Marana v. MSPB
21-1463
| Fed. Cir. | Jan 20, 2022Background
- Marana, a nurse at Dwight D. Eisenhower Army Medical Center, emailed a patient’s name, partial SSN, and medications to unauthorized recipients in Feb 2019; his EHR access was suspended and he was removed in June 2019 after a proposed removal in May 2019.
- He filed a whistleblower retaliation complaint with OSC; OSC closed the matter in Mar 2020 and identified six alleged disclosures in its closing letter.
- Marana filed an IRA appeal with the Merit Systems Protection Board (MSPB); the administrative judge required exhaustion with OSC and non-frivolous allegations for jurisdiction.
- The administrative judge found Marana exhausted the six disclosures and that he alleged covered personnel actions (EHR suspension, proposed removal, removal), but dismissed the IRA appeal for lack of jurisdiction.
- The judge ruled disclosures 4 and 5 were not protected (too vague or expressly disclaimed), and disclosures 1, 3, and 6 were too remote in time (over two years) to be contributing factors.
- Disclosure 2 (staffing mismatch, backlog of Coumadin follow-up, and patient care neglect) was mischaracterized as time-barred; the government concedes timing cannot justify dismissal and the court remanded that disclosure to the Board for initial factfinding and jurisdictional analysis. The court affirmed in part and remanded in part.
Issues
| Issue | Marana's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether disclosures 4 (MEB favoritism) and 5 (AMA patient handling) are protected | These disclosed favoritism and problems with AMA policy affecting readiness/patient care | They were speculative, managerial or expressly disclaimed and thus not WPA-protected | Court: Agree with administrative judge — disclosures 4 and 5 fail non-frivolous protected-disclosure showing |
| Whether disclosures 1, 3, and 6 (recordation/infection control; denial of care allegations; endoscope sterilization) contributed to adverse actions despite temporal gap | These disclosures were bases for whistleblower complaint | The disclosures were made >2 years before actions; gap too long and no other indicia of retaliation | Court: Agree — two-year-plus gap and absence of other factors preclude inference of contribution |
| Whether disclosure 2 (staffing mismatch; Coumadin backlog; patient care neglect) is protected and exhausted with OSC | Argues disclosure included waste/mismanagement and patient-safety risks, some made shortly before removal | Government concedes timing undermines the judge’s time-gap finding but contends substance lacks reasonable belief in protected wrongdoing without specifics | Held: Remanded to MSPB to decide in the first instance whether disclosure 2 (and its facets) were exhausted with OSC and non-frivolous/protected |
| Whether the court may affirm on alternative legal grounds instead of remanding | N/A — Marana seeks review of dismissal | Government urges court can affirm on purely legal alternative (disclosure not reasonable or insufficiently specific) | Court: Declines to decide; remands to Board for initial factual/legal analysis though notes alternative arguments that may be considered on remand |
Key Cases Cited
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (agency decisions ordinarily judged on reasons the agency gave)
- Costello v. Merit Sys. Prot. Bd., 182 F.3d 1372 (Fed. Cir. 1999) (two-year gap too long to infer causation)
- White v. Dep’t of the Air Force, 391 F.3d 1377 (Fed. Cir. 2004) (distinguishing protected disclosures from policy disagreements)
- Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207 (Fed. Cir. 2003) (jurisdictional factfinding for MSPB in first instance)
- Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362 (Fed. Cir. 2020) (remand appropriate for Board to assess non-frivolous allegation of contributing factor)
- Killip v. Office of Pers. Mgmt., 991 F.2d 1564 (Fed. Cir. 1993) (court may affirm on purely legal grounds in limited circumstances)
- Ericsson GE Mobile Commc’ns, Inc. v. United States, 60 F.3d 778 (Fed. Cir. 1995) (remand under appellate discretion)
- Oracle Am., Inc. v. United States, 975 F.3d 1279 (Fed. Cir. 2020) (harmless error doctrine in agency review)