Background
Dermatologist Ana Maria Abreu Velez applied for more than 60 positions at the Centers for Disease Control and Prevention between 2016 and 2022 but was not selected. She alleged that the nonselections were retaliation for disclosures she made to federal agencies concerning purported statutory violations and government fraud by a group of entities she called a “cartel.”
After proceedings before the Office of Special Counsel, Abreu Velez brought an individual-right-of-action appeal before the Merit Systems Protection Board. On remand from the Board, an administrative judge held a hearing and found that she had not proved her protected activity contributed to the CDC’s hiring decisions. Because the Board lacked a quorum, the administrative judge’s second initial decision became the Board’s final decision.
The Court’s Holding
The Federal Circuit affirmed. Although some of Abreu Velez’s contacts with the Department of Health and Human Services Office of Inspector General qualified as protected activity, substantial evidence supported the finding that she failed to prove the activity was a contributing factor in her nonselections. Three CDC officials involved in hiring testified that they did not know about her whistleblowing, did not alter her applications, and received no instructions to act against her applications. The administrative judge was entitled to credit that testimony.
The court also upheld the Board’s handling of the proceedings. Abreu Velez did not serve discovery requests or object to the administrative judge’s witness ruling, and her allegations that software had been used to block her applications remained speculative. The recusal of a Board member was permitted by regulation, and alleged departures from nonmandatory provisions of the Board’s Judges’ Handbook did not warrant reversal because she showed no substantial prejudice or effect on the outcome.
Key Takeaways
- A whistleblower pursuing an individual-right-of-action appeal must prove that protected activity contributed to the challenged personnel action.
- Testimony that hiring officials lacked knowledge of the protected activity can constitute substantial evidence against causation under the knowledge-and-timing test.
- Because Abreu Velez failed to establish a prima facie case, HHS never had to prove by clear and convincing evidence that it would have made the same hiring decisions absent her protected activity.
Why It Matters
The nonprecedential decision illustrates that proof of protected whistleblowing alone does not establish retaliation. An applicant must connect the protected conduct to the officials responsible for the disputed hiring decisions through evidence of knowledge and contribution, rather than speculation.
It also underscores the importance of preserving procedural objections before the MSPB. Parties who do not serve discovery, challenge witness limitations, or demonstrate prejudice from alleged procedural irregularities face substantial difficulty obtaining appellate relief.