Case: 23-1400 Document: 54 Page: 1 Filed: 01/28/2025
United States Court of Appeals
for the Federal Circuit
______________________
JABEEN N. ABUTALIB,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1400
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-22-0357-I-1.
______________________
Decided: January 28, 2025
______________________
J. DEREK MCCORQUINDALE, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Reston, VA, argued for
petitioner. Also represented by JAMESON KYLE GARDNER,
LUKE HAMPTON MACDONALD.
STEPHEN FUNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by ALLISON JANE
BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before CHEN, BRYSON, and STOLL, Circuit Judges.
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2 ABUTALIB v. MSPB
BRYSON, Circuit Judge.
Jabeen N. Abutalib, a physician with the Veterans
Health Administration (“VHA”), sought corrective action
from the Merit Systems Protection Board for personnel actions she alleged to be in retaliation for the Equal Employment Opportunity (“EEO”) complaint that she filed. The
Board held that Dr. Abutalib failed to make a nonfrivolous
showing that she had engaged in whistleblowing or other
protected activity, and it therefore dismissed her appeal for
lack of jurisdiction. We affirm.
I
Dr. Abutalib has worked at the Captain James A. Lovell Federal Health Care Center in Illinois since 2014. During much of that time, she has worked in the Geriatrics and
Extended Care Service (“GEC”) at the facility. She worked
with Dr. William Cotter during some of that time, and he
was her direct line supervisor in 2019.
In July 2019, Dr. Abutalib filed an EEO complaint
against Dr. Cotter and the VHA, complaining of a hostile
work environment and unprofessional conduct by Dr. Cotter. 1 That complaint was initially settled in August 2019
in an agreement that, according to Dr. Abutalib, included
a salary adjustment. App. 204. Dr. Abutalib states that
when the salary adjustment was not forthcoming, she continued to pursue her EEO complaint, claiming retaliation.
1 The record does not contain the text of Dr. Abutalib’s EEO complaint. See Appellant’s Br. at 16. Dr. Abutalib, however, characterizes her EEO complaint as having
been “against Dr. Cotter and the VHA relating to unprofessional conduct and a hostile work environment.” Id. at 3.
That characterization is consistent with Dr. Abutalib’s
statements to the Office of Special Counsel, see App. 201,
and her response to an order to show cause issued by the
Board’s administrative judge, App. 204.
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ABUTALIB v. MSPB 3
Id. In January 2020, her complaint was settled with an
agreement having four components: (1) “Complete biannual pay review for 2019 and retroactively pay from August
2019 to present if warranted”; (2) “Investigate why physician pay is not equal and take action if warranted to ensure
standardization”; (3) “Investigate distribution of residency
interviews between all GEC providers and ensure a standardized process”; and (4) “Investigate how residents are assigned and ensure standardized process to meet American
College of Graduate Medical Education guidelines.” App.
211. 2
During the COVID-19 surge in March 2020, Dr. Abutalib was asked to serve as a hospitalist to oversee acutely
ill patients. In July 2020, her pay status was changed from
Table 1 to Table 2, which allowed for greater future compensation and increased potential pension and retirement
benefits.
At the end of 2021, Dr. Abutalib applied for the position
of chief hospitalist at the Lovell Center. Dr. Cotter managed the hiring process for that position. Dr. Abutalib was
not selected for that position. She contends that the person
who was selected was less qualified than she was and had
no prior experience in the Department of Veterans Affairs
(“DVA”). App. 203.
In March 2022, the VHA reassigned Dr. Abutalib to her
former position in the GEC and reinstated her pay status
to Table 1, which was her pay status prior to her temporary
assignment during COVID-19 as a hospitalist.
2 A copy of what purports to be the January 2020 settlement agreement, which was attached to one of Dr. Abutalib’s submissions to the Board, is the only document in
the record from the 2019–2020 EEO proceedings. App.
211.
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4 ABUTALIB v. MSPB
On June 27, 2022, Dr. Abutalib filed a whistleblower
complaint with the Office of Special Counsel (“OSC”). 3 Two
days later, she filed an appeal with the Board in which she
challenged what she described as a “reduction in grade or
pay” she had experienced in March 2022. App. 22–27. The
administrative judge who was assigned to the case ordered
Dr. Abutalib to file evidence and argument showing that
her appeal was timely and was within the Board’s jurisdiction. App. 49–58. The administrative judge pointed out
that if Dr. Abutalib was appointed as a VHA physician under chapter 74 of title 38, the Board would lack jurisdiction
over her adverse agency action claim of a reduction in
grade or pay. App. 51.
Dr. Abutalib responded to the order regarding the
timeliness of her appeal, explaining that she had been
asked to continue her duties as a hospitalist until May 31,
2022, and that she believed she could not appeal “when the
duties had not been reassigned.” App. 61. She did not respond to the administrative judge’s order questioning
whether the Board had jurisdiction over her adverse
agency action appeal in light of her status as a VHA physician.
In July 2022, the OSC advised Dr. Abutalib that it
would not be referring her case for further investigation
and was closing the file on her allegations. App. 205–06.
In a further order to show cause entered in September
2022, the administrative judge stated that the Board “may
3 The record does not contain a copy of the whistleblower complaint that Dr. Abutalib filed with the OSC.
The substance of the complaint can be inferred, however,
from Dr. Abutalib’s response to the show cause order in
which she lists what she refers to as the “disclosures” she
made to the OSC, App. 203–05, and the July 13, 2022 letter
to Dr. Abutalib from the OSC, App. 206–08.
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ABUTALIB v. MSPB 5
not have jurisdiction over the appellant’s challenge of the
agency’s actions regarding her pay,” but noted that Dr.
Abutalib had alleged that she had filed a complaint with
the OSC asserting an “abuse of authority.” App. 191. For
that reason, the administrative judge advised Dr. Abutalib
that her claims may be actionable as an Individual Right
of Action (“IRA”) appeal under 5 U.S.C. § 1221. To pursue
such an IRA appeal, the administrative judge wrote,
Dr. Abutalib would have to “establish the Board’s jurisdiction over any whistleblowing or other protected activity.”
App. 191.
The administrative judge explained that to establish
Board jurisdiction, Dr. Abutalib would be required to
“make nonfrivolous allegations that: (1) she engaged in
whistleblowing activity by making a protected disclosure,
or engaged in other protected activity . . .; and (2) the disclosure or activity was a contributing factor in the agency’s
decision to take or fail to take one of the personnel actions
listed at 5 U.S.C. § 2302(a).” App. 191–92. The administrative judge apprised Dr. Abutalib that in addition to prohibiting an agency from taking or failing to take a
personnel action against an employee for whistleblowing,
as defined in
5 U.S.C. § 2302(b)(8), section 2308(b)(9) of the
statute prohibits an agency from taking or failing to take a
personnel action in retaliation for an employee’s exercise of
any appeal, complaint, or grievance right with regard to
remedying a violation of section 2302(b)(8). App. 193. The
administrative judge further advised Dr. Abutalib that if
she chose to pursue an IRA appeal, she would have to file
a statement, accompanied by evidence, listing her protected disclosures or activities and explaining why she believed those disclosures or activities were contributing
factors with regard to the actions taken against her. App.
194.
In her response to the September 2022 order to show
cause, Dr. Abutalib identified five “disclosures” that she
made to the OSC. App. 203–05.
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6 ABUTALIB v. MSPB
First, she identified the failure to hire her for the chief
hospitalist position and alluded to the reduction in her pay
status that she had experienced. She added that she had
been informed that the person who was hired for the position was a friend of one of the hiring officials.
Second, again with respect to the hiring of the chief
hospitalist, she stated that she regarded hiring a friend as
the chief hospitalist to be a form of nepotism.
Third, she stated that Dr. Cotter had denied her a biannual pay raise and had reduced her pay status (the subject of her adverse action appeal to the Board).
Fourth, she alleged that VHA management had
changed her duties, her supervisor, and her job description
without formal notice to her.
Fifth, she asserted that she asked the OSC to review
Dr. Cotter’s pay, because she believed Dr. Cotter was being
compensated as a “table 2 tier 2 employee,” when he was
eligible only for a “table 1 and tier 2 salary.” 4 App. 204.
As part of her response to the order to show cause,
Dr. Abutalib submitted various documents relating to her
allegations about her alleged demotion and reduction in
pay. App. 214–25. In addition, she submitted the text of
what she identified as the January 2020 agreement settling her EEO complaint against the agency. App. 211.
In its response, the DVA explained that Dr. Abutalib’s
pay status was upgraded from Table 1 to Table 2 in March
2020 to compensate her for being assigned as a hospitalist
during the pandemic, covering inpatient services and designated COVID units. App. 230. In March 2022, when she
was reassigned to the GEC, her pay status was adjusted
4 Dr. Abutalib also suggested that she objected to her
reassignment to the GEC, although she did not identify
that allegation as a separate disclosure. See App. 204–05.
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ABUTALIB v. MSPB 7
from Table 2 back to Table 1, which was the appropriate
pay table for her position in the GEC. App. 231. The DVA
asserted that there was no change in her salary at that
time. Id.
The DVA also pointed out that Dr. Abutalib’s complaint
appeared to be that the various adverse actions to which
she had been subjected were acts of retaliation for the EEO
complaint she filed in 2019. The DVA argued that retaliation for EEO activities does not fall within the Board’s jurisdiction. App. 235–36.
In her reply to the DVA’s filing, Dr. Abutalib contended
that the Board had jurisdiction over her case because the
various actions by Dr. Cotter were “an abuse of authority
by . . . Dr. Cotter,” and that the action taken against her
“falls under reprisal of the EEO complain[t] from 2019
against Dr. Cotter.” App. 243. In addition, she continued
to complain that Dr. Cotter was overcompensated. App.
245.
On October 15, 2022, the administrative judge issued
an initial decision dismissing Dr. Abutalib’s appeal for lack
of jurisdiction, which became the final decision of the
Board. App. 1–17. The administrative judge first dismissed Dr. Abutalib’s adverse action appeal on the ground
that medical professionals occupying her position within
the VHA may not appeal to the Board under chapter 75 of
title 5 of the U.S. Code for adverse agency actions covered
by that chapter. App. 5–6.
The administrative judge also dismissed Dr. Abutalib’s
IRA appeal, holding that she had “failed to nonfrivolously
allege that she engaged in whistleblowing or other protected activity.” App. 8. The administrative judge noted
that before the OSC, Dr. Abutalib had raised her claims
regarding the changes in her pay table and duties, the reduction in her educational time allowance, the failure to
interview her or select her for the chief hospitalist position,
the selection of a friend of the hiring official as the chief
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8 ABUTALIB v. MSPB
hospitalist, and the inappropriate compensation for the
chief medical examiner at her facility. Id. The administrative judge found, however, that the thrust of Dr. Abutalib’s
allegations was that the DVA had engaged in those actions
against her in reprisal for her July 2019 EEO complaint
and for discriminatory reasons.
Id.
The administrative judge explained that “the filing of
an EEO discrimination complaint does not constitute whistleblowing or other protected activity for purposes of establishing Board jurisdiction in an IRA appeal.” App. 8–9. In
particular, the administrative judge held that “complaints
of discrimination and reprisal in violation of Title VII do
not constitute protected disclosures of a violation of law,
rule, or regulation because they pertain to matters of discrimination covered by 5 U.S.C. § 2302(b)(1) and are actionable through other administrative mechanisms, such as
the EEO process.” App. 9. The administrative judge also
noted that Dr. Abutalib “[did] not contend that her EEO
protected activity concerned remedying a violation of section 2302(b)(8).”
Id.
Dr. Abutalib timely filed an appeal to this court.
II
The IRA statute provides that a federal employee may
seek corrective action from the Board “with respect to any
personnel action taken, or proposed to be taken, against
such employee . . . as a result of a prohibited personnel
practice described in section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D).” 5 U.S.C. § 1221(a). Section 2302(b)(8) prohibits taking or failing to take any personnel action because of certain whistleblowing
disclosures: specifically, any disclosure of information that
the employee “reasonably believes 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.” Section 2302(b)(9)(A)(i) prohibits taking or failing
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ABUTALIB v. MSPB 9
to take any personnel action because of an employee’s “exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation . . . with regard to remedying a violation of [section 2302(b)(8)].”
The Board, however, lacks jurisdiction when the employee seeks corrective action for a prohibited personnel
practice described in section 2302(b)(9)(A)(ii), which concerns “the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation . . . other than
with regard to remedying a violation of [section
2302(b)(8)].” See Young v. Merit Sys. Prot. Bd., 961 F.3d
1323, 1329 (Fed. Cir. 2020). Retaliatory personnel actions
against an employee who filed a complaint that did not
seek to remedy a violation of section 2302(b)(8) are thus
“remediable through different mechanisms, and not by an
IRA appeal to the Board.”
Id.
On appeal, Dr. Abutalib contends that the Board has
jurisdiction over her claims because the settlement agreement for her 2019 EEO complaint constituted evidence
that “her EEO activity included whistleblower allegations
sufficient to establish jurisdiction under § 2302(b)(9).” Appellant’s Br. at 13–14. According to Dr. Abutalib, the settlement agreement establishes that she “necessarily
alleged that VHA practice violated ‘a law, rule, or regulation’ or constituted ‘gross management, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety’” during her EEO activity.
Id. at 17. In other words, Dr. Abutalib argues that the
Board has jurisdiction because the VHA retaliated against
her for filing a complaint seeking to remedy a violation of
5 U.S.C. § 2302(8), which in turn violated section
2302(b)(9)(A)(i).
There are two problems with that argument. The first
is that Dr. Abutalib never made that argument to the administrative judge. Although the settlement agreement
was included among a variety of papers Dr. Abutalib
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10 ABUTALIB v. MSPB
submitted in response to the administrative judge’s order
to show cause, she did not contend that the settlement
agreement constituted, or was evidence of, whistleblowing
disclosures made during her EEO activity, sufficient to establish jurisdiction under either section 2302(b)(8) or section 2302(b)(9)(A)(i).
Dr. Abutalib argued before the administrative judge
that the VHA and Dr. Cotter retaliated against her because
of her EEO complaint, but she did not allege “that her EEO
protected activity concerned remedying an alleged violation of section 2302(b)(8).” App. 9. As explained below, the
theory that Dr. Abutalib presented to the administrative
judge cannot support Board jurisdiction. A claim of retaliation for filing an EEO complaint that does no more than
allege Title VII violations is not within the Board’s jurisdiction. See Young, 961 F.3d at 1329 (“Allegations of retaliation for exercising a Title VII right, however, do not fall
within the scope of section 2302(b)(8) . . . and are therefore
not proper subjects for inclusion in an IRA appeal on that
ground.”); Edwards v. Dep’t of Labor,
2022 MSPB 9,
2022
WL 1438663, at *3–5 (MSPB May 5, 2022), aff’d, No. 2022-
1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023).
Because the theory Dr. Abutalib pressed before the administrative judge failed to state a claim within the Board’s
jurisdiction, she has refashioned her argument on appeal.
She now contends that the EEO settlement agreement is
evidence that her claims of EEO violations constituted
whistleblowing disclosures under section 2302(b)(8)(A).
Not having made that argument before the administrative
judge, she cannot make it now, for the first time, before this
court. 5
5 To excuse her failure to raise before the administrative judge the argument she makes before this court,
Dr. Abutalib contends that the administrative judge
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ABUTALIB v. MSPB 11
The second problem with Dr. Abutalib’s argument is
that the matters addressed in the settlement agreement
(from which she asks the court to infer the substance of
whistleblowing disclosures made in her EEO activity) were
not the subjects of her complaint to the OSC. She therefore
failed to exhaust her administrative remedies before the
OSC with respect to those purported disclosures, which is
a jurisdictional prerequisite for filing an IRA appeal with
the Board. See Smolinski v. Merit Sys. Prot. Bd., 23 F.4th
1345, 1353 (Fed. Cir. 2022); Young,
961 F.3d at 1330; Willis
v. Dep’t of Agric.,
141 F.3d 1139, 1144 (Fed. Cir. 1998); Ellison v. Merit Sys. Prot. Bd.,
7 F.3d 1031, 1037 (Fed. Cir.
1993).
should have explained the jurisdictional requirements of
an IRA appeal in more detail than was done in the order to
show cause. Appellant’s Br. 19–20. In particular, Dr. Abutalib faults the Board for “fail[ing] to explain that documents and facts underlying an EEO activity could help
provide the basis of jurisdiction.” Id. at 20. There is no
merit to that contention. The order to show cause suggested to Dr. Abutalib that she might wish to pursue an
IRA appeal, even though the appeal she filed with the
Board was a chapter 75 appeal from adverse agency actions. See App. 191. The administrative judge then provided a detailed three-page description of what Dr.
Abutalib would be required to nonfrivolously allege that
she made a protected whistleblowing disclosure or otherwise engaged in a protected activity, such as by filing a
complaint with regard to remedying a violation of section
2302(b)(8). We regard that description as fully adequate to
satisfy the Board’s obligation to describe the requirements
for establishing jurisdiction, even when the claimant is proceeding pro se, as Dr. Abutalib was in the proceedings before the administrative judge.
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12 ABUTALIB v. MSPB
Although the settlement agreement does not set forth
disclosures as such, it is inferable that Dr. Abutalib was
concerned with equal pay among physicians, the distribution of residency interviews, and the use of standardized
procedures in assigning residents to satisfy guidelines of
the American College of Graduate Medical Education. See
App. 211. Before the OSC, however, Dr. Abutalib alleged
that she was not interviewed for, or hired for, the position
of chief hospitalist; that the position had gone to a less
qualified candidate who was a friend of one of the hiring
officials; that she had not received a pay increase that she
was due; that management had changed her duties and her
job description without notice and had reduced her educational time allowance without explanation; and that
Dr. Cotter was being overpaid. See App. 203–04.
The only statement in the settlement agreement that
relates in any way to Dr. Abutalib’s OSC complaint was the
agreement to “[i]nvestigate why physician pay is not
equal.” App. 211. But Dr. Abutalib does not contend in her
brief that the complaint about Dr. Cotter’s pay that she
made to the OSC was connected to an earlier whistleblowing disclosure about unequal physician pay. In any event,
the reference to unequal physician pay in the settlement
agreement is too general to constitute a whistleblowing disclosure, even assuming the terms of the settlement agreement could be regarded as evidence of disclosures at all.
See Young, 961 F.3d at 1328 (“A party cannot establish jurisdiction through general assertions but must provide
substantive details.”); Johnston v. Merit Sys. Prot. Bd.,
518
F.3d 905, 910 (Fed. Cir. 2008); Ellison,
7 F.3d at 1036.
With regard to Dr. Abutalib’s allegation that Dr. Cotter
was being overpaid, the OSC’s letter responding to
Dr. Abutalib’s allegations stated that the OSC “lacks evidence that management officials have violated a law, rule,
or regulation in their compensation of [Dr. Cotter].” App.
208. Dr. Abutalib did not offer any such evidence before
the Board, or any explanation for why she reasonably
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ABUTALIB v. MSPB 13
believed Dr. Cotter was being overpaid. More to the point,
the alleged disclosure for which she claimed retaliation
would have to be the very general disclosure inferably
made by Dr. Abutalib during the EEO proceedings that
“physician pay is not equal,” App. 211, not the more specific
complaint about Dr. Cotter that Dr. Abutalib made for the
first time to the OSC in June 2022. And, as noted, that
earlier disclosure lacked the specificity necessary to qualify
as a whistleblowing disclosure.
We do not suggest that a disclosure that would otherwise qualify as whistleblowing does not so qualify if it is
made in the context of proceedings on an EEO complaint.
The fact that the Board does not have jurisdiction over retaliation for EEO activities does not mean that the Board
lacks jurisdiction over claims of retaliation for true whistleblowing disclosures just because those disclosures may
have been made in the course of EEO proceedings. In this
case, however, Dr. Abutalib failed to make a nonfrivolous
showing that she made a disclosure qualifying as a whistleblowing disclosure for which the VHA retaliated against
her. Nor has she shown that she exhausted her administrative remedies with respect to the disclosures on which
she now relies. We therefore uphold the administrative
judge’s order dismissing her appeal.
AFFIRMED
COSTS
No costs.
