Deborah J. McGregor, M.D. v. Department of Veterans Affairs
Background
- Appellant McGregor, an excepted‑service VA physician appointed under 38 U.S.C. § 7401(1) in August 2010, was terminated during her 2‑year trial period effective December 28, 2011, based on a Professional Standards Board finding of substandard care/professional misconduct.
- She filed an OSC complaint; OSC issued a closure letter on August 27, 2015. McGregor then filed a Board IRA appeal alleging retaliation for disclosures about equipment, staffing, patient care, absence of security guards, and related matters.
- The regional administrative judge dismissed McGregor’s initial appeal without prejudice, then after refiling dismissed the refiled appeal for lack of Board jurisdiction both under chapter 75 (direct appeal) and as an IRA appeal.
- The ALJ held McGregor lacked chapter 75 rights because 5 U.S.C. § 7511(b)(10) excludes physicians appointed under 38 U.S.C. § 7401(1). The ALJ also concluded IRA jurisdiction was precluded because the termination involved professional conduct/competence, relying on Cochran.
- The Board granted review, affirmed lack of chapter 75 direct‑appeal jurisdiction, vacated the IRA‑jurisdiction finding, and remanded for further proceedings to clarify OSC exhaustion, the precise disclosures, and timeliness of any IRA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McGregor can directly appeal her termination under 5 U.S.C. chapter 75 | McGregor contests the merits and due process of her termination and seeks Board review | VA: McGregor is not an "employee" under chapter 75 because she is a § 7401(1) physician | Held: No chapter 75 jurisdiction — § 7511(b)(10) excludes § 7401(1) physicians from direct adverse‑action appeals |
| Whether the Board has jurisdiction over McGregor’s claims as an IRA (whistleblower) appeal | McGregor contends she exhausted OSC and disclosed protected wrongdoing; IRA jurisdiction should lie despite professional‑conduct context | VA: Termination involves professional conduct/competence and therefore (per ALJ) precludes IRA jurisdiction | Held: Vacated ALJ’s IRA‑jurisdiction ruling; post‑1994 law (and Harding) means § 7401(1) physicians can bring IRA appeals — remand to determine OSC exhaustion, precise disclosures, and timeliness |
| Applicable whistleblower standard (WPEA vs. pre‑WPEA WPA) | McGregor relied on IRA framework provided in earlier AJ order referencing WPEA | VA implicitly argued limited IRA scope given professional‑conduct issues and procedural posture | Held: WPEA expansions do not apply retroactively to disclosures made in 2010–2011; IRA jurisdiction must be analyzed under the WPA pre‑WPEA standards (elements: OSC exhaustion; disclosure under 5 U.S.C. § 2302(b)(8); contributing factor) |
| Whether McGregor exhausted administrative remedies with OSC and alleged same disclosures to OSC as before the Board | McGregor submitted OSC closure letter and other materials but did not supply OSC complaint or precise disclosures | VA argued OSC closure letter alone insufficient to show exhaustion for all allegations | Held: Record insufficient to show exhaustion for each claimed personnel action/disclosure and unclear timeliness; remand ordered for parties to submit specifics and evidence on exhaustion and timeliness |
Key Cases Cited
- Harding v. Department of Veterans Affairs, 448 F.3d 1373 (Fed. Cir. 2006) (post‑1994 WPA amendments make physicians appointed under title 38 employees for purposes of IRA appeals, so professional‑competence issues do not bar Board jurisdiction)
- Hicks v. Merit Systems Protection Board, 819 F.3d 1318 (Fed. Cir. 2016) (WPEA’s expanded IRA rights do not apply retroactively)
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (elements of IRA jurisdiction under the WPA: OSC exhaustion; disclosure under § 2302(b)(8); contributing factor standard)