Case: 19-1541    Document: 56    Page: 1   Filed: 02/13/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  TIFFANY POTTER,
                      Petitioner

                            v.

      DEPARTMENT OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                       2019-1541
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DE-1221-18-0165-W-1.
                 ______________________

                Decided: February 13, 2020
                 ______________________

     A. MARQUES PITRE, Pitre & Associates, LLC, Washing-
 ton, DC, argued for petitioner.

     AMANDA TANTUM, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for respondent. Also represented by
 JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT EDWARD
 KIRSCHMAN, JR.
                  ______________________

      Before PROST, Chief Judge, MOORE and HUGHES,
                     Circuit Judges.
Case: 19-1541    Document: 56      Page: 2    Filed: 02/13/2020




 2                                              POTTER v. DVA




 PROST, Chief Judge.
      Tiffany Potter petitions for review of a decision by the
 Merit Systems Protection Board (“MSPB” or “Board”) deny-
 ing corrective action in her claim filed under the Whistle-
 blower Protection Act. For the reasons explained below, we
 affirm in part, vacate in part, and remand.
                               I
     In 2014, the Phoenix VA Health Care System (“Phoenix
 DVA” or “agency”) where Ms. Potter worked was in the
 midst of a patient care crisis that had resulted in an inves-
 tigation by the Department of Veterans Affairs Office of In-
 spector General (“OIG”). Beginning around that same
 time, Ms. Potter alleges she engaged in five whistleblowing
 activities at the Phoenix DVA by making four protected dis-
 closures and by cooperating with OIG.
      Ms. Potter made her first alleged disclosure in May
 2014, when she sent an email to her supervisor, Dr. Robbi
 Venditti, regarding significant cancellations and delays in
 appointments for urology patients. See J.A. 237. Ms. Pot-
 ter’s second alleged disclosure was on July 10, 2014, when
 she sent an email to agency personnel regarding psycho-
 therapy patients who, despite urgent need, were not being
 treated or referred to a private community partner. See
 J.A. 238. Later that same day, Ms. Potter forwarded her
 July 10 email to Dr. Venditti and copied, among others, the
 Phoenix DVA Chief of Staff Dr. Darren Deering. Dr. Deer-
 ing replied that evening. J.A. 238–42.
     On August 8, 2014, Ms. Potter made her third alleged
 disclosure when she emailed OIG employee Katrina Young,
 reporting concerns related to medical providers not receiv-
 ing important information. J.A. 249–52; see also J.A. 243–
 48. A couple of weeks later, on August 20, 2014, Ms. Young
 sent an email to Ms. Potter requesting that Ms. Potter call
 her. J.A. 253. Ms. Potter states that this email was related
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 POTTER v. DVA                                             3



 to a fourth whistleblowing activity, namely, cooperation
 with OIG.
     In December 2016, Ms. Potter made her fifth and final
 alleged whistleblowing disclosure by filing a complaint
 with OIG. Ms. Potter’s complaint is not available in the
 record, but an email acknowledging OIG’s receipt of the
 complaint confirms that it was filed. See J.A. 257–58.
     Ms. Potter also alleges that her whistleblowing activity
 contributed to four reprisals by the Phoenix DVA.
      Throughout most of the period that Ms. Potter engaged
 in the alleged whistleblowing activities just described, Ms.
 Potter was employed as a Nurse III working in the Pur-
 chased Care department with the title “Nurse Manager.”
 See J.A. 302. Then in December 2014, during reorganiza-
 tion of the Phoenix DVA, Ms. Potter’s title was changed to
 “Chief Nurse Manager.” J.A. 303. In March 2015, how-
 ever, Ms. Potter’s title was changed back to “Nurse Man-
 ager.” See J.A. 304. Ms. Potter alleges that the change in
 title from “Chief Nurse Manager” to “Nurse Manager”
 amounts to a demotion and the agency’s first reprisal. The
 Phoenix DVA, in contrast, states that the title changes
 were the consequences of unrelated organizational changes
 occurring within the agency
     Ms. Potter alleges that the agency’s second reprisal oc-
 curred in November 2015 when Dr. Deering withdrew a
 posted vacancy for a Chief Nurse IV position titled “Regis-
 tered Nurse, Chief Nurse Administrative Medicine Ser-
 vice.” Though Ms. Potter had applied for the position, the
 Phoenix DVA failed to fill the vacancy.
      According to Ms. Potter, the agency’s third alleged re-
 prisal then occurred in January 2017 when the medical
 center director, RimaAnn Nelson, signed a detail notice, de-
 tailing Ms. Potter to “unclassified duties.” J.A. 260–62.
 Ms. Nelson testified that most of those duties were being
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 4                                               POTTER v. DVA




 reassigned from another employee that did not have the
 expertise to complete them, whereas Ms. Potter did.
     Finally, Ms. Potter alleges that in early 2017, condi-
 tions at the Phoenix DVA forced her “involuntary resigna-
 tion,” constituting the agency’s fourth and final reprisal.
 Ms. Potter testified that she began looking for transfer op-
 portunities “at the end of 2016,” J.A. 118, and in March
 2017, she informed Ms. Nelson that she was accepting an
 offer for a Staff Nurse position at the VA Northern Califor-
 nia Health Care System beginning in April 2017, see J.A.
 315, 318.
     Following her transfer, Ms. Potter filed a whistleblower
 reprisal complaint at the Office of Special Counsel. That
 complaint ultimately resulted in an individual right of ac-
 tion appeal to the MSPB.
                               II
      During the proceedings before the MSPB, the adminis-
 trative judge determined that the Board had jurisdiction
 over five nonfrivolous allegations of protected disclosures,
 complaints, or activity by Ms. Potter: (1) the May 2014
 email; (2) the July 10, 2014 email; (3) the August 8, 2014
 email; (4) the August 20, 2014 cooperation with OIG; and
 (5) the December 2016 complaint. 1


     1    To the extent that, on appeal, Ms. Potter alleges
 she made additional whistleblowing disclosures that the
 administrative judge failed to consider, we conclude that
 such disclosures are not properly before us. Even if Ms.
 Potter could identify an error in the administrative judge’s
 jurisdictional order limiting jurisdiction to five allegations
 of whistleblowing activity, the record shows that before the
 Board—despite having the opportunity to do so—Ms. Pot-
 ter failed to challenge the jurisdictional determination on
 the basis of her having allegedly made additional whistle-
 blowing disclosures. See J.A. 390, 397–99. It is therefore
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 POTTER v. DVA                                                 5



     The administrative judge also determined that the
 Board had jurisdiction over four alleged reprisals by the
 Phoenix DVA: (1) the March 2015 title change from Chief
 Nurse to Nurse Manager; (2) the November 2015 failure to
 hire a Chief Nurse IV; (3) the January 2017 unclassified
 duties detail; and (4) the March 2017 “involuntary resigna-
 tion.”
     Following a hearing on the merits, the administrative
 judge concluded that Ms. Potter had established that four
 of the five alleged whistleblowing disclosures and activi-
 ties, i.e., all disclosures except the August 20, 2014 cooper-
 ation with OIG, constituted “protected” disclosures within
 5 U.S.C. § 2302(b)(8) and § 2302(b)(9). Potter v. Dep’t of
 Veterans Affairs, No. DE-1221-18-0165-W-1, slip op. at 6–
 11 (M.S.B.P. Dec. 13, 2018) (“Decision”). The administra-
 tive judge then determined that according to the
 knowledge-timing test of 5 U.S.C. § 1221(e)(1), Ms. Potter
 had only met her burden of showing that these protected
 disclosures contributed to the first alleged reprisal, i.e., the
 March 2015 title change. Id. at 10–27. In other words, the
 administrative judge found that Ms. Potter had shown only
 one prima facie case of whistleblower reprisal. The admin-
 istrative judge ultimately denied corrective action for this
 prima facie case because the government met its burden to
 show that the Phoenix DVA would have taken the same
 action even if Ms. Potter had not made the protected dis-
 closures. Id. at 27–32.




 not proper for this court to review that jurisdictional order
 in the first instance on appeal. See, e.g., Wallace v. Dep’t of
 the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989) (“[O]bjec-
 tions to the proceedings of an administrative agency [must]
 be made while it has an opportunity for correction in order
 to raise issues reviewable by the courts.”).
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 6                                                 POTTER v. DVA




     The administrative judge’s initial decision became the
 final decision of the Board. Ms. Potter now petitions for
 review. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
                                III
     On review to this court, a final decision of the Board
 will be set aside only if the decision is: “(1) arbitrary, capri-
 cious, an abuse of discretion, or otherwise not in accordance
 with law; (2) obtained without procedures required by law,
 rule, or regulation having been followed; or (3) unsupported
 by substantial evidence.” 5 U.S.C. § 7703(c).
                                A
      Ms. Potter first challenges the administrative judge’s
 conclusion that she did not establish a prima facie case of
 whistleblower reprisal with respect to the agency’s Novem-
 ber 2015 failure to hire a Chief Nurse IV. On appeal, the
 parties agree that the administrative judge’s fact finding
 related to this alleged reprisal is not supported by substan-
 tial evidence. More particularly, the parties agree that the
 administrative judge incorrectly found that Dr. Deering did
 not have knowledge of Ms. Potter’s second protected disclo-
 sure, i.e., her July 10, 2014 email. See Decision, at 15–16;
 see Petitioner’s Br. 20; Respondent’s Br. 38–39. The ad-
 ministrative judge relied on this erroneous fact finding in
 determining that Ms. Potter had not satisfied the
 knowledge-timing test under 5 U.S.C. § 1221(e)(1) for the
 November 2015 failure to hire. See Decision, at 15–16.
 Therefore, the administrative judge concluded that Ms.
 Potter had failed to establish a prima facie case of whistle-
 blowing reprisal for the November 2015 failure to hire. Id.
 at 14–22.
     Because we agree with the parties that the record
 clearly shows that Dr. Deering not only had knowledge of
 Ms. Potter’s email, but also that he responded to it,
 J.A. 238–42; see also Decision, at 8, we determine that the
 administrative judge’s fact finding is not supported by
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 POTTER v. DVA                                                7



 substantial evidence. We therefore vacate the administra-
 tive judge’s determination that Ms. Potter did not make a
 prima facie case that her whistleblowing was a contrib-
 uting factor to the agency’s November 2015 nonselection of
 her for Chief Nurse IV and remand to the Board.
     On remand, the Board should consider whether, in
 view of Dr. Deering’s knowledge of Ms. Potter’s July 10,
 2014 email, Ms. Potter presented evidence sufficient to sat-
 isfy the knowledge-timing test, or if Ms. Potter otherwise
 presented evidence sufficient to demonstrate a prima facie
 case of whistleblower reprisal. See 5 U.S.C. § 1221(e)(1). If
 the Board finds such a prima facie case, then the Board
 should additionally consider whether the government can
 meet its burden of showing that it would have taken the
 same November 2015 personnel action regardless of
 Ms. Potter’s protected disclosure. See 5 U.S.C. § 1221(e)(1);
 see also Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.
 Cir. 1999).
     Despite agreeing that the administrative judge erred
 in analyzing Dr. Deering’s knowledge of the July 10, 2014
 email, the government argues that remand is not required.
 The government concedes that when the record is properly
 considered, Ms. Potter has “likely” established a prima fa-
 cie case. Respondent’s Br. 38–39. The government then
 urges us to find in the first instance, that even if Ms. Potter
 has established a prima facie case, the agency would have
 nevertheless taken the November 2015 personnel action
 regardless of Ms. Potter’s protected disclosure. Id. 37–42.
 We decline to engage in such fact finding on appeal.
     The government argues that our decision in McCarthy
 v. Merit Systems Protection Board, 809 F.3d 1365 (Fed. Cir.
 2016), permits us to rely on the administrative judge’s fact
 finding to resolve this appeal. See Respondent’s Br. 40.
 More particularly, the government quotes McCarthy’s
 statement that this court may “affirm the agency on
 grounds other than those relied upon in rendering its
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 8                                             POTTER v. DVA




 decision, when upholding the agency’s decision does not de-
 pend upon making a determination of fact not previously
 made by the agency.” McCarthy, 809 F.3d at 1373 (quoting
 In re Comiskey, 554 F.3d 967, 974 (Fed. Cir. 2009)).
     Contrary to the government’s suggestion, McCarthy
 does not endorse appellate fact finding in this case. In
 McCarthy we considered whether the MSPB correctly de-
 nied a motion to reopen. McCarthy, 809 F.3d at 1373.
 Though the Board had not explained its bases for denying
 the motion, on appeal, we concluded that we were able to
 identify sufficient legal bases, which did not require addi-
 tional fact finding, to affirm the Board’s denial. Id. at
 1373–75. Critically, therefore, the central question in
 McCarthy was a question of law that was based on undis-
 puted facts. This case in contrast, as the government
 agrees, involves a question of fact that the administrative
 judge never considered—namely, whether the agency
 would have taken the same November 2015 personnel ac-
 tion absent the second protected disclosure. See Oral Arg.
 at             17:41–59,            No.            19-1541,
 http://www.cafc.uscourts.gov/oral-argument-recordings?ti-
 tle=potter&field_case_number_value=19-1541&field_date
 _value2%5Bvalue%5D%5Bdate%5D=; see also id. at
 18:00–37.
     Moreover, we do not agree with the government that
 the administrative judge’s fact finding related to whether
 Ms. Potter established a prima facie case was sufficient to
 resolve the present question. The administrative judge’s
 fact finding considered whether, by a preponderance of the
 evidence, Ms. Potter had shown that her protected disclo-
 sure contributed to the agency’s alleged reprisal. It does
 not resolve the separate question of whether, by clear and
 convincing evidence, the agency established that it would
 have taken the November 2015 personnel action regardless
 of Ms. Potter’s second protected disclosure. Accordingly,
 unlike in McCarthy, we may not resolve the outstanding
 question with respect to the November 2015 failure to hire.
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 POTTER v. DVA                                               9



                              B
      Ms. Potter also challenges the administrative judge’s
 determination that she is not entitled to corrective action
 with respect to the first alleged reprisal (the March 2015
 title change), despite having established a prima facie case,
 because the agency met its burden of proving that it would
 have taken the same personnel action regardless of Ms.
 Potter’s protected disclosures. And Ms. Potter separately
 challenges the administrative judge’s determination that
 she failed to establish a prima facie case of whistleblower
 reprisal with respect to the third and fourth alleged repris-
 als (respectively, the January 2017 unclassified duties de-
 tail and the March 2017 “involuntary resignation”).
     We conclude that the administrative judge’s decision as
 to these three reprisals is in accordance with the law and
 is supported by substantial evidence. We have considered
 Ms. Potter’s other arguments but find them unpersuasive.
 Therefore, with respect to the first, third, and fourth al-
 leged reprisals, we affirm the administrative judge’s deci-
 sion.
                        CONCLUSION
     In sum, we vacate only the portion of the Board’s deci-
 sion related to the November 2015 failure to hire and re-
 mand for further proceedings consistent with this opinion.
 We affirm in part, vacate in part, and remand.
      AFFIRMED-IN-PART, VACATED-IN-PART,
               AND REMANDED
                            COSTS
     The parties shall bear their own costs.
