Hessami v. Merit Systems Protection Board, No. 19-2291 (Fed. Cir. 2020)Annotate this Case
Dr. Hessami was the Chief of Pharmacy at a West Virginia VA Medical Center when the first curative therapies for Hepatitis C Virus infection (HCV) entered the market. The Center struggled to provide patients with access to the enormously expensive but life-saving new therapies. The Regional Veteran Integrated Service Network funded and provided treatment guidelines for administration of HCV therapies. Hessami was familiar with HCV treatment guidelines, monitored all purchases of HCV medications, and provided information to the VISN. Hessami repeatedly raised concerns about the prescribing practices of one physician, asserting that treatment decisions were unnecessarily exposing patients to increased risk of adverse drug reactions and side effects, and overspending the Center’s HCV funds. Hessami claims that her comments were met with hostile, derogatory statements. A pharmacy employee accused Hessami of misconduct. Hessami was suspended and later demoted. The Merit Systems Protection Board dismissed her claim that she had been accused of wrongdoing and punished in reprisal for her protected disclosures regarding the agency’s spending.
The Federal Circuit vacated. When determining whether an appellant has non-frivolously alleged that she disclosed information that she reasonably believed evidenced misconduct under the Whistleblower Protection Enhancement Act, 5 U.S.C. 2302(b)(8), the Board’s inquiry should be limited to evaluating whether the appellant has alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. The Board erroneously relied on the testimony of agency witnesses in dismissing Hessami’s appeal.