Case: 21-1751 Document: 33 Page: 1 Filed: 01/19/2022
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE SMOLINSKI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1751
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-20-0814-W-1.
______________________
Decided: January 19, 2022
______________________
STEPHANIE RAPP-TULLY, Tully Rinckey PLLC, Washington, DC, argued for petitioner. Also represented by
MICHAEL WILSON MACOMBER, Albany, NY.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, DYK and REYNA, Circuit
Judges.
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2 SMOLINSKI v. MSPB
MOORE, Chief Judge.
Dr. George Smolinski petitions for review of a Merit
Systems Protection Board decision dismissing his whistleblower retaliation claims against the United States Army
for lack of jurisdiction. Smolinski v. Dep’t of Army, No. DC-
1221-20-0814-W-1, 2020 WL 7496634 (Dec. 14, 2020)
(Board Decision). Because the Board correctly dismissed
some of Dr. Smolinski’s claims but erred in dismissing others, we affirm-in-part, reverse-in-part, and remand.
BACKGROUND
Dr. Smolinski is a Supervisory Physician in the Traumatic Brain Injury Clinic of the Landstuhl Regional Medical Center (LRMC), an Army hospital in Germany. At the
time of the events in question, he served as a Lieutenant
Colonel in the Army and occasionally saw patients at
LRMC as a visiting provider. J.A. 210. Allegedly, the
Army first offered Dr. Smolinski the Supervisory Physician
role in July 2018, put a hold on hiring him in August 2018,
withdrew its offer in November 2018, reposted the job
opening later that month, rejected Dr. Smolinski’s recycled
application shortly thereafter, reposted the opening again
in August 2019, offered him the job again in November
2019, went silent for three months while it considered his
request for a higher salary, and then reduced its offer by
$44,349. Around the time of these alleged events, Dr. Smolinski purportedly made protected disclosures.
In December 2017, Dr. Smolinski’s wife received treatment in the LRMC emergency room that was allegedly
“substandard.” J.A. 58. She submitted a patient complaint, which made its way up the chain of command to
Colonel Timothy Hudson, the hospital’s commander. Id.;
see also J.A. 122.
Three days later, the Smolinskis attended the Wiesbaden Health Clinic Holiday Ball and encountered Col. Hudson. J.A. 58. According to Dr. Smolinski, Col. Hudson was
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SMOLINSKI v. MSPB 3
“visibly intoxicated, attempted to intimidate Dr. Smolinski
as a lower-ranking officer, and . . . made Mrs. Smolinski
extremely uncomfortable by whispering in her ear and
touching her to the point where she remarked that if she
had been alone . . . she thought he would have assaulted
her.” Id. Dr. Smolinski filed a complaint regarding this
behavior, and the Army launched an internal investigation
under Army Regulation (AR) 15-6. J.A. 67. During the investigation, Col. Hudson was temporarily relieved of his
duties. See
id.
In April 2018, as part of the AR 15-6 investigation, Mrs.
and Dr. Smolinski testified against Col. Hudson. Id. Dr.
Smolinski testified that Col. Hudson “walked up behind my
wife and whispered some things to her,” then looked at Dr.
Smolinski, pointed, and said, “I hate that guy. . . . I hate
him.” J.A. 211. He also testified that his wife “seemed uncomfortable” and “related to [him] later that she felt very
uncomfortable and believed that if she and COL Hudson
had been alone[,] he would have crossed a line.”
Id. For
her part, Mrs. Smolinski testified:
I felt a hand on the small of my back, and heard a
voice in my ear. It was COL Hudson. He was
drunk. He was very close, whispered to me,
pointed to my husband, and said: “Did he tie his
own bowtie?” I said yes, he dresses himself. Then
COL Hudson went on a tirade . . . that my husband
was making him look bad – he has a beautiful wife,
he can tie his own tie. I kept moving away, and he
kept getting closer. It ended with him pointing
across the group, at my husband, . . . and shouting
“I hate this guy.”
J.A. 217. She further testified that “[h]is actions toward
me felt predatory, and I felt like if he had been given the
opportunity, it could have gone that way.” J.A. 216.
In June 2018, the Army concluded its investigation and
reinstated Col. Hudson as hospital commander. J.A. 67.
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4 SMOLINSKI v. MSPB
Allegedly, Mrs. Smolinski was then barred from several
volunteering activities, including her work as a community
liaison with a patient feedback committee. J.A. 58, 218.
She complained about this to Colonel Claude Burnett, Deputy Commanding Officer, alleging that “she had been subjected to retaliation for giving a sworn statement in the
[AR] 15-6 investigation, and that she was fearful that Dr.
Smolinski would experience similar retaliation.” J.A. 58–
59. Col. Burnett assured Mrs. Smolinski that no one knew
who had testified. Id. But now Col. Burnett knew.
In July 2018, Dr. Smolinski applied for his current position as a Supervisory Physician in LRMC’s Traumatic
Brain Injury (TBI) Clinic. J.A. 59, 194. The Army deemed
Dr. Smolinski qualified for the position and extended him
a tentative job offer. J.A. 59, 67.
In August 2018, Col. Burnett sent a memorandum
launching an investigation into undisclosed “ethical concerns regarding the LRMC TBI Clinic Hiring Action for a
Supervisory Physician.” J.A. 191. While the investigation
was pending, the Army placed a hold on hiring Dr. Smolinski. J.A. 59.
On November 1, 2018, Col. Burnett notified Dr. Smolinski that the Army was withdrawing its tentative job offer. J.A. 194. He cryptically reasoned that “the subject
hiring action was re-evaluated by the Command and subsequently cancelled.” Id.
Later that month, the Army allegedly reposted the
same position on its website, and Dr. Smolinski applied using the same resume and credentials. J.A. 59. On November 26, however, the Army rejected Dr. Smolinski’s
application, claiming that he was not qualified for the position. Id.
In May 2019, Dr. Smolinski filed a complaint with the
Office of Special Counsel (OSC). He alleged that the
Army’s August 2018 investigation, its withdrawal of the
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SMOLINSKI v. MSPB 5
tentative job offer, and its non-selection of Dr. Smolinski
after reposting the job opening were reprisals for his wife’s
December 2017 patient complaint and for the Smolinskis’
April 2018 testimony against Col. Hudson in the AR 15-6
investigation. J.A. 58–60.
In August 2019, Dr. Smolinski again applied for the
same Supervisory Physician position in LRMC’s TBI
Clinic. J.A. 64. By that time, Col. Hudson had left his position as hospital commander. J.A. 67. The Army then extended Dr. Smolinski a “final job offer.” J.A. 173. The offer
letter stated, “You will receive a total annual salary of
$265,953.” Id. Dr. Smolinski counteroffered, asking for a
salary of $275,000 and a 15% signing bonus. J.A. 150–52.
Then there was silence. Dr. Smolinski’s intended start
date of December 9, 2019, came and went without a decision regarding his counteroffer. See J.A. 173. A month
later, Michael Kocal from Human Resources explained he
was “still waiting to get word from LRMC management on
their decision.” J.A. 154–55. On January 20, Dr. Smolinski
accepted the Army’s original offer via email to Mr. Pfiffner
and Mr. Kocal. J.A. 172. Mr. Pfiffner responded that he
was still “waiting on further instructions from LRMC before [he could] proceed any further.” J.A. 169.
Then, in February 2020, the Army extended Dr. Smolinski a new job offer at a lower salary: $221,604. J.A. 188.
Mr. Pfiffner explained that the original offer was “an administrative error.” Id. On February 23, 2020, Dr. Smolinski accepted the lower offer. J.A. 185–86.
In March 2020, Dr. Smolinski amended his complaint
with OSC. The amended complaint recounted the developments since his original complaint. J.A. 63–66. It did not,
however, allege that the Army had retaliated against him
for filing his original or amended complaint.
On June 5, 2020, OSC informed Dr. Smolinski that it
had reviewed his complaints, conducted an investigation,
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6 SMOLINSKI v. MSPB
and determined not to take any further action. J.A. 67–68.
It reasoned that the investigation did not uncover evidence
of retaliatory motive and that “[t]he Army provided clear
and convincing evidence that it would have made the same
decision[s], regardless of any protected disclosures or activity.” J.A. 68. OSC did not explain what that evidence was
or how it justified the Army’s decisions.
Dr. Smolinski appealed to the Board under the Whistleblower Protection Act, 5 U.S.C. § 1221. Questioning the
Board’s jurisdiction, an administrative judge, sua sponte,
ordered Dr. Smolinski to file a statement listing his alleged
protected disclosures. J.A. 90, 96. Dr. Smolinski responded by identifying four activities: (1) his wife’s December 2017 patient complaint, (2) his April 2018 testimony in
the AR 15-6 investigation into Col. Hudson, (3) his original
OSC complaint, and (4) his amended OSC complaint. J.A.
111–14. The Army then moved to dismiss, arguing the
Board lacked jurisdiction because Dr. Smolinski failed to
establish that those activities were protected disclosures.
J.A. 199–206. The administrative judge dismissed the appeal for lack of jurisdiction. Board Decision,
2020 WL
7496634. Dr. Smolinski appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review de novo whether the Board has jurisdiction
over an appeal. Hessami v. Merit Sys. Prot. Bd., 979 F.3d
1362, 1367 (Fed. Cir. 2020) (citing Forest v. Merit Sys. Prot.
Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995)). The Board has jurisdiction if an appellant has exhausted his remedies before OSC and makes nonfrivolous allegations that (1) he
made a protected disclosure under
5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), or (b)(9)(B)–(D), and (2) such disclosure was a
contributing factor in an agency’s decision to take or abstain from a personnel action.
Id. (first citing
5 U.S.C.
§ 1221; then citing Yunus v. Dep’t of Veterans Affs.,
242
F.3d 1367, 1371–72 (Fed. Cir. 2001)). An allegation is
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SMOLINSKI v. MSPB 7
nonfrivolous if the appellant “alleged sufficient factual
matter, accepted as true, to state a claim that is plausible
on its face.”
Id. at 1369.
I
Dr. Smolinski first argues the Board erred in dismissing his claim that the Army retaliated against him because
of his wife’s December 2017 patient complaint. Specifically, he argues her complaint was a protected disclosure
because it showed “a specific threat to public health and
safety” and “gross mismanagement.” Appellant’s Br. 5, 18.
We do not agree.
Relevant to this claim, an agency may not retaliate
against an employee for disclosing information that he
“reasonably believes evidences . . . gross mismanagement
. . . or a substantial and specific danger to public health or
safety.” 5 U.S.C. § 2302(b)(8)(ii). A belief is reasonable if
a disinterested observer with knowledge of the essential
facts could reach the same conclusion. Lachance v. White,
174 F.3d 1378, 1381 (Fed. Cir. 1999).
At no point in this case has Dr. Smolinski alleged sufficient factual matter to state a plausible claim that his
wife’s December 2017 complaint was a protected disclosure. 1 Before OSC, he made only vague and conclusory allegations regarding that complaint:
In December 2017, Dr. Smolinski’s wife received
treatment at the LRMC Emergency Room which
was substandard. She submitted a patient
1 We do not reach the government’s argument that
Dr. Smolinski lacks standing to assert a claim based on his
wife’s alleged disclosure. Similarly, we need not determine
whether the complaint was made jointly by Dr. Smolinski
and his wife, as Dr. Smolinski argues on appeal, or by his
wife alone.
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8 SMOLINSKI v. MSPB
complaint for which the hospital admitted its staff
was in error; this complaint was then elevated to
the hospital commander, COL Timothy Hudson.
J.A. 58 (original complaint); J.A. 63 (amended complaint).
He did not provide OSC the underlying complaint or any
further details. This barebones allegation does not plausibly show that Mrs. Smolinski’s complaint evidenced “gross
mismanagement” or a “substantial and specific danger to
public health or safety.” See 5 U.S.C. § 2302(b)(8)(ii).
Before the Board, Dr. Smolinski did not buttress his allegations in any meaningful way. He merely clarified to
whom his wife complained and added that the hospital’s
Chief Medical Officer, Colonel Richard Kynion, “admitted
the staff was in error.” J.A. 111; see also J.A. 122. None of
that plausibly shows gross mismanagement or a danger to
public safety. Dr. Smolinski further averred that he and
his wife “reasonably believed” the hospital was “endanger[ing] public health and safety,” J.A. 111, but again with
no factual allegations detailing the nature of the danger.
Dr. Smolinski does not explain how Mrs. Smolinski’s treatment was allegedly substandard or risked public health.
All told, Dr. Smolinski did not state a plausible claim that
his wife’s complaint was a protected disclosure.
Because Dr. Smolinski failed to state a plausible claim
based on his wife’s December 2017 complaint, the Board
correctly held it lacked jurisdiction over that claim.
II
Dr. Smolinski next argues that the Board erred in dismissing his claims that the Army retaliated against him
based on his April 2018 testimony against Col. Hudson. He
contends his testimony was a protected disclosure under
both 5 U.S.C. § 2302(b)(8) and § 2302(b)(9)(C). The government defends the Board’s dismissal of the § 2302(b)(8)
claim, but it agrees the Board erred in dismissing Dr.
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SMOLINSKI v. MSPB 9
Smolinski’s claim under § 2302(b)(9)(C). We conclude that
the Board erred on both accounts.
A
In pertinent part, § 2302(b)(8) protects an employee for
“any disclosure of information [he] reasonably believes evidences (i) any violation of any law, rule, or regulation, or
(ii) . . . an abuse of authority.” Id. § 2302(b)(8)(A). As mentioned, a belief is reasonable if a disinterested observer
with knowledge of the essential facts could reach the same
conclusion. Lachance, 174 F.3d at 1381. The Board defines
abuse of authority as, for example, “an arbitrary or capricious exercise of power by a federal official or employee that
adversely affects the rights of any person or that results in
personal gain or advantage to himself or to preferred other
persons.” Wheeler v. Dep’t of Veterans Affs.,
88 M.S.P.R.
236, 241 (2001) (internal quotation marks omitted) (citing
Ramos v. Dep’t of Treasury,
72 M.S.P.R. 235, 241 (1996)).
Dr. Smolinski alleged sufficient factual matter to state
a plausible claim under § 2302(b)(8). He averred that his
April 2018 testimony disclosed how Col. Hudson’s alleged
conduct at the Military Ball was an abuse of authority and
violated laws, rules, or regulations. J.A. 41; J.A. 59–60.
Indeed, Dr. Smolinski testified that Col. Hudson was visibly intoxicated and repeatedly declared his hatred for Dr.
Smolinski. J.A. 211. He also testified that Col. Hudson
walked up behind Mrs. Smolinski, whispered in her ear,
made her feel “very uncomfortable,” and led her to “believe[] that if she and COL Hudson had been alone he
would have crossed a line.” Id. Dr. Smolinski further testified that Col. Hudson’s position as commander of the hospital put him “in a difficult situation” because he was
“uncertain what to do given the power dynamics.” Id. Accepting those allegations as true, a disinterested observer
could believe that Col. Hudson bullied Dr. Smolinski and
sexually harassed Mrs. Smolinski. This amounts to a nonfrivolous allegation that Dr. Smolinski made a protected
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10 SMOLINSKI v. MSPB
disclosure. Both sexual harassment and bullying by a superior officer under the circumstances alleged would be
abuses of authority. It was therefore error for the Board to
dismiss this claim.
It is unclear whether the government agrees conduct
such as that alleged here would be an abuse of authority
under the Board’s exemplary definition in Wheeler. Compare Appellee’s Br. 19 (disputing that Col. Hudson’s alleged
conduct “adversely affected the rights of any person”) with
Oral Arg. at 24:25–29 (admitting sexual harassment “affect[s] the rights of others”), 25:59–26:56 (not answering
question whether Col. Hudson’s alleged bullying at a work
function affected Dr. Smolinski’s rights), available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21
-1751_12092021.mp3. Regardless, we conclude that the
conduct alleged would constitute an abuse of authority.
Although § 2302 does not define abuse of authority, related whistleblower-protection statutes do. The statute
that extends whistleblower protections to employees of defense contractors defines it, in pertinent part, as “[a]n arbitrary and capricious exercise of authority that is
inconsistent with the mission of the Department of Defense.” 10 U.S.C. § 2409(g)(6)(1). Likewise, the statute
that extends whistleblower protections to employees of
other federal contractors defines it as “an arbitrary and capricious exercise of authority that is inconsistent with the
mission of the executive agency concerned.”
41 U.S.C.
§ 4712(g)(1). Applying those broader definitions to
5 U.S.C.
§ 2302, Dr. Smolinski’s allegations evidence an abuse of authority. For whatever the Army’s mission is, Col. Hudson’s
alleged bullying and sexual harassment were inconsistent
with it.
That alleged conduct was, moreover, a violation of
laws, rules, or regulations. Army regulations prohibit
“[i]ntimidating, teasing, name calling, mockery, threats of
violence, harassment, [or] taunting.” Army Reg. 600–20,
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SMOLINSKI v. MSPB 11
Personnel-General: Army Command Policy, para. 4–19a(2)
(24 July 2020). And statute prohibits “[a]ny deliberate or
repeated unwelcome verbal comment or gesture of a sexual
nature by any member of the armed forces or civilian employee of the Department of Defense.” 10 U.S.C. 1561(e)(3).
A disinterested observer could believe Col. Hudson’s alleged conduct violated both these provisions.
The government argues we cannot consider the content
of Dr. Smolinski’s testimony, but rather must constrain our
analysis to the four corners of his OSC complaints. Oral
Arg. at 29:07–25, 30:28–53. The government cites Hessami, but that case merely held that the Board must accept
as true a complainant’s well-pleaded factual allegations in
assessing jurisdiction notwithstanding agency evidence
that undermines those allegations. See 979 F.3d at 1371.
It did not hold that we must turn a blind eye to evidence
specifically referenced in and supporting a complainant’s
allegations, like the April 2018 testimony. See J.A. 59–60,
65. We detect no error in considering this evidence for purposes of determining whether Dr. Smolinski nonfrivolously
alleged that he made a protected disclosure.
The Board erred in holding Dr. Smolinski failed to allege sufficient factual matter to state a plausible claim that
his testimony was protected under § 2302(b)(8). Accordingly, we reverse its dismissal and remand for the Board to
consider that claim on the merits.
B
We next turn to Dr. Smolinski’s § 2302(b)(9)(C) claim.
That section prohibits retaliation for “cooperating with or
disclosing information to [any] component responsible for
internal investigation or review.” The parties agree Dr.
Smolinski alleged sufficient factual matter regarding his
cooperation with the AR 15-6 investigation into Col. Hudson to state a plausible claim under § 2302(b)(9)(C). The
Board never addressed this claim because it believed that
“[e]ngaging in protected activity under section 2302(b)(9) is
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12 SMOLINSKI v. MSPB
not sufficient alone” to establish jurisdiction. Board Decision, 2020 WL 7496634. That belief, however, conflicts
with the statute governing the Board’s jurisdiction, which
allows claims based on §§ 2302(b)(9)(A)(i) and (B)–(D).
5
U.S.C. § 1221(a). We reverse the Board’s dismissal and remand for consideration of this claim on the merits.
III
Dr. Smolinski next argues the Board erred in dismissing his claims of retaliation for his OSC complaints. The
Board did not err. To establish jurisdiction at the Board,
an appellant must show he exhausted his remedies before
OSC. Hessami, 979 F.3d at 1367. Dr. Smolinski never argued to OSC that the Army’s alleged reprisals were because of his OSC complaints. See J.A. 58–61 (original
complaint); J.A. 63–66 (amended complaint). He therefore
failed to exhaust his remedies at OSC. Accordingly, we affirm the Board’s dismissal of these claims.
IV
Lastly, Dr. Smolinski argues we should reassign this
case to a different administrative judge. He cites “the magnitude of the AJ’s errors – dismissing the entirety of Appellant’s appeal in a singlehandedly devastating manner.”
Appellant’s Br. 25. Reassignment is an extraordinary remedy that requires “a showing of ‘a deep-seated favoritism or
antagonism that would make fair judgment impossible.’”
Bieber v. Dep’t of Army, 287 F.3d 1358, 1362 (Fed. Cir.
2002) (quoting Liteky v. United States,
510 U.S. 540, 555
(1994)). We see nothing in the administrative judge’s opinion that suggests any bias, much less “deep-seated favoritism or antagonism.” We therefore deny Dr. Smolinski’s
reassignment request.
CONCLUSION
Because Dr. Smolinski failed to allege sufficient factual
matter to state a plausible claim that his wife’s December
2017 patient complaint was a protected disclosure, and
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SMOLINSKI v. MSPB 13
because Dr. Smolinski did not exhaust his administrative
remedies regarding his claim of retaliation for his OSC
complaints, we affirm the Board’s dismissal of those
claims. With respect to Dr. Smolinski’s claims alleging retaliation for his April 2018 testimony, however, we reverse
the dismissal and remand for the Board to consider those
claims on the merits.
AFFIRMED-IN-PART, REVERSED-IN-PART,
AND REMANDED
COSTS
Costs to Petitioner.
