Kerrigan v. Merit System Protection Board
2016 U.S. App. LEXIS 15076
| Fed. Cir. | 2016Background
- Kerrigan appeals MSPB dismissal for lack of jurisdiction over his FECA benefits termination claim.”
- Board held § 8128(b) barred review of benefits decisions and Kerrigan failed to plead a contributing-factor claim.”
- Kerrigan’s November 21, 2001 OIG letter alleged wrongdoing in denying his request to see Dr. Webber, forwarded to OWCP on December 18, 2001, the same day OWCP referred him to vocational training.”
- OWCP referred Kerrigan to vocational training on December 18, 2001; benefits were reduced to zero on March 19, 2002 for failure to attend.”
- Court reviews MSPB jurisdiction de novo and determines the contributing-factor requirement was not met due to lack of knowledge by the specific officials taking the action.”
- Kerrigan’s whistleblower claim hinges on whether the agency officials taking the action knew of the protected disclosure and whether timing supports a contributing factor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 8128(b) bar MSPB review of Kerrigan’s claim? | Kerrigan argues bar applies to benefits decisions only. | Kerrigan’s claim falls within Board jurisdiction for separable issues. | § 8128(b) does not preclude MSPB review of the contributing-factor claim. |
| Did Kerrigan allege a nonfrivorous contributing-factor? | He asserted timing close to the protected disclosure. | Alleged knowledge by the specific OWCP officials was not shown. | Kerrigan failed to allege that the relevant officials knew of the disclosure; no jurisdiction. |
Key Cases Cited
- Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370 (Fed. Cir. 2016) (established knowledge plus timing required for contributing factor)
- Minor v. Merit Systems Protection Board, 819 F.2d 280 (Fed. Cir. 1987) (bar on review of overlapping or separate issues under § 8128(b))
- Miller v. U.S. Postal Service, 26 M.S.P.R. 210 (1985) (employee entitlements are FECA issues, but fraud during proceedings not barred)
- Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905 (Fed. Cir. 2008) (jurisdictional threshold relaxed; knowledge can be shown via official actions)
- Pueschel v. United States, 297 F.3d 1371 (Fed. Cir. 2002) (noting strong door-closing language of § 8128(b))