Smolinski v. Merit Systems Protection Board, No. 21-1751 (Fed. Cir. 2022)
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Dr. Smolinski is a Supervisory Physician in the Traumatic Brain Injury Clinic of the Landstuhl Regional Medical Center (LRMC), an Army hospital in Germany. He was a Lieutenant Colonel in the Army and occasionally saw patients at LRMC as a visiting provider. The Army purportedly changed the salary Smolinski was offered and delayed his move to a new position. Smolinski’s subsequent complaint under the Whistleblower Protection Act, 5 U.S.C. 1221, alleged those actions were retaliation for his wife’s 2017 patient complaint, his 2018 testimony in an investigation into an officer, and his 2019 Office of Special Counsel (OSC) complaints.
The Merit Systems Protection Board dismissed his complaint, citing lack of jurisdiction because Smolinski failed to establish that those activities were protected disclosures. The Federal Circuit affirmed in part. Smolinski failed to allege sufficient factual matter to state a plausible claim that his wife’s patient complaint was a protected disclosure, and did not exhaust his administrative remedies regarding his claim of retaliation for his OSC complaints. With respect to Smolinski’s claims alleging retaliation for his 2018 testimony, however, the court reversed the dismissal and remanded for the Board to consider those claims on the merits.
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