Procedures, 80 Fed. Reg. 4489(Jan. 28, 2015). Section 1201.57(b) provides that an appel-
lant who initiates a whistleblower appeal “must make non-
frivolous allegations . . . with regard to the substantive
jurisdictional elements” 2 of the appeal. 5 C.F.R.
§ 1201.57(b). Section 1201.4 defines a “nonfrivolous alle-
gation” as “an assertion that, if proven, could establish the
matter at issue” and specifies that “[a]n allegation gener-
ally will be considered nonfrivolous when, under oath or
penalty of perjury, an individual makes an allegation that:
2 This excludes the non-merits elements of exhaus-
tion and standing, which must be established by prepon-
derance of the evidence.
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10 HESSAMI v. MSPB
(1) Is more than conclusory; (2) Is plausible on its face; and
(3) Is material to the legal issues in the appeal.” Id. at
§ 1201.4(s).
We recognize that this court has, on at least one occa-
sion, analogized the standard for establishing non-frivo-
lous allegations to the standard for summary judgment.
See Kahn v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir.
2008) (“The standard for determining whether non-frivo-
lous disclosures exist ‘is analogous to that for summary
judgment.’” (quoting Dorrall v. Dep’t of the Army,
301 F.3d 1375, 1380 (Fed. Cir. 2002))). We did not, how-
ever, actually apply the summary judgment standard to
authorize jurisdictional dismissal of a whistleblower ap-
peal based on evidence submitted by the agency. To the
extent the “summary judgment” analogy suggests that
such a dismissal would be proper, it is plainly contrary to
both the Board’s current regulations and our holding in
Spruill. 3
3 The “summary judgment” analogy in Kahn was
borrowed from Dorrall, 301 F.3d at 1380, which turned on
the question of constructive discharge, a question that we
have since held to be subject to a “preponderance of evi-
dence” test for jurisdictional purposes rather than non-friv-
olous allegations. See Garcia, 437 F.3d at 1325. Although
in certain pre-Spruill cases, we approved of the Board’s re-
liance on the agency’s evidence in finding no jurisdiction,
those cases involved direct appeals under 5 U.S.C.
§ 7513(d), where the threshold jurisdictional question was
whether the employee suffered an appealable personnel ac-
tion, a determination that is subject to the preponderance
of the evidence standard. See Manning v. Merit Sys. Prot.
Bd., 742 F.2d 1424, 1428 (Fed. Cir. 1984) (relying on agency
evidence in concluding that employee was not suspended
for more than 14 days); Wilson v. Merit Sys. Prot. Bd.,
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HESSAMI v. MSPB 11
Permitting jurisdictional dismissal of an appeal based
on a summary review of the evidence on the core merits
issues would undermine Congress’s express intent that the
merits of employee appeals be resolved through a hearing
rather than summary judgment. As we explained in Cris-
pin v. Dep’t of Commerce, Section 7701 expressly provides
that in any appeal to the Board, “[a]n appellant shall have
the right to a hearing for which a transcript will be kept,”
and the legislative history made clear that the provision
was meant to bar summary judgment. 732 F.2d 919, 922
(Fed. Cir. 1984) (citing 5 U.S.C. § 7701(a)(1); H.R. REP.
NO. 95–1717, at 137 (1978), as reprinted in 1978
U.S.C.C.A.N. 2860, 2871). Thus, this court held in Crispin
that even when the documentary record clearly supports
judgment for the agency, the appellant is nonetheless enti-
tled to a hearing on the merits as a matter of statutory
right. 4 Crispin, 732 F.2d at 922. A summary judgment
standard for “non-frivolous allegations” would allow the
agency to circumvent that rule and obtain the equivalent
of summary judgment on the merits by merely framing its
motion as one for jurisdictional dismissal.
We thus clarify and hold that when evaluating the
Board’s jurisdiction over a whistleblower action, the ques-
tion of whether the appellant has non-frivolously alleged
protected disclosures that contributed to a personnel action
807 F.2d 1577, 1583 (Fed. Cir. 1986) (relying on agency ev-
idence in concluding that employee had not been reduced
in grade).
4 The Board, in recognition of our holdings, declined
to promulgate a process for summary judgment. Practices
and Procedures, 77 Fed. Reg. 62350, 62352 (Oct. 12, 2012)
(rejecting suggestion to create summary judgment proceed-
ings because “[t]he Court of Appeals for the Federal Circuit
has found that the MSPB lacks authority to order sum-
mary judgment.”).
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12 HESSAMI v. MSPB
must be determined based on whether the employee al-
leged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face. 5 The Board may not
deny jurisdiction by crediting the agency’s interpretation of
the evidence as to whether the alleged disclosures fell
within the protected categories or whether the disclosures
were a contributing factor to an adverse personnel action.
With these principles in mind, we turn to the allega-
tions in this case.
B. Protected Disclosures
Fairly construed, the crux of Dr. Hessami’s allegations
is that a VA physician, Dr. Nichols, was prescribing the
more expensive S&S regimen to patients rather than the
substantially less expensive alternatives, Harvoni and Vie-
kiri, and he was prescribing S&S to patients for substan-
tially longer courses of treatment than necessary or
recommended. She alleges that she was knowledgeable
about the local and national HCV treatment guidelines,
and that Dr. Nichols’s prescription practices were contrary
to those guidelines. She alleges that the extended treat-
ment exposed patients to substantially increased exposure
5 It does not follow from this, however, that the
Board is restricted to considering these allegations in a vac-
uum. As the Supreme Court has explained regarding the
analogous well-pleaded complaint rule, “[d]etermining
whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the review-
ing court to draw on its judicial experience and common
sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). And,
consistent with that analogous rule, the Board may also
consider sources such as “matters incorporated by refer-
ence or integral to the claim, items subject to judicial no-
tice, [and] matters of public record.” See A & D Auto Sales,
Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014).
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HESSAMI v. MSPB 13
to adverse drug reactions and side effects for patients and
that Dr. Nichols’s choice of drugs and duration of therapy
resulted in hundreds of thousands of dollars in excess costs
for the Center. We can infer from her allegations that at
the time Dr. Hessami made her disclosures, she believed,
as she suggested to others, that Dr. Nichols’s decisions to
depart from treatment guidelines were not otherwise justi-
fied. This is supported by her allegations that she con-
fronted Dr. Nichols during meetings to ask him to justify
his prescribing practices, and that afterwards, Dr. Bennett
felt it was appropriate to block all prescriptions of S&S and
to require Dr. Nichols to justify his prescription decisions
in writing. See Cahill, 821 F.3d at 1373–74 (reading alle-
gations “with an eye on likely inferences appropriate to the
context” in assessing whether they were non-frivolous and
plausible).
These allegations are “non-frivolous” within the mean-
ing of 5 C.F.R. § 1201.4. They were made “under oath” in
Dr. Hessami’s affidavit. They describe a “facially plausi-
ble” series of events. They are not merely “conclusory” be-
cause they set forth specific facts supporting Dr. Hessami’s
beliefs of wrongdoing.
The allegations are also “material” because, if accepted
as true, they are sufficient to support a reasonable belief of
gross waste, gross mismanagement, and danger to public
health. Specifically, assuming that Dr. Hessami’s allega-
tions reflect the facts reasonably known to her at the time
she made her disclosures, a person in her position could
reasonably believe that the additional cost of the therapy
prescribed by Dr. Nichols constituted gross waste because
it was significantly out of proportion to the additional “ben-
efit reasonably expected to accrue to the government.” See,
e.g., Chambers v. Dep’t of Interior, 515 F.3d 1362, 1366
(Fed. Cir. 2008). We assume, as we must at this stage, that
Dr. Hessami reasonably believed that Dr. Nichols failed to
provide clinical justification for his prescribing decisions.
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14 HESSAMI v. MSPB
A reasonable person could also conclude that the same
prescribing practice constituted gross mismanagement be-
cause the unjustified higher cost of the therapies was likely
to have a substantial detrimental impact on the Center’s
ability to complete its mission of providing care to HCV pa-
tients because the prescriptions were rapidly depleting the
Center’s HCV budget. See Wen Chiann Yeh v. Merit Sys.
Prot. Bd., 527 F. App’x 896, 900 (Fed. Cir. 2013). This be-
lief could be reasonable even if it was eventually confirmed
that the Center would be able to secure additional funding.
Similarly, if we accept as true Dr. Hessami’s allegation
that Dr. Nichols was prescribing S&S to patients for longer
than their recommended durations without clinical justifi-
cation for doing so, a reasonable person in Dr. Hessami’s
position could conclude that those prescriptions created a
substantial and significant danger to public health. The
mere fact that the prescription policy for HCV treatments
was heavily debated does not strip whistleblower protec-
tion from disclosures about specific prescription decisions
that the whistleblower reasonably believes endangered pa-
tients. See Chambers, 515 F.3d at 1368 (“[G]eneral criti-
cism by an employee of the Environmental Protection
Agency that the Agency is not doing enough to protect the
environment would not be protected under this subsection.
However, an allegation by a Nuclear Regulatory Commis-
sion engineer that the cooling system of a nuclear reactor
is inadequate would fall within the whistle blower protec-
tions.” (quoting S. REP. NO. 95–969, at 21 (1978), as re-
printed in 1978 U.S.C.C.A.N. 2723, 2744)). Here, Dr.
Hessami’s allegations amount to more than a general as-
sertion that the VA is neglecting the health of its HCV pa-
tients. Even if she is unable to identify specific patients
who were harmed, the allegation that a specific govern-
ment physician is directing patients to take medications
with known risks and side effects for an unnecessarily long
period of time, paired with her reasonable belief that there
was no clinical justification for doing so, does not represent
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HESSAMI v. MSPB 15
a “negligible, remote, or ill-defined peril that does not in-
volve any particular person, place, or thing, is not pro-
tected.” Chambers, 515 F.3d at 1368–69 (citation omitted).
At the jurisdictional stage, the allegations have sufficient
specificity and substantiality to support a reasonable belief
that Dr. Nichols’s prescribing practices constituted a sub-
stantial and specific danger to public health.
In concluding that Dr. Hessami’s disclosures were not
entitled to protection, the Board found that the substance
of the disclosures constituted “disagreement over questions
of policy” and “evidence of robust debate on how effective-
ness of the Hep[atitis] C care should be measured and how
disputes concerning such treatment should be managed.”
J.A. 14. However, in enacting the WPEA in 2012, Congress
made clear that policy decisions and disclosable miscon-
duct under the WPA are not mutually exclusive. See
S. REP. NO. 112–155, at 7–8 (2012), as reprinted in 2012
U.S.C.C.A.N. 589, 595–96. The fact that there was an on-
going debate about the most effective and efficient means
for providing HCV care to patients does not exclude allega-
tions of misconduct about such care from whistleblower
protection.
In finding that the substance of Dr. Hessami’s allega-
tions could not amount to misconduct, the Board assumed,
based on the testimony of agency witnesses as cited in the
opinion, that Dr. Nichols’s prescribing choices were clini-
cally justified, and that this should have been known to Dr.
Hessami. That assumption was impermissible at the stage
of the proceedings, where the question is the sufficiency of
Dr. Hessami’s allegations to invoke the Board’s jurisdic-
tion. Regardless of whether the agency may ultimately
prove on the merits that Dr. Nichols’s prescribing decisions
were discernibly reasonable, Dr. Hessami has adequately
alleged a reasonable belief that they were not. The issue
should therefore be resolved at a hearing.
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16 HESSAMI v. MSPB
For these reasons, the Board erred in dismissing Dr.
Hessami’s appeal for failure to allege protected disclosures
as to gross mismanagement, a gross waste of funds, and a
substantial and specific danger to public health. 6 We
therefore vacate the Board’s dismissal and remand for fur-
ther proceedings.
C. Contributing Factor in Personnel Action
To establish jurisdiction, an appellant must establish
not only that she exhausted her administrative remedies
and made protected disclosures, but also that the disclo-
sures were a contributing factor in a “personnel action”
within the scope of the WPEA. Because the Board dis-
missed Dr. Hessami’s appeal based on failure to allege pro-
tected disclosures, the Board did not reach whether she
had sufficiently alleged contribution to a personnel action.
Because neither the Board nor the VA provided any rea-
soning for why Dr. Hessami’s allegations are inadequate to
show that her disclosures contributed to her demotion or
that her demotion constituted a personnel action, we are
unable to make that determination in the first instance
based on the record before us. Thus, on remand, the Board
should evaluate the remaining substantive element for
WPA jurisdiction before proceeding with a hearing on the
merits.
6 We agree with the Board that Dr. Hessami made
no specific allegation for why she reasonably believed that
her disclosures evidenced a violation of law, rule, or regu-
lation. Even on appeal, she fails to raise any colorable ar-
gument for why Dr. Nichols’s departure from treatment
guidelines would constitute a violation of law, and she
points to no other sources of law that were violated by the
conduct she disclosed.
Case: 19-2291 Document: 46 Page: 17 Filed: 11/09/2020
HESSAMI v. MSPB 17
CONCLUSION
For the reasons discussed, we conclude that Dr. Hes-
sami made non-frivolous allegations that she made disclo-
sures she reasonably believed evidenced gross
mismanagement, a gross waste of funds, and a substantial
and specific danger to public health. We thus vacate the
Board’s dismissal of Dr. Hessami’s appeal and remand for
the Board to assess in the first instance whether she non-
frivolously alleged that her disclosures were a contributing
factor to a personnel action against her, so as to invoke the
Board’s jurisdiction. If her allegations are adequate in this
regard, then the Board must provide her with a hearing on
the merits of her claim.
VACATED AND REMANDED
COSTS
Costs to petitioner.