Jeffrey Hawker v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEFFREY HAWKER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1697
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-22-0006-W-1.
______________________
Decided: May 9, 2025
______________________
J EFFREY HAWKER, Gallup, NM, pro se.
ELIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
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HAWKER v. MSPB 2
Before T ARANTO and STOLL , Circuit Judges, and SCARSI,
District Judge.1
P ER CURIAM .
Petitioner Jeffrey Hawker filed an Individual Right of
Action appeal, alleging that the Department of Veterans
Affairs took various personnel actions in reprisal for his
protected whistleblowing activity. In the initial decision,
an Administrative Judge of the Merit Systems Protection
Board dismissed Dr. Hawker’s appeal for lack of jurisdic-
tion without a hearing. In the final order, the Board denied
Dr. Hawker’s petition for review, modified part of the ini-
tial decision, and affirmed. Because the Board did not err
in dismissing Dr. Hawker’s appeal, we affirm.
BACKGROUND
In April 2013, the Department of Veterans Affairs
(“VA”) appointed Dr. Hawker to the position of full-time
Physician at the VA Medical Center in Salem, Virginia,
subject to a two-year probationary period. App’x 142;
Hawker v. Dep’t of Veterans Affs., No. DC-1221-22-0006-W-
1, 2022 WL 342625, at 2 (M.S.P.B. Feb. 1, 2022) (Initial De-
cision).3 On September 6, 2013, Dr. Hawker’s first-line su-
pervisor notified him that the VA was reassigning him and
reducing his salary based on alleged performance deficien-
cies. Around October 18, 2013, the Chief of Staff and the
Medical Center Director informed Dr. Hawker that the VA
was suspending his privileges as a result of his
1 The Honorable Mark C. Scarsi, District Judge,
United States District Court for the Central District of Cal-
ifornia, sitting by designation.
2 “App’x” refers to the Appendix filed with Respond-
ent’s Informal Brief. ECF No. 22.
3 The electronic version of the initial decision lacks
page numbers, so we cite to the pagination used in the ini-
tial decision at App’x 13–33.
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HAWKER v. MSPB 3
performance deficiencies and convening a Professional
Standards Board (PSB) to review the alleged deficiencies
further. On December 16, 2013, the Medical Center Direc-
tor notified Dr. Hawker that, based on the PSB’s recom-
mendation, the agency was terminating Dr. Hawker from
his position for “substandard care and professional incom-
petence,” effective January 3, 2014. Id.
On February 25, 2014, Dr. Hawker filed a whistle-
blower reprisal complaint with the Office of Special Coun-
sel (OSC), alleging that the VA terminated him in
retaliation for disclosing patient care issues. Although
OSC issued a close-out letter in April 2014, OSC ultimately
agreed to reopen its investigation into Dr. Hawker’s com-
plaint. On August 4, 2021, OSC notified Dr. Hawker that
it had terminated its inquiry into his 2014 whistleblower
complaint.
On October 4, 2021, Dr. Hawker filed an Individual
Right of Action (IRA) appeal, alleging that the VA took a
number of personnel actions in reprisal for his protected
whistleblowing activity. That same day, the Administra-
tive Judge “issued a Jurisdiction Order and provided the
parties with a comprehensive discussion of [Dr. Hawker’s]
jurisdictional burden for an IRA appeal.” Id. at 4. On Oc-
tober 13, 2021, Dr. Hawker filed an affidavit, executed on
October 12, 2021, in which he provided a chronology of
events occurring between April 2013 and August 2021. In
his affidavit, Dr. Hawker claimed to have made the follow-
ing disclosures:
(1) “concerns” regarding “studies or procedures be-
ing performed incorrectly” expressed to individuals
in the radiology department;
(2) “concern” regarding the safety of his supervi-
sor’s performance of “some procedures” expressed
to his supervisor;
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HAWKER v. MSPB 4
(3) his supervisor performed a carotid artery stent
(CAS) without using a cerebral embolic protection
device, which placed the patient at a significant
risk of a stroke, made to the [VA] Office of Inspector
General (OIG);
(4) “multiple failures within the [radiology] de-
partment, patient safety issues, and studies per-
formed that did not meet the standards of care,”
made to a[ VA] Human Resources Specialist; and
(5) radiologists were performing procedures, such
as CAS and transjugular intrahepatic portosys-
temic shunts (TIPS), beyond their scopes and the
scopes of the facility and staff, made to OIG.
App’x 2–3 (second alteration in original); Initial Decision
at 9–10. Dr. Hawker did not, however, provide any further
“details relating to his whistleblowing activity . . . and he
did not submit any additional documentation.” Initial De-
cision at 5.
The VA moved to dismiss for lack of jurisdiction, argu-
ing that Dr. Hawker failed to: (1) “nonfrivolously allege
that he made a protected disclosure and/or engaged in pro-
tected activity”; (2) “nonfrivolously allege that any of his al-
lege[d] whistleblowing activity was a contributing factor to
the personnel actions at issue”; and (3) “demonstrate that
many of the alleged retaliatory actions qualify as covered
personnel actions within the meaning of 5 U.S.C.
§ 2302(a)(2)(A).” Id.
Although the Administrative Judge determined that
Dr. Hawker proved he exhausted his administrative reme-
dies with OSC only as to the disclosures summarized in
paragraphs (3)–(5), but not paragraphs (1)–(2), he never-
theless addressed all five claims.
As for the allegations in paragraphs (1) and (4) above,
the Administrative Judge determined that Dr. Hawker
failed to nonfrivolously allege that he engaged in protected
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HAWKER v. MSPB 5
whistleblower activity and that any such activity could
have been a contributing factor in the personnel actions as
alleged. With respect to paragraph (2), the Administrative
Judge determined that Dr. Hawker failed to nonfrivolously
allege that he engaged in protected whistleblowing activ-
ity. As for paragraphs (3) and (5), the Administrative
Judge determined that Dr. Hawker failed to nonfrivolously
allege that these disclosures could have been a contributing
factor to any of the alleged retaliatory personnel actions
that followed. As such, the Administrative Judge dis-
missed the appeal for lack of jurisdiction without a hearing.
In the final order, applying the substantive require-
ments of exhaustion provided in Chambers v. Department
of Homeland Security, No. PH-1221-17-0161-W-1,
2022 WL 1310790 (M.S.P.B. May 2, 2022), which issued af-
ter the Administrative Judge’s initial decision, the Board
held that “disclosures (1) and (2) [above] were exhausted
with OSC as evidenced by OSC’s August 2021 close-out let-
ter.” App’x 3. The Board then “agree[d] with the [A]dmin-
istrative [J]udge’s findings supporting the conclusion that,
for disclosures (1), (3), (4), and (5), [Dr. Hawker] failed to
nonfrivolously allege contributing factor through the
knowledge/timing test.” App’x 4–5. The Administrative
Judge failed to consider whether Dr. Hawker proved con-
tributing factor through other evidence,4 however. But, the
Board held, even considering the other methods,
4 The Board provided examples of such evi-
dence: “that pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether
the whistleblowing or protected activity was personally di-
rected at the proposing or deciding officials, and whether
these individuals had a desire or motive to retaliate against
the appellant.” App’x 5 (citing Pridgen v. Off. of Mgmt. &
Budget, No. DC-0432-14-0557-I-1, 2022 WL 4138183
(M.S.P.B. Sept. 12, 2022)).
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HAWKER v. MSPB 6
Dr. Hawker “still failed to establish contributing factor.”
App’x 5. Accordingly, the Board affirmed the Administra-
tive Judge’s initial decision to dismiss for lack of jurisdic-
tion.
Dr. Hawker appeals. We have jurisdiction under
5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
After filing his opening and reply briefs, Dr. Hawker
moved (ECF No. 30) to file a corrected informal reply brief
(ECF No. 32) and corrected appendix (ECF No. 31). Re-
spondent filed a motion to strike the corrected appendix in
part. ECF No. 33. “The portion of ECF No. 30 seeking to
file the corrected informal reply brief submitted at ECF
No. 32 [wa]s granted.” ECF No. 35. We address the por-
tion of Dr. Hawker’s motion (ECF No. 30) seeking to file
the corrected appendix (ECF No. 31) below.
D ISCUSSION
“We will uphold the Board’s decision unless it is ‘(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.’” Higgins v. Dep’t
of Veterans Affs., 955 F.3d 1347, 1353 (Fed. Cir. 2020)
(quoting 5 U.S.C. § 7703(c)). “Whether the [B]oard has ju-
risdiction over an appeal is a question of law that this court
reviews de novo.” Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 909 (Fed. Cir. 2008).
“To establish Board jurisdiction over individual right of
action cases, the appellant must make ‘non-frivolous alle-
gations’ that he engaged in whistleblowing activity by mak-
ing a protected disclosure, and that the protected
disclosure ‘was a contributing factor in the agency’s deci-
sion to take or fail to take a personnel action.’” Kerrigan
v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1354 (Fed. Cir. 2016)
(quoting Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373
(Fed. Cir. 2016)). Satisfaction of the “knowledge/timing”
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HAWKER v. MSPB 7
test—whether the official taking the personnel action knew
of the disclosure and the timing of the personnel action was
such that a reasonable person could conclude the disclosure
was a contributing factor—“establishes, prima facie, that
the disclosure was a contributing factor to the personnel
action.” Kewley v. Dep’t of Health & Hum. Servs., 153 F.3d
1357, 1361 (Fed. Cir. 1998). An appellant may also show
that the protected disclosure was a contributing factor in
the agency’s decision without relying on the
knowledge/timing test, e.g., by addressing “the strength or
weakness of the agency’s reasons for taking the personnel
action, whether the whistleblowing was personally di-
rected at” the deciding official(s), and whether there was “a
desire or motive to retaliate against” the appellant. John-
son v. Merit Sys. Prot. Bd., No. 21-2136, 2022 WL 4459926,
at *4 (Fed. Cir. Sept. 26, 2022); see also App’x 5.
Dr. Hawker first argues that “denying [him] the right
to a hearing on the merits of the matter is an inexcusable
violation of due process.” Pet. Informal Br. 8; see Pet. In-
formal Br. 2, 6.5 We reject this argument. “[N]either the
governing statute [5 U.S.C. § 7701(a)] nor the Due Process
Clause of the Fifth Amendment guarantees [Dr. Hawker]
a right to an evidentiary hearing on a question pertaining
to the Board’s jurisdiction.” Staats v. U.S. Postal Serv.,
99 F.3d 1120, 1124 (Fed. Cir. 1996). Rather, “a hearing is
required with respect to jurisdictional questions only if the
employee makes a non-frivolous allegation that, if proved,
would establish Board jurisdiction.” Id. at 1125.
After considering the record and Dr. Hawker’s argu-
ments, we see no reason to disturb the Board’s determina-
tion that Dr. Hawker failed to make a nonfrivolous
5 We use the pagination assigned by the CM/ECF
system for Dr. Hawker’s Informal Brief.
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HAWKER v. MSPB 8
allegation that he made a protected disclosure that was a
contributing factor in a VA personnel action.
First, we see no error in the Board’s determination
that, with respect to the allegations in paragraph (2) above,
Dr. Hawker failed to nonfrivolously allege that he engaged
in protected whistleblowing activity. Dr. Hawker failed to
identify the “questionable” and “poor” practices he alluded
to, and he did not provide detail on his “concern about the
safety of” the performance of “some procedures.” App’x 49
¶¶ 11–12. As the Board concluded, these allegations are
“vague, conclusory, and fail[] to reveal circumstances from
which a disinterested person in his position could reasona-
bly conclude that the [VA’s] actions evidenced any of the
violations described in [5 U.S.C. § 2302(b)(8)].” Sadler
v. Dep’t of the Army, 129 F.4th 1339, 1345 (Fed. Cir. 2025).
Second, we see no error in the Board’s determination
that Dr. Hawker’s disclosures in paragraphs (1), (3), (4),
and (5) do not satisfy the knowledge/timing test because his
allegations do not indicate that the VA officials who took
the actions had knowledge of his disclosures. See App’x 48
¶¶ 5–6; App’x 49 ¶ 13; App’x 50 ¶¶ 16, 21; Initial Decision
at 15 (“the record is silent as to when and to whom he
raised these specific concerns”), 18 (“th[e] evidence sug-
gests that [Dr. Hawker’s] initial complaint was not pro-
cessed and, as such, could not have come to the attention
of any [VA] officials outside of the IG’s office”),
19 (“[Dr. Hawker] does not allege or even suggest that [the
Human Resources Specialist] had anything to do with the
alleged retaliatory personnel actions in this case, nor does
he allege that [the Human Resources Specialist] disclosed
or otherwise influenced the [VA] officials that actually took
the actions”), 20 (“there is nothing in this record to show or
even suggest that any of the [VA] officials responsible for
taking the complained of actions had knowledge of and/or
were otherwise influenced by [Dr. Hawker’s] whistleblow-
ing activity”).
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HAWKER v. MSPB 9
Dr. Hawker nonetheless argues that “[t]he Adminis-
trative Judge’s assertion that there is no evidence the [of-
ficials taking the personnel actions] were aware of [his]
whistleblowing activities appears to overlook key facts” be-
cause: (1) “it seems reasonable to assume that the Salem
VA Medical Center would be notified of a non-confiden-
tial[6] disclosure made to the Inspector General’s office,”
and (2) a “November 12, 2013 letter from Congressman
Forbes to the VA . . . would likely have been disseminated
to relevant parties.” Pet. Informal Br. 9–10 (emphases
added). But “this court cannot overturn the Board’s deci-
sion based on mere speculation.” Royal v. Dep’t of Army,
413 F. App’x 270, 274 (Fed. Cir. 2011); see Ryan v. Dep’t of
Def., 760 F. App’x 990, 997 (Fed. Cir. 2019) (“The [Whistle-
blower Protection Act] does not give employees carte
blanche to announce that their coworkers have committed
serious legal violations based purely on speculation . . . .”).
Each of Dr. Hawker’s general assertions fails to allege that
the official taking the personnel action knew of the disclo-
sure. See Resp. Br. 28 (citing 5 C.F.R. § 1201.4(s)(1)); Ker-
rigan, 833 F.3d at 1355 (declining to “accept [the
petitioner’s] invitation to infer [specific persons’]
knowledge based only on a closeness in timing and his con-
clusory allegation that their actions were done ‘in retalia-
tion’”).
Moreover, as Respondent explains, although
Dr. Hawker was “represented by counsel before the [Ad-
ministrative Judge] and the full Board,” he “did not submit
th[e] letter [from Congressman Forbes] to the [Board],
6 We note that, as Respondent points out, the Ad-
ministrative Judge stated that “[t]he evidence introduced
by [Dr. Hawker] appears to refute his claim that his IG
Hotline complaint was ‘non-confidential.’” Initial Decision
at 19 n.18; see App’x 158 (“On October 29, 2013, OIG re-
ceived a confidential complaint . . . .”).
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HAWKER v. MSPB 10
either with his IRA appeal documents or in his October 12,
2021 jurisdictional submission, nor did he appear to draw
the [Board’s] attention to this document.” Resp. Br. 29–30.
We agree with Respondent that “it is not appropriate for
[Dr. Hawker] to make [his corresponding] argument to this
Court for the first time on review.” Id. “Our precedent
clearly establishes the impropriety of seeking a reversal of
the [B]oard’s decision on the basis of assertions never pre-
sented to the presiding official or to the [B]oard.” Rockwell
v. Dep’t of Transp., Fed. Aviation Admin., 789 F.2d 908,
913 (Fed. Cir. 1986). “Congress expressly limited our ap-
pellate review, 5 U.S.C. § 7703(c), to final orders and deci-
sions of the [B]oard on the record.” Id.7
Finally, we see no error in the Board’s determination
that Dr. Hawker “failed to establish contributing factor,”
7 For the same reasons, we grant Respondent’s par-
tial motion (ECF No. 33) to strike certain pages from
Dr. Hawker’s proposed corrected appendix (ECF No. 31).
Because the following pages were not part of the adminis-
trative record, we strike them from Dr. Hawker’s proposed
corrected appendix: 4–9, 11–20, 22–27, 29–44, 48, 50–57,
71–77, 85, 88–89, 91, 150–57, and 159. See ECF No. 33
at 3–4; Laity v. Dep’t of Veterans Affs., 5 F.3d 1504 (Table),
1993 WL 300788, at *2 (Fed. Cir. Aug. 6, 1993) (“[T]he re-
spondent now contends that the court should decline to re-
view the material in the addendum, because it was not
contained in the record before the [Board]. We agree. The
Federal Rules of Appellate Procedure limit our review to
the record of proceedings before the [Board]. The court will
not consider evidence that was not before the Board.” (cita-
tion omitted)). We thus grant-in-part the portion of
Dr. Hawker’s motion (ECF No. 30) seeking to file the cor-
rected appendix (ECF No. 31), i.e., to the extent the mate-
rials were already in the administrative record.
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HAWKER v. MSPB 11
under the non-frivolous allegation standard, using meth-
ods other than the knowledge/timing test. App’x 5.
Dr. Hawker’s allegations summarized in para-
graphs (1) and (4) above involve unidentified “failures,” “is-
sues,” and “concerns” regarding unidentified “studies” or
“procedures.” App’x 48 ¶¶ 5–6; App’x 50 ¶ 16. The Board
determined that these allegations are insufficient because
they do not indicate “whether the whistleblowing was per-
sonally directed at” a deciding official or “a desire or motive
to retaliate against” Dr. Hawker. Johnson, 2022 WL
4459926, at *4; App’x 6. We see no error in that conclusion
about the significance of what is missing from
Dr. Hawker’s submissions, a conclusion not contradicted,
but rather reinforced, by what those submissions affirma-
tively disclose.
The Board observed that the VA’s “reasons for its per-
sonnel actions—which all stemmed from [Dr. Hawker’s]
lack of competence—were strong.” App’x 5. During his
“second week of employment . . . it was suggested that
[Dr. Hawker] may need additional training.” App’x 197.
The Chief of Staff said, “it would be better if [Dr. Hawker]
left on [his] own at that time, as opposed to being termi-
nated later.” Id. In “early June,” a couple of months after
being hired, Dr. Hawker’s first-line supervisor said that
Dr. Hawker “didn’t bring the level of expertise that they
had hoped for when they hired [him].” Id.; App’x 5. The
Board thus concluded that, “considering the totality of the
evidence, including the absence of any indication or allega-
tion that [deciding] officials knew of [Dr. Hawker’s] OIG
disclosures when they took the alleged personnel actions,
the strength of the [VA’s] reasons for its personnel actions,”
and the fact that the VA’s “identification of [Dr. Hawker’s]
performance issues well preceded any of his alleged disclo-
sures, [he] also failed, under methods for establishing con-
tributing factor other than the knowledge/timing test, to
nonfrivolously allege contributing factor for disclosures (3)
and (5).” App’x 6. “We may not reweigh that evidence.”
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HAWKER v. MSPB 12
Jones v. Dep’t of Health & Hum. Servs., 834 F.3d 1361,
1369 (Fed. Cir. 2016).
CONCLUSION
We have considered Dr. Hawker’s remaining conten-
tions and are unpersuaded. For the foregoing reasons, we
affirm the Board’s dismissal of Dr. Hawker’s appeal.
AFFIRMED
COSTS
No costs.
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