Eileen Erin McCarthy v. Social Security Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EILEEN ERIN MCCARTHY,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2024-1552
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-1221-16-0137-W-1.
______________________
Decided: June 9, 2025
______________________
EILEEN E RIN MCCARTHY , Marion, MA, pro se.
J OSHUA D AVID T ULLY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
Before M OORE, Chief Judge, L OURIE and B RYSON, Circuit
Judges.
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MCCARTHY v. SSA 2
P ER CURIAM .
Petitioner Eileen McCarthy seeks review of a decision
by the Merit Systems Protection Board (“MSPB” or
“Board”) affirming her removal from the Social Security
Administration (“SSA”). We affirm.
I
A
Ms. McCarthy was a probationary employee with the
SSA. In her role as a Disability Processing Specialist, she
was responsible for processing claims for disability bene-
fits. On June 4, 2015, Ms. McCarthy received a termina-
tion notice, which explained that she was being terminated
during her probationary period for failure to follow direc-
tions and failure to comply with the agency’s leave policy.
Supp. App. 120–23.1 The notice listed three examples of
situations in which Ms. McCarthy had failed to follow di-
rections. Id. It also listed two examples of situations in
which she had failed to comply with SSA leave policy. Id.
The first example involved a disability claim made by
“Claimant Az.” In the course of processing that claim, Ms.
McCarthy became concerned that the claim may have been
fraudulent. Supp. App. 21. She reported her concerns to
her supervisor, David DiPalma. Id. Mr. DiPalma in-
structed Ms. McCarthy to approve the claim but he agreed
to refer the case for a fraud investigation if Ms. McCarthy
felt strongly about doing so. Supp. App. 22.
Mr. DiPalma and Ms. McCarthy then asked two other
colleagues to assess the claim for fraud. Both individuals
concluded that referral for a fraud investigation was un-
warranted. Supp. App. 22–23. Ms. McCarthy was then
told multiple times to approve the case, but she refused to
1 References to Supp. App. refer to the Supplemental
Appendix filed with the agency’s brief.
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MCCARTHY v. SSA 3
do so. Supp. App. 23–24. Eventually, the claim was denied
based on Ms. McCarthy’s insistence that the claim be kept
open pending receipt of further information to support a
denial. Supp. App. 24.
The second example involved a disability claim made
by “Claimant Oet.” Id. In that case, the psychologist who
conducted the psychological evaluation recommended
denying the claim. Id. Ms. McCarthy, however, believed
that the claim should be approved. Id. Given the disagree-
ment, Ms. McCarthy emailed Mr. DiPalma requesting that
the claim be reviewed by a psychiatrist. Mr. DiPalma re-
sponded that both he and Project Supervisor Claire Sea-
mans had reviewed the case and had concluded that the file
did not support an affirmative determination of disability.
Supp. App. 25. Ms. Seamans subsequently emailed Mr. Di-
Palma stating that she was “disturbed that [Ms. McCarthy]
once again has ignored our direction,” as in the case of
Claimant Az. Id.
The third example involved a disability claim made by
“Claimant San.” Supp. App. 27. Ms. McCarthy had origi-
nally approved the claim, but Mr. DiPalma returned the
claim based on his conclusion that there was inadequate
medical evidence to support the approval. Id. Ms. McCar-
thy responded by obtaining the additional medical evidence
that Mr. DiPalma had requested. Id.
B
After unsuccessfully seeking corrective action from the
United States Office of Special Counsel (“OSC”), Ms.
McCarthy filed an Individual Right of Action appeal with
the MSPB in which she alleged that she had been termi-
nated in retaliation for making disclosures protected under
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MCCARTHY v. SSA 4
the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8).2
Specifically, Ms. McCarthy argued that the three examples
2 In her Memorandum in Lieu of Oral Argument, Ms.
McCarthy objects to the government’s discussion of the
OSC’s analysis of the merits of her whistleblowing claim
and its decision to close her complaint, on the ground that
“a decision to terminate an investigation under subchapter
II may not be invoked in any action or other proceeding un-
der this section,” 5 U.S.C. § 1221(f)(2), and that a “determi-
nation by the Special Counsel under this paragraph shall
not be cited or referred to in any proceeding under this par-
agraph or any administrative or judicial proceeding for any
purpose, without the consent of the person submitting the
allegation of a prohibited personnel practice,” id.
§ 1214(b)(2)(E). In light of those statutory provisions, we
have not taken into consideration the OSC’s decision or
analysis of Ms. McCarthy’s complaint other than as neces-
sary to establish that she has exhausted her administra-
tive remedies by seeking corrective action from the OSC
before filing her Individual Right of Action appeal with the
Board, as required by 5 U.S.C. § 1214(a)(3). See Costin v.
Dep’t of Health & Hum. Servs., 1994 WL 539322, at *8
(M.S.P.B. Sept. 28, 1994) (“The purpose of this evidentiary
rule, though, is to ensure that a whistleblower is not ‘pe-
nalized’ or ‘prejudiced’ in any way by OSC’s decision not to
pursue a case. We conclude that Congress would not have
intended for us to ignore an OSC termination letter, the
contents of which indicate that an appellant failed to ex-
haust his OSC remedy, given that Congress itself imposed
the exhaustion requirement as a jurisdictional prerequisite
to an IRA appeal.” (footnote and citation omitted)); see also
Lewis v. Dep’t of Def., 2016 WL 860427, at ¶ 10 (M.S.P.B.
Mar. 3, 2016); Cauldwell v. Fed. Rsrv. Sys., 2016 WL
7335243, at ¶ 11 (M.S.P.B. Dec. 2, 2016); McNamara v.
Dep’t of State, 2022 WL 17337885, at *3 n.5 (M.S.P.B. Nov.
29, 2022).
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MCCARTHY v. SSA 5
cited in the termination notice involved protected disclo-
sures. Ms. McCarthy also alleged that she had made pro-
tected disclosures regarding her division’s delay in
implementing a required quality assurance review process.
Following a hearing, the administrative judge who was
assigned to the case denied her request, finding that none
of her disclosures were protected. Supp. App. 16–35. The
administrative judge found that Ms. McCarthy’s disclosure
regarding Claimant Az’s potential fraud was not protected
because she had alleged misconduct by a private individual
but had not alleged that the SSA was implicated in that
misconduct. Supp. App. 30–33. The administrative judge
also found that Ms. McCarthy’s concerns over the claims
filed by Claimants Oet and San were policy disagreements
with management over how to process the claims, and as
such those disclosures could not reasonably be interpreted
as allegations of government misconduct. Supp. App. 33–
34. Finally, the administrative judge found that Ms.
McCarthy had failed to prove that she had made a disclo-
sure regarding any impropriety in implementing the qual-
ity assurance review process. Supp. App. 34–35.
Ms. McCarthy then sought review by the full Board.
The Board affirmed the administrative judge’s determina-
tion, although it affirmed the decision regarding her al-
leged quality assurance review process disclosure based on
a rationale different from that of the administrative judge.
Supp. App. 6–9.
II
Ms. McCarthy contends that the administrative judge
and the Board were mistaken in finding that her disclosure
of the potential fraud in Claimant Az’s claim was not pro-
tected under the Whistleblower Protection Act. She also
contends that the administrative judge and the Board
erred in their assessment of the evidence regarding her dis-
closure involving the quality assurance review process.
Ms. McCarthy does not challenge the conclusions by the
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MCCARTHY v. SSA 6
administrative judge and the Board regarding the disclo-
sures involving Claimants Oet and San.3
The OSC has filed a brief as amicus curiae in support
of Ms. McCarthy. It argues that the Board committed legal
error by requiring Ms. McCarthy to allege government
complicity in her disclosure regarding wrongdoing by a
third-party.
A
Our scope of review of MSPB decisions is narrow. “We
will uphold the Board’s decision unless it is ‘(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance 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)). We review the Board’s legal
determination de novo. Welshans v. U.S. Postal Serv., 550
F.3d 1100, 1102 (Fed. Cir. 2008).
The Whistleblower Protection Act prohibits retaliation
for whistleblowing. It provides:
Any employee who has authority to take, direct others
to take, recommend, or approve any personnel action,
shall not . . . take or fail to take, or threaten to take or
fail to take, a personnel action with respect to any em-
ployee or applicant for employment because of—
3 Because Ms. McCarthy was a probationary em-
ployee at the time of her termination, she has not chal-
lenged the merits of her termination decision, except
through her claim that she was dismissed because of her
whistleblowing disclosures.
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MCCARTHY v. SSA 7
(A) any disclosure of information by an employee or ap-
plicant which the employee or applicant reasonably be-
lieves evidences—
(i) any violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety . . . .
5 U.S.C. § 2302(b)(8). To establish a violation of the stat-
ute, “the former employee must prove by a preponderance
of the evidence that he or she made a protected disclosure
under § 2302(b)(8) that was a contributing factor to the em-
ployee’s termination.” Whitmore v. Dep’t of Lab., 680 F.3d
1353, 1367 (Fed. Cir. 2012).
B
We begin with Ms. McCarthy’s disclosures involving
Claimant Az. Under 5 U.S.C. § 2302(b)(8)(A), a protected
disclosure exists if the employee had a reasonable belief
that her disclosure revealed “(i) any violation of any law,
rule, or regulation, or (ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.” To meet that
requirement, the employee must show that a disinterested
observer with knowledge of the essential facts known to
and readily ascertainable by the employee would reasona-
bly conclude that one of the situations enumerated in sec-
tion 2302(b)(8)(A) did occur. See Drake v. Agency for Int’l
Dev., 543 F.3d 1377, 1382 (Fed. Cir. 2008).
The administrative judge found that Ms. McCarthy
had not made such a showing because she had not alleged
that any government employee was complicit in either the
wrongdoing or a cover up of the wrongdoing. Supp. App.
30–33. The administrative judge based that ruling on
Aviles v. Merit Systems Protection Board, 799 F.3d 457 (5th
Cir. 2015). In Aviles, the Fifth Circuit held that “Congress
did not intend to protect disclosures of purely private
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MCCARTHY v. SSA 8
wrongdoing when it enacted the [Whistleblower Protection
Enhancement Act].” Id. at 464.
The OSC contends in its amicus brief that the admin-
istrative judge erred in relying on Aviles. The OSC’s first
argument is that the court in Aviles misinterpreted sec-
tion 2302(b)(8) and that, correctly interpreted, sec-
tion 2302(b)(8) protects federal employees against
retaliation for disclosing third-party wrongdoing.
We have previously cited Aviles with approval, albeit
in a nonprecedential opinion. In Oram v. Merit Systems
Protection Board, we explained that “[t]he purpose of the
[Whistleblower Protection Act] is to encourage government
personnel to disclose government wrongdoing.” 2022 WL
866327, at *2 (Fed. Cir. Mar. 23, 2022) (alternations in
original) (citing Willis v. Dep’t of Agric., 141 F.3d 1139,
1143 (Fed. Cir. 1998)). We then held that “the amendments
that Congress made in the Whistleblower Protection En-
hancement Act do not ‘extend whistleblower protection to
claims involving purely private conduct.’” Id. In support
of that holding, we relied on Aviles. Id. (quoting Aviles, 799
F.3d at 464). We acknowledged, however, that “a disclo-
sure of wrongdoing committed by a non-government entity
can be protected in some circumstances,” such as when “the
government’s interests and good name are implicated in
the alleged wrongdoing.” Id. (citing Miller v. Dep’t of
Homeland Sec., 99 MSPR 175, 182 (2005)). For the reasons
discussed in Oram, we reject the OSC’s first argument.
The OSC’s second argument is that even if the disclo-
sure of purely private misconduct does not qualify as a dis-
closure for purposes of the Whistleblower Protection Act,
the Board erred by applying the more restrictive standard
from Aviles, which requires alleging that the government
was complicit in the wrongdoing. The OSC argues that the
correct standard to apply is the more lenient standard from
the Board’s decision in Miller, under which the disclosure
of private misconduct can qualify as a whistleblower
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MCCARTHY v. SSA 9
disclosure if the wrongdoing implicated the government’s
interests and good name. We need not resolve which stand-
ard to apply in this case, because Ms. McCarthy’s disclo-
sures would not qualify as whistleblowing disclosures even
under the more lenient Miller standard. However, we note
that our statement in Oram that a disclosure of wrongdo-
ing by a third party could be protected if the government’s
interests and good name were implicated is similar to the
standard for which the OSC has advocated in Part III of its
brief as amicus curiae.
Ms. McCarthy argues that she had a reasonable belief
that not referring the claim for a fraud investigation, as she
had been instructed to do, would violate a regulation. See
Reply Br. 11–12. She also suggests that the inconsistency
in how the SSA’s management handled Claimant Az’s case
as compared to Claimant Oet’s case demonstrates gross
mismanagement. See id. The problem with those argu-
ments is that Ms. McCarthy has not alleged that she made
whistleblower disclosures either that she was improperly
instructed not to refer Claimant Az’s claim for a fraud in-
vestigation or that the SSA was inconsistent in its handling
of the cases. Instead, the allegation of whistleblowing that
Ms. McCarthy made to the MSPB was that she disclosed
Claimant Az’s potential fraud to her supervisors. Supp.
App. 30. Therefore, only her disclosure of Claimant Az’s
potential fraud is at issue in this case. Claimant Az is a
private citizen. Ms. McCarthy did not allege that the gov-
ernment was complicit in Claimant Az’s potential fraud or
that Claimant Az’s potential fraud would implicate the gov-
ernment’s interests and good name. Therefore, disclosure
of Claimant Az’s potential fraud does not qualify for pro-
tection under either Oram or Miller.
C
We next turn to Ms. McCarthy’s disclosures involving
the quality assurance review process. Ms. McCarthy chal-
lenges the findings of fact by the administrative judge and
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MCCARTHY v. SSA 10
the full Board. Namely, Ms. McCarthy argues that there
are multiple reasons that her supervisors’ testimony
should not be credited, such as that they are biased and
that their testimony conflicts with other record evidence.
As an initial matter, the Board agreed with Ms. McCar-
thy that the administrative judge’s credibility determina-
tions were incomplete. Supp. App. 7. The Board noted that
the administrative judge had failed to explain why he
found Ms. McCarthy’s supervisor’s testimony to be more
credible than Ms. McCarthy’s testimony, and thus deter-
mined that the administrative judge’s credibility conclu-
sions were not entitled to deference. Supp. App. 8. The
Board then conducted its own review of the record. It ana-
lyzed Ms. McCarthy’s various statements and testimony
and concluded that they were too vague and conclusory to
establish that she had made a protected disclosure. Supp.
App. 8–9. Given that conclusion, the Board determined
that it did not need to address whether her supervisor’s
testimony was credible. Supp. App. 8 n.2.
Vague, conclusory or facially insufficient allegations of
government wrongdoing do not constitute protected disclo-
sures. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 910
(Fed. Cir. 2008). We find that substantial evidence sup-
ports the Board’s finding that Ms. McCarthy’s allegations
lacked the requisite specificity to qualify as protected dis-
closures. E.g., Supp. App. 59 (“I made disclosures to Fred
Gilbert, Claire Seamans and David DiPalma during the
discussions about the [Oet] case. I presented POMS:
DE/MC Adjudicative Role, Federal QA Review Policy, Vo-
cational Policies related to age as a factor and subsidized
work. This material was presented in a meeting held in
Mr. Gilbert’s office in mid-April. The meeting included dis-
cussion of ‘determinations without QA oversight.’”). More-
over, Ms. McCarthy does not identify any specific
allegations that she made that were overlooked by the
Board.
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MCCARTHY v. SSA 11
For the foregoing reasons, we conclude that the Board
did not commit legal error and that there is substantial ev-
idence to support its findings. Accordingly, we uphold the
Board’s decision. We have considered Ms. McCarthy’s re-
maining arguments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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