Case: 19-2291   Document: 46    Page: 1     Filed: 11/09/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                   NEGAR HESSAMI,
                      Petitioner

                           v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2019-2291
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. PH-1221-17-0271-W-2.
                 ______________________

                Decided: November 9, 2020
                 ______________________

     KELLEE BOULAIS KRUSE, The Employment Law Group,
 Washington, DC, argued for petitioner. Also represented
 by ROBERT SCOTT OSWALD.

    JEFFREY GAUGER, Office of General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 argued for respondent. Also represented by KATHERINE
 MICHELLE SMITH, TRISTAN LEAVITT.
                 ______________________

    Before NEWMAN, REYNA, and STOLL, Circuit Judges.
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 2                                             HESSAMI   v. MSPB



 REYNA, Circuit Judge.
     The petitioner, Dr. Negar Hessami, a former Chief of
 Pharmacy for a Department of Veterans Affairs medical
 center, challenges the Merit Systems Protection Board’s
 dismissal of her whistleblower appeal for lack of jurisdic-
 tion. We hold that for purposes of the Board’s jurisdiction
 under the Whistleblower Protection Act (“WPA”), when de-
 termining whether an appellant has non-frivolously al-
 leged that she disclosed information that she reasonably
 believed evidenced misconduct under the statute, the
 Board’s inquiry should be limited to evaluating whether
 the appellant has alleged sufficient factual matter, ac-
 cepted as true, to state a claim that is plausible on its face.
 Because the Board erroneously relied on the testimony of
 agency witnesses in dismissing Dr. Hessami’s appeal for
 lack of jurisdiction, we vacate and remand for further pro-
 ceedings.
                         BACKGROUND
      Between 2012 and 2016, Dr. Hessami served as the
 Chief of Pharmacy at the VA Medical Center in Martins-
 burg, West Virginia (“the Center”). During that time, the
 first curative therapies for Hepatitis C Virus infection
 (“HCV”) entered the market, and the Center grappled with
 the challenge of providing patients with access to the enor-
 mously expensive but life-saving new therapies. The new
 medications were funded through a budget assigned by the
 Regional Veteran Integrated Service Network (“VISN”)
 specifically for HCV patients at the Center. Hessami Affi-
 davit, J.A. 989–94 (“Aff.”), ¶ 4. Along with the budget, the
 regional VISN provided treatment guidelines for admin-
 istration of HCV therapies.

Id. at

¶ 16. 
Dr. Hessami was
 responsible for overseeing the ordering and dispensing of
 the HCV medications at the Center.
 

Id. at

¶ 19. 
As part of
 her role, she became familiar with HCV treatment guide-
 lines, monitored all purchases of HCV medications, and
 provided weekly reports of purchases and relevant
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 HESSAMI   v. MSPB                                          3



 treatment information to the VISN.
 

Id. at

¶¶ 7–11. 
She
 also served as the pharmacy’s point of contact for the re-
 gional VISN, and worked with the Center’s Chief of Staff,
 Jonathan Fierer, and the Chief of Medicine, Deborah Ben-
 nett, to assemble a hepatitis interdisciplinary team (“HIT”
 or “IDT”) that met weekly to coordinate the treatment of
 HCV patients at the facility.
 

Id. at

¶¶ 5–6.
      The first of the curative HCV medications, simeprevir
 and sofosbuvir, were approved by the FDA in 2013. These
 drugs, which were often prescribed together in a regimen
 referred to as “S&S,” were priced at hundreds of dollars per
 pill. According to national guidelines and manufacturing
 prescribing information, the typical length of therapy was
 12 weeks, but patients could be treated for longer periods
 under certain circumstances.
 

Id. at

¶ 11. 
In the fall of
 2014, two new combination therapies for the treatment of
 HCV were approved under the brand names Viekira and
 Harvoni.
 

Id. at

¶ 15. 
The newer drugs were available to
 the Center at a fraction of the cost of S&S. The regional
 VISN pharmacy benefits manager recommended that all
 new patients be started on the new products rather than
 S&S beginning in January 2015.
 

Id. at

¶¶ 37, 40.
                A. Whistleblower Disclosures
     Between November 2014 and February 2015, Dr. Hes-
 sami on multiple occasions raised concerns about the pre-
 scribing practices of Dr. Trent Nichols, M.D., one of the
 physicians at the Center who treated HCV patients. Ac-
 cording to Dr. Hessami, Dr. Nichols did not have any expe-
 rience prescribing HCV drugs to patients before he began
 working at the Center around September of 2014.
 

Id. at

 ¶¶ 17–18. 
Dr. Hessami raised concerns that Dr. Nichols
 was departing from the recommended treatment protocols
 by continuing to prescribe S&S when the guidelines recom-
 mended using the newer therapies, and by prescribing S&S
 to patients for longer than the typical 12-week course.
 

Id. at

¶¶ 20–26, 28–30, 33–34, 38, 42–44. 
According to Dr.
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 Hessami, in multiple meetings, one-on-one discussions,
 and emails, she informed senior members of the clinical
 and financial staff at the VISN and at the Center that Dr.
 Nichols’s treatment decisions were (1) unnecessarily expos-
 ing patients to increased risk of adverse drug reactions and
 side effects, and (2) overspending the Center’s HCV funds.

 Id.
     For example, Dr. 
Hessami alleges that during IDT
 meetings, she directly and publicly confronted Dr. Nichols
 and “asked that [he] at least justify why he was going be-
 yond the length of treatment guidelines.”
 

Id. at

¶¶ 23, 43.
 Following one such meeting, she sent an email, dated Feb-
 ruary 17, 2015, to Dr. Bennett and several others regarding
 Dr. Nichols’s decision to continue prescribing S&S to new
 patients. She explained that the VISN was “adamantly
 asking the facilities to start new patients on Harvoni or
 Viekira,” and was “not funding [the Center] for the patients
 newly started on S&S.” She further explained the financial
 consequences of Dr. Nichols’s decisions:
     The cost of S&S drugs combined is ~$52,000.00 vs.
     for Viekira is ~$8,000.00 and Harvoni is
     ~$14,000.00 per month/per patient.
     Since the beginning of February, Dr. Nichols has
     started 4 patients on the old two drugs (S&S) for
     total cost of almost $208,000.00 that the medical
     center has to absorb since VISN is not reimbursing
     Martinsburg for the old drugs.
     Last Thursday, in our weekly meetings, I brought
     this issue to Dr. Nichols[’s] attention again and yet
     he has started a new patient on S&S on Friday (02-
     13-2015). This is $52,000.00 that we are not going
     to get reimbursed for.
     I would like to humbly ask you to monitor his or-
     dering practices regarding Hep C medications,
     which will compromise the reimbursement funds
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 HESSAMI   v. MSPB                                           5



     and providing an excellent patient care that we all
     strive for.
 J.A. 125. Dr. Bennett responded to the group that when
 Dr. Nichols had previously been asked not to start new pa-
 tients on S&S, he had appeared to understand. She sug-
 gested that one option for addressing the problem was to
 ask Dr. Nichols to provide a written explanation for the
 new S&S prescriptions and another was to simply not fill
 the new prescriptions. She later informed the team that
 she had decided to block S&S prescriptions going forward
 and that any discussions regarding “necessity” would need
 to be discussed with her directly. J.A. 122–23.
     In other emails and meetings, Dr. Hessami voiced more
 general concern that the Center was overspending on HCV
 medication, including that it had spent $9 million of its $13
 million annual budget for HCV medication by January
 2015. J.A. 9, 297–98. After one such meeting during which
 Dr. Hessami raised the issue, Dr. Fierer instructed her not
 to mention the $9 million publicly again. J.A. 10, 977.
     Dr. Hessami alleges that she continued to voice her
 concerns throughout 2015 and that her comments were at
 times met with hostile, derogatory statements by Dr.
 Fierer. Aff. ¶ 29.
                B. Suspension and Demotion
     In late 2015, a pharmacy employee accused Dr. Hes-
 sami of misconduct, and Dr. Hessami was suspended and
 later demoted for charges of conduct unbecoming a super-
 visor. Following her demotion, Dr. Hessami filed a com-
 plaint with the Office of Special Counsel (“OSC”) under the
 WPA alleging that she had been accused of wrongdoing and
 punished as reprisal for her protected disclosures regard-
 ing the agency’s spending on HCV drugs. When OSC de-
 clined to take action, she filed an individual-right-of-action
 (“IRA”) appeal to the Merit Systems Protection Board un-
 der 5 U.S.C. § 1221.
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 6                                          HESSAMI   v. MSPB



     The VA moved to dismiss her appeal for lack of juris-
 diction, asserting that Dr. Hessami had failed to ade-
 quately establish that she had made protected
 whistleblower disclosures pursuant to the Whistleblower
 Protection Enhancement Act (“WPEA”). 1 J.A. 39–42. Be-
 cause the parties had already completed discovery, the
 Agency set forth a statement of facts as part of its motion
 that cited to affidavits and deposition testimony from both
 parties’ witnesses as well as documentary evidence. See
 J.A. 33–38.
      The Board granted the VA’s motion to dismiss. In its
 decision, the Board adopted many of the VA’s proposed
 statements of fact, relying heavily on statements from
 Agency witnesses. In particular, the opinion set forth the
 following representations from Dr. Bennett as “essentially
 undisputed”:
     •   The appellant did not raise with [Dr. Bennett], nor
         was there ever a concern over, patient safety with
         Dr. Nichols’s prescribing practices.
     •   Dr. Nichols’s treatment plans were discussed with
         the HIT, wherein he would always present research
         and documentation to support his treatment ap-
         proach; and the HIT always approved his treatment
         plans and medications chosen.
     •   With respect to length of treatment, only a small
         number of patients were extended beyond the typi-
         cal course, but those cases presented complex



     1   The WPA, effective since 1989, provides the gen-
 eral framework of the whistleblower protection pro-
 cess. The WPEA of 2012 made certain amendments to the
 existing WPA framework regarding, as relevant to this
 case, the scope of protected disclosures and the definition
 of “personnel action.”
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 HESSAMI     v. MSPB                                           7



           clinical issues and Dr. Nichols looked at their clini-
           cal needs based on his long history and experience.
    •      Dr. Nichols monitored the patients’ lab values, and
           all cases were presented, justified by research, and
           approved by the HIT.
    •      Dr. Nichols’s treatment choices were recognized as a
           standard of care and cited in current literature
           sources.
    •      There were clinical reasons to support the use of the
           older drugs over the newer, less expensive drugs.
 J.A. 6.
      Based on the record evidence, the Board concluded that
 Dr. Hessami failed to make non-frivolous allegations of a
 violation of law, rule or regulation; or gross mismanage-
 ment, gross waste of funds, abuse of authority, or a sub-
 stantial and specific danger to public health or safety. The
 Board found that Dr. Hessami’s disclosures constituted
 mere disagreement over “fairly debatable” “questions of
 policy” and were thus “not the type of communications pro-
 tected by the WPEA.” J.A. 14–16. With respect to the
 waste of funds and danger to public health or safety factors,
 the Board found that Dr. Hessami had failed to explain
 why the expenditures she discussed were out of proportion
 to the expected benefits of the treatment and had further
 failed to identify any patients who were actually harmed
 by Dr. Nichols’s prescribing practices. J.A. 13–14. On
 these grounds, the Board dismissed Dr. Hessami’s appeal
 for lack of jurisdiction.
    Dr. Hessami petitioned for review in this court. We
 have jurisdiction under 28 U.S.C. § 1295(a)(9).
                             DISCUSSION
     The Board has jurisdiction over an IRA appeal under
 the WPA, 5 U.S.C. § 1221, if the appellant has exhausted
 her administrative remedies before the OSC and makes
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 8                                            HESSAMI   v. MSPB



 “non-frivolous allegations” that (1) she engaged in whistle-
 blowing activity by making a protected disclosure under
 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contrib-
 uting factor in the agency’s decision to take or fail to take
 a personnel action. 5 U.S.C. § 1221; Yunus v. Dep’t of Vet-
 erans Affairs, 
242 F.3d 1367
, 1371–72 (Fed. Cir. 2001). A
 protected disclosure under Section 2302(b)(8) is one which
 the employee “reasonably believes evidences (i) any viola-
 tion of any law, rule, or regulation, or (ii) gross mismanage-
 ment, a gross waste of funds, an abuse of authority, or a
 substantial and specific danger to public health or safety.”
 5 U.S.C § 2302(b)(8).
     Dr. Hessami contends that the Board erred in crediting
 the agency’s evidence against her in finding that she failed
 to make non-frivolous allegations of a protected disclosure.
 Whether the Board has jurisdiction over an appeal is a
 question of law we review de novo. Forest v. Merit Sys.
 Prot. Bd., 
47 F.3d 409
, 410 (Fed. Cir. 1995).
                A. Non-Frivolous Allegation
     We first clarify the appropriate scope of the Board’s in-
 quiry when evaluating its jurisdiction over a whistleblower
 appeal. In Spruill v. Merit Sys. Prot. Bd., this court held
 that the threshold question of whether an appellant has in-
 voked the Board’s jurisdiction should be assessed under a
 “non-frivolous allegation” standard analogous to the “well-
 pleaded complaint rule” used to evaluate federal question
 jurisdiction in federal court. 
978 F.2d 679
, 687–89 (Fed.
 Cir. 1992). We explained that “under the ‘well-pleaded
 complaint rule,’ whether a district court has federal-ques-
 tion jurisdiction over a claim ‘must be determined from
 what necessarily appears in the plaintiff’s statement of his
 own claim in the bill or declaration.’”
 

Id. at

688 
(quoting
 Christianson v. Colt Indus. Operating Corp., 
486 U.S. 800
,
 809 (1988)).
    Our subsequent cases have evaluated jurisdiction in
 whistleblower cases based on whether allegations were
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 HESSAMI   v. MSPB                                            9



 facially sufficient. See Johnston v. Merit Sys. Prot. Bd.,
 
518 F.3d 905
, 910 (Fed. Cir. 2008); 
Yunus, 242 F.3d at
 1372
. This court has consistently treated “a non-frivolous
 allegation” of an element as one that, “‘if proven, can estab-
 lish the Board’s jurisdiction.’” Cahill v. Merit Sys. Prot.
 Bd., 
821 F.3d 1370
, 1373 (Fed. Cir. 2016) (quoting Garcia
 v. Dep’t of Homeland Sec., 
437 F.3d 1322
, 1330 (Fed. Cir.
 2006) (en banc)). Most recently, in Piccolo v. Merit Sys.
 Prot. Bd., we stated that “at the jurisdictional stage, a pe-
 titioner need only assert non-frivolous allegations—allega-
 tions that are not ‘vague, conclusory, or facially
 insufficient,’ and that the petitioner ‘reasonably believe[s]’
 to be true—of a protected disclosure that was a contrib-
 uting factor to a reprisal.” 
869 F.3d 1369
, 1371 (Fed. Cir.
 2017) (quoting 
Johnston, 518 F.3d at 910
). We held there
 that evidence concerning “a petitioner’s credibility includ-
 ing . . . consideration of affidavits submitted by an allegedly
 retaliatory supervisor . . . ‘relates to the merits of the
 claim’” rather than jurisdiction. 
Piccolo, 869 F.3d at 1371

 (quoting 
Johnston, 518 F.3d at 911
).
     In 2015, the Board codified the non-frivolous allegation
 standard in its regulations at 5 C.F.R. §§ 1201.57(b) and
 1201.4. See Practices and Procedures, 80 Fed. Reg. 4489
 (Jan. 28, 2015). Section 1201.57(b) provides that an appel-
 lant who initiates a whistleblower appeal “must make non-
 frivolous allegations . . . with regard to the substantive
 jurisdictional elements” 2 of the appeal.          5 C.F.R.
 § 1201.57(b). Section 1201.4 defines a “nonfrivolous alle-
 gation” as “an assertion that, if proven, could establish the
 matter at issue” and specifies that “[a]n allegation gener-
 ally will be considered nonfrivolous when, under oath or
 penalty of perjury, an individual makes an allegation that:



     2  This excludes the non-merits elements of exhaus-
 tion and standing, which must be established by prepon-
 derance of the evidence.
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 10                                           HESSAMI   v. MSPB



 (1) Is more than conclusory; (2) Is plausible on its face; and
 (3) Is material to the legal issues in the appeal.”
 Id. at

 § 1201.4(s).
     We recognize that this court has, on at least one occa-
 sion, analogized the standard for establishing non-frivo-
 lous allegations to the standard for summary judgment.
 See Kahn v. Dep’t of Justice, 
528 F.3d 1336
, 1341 (Fed. Cir.
 2008) (“The standard for determining whether non-frivo-
 lous disclosures exist ‘is analogous to that for summary
 judgment.’” (quoting Dorrall v. Dep’t of the Army,
 
301 F.3d 1375
, 1380 (Fed. Cir. 2002))). We did not, how-
 ever, actually apply the summary judgment standard to
 authorize jurisdictional dismissal of a whistleblower ap-
 peal based on evidence submitted by the agency. To the
 extent the “summary judgment” analogy suggests that
 such a dismissal would be proper, it is plainly contrary to
 both the Board’s current regulations and our holding in
 Spruill. 3



      3   The “summary judgment” analogy in Kahn was
 borrowed from 
Dorrall, 301 F.3d at 1380
, which turned on
 the question of constructive discharge, a question that we
 have since held to be subject to a “preponderance of evi-
 dence” test for jurisdictional purposes rather than non-friv-
 olous allegations. See 
Garcia, 437 F.3d at 1325
. Although
 in certain pre-Spruill cases, we approved of the Board’s re-
 liance on the agency’s evidence in finding no jurisdiction,
 those cases involved direct appeals under 5 U.S.C.
 § 7513(d), where the threshold jurisdictional question was
 whether the employee suffered an appealable personnel ac-
 tion, a determination that is subject to the preponderance
 of the evidence standard. See Manning v. Merit Sys. Prot.
 Bd., 
742 F.2d 1424
, 1428 (Fed. Cir. 1984) (relying on agency
 evidence in concluding that employee was not suspended
 for more than 14 days); Wilson v. Merit Sys. Prot. Bd.,
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 HESSAMI   v. MSPB                                         11



     Permitting jurisdictional dismissal of an appeal based
 on a summary review of the evidence on the core merits
 issues would undermine Congress’s express intent that the
 merits of employee appeals be resolved through a hearing
 rather than summary judgment. As we explained in Cris-
 pin v. Dep’t of Commerce, Section 7701 expressly provides
 that in any appeal to the Board, “[a]n appellant shall have
 the right to a hearing for which a transcript will be kept,”
 and the legislative history made clear that the provision
 was meant to bar summary judgment. 
732 F.2d 919
, 922
 (Fed. Cir. 1984) (citing 5 U.S.C. § 7701(a)(1); H.R. REP.
 NO. 95–1717, at 137 (1978), as reprinted in 1978
 U.S.C.C.A.N. 2860, 2871). Thus, this court held in Crispin
 that even when the documentary record clearly supports
 judgment for the agency, the appellant is nonetheless enti-
 tled to a hearing on the merits as a matter of statutory
 right. 4 
Crispin, 732 F.2d at 922
. A summary judgment
 standard for “non-frivolous allegations” would allow the
 agency to circumvent that rule and obtain the equivalent
 of summary judgment on the merits by merely framing its
 motion as one for jurisdictional dismissal.
     We thus clarify and hold that when evaluating the
 Board’s jurisdiction over a whistleblower action, the ques-
 tion of whether the appellant has non-frivolously alleged
 protected disclosures that contributed to a personnel action



 
807 F.2d 1577
, 1583 (Fed. Cir. 1986) (relying on agency ev-
 idence in concluding that employee had not been reduced
 in grade).
     4    The Board, in recognition of our holdings, declined
 to promulgate a process for summary judgment. Practices
 and Procedures, 77 Fed. Reg. 62350, 62352 (Oct. 12, 2012)
 (rejecting suggestion to create summary judgment proceed-
 ings because “[t]he Court of Appeals for the Federal Circuit
 has found that the MSPB lacks authority to order sum-
 mary judgment.”).
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 12                                            HESSAMI   v. MSPB



 must be determined based on whether the employee al-
 leged sufficient factual matter, accepted as true, to state a
 claim that is plausible on its face. 5 The Board may not
 deny jurisdiction by crediting the agency’s interpretation of
 the evidence as to whether the alleged disclosures fell
 within the protected categories or whether the disclosures
 were a contributing factor to an adverse personnel action.
     With these principles in mind, we turn to the allega-
 tions in this case.
                  B. Protected Disclosures
      Fairly construed, the crux of Dr. Hessami’s allegations
 is that a VA physician, Dr. Nichols, was prescribing the
 more expensive S&S regimen to patients rather than the
 substantially less expensive alternatives, Harvoni and Vie-
 kiri, and he was prescribing S&S to patients for substan-
 tially longer courses of treatment than necessary or
 recommended. She alleges that she was knowledgeable
 about the local and national HCV treatment guidelines,
 and that Dr. Nichols’s prescription practices were contrary
 to those guidelines. She alleges that the extended treat-
 ment exposed patients to substantially increased exposure



      5     It does not follow from this, however, that the
 Board is restricted to considering these allegations in a vac-
 uum. As the Supreme Court has explained regarding the
 analogous well-pleaded complaint rule, “[d]etermining
 whether a complaint states a plausible claim for relief
 will . . . be a context-specific task that requires the review-
 ing court to draw on its judicial experience and common
 sense.” Ashcroft v. Iqbal, 
556 U.S. 662
, 679 (2009). And,
 consistent with that analogous rule, the Board may also
 consider sources such as “matters incorporated by refer-
 ence or integral to the claim, items subject to judicial no-
 tice, [and] matters of public record.” See A & D Auto Sales,
 Inc. v. United States, 
748 F.3d 1142
, 1147 (Fed. Cir. 2014).
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 HESSAMI   v. MSPB                                          13



 to adverse drug reactions and side effects for patients and
 that Dr. Nichols’s choice of drugs and duration of therapy
 resulted in hundreds of thousands of dollars in excess costs
 for the Center. We can infer from her allegations that at
 the time Dr. Hessami made her disclosures, she believed,
 as she suggested to others, that Dr. Nichols’s decisions to
 depart from treatment guidelines were not otherwise justi-
 fied. This is supported by her allegations that she con-
 fronted Dr. Nichols during meetings to ask him to justify
 his prescribing practices, and that afterwards, Dr. Bennett
 felt it was appropriate to block all prescriptions of S&S and
 to require Dr. Nichols to justify his prescription decisions
 in writing. See 
Cahill, 821 F.3d at 1373
–74 (reading alle-
 gations “with an eye on likely inferences appropriate to the
 context” in assessing whether they were non-frivolous and
 plausible).
     These allegations are “non-frivolous” within the mean-
 ing of 5 C.F.R. § 1201.4. They were made “under oath” in
 Dr. Hessami’s affidavit. They describe a “facially plausi-
 ble” series of events. They are not merely “conclusory” be-
 cause they set forth specific facts supporting Dr. Hessami’s
 beliefs of wrongdoing.
      The allegations are also “material” because, if accepted
 as true, they are sufficient to support a reasonable belief of
 gross waste, gross mismanagement, and danger to public
 health. Specifically, assuming that Dr. Hessami’s allega-
 tions reflect the facts reasonably known to her at the time
 she made her disclosures, a person in her position could
 reasonably believe that the additional cost of the therapy
 prescribed by Dr. Nichols constituted gross waste because
 it was significantly out of proportion to the additional “ben-
 efit reasonably expected to accrue to the government.” See,
 e.g., Chambers v. Dep’t of Interior, 
515 F.3d 1362
, 1366
 (Fed. Cir. 2008). We assume, as we must at this stage, that
 Dr. Hessami reasonably believed that Dr. Nichols failed to
 provide clinical justification for his prescribing decisions.
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 14                                           HESSAMI   v. MSPB



      A reasonable person could also conclude that the same
 prescribing practice constituted gross mismanagement be-
 cause the unjustified higher cost of the therapies was likely
 to have a substantial detrimental impact on the Center’s
 ability to complete its mission of providing care to HCV pa-
 tients because the prescriptions were rapidly depleting the
 Center’s HCV budget. See Wen Chiann Yeh v. Merit Sys.
 Prot. Bd., 527 F. App’x 896, 900 (Fed. Cir. 2013). This be-
 lief could be reasonable even if it was eventually confirmed
 that the Center would be able to secure additional funding.
      Similarly, if we accept as true Dr. Hessami’s allegation
 that Dr. Nichols was prescribing S&S to patients for longer
 than their recommended durations without clinical justifi-
 cation for doing so, a reasonable person in Dr. Hessami’s
 position could conclude that those prescriptions created a
 substantial and significant danger to public health. The
 mere fact that the prescription policy for HCV treatments
 was heavily debated does not strip whistleblower protec-
 tion from disclosures about specific prescription decisions
 that the whistleblower reasonably believes endangered pa-
 tients. See 
Chambers, 515 F.3d at 1368 
(“[G]eneral criti-
 cism by an employee of the Environmental Protection
 Agency that the Agency is not doing enough to protect the
 environment would not be protected under this subsection.
 However, an allegation by a Nuclear Regulatory Commis-
 sion engineer that the cooling system of a nuclear reactor
 is inadequate would fall within the whistle blower protec-
 tions.” (quoting S. REP. NO. 95–969, at 21 (1978), as re-
 printed in 1978 U.S.C.C.A.N. 2723, 2744)). Here, Dr.
 Hessami’s allegations amount to more than a general as-
 sertion that the VA is neglecting the health of its HCV pa-
 tients. Even if she is unable to identify specific patients
 who were harmed, the allegation that a specific govern-
 ment physician is directing patients to take medications
 with known risks and side effects for an unnecessarily long
 period of time, paired with her reasonable belief that there
 was no clinical justification for doing so, does not represent
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 HESSAMI   v. MSPB                                         15



 a “negligible, remote, or ill-defined peril that does not in-
 volve any particular person, place, or thing, is not pro-
 tected.” 
Chambers, 515 F.3d at 1368
–69 (citation omitted).
 At the jurisdictional stage, the allegations have sufficient
 specificity and substantiality to support a reasonable belief
 that Dr. Nichols’s prescribing practices constituted a sub-
 stantial and specific danger to public health.
      In concluding that Dr. Hessami’s disclosures were not
 entitled to protection, the Board found that the substance
 of the disclosures constituted “disagreement over questions
 of policy” and “evidence of robust debate on how effective-
 ness of the Hep[atitis] C care should be measured and how
 disputes concerning such treatment should be managed.”
 J.A. 14. However, in enacting the WPEA in 2012, Congress
 made clear that policy decisions and disclosable miscon-
 duct under the WPA are not mutually exclusive. See
 S. REP. NO. 112–155, at 7–8 (2012), as reprinted in 2012
 U.S.C.C.A.N. 589, 595–96. The fact that there was an on-
 going debate about the most effective and efficient means
 for providing HCV care to patients does not exclude allega-
 tions of misconduct about such care from whistleblower
 protection.
     In finding that the substance of Dr. Hessami’s allega-
 tions could not amount to misconduct, the Board assumed,
 based on the testimony of agency witnesses as cited in the
 opinion, that Dr. Nichols’s prescribing choices were clini-
 cally justified, and that this should have been known to Dr.
 Hessami. That assumption was impermissible at the stage
 of the proceedings, where the question is the sufficiency of
 Dr. Hessami’s allegations to invoke the Board’s jurisdic-
 tion. Regardless of whether the agency may ultimately
 prove on the merits that Dr. Nichols’s prescribing decisions
 were discernibly reasonable, Dr. Hessami has adequately
 alleged a reasonable belief that they were not. The issue
 should therefore be resolved at a hearing.
Case: 19-2291     Document: 46    Page: 16   Filed: 11/09/2020




 16                                          HESSAMI   v. MSPB



     For these reasons, the Board erred in dismissing Dr.
 Hessami’s appeal for failure to allege protected disclosures
 as to gross mismanagement, a gross waste of funds, and a
 substantial and specific danger to public health. 6 We
 therefore vacate the Board’s dismissal and remand for fur-
 ther proceedings.
          C. Contributing Factor in Personnel Action
     To establish jurisdiction, an appellant must establish
 not only that she exhausted her administrative remedies
 and made protected disclosures, but also that the disclo-
 sures were a contributing factor in a “personnel action”
 within the scope of the WPEA. Because the Board dis-
 missed Dr. Hessami’s appeal based on failure to allege pro-
 tected disclosures, the Board did not reach whether she
 had sufficiently alleged contribution to a personnel action.
 Because neither the Board nor the VA provided any rea-
 soning for why Dr. Hessami’s allegations are inadequate to
 show that her disclosures contributed to her demotion or
 that her demotion constituted a personnel action, we are
 unable to make that determination in the first instance
 based on the record before us. Thus, on remand, the Board
 should evaluate the remaining substantive element for
 WPA jurisdiction before proceeding with a hearing on the
 merits.




      6  We agree with the Board that Dr. Hessami made
 no specific allegation for why she reasonably believed that
 her disclosures evidenced a violation of law, rule, or regu-
 lation. Even on appeal, she fails to raise any colorable ar-
 gument for why Dr. Nichols’s departure from treatment
 guidelines would constitute a violation of law, and she
 points to no other sources of law that were violated by the
 conduct she disclosed.
Case: 19-2291        Document: 46   Page: 17   Filed: 11/09/2020




 HESSAMI   v. MSPB                                         17



                           CONCLUSION
     For the reasons discussed, we conclude that Dr. Hes-
 sami made non-frivolous allegations that she made disclo-
 sures she reasonably believed evidenced gross
 mismanagement, a gross waste of funds, and a substantial
 and specific danger to public health. We thus vacate the
 Board’s dismissal of Dr. Hessami’s appeal and remand for
 the Board to assess in the first instance whether she non-
 frivolously alleged that her disclosures were a contributing
 factor to a personnel action against her, so as to invoke the
 Board’s jurisdiction. If her allegations are adequate in this
 regard, then the Board must provide her with a hearing on
 the merits of her claim.
                VACATED AND REMANDED
                              COSTS
     Costs to petitioner.