VA Whistleblower Wins a Remand by the Appeals Court

A VA nurse who engaged in several whistleblowing activities accused the agency of illegal reprisals against her. The MSPB found in favor of the agency, but the appeals court sent it back to the Board.

The case is Potter v Department of Veterans Affairs (CAFC No. 2019-1541 (2/13/20). As explained in the court’s decision, Ms. Potter asserts that she made five “whistleblowing disclosures” over the course of a few years while employed at the Phoenix VA Health Care System. She claims that as a result the agency engaged in four reprisals against her: (1) It changed her title from “Chief Nurse Manager to “Nurse Manager;” (2) a vacancy announcement for a position to which she had applied was withdrawn; (3) Ms. Potter was detailed to “unclassified duties; and (4) she was forced to involuntarily resign and transfer to another VA facility in California. (Opinion pp. 1-2)

After her transfer, Ms. Potter took her case to the Office of Special Counsel (OSC) which has jurisdiction over whistleblower reprisal allegations. When OSC gave her an individual right of action letter (meaning it declined to champion her case), Potter appealed to the Merit Systems Protection Board (MSPB). The Administrative Judge found jurisdiction, held a hearing, and concluded that Potter had established she had made protected disclosures. The question then becomes whether the agency can meet its burden to show it would have taken the same action notwithstanding the whistleblowing. The AJ went on to find that she met her burden on only one of the alleged reprisals, the title change of her position. The AJ further concluded that the agency had met its burden to show that her title would have been changed in any event; therefore, there was no unlawful reprisal and he declined to order corrective action. (pp. 4-5)

After taking her case to court, the parties agreed that Potter had indeed proved a prima facie case with regard to the decision not to fill the vacancy for which she had applied. The court agreed that the record shows the deciding official did in fact know about Potter’s whistleblowing activities when that decision was made. For this reason, the court finds that the AJ’s decision on this reprisal allegation was flawed. The court has ordered the case back to the MSPB to determine whether Potter had made her prima facie case that the decision to withdraw the vacancy announcement was whistleblowing reprisal. If so, the AJ must then determine whether the government can then meet its burden to show it would have taken this action notwithstanding Potter’s protected whistleblowing. (p. 7) 

The court acknowledges the agency’s argument that the facts are sufficient for the court to conclude that the agency would have withdrawn the vacancy announcement in any event. But the court declined to take on the role of fact finder, preferring to leave that to the MSPB. (p. 7) 

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.