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The Federal Circuit has held that a VA technologist nonfrivolously alleged his warnings about an error-prone AI claims tool were protected disclosures of gross mismanagement, reversing the MSPB's jurisdictional dismissal and remanding his whistleblower appeal
The court did not find that the VA mismanaged anything. It found that an insider's data-backed warnings about an AI tool running on live claims were specific enough to get past the Board's jurisdictional gate, and that threshold is the part agencies running AI on casework will want to read closely.
Bottom line: Binding and precedential, but it decides jurisdiction only. The Federal Circuit reversed the Board's dismissal and sent Dr. Oguntade's whistleblower appeal back, and it said in terms that it does not pass on whether he will ultimately win.
Who this affects: Federal employment and whistleblower counsel, agency general counsel and chief technology offices that run AI tools on live benefits claims, and the technologists, fellows and data scientists inside federal agencies who test those tools.
Issue date: Decided and filed 22 September 2026 in No. 2025-1114. Reversed and remanded to the Merit Systems Protection Board for further proceedings. The opinion sets no deadline.
What changed: The MSPB had dismissed the appeal for lack of jurisdiction. The court held, at that jurisdictional stage, that he nonfrivolously alleged a reasonable belief that his March, April and May 2021 disclosures about the VA's CAAPI tool evidenced gross mismanagement.
Analysis: Repeated, statistically supported warnings that a deployed AI tool was slowing decisions, left unanswered, were enough to plead gross mismanagement at the threshold. Judge Lourie's concurrence cautions against reading the ruling as a brake on experimentation.
Primary sources: Oguntade v. MSPB, No. 2025-1114, opinion of 22 September 2026 (Federal Circuit)
- Instrument (EN)
- Oguntade v. Merit Systems Protection Board, opinion for the court and concurring opinion
- Authority
- United States Court of Appeals for the Federal Circuit (Moore, Chief Judge, Lourie and Cunningham, Circuit Judges; opinion by Judge Cunningham, concurrence by Judge Lourie)
- Jurisdiction
- United States, federal. Petition for review of MSPB No. DC-1221-23-0169-W-1
- Status
- Decided 22 September 2026. Reversed and remanded "for further proceedings consistent with this opinion"
- Bindingness
- Precedential. The slip opinion carries no nonprecedential notation and the concurrence describes it as precedential. It resolves Board jurisdiction only, not the merits of the retaliation claim
- Issue date / next deadline
- 22 September 2026. No deadline stated; the appeal returns to the Board
- Legal basis
- Whistleblower Protection Act as amended, 5 U.S.C. 2302(b)(8) and 1221(e)(1); review under 5 U.S.C. 7703(c); appellate jurisdiction under 28 U.S.C. 1295(a)(9)
- Document
- Slip opinion, 15 pages including the concurrence
- Primary source
- https://www.cafc.uscourts.gov/opinions-orders/25-1114.OPINION.9-22-2026_2759324.pdf
What did the Federal Circuit decide?
It reversed a Merit Systems Protection Board order that had dismissed Dr. Babatunde Oguntade's individual right of action appeal for lack of jurisdiction, and remanded. The question was whether he had nonfrivolously alleged that he made a protected disclosure, which is the threshold for the Board to hear the case at all.
The court held that he had. At this jurisdictional stage, he nonfrivolously alleged a reasonable belief that his March, April and May 2021 disclosures about the VA's CAAPI tool evidenced "gross mismanagement" under 5 U.S.C. 2302(b)(8). Because that was enough, the court did not reach his separate argument that the disclosures evidenced a gross waste of funds.
The panel was explicit about the limit: "we do not pass on whether he will be ultimately victorious." Whether the VA retaliated, and whether his removal was lawful, are questions for the remand.
What was CAAPI, and what did he say about it?
The opinion describes the Claims Attribute Application Programming Interface as "an artificial intelligence" tool that Dr. Oguntade, a Presidential Innovation Fellow assigned to the VA's Office of the Chief Technology Officer from October 2020, was tasked with updating. The agency sought to cut decision wait times by three to five days with it.
What follows is the record as the court recounts it, largely from his own filings, and none of it is a finding against the VA. In January 2021 he told the Deputy Chief Technology Officer that CAAPI was "giving wrong predictions". In March 2021 he reported statistical analyses, drawing on data for about 120,000 claims, concluding the tool was slowing processing; a further analysis of 716,000 claims reached the same conclusions. An April 2021 blog post, approved for publication by the VA, said AI-established claims took 5 to 7 days longer to develop fully.
He alleged that a repackaged "CAAPIv2.0" went into production in April 2021 without any change to the underlying classifier, and in May 2021 he escalated to the Chief Technology Officer. According to the opinion's account of the record, CAAPI was deactivated on 1 July 2021 because "the model underlying the Claims Attributes API likely does not reduce Veteran benefit decision wait times." He was removed on 7 July 2021.
Why did the warnings clear the gross mismanagement bar?
The court applied its White v. Department of Air Force test: gross mismanagement requires disclosure of errors so serious that the conclusion the agency erred "is not debatable among reasonable people", on a significant matter. A mere policy disagreement does not qualify.
At the jurisdictional stage, though, the question is plausibility on the facts alleged, accepted as true, and the Board may not deny jurisdiction by crediting the agency's reading of the evidence. On that footing the panel found it plausible that he reasonably believed continued use of CAAPI on live claims, without modifying the error-prone classifier and despite repeated warnings, was a serious error. With the VA processing over 1.5 million claims a year, the court also found it plausible that he reasonably believed the delays were, or would be, significant.
The government's own brief conceded that "reasonable minds could disagree" about whether moderate delays during rollout of a new system amounted to error or to temporary inefficiency. The court pointed to that concession after finding the allegations detailed and facially well supported. It did not treat the concession as deciding the merits.
Were the later disclosures properly before the court?
Yes. The government argued only the March disclosures were preserved. The court held the April blog post and May escalation were raised with sufficient specificity, applying the more lenient standard for pro se pleadings, since he represented himself before the Office of Special Counsel and the Board.
What does the concurrence add?
Judge Lourie joined the opinion in full and wrote to say it "should not be overread" and should not be read to discourage experimentation on the VA claims backlog. Under different facts, he wrote, it may be at least debatable that such a failure is to be expected when implementing new strategies.
He also noted that the agency "appears to have been unresponsive" to reasonable attempts to point out flaws in its management of CAAPI, while stressing that the legality of the alleged retaliation was not before the court. Read together, our view is that the concurrence locates the problem in the alleged non-response to warnings, not in the decision to try an AI tool. That reading is ours, not the court's.
What we did not verify
What we opened: the 15 page slip opinion and concurrence served by the Federal Circuit at the URL cited above, read in full as extracted text. We confirmed the bytes independently on retrieval.
What we did not open: the Joint Appendix, the parties' briefs, the MSPB initial decision and final order, Dr. Oguntade's Office of Special Counsel complaint, his blog post, and the court's opinions listing. Precedential status is stated from the slip opinion itself, which carries no nonprecedential notation, and from the concurrence's description of it as precedential.
What we refuse to claim: we do not say the VA retaliated against Dr. Oguntade, that CAAPI in fact slowed claims, or that the VA mismanaged the program, because the court decided only that his allegations were nonfrivolous. We do not say he will succeed on remand, and we say nothing about gross waste of funds, which the court did not reach. We do not extend the holding to contractors or to other agencies' AI tools, and we do not describe it as creating a new category of AI whistleblowing.
Quotations are reproduced with ASCII punctuation in place of the typographic quotation marks and apostrophes in the slip opinion, and with a line-break hyphen rejoined, which is a house typesetting convention and not a change to any word.
Informational analysis for working professionals, not legal advice. Confirm how any rule applies to your situation with qualified counsel.
For agencies running AI on live casework, the exposure this ruling identifies sits in the response to internal warnings, not in the model. A specific, data-backed warning that a deployed tool is causing delay, repeated and not acted on, was enough to get a whistleblower case past the jurisdictional gate. Whether it wins is still open.
Source File
https://www.cafc.uscourts.gov/opinions-orders/25-1114.OPINION.9-22-2026_2759324.pdf
Open the slip opinion and read four passages: Part III.B.i on pages 8 to 11 for the gross mismanagement analysis, the sentence on page 10 disclaiming any view on the merits, Part III.B.ii on page 11 declining to reach gross waste of funds, and Judge Lourie's concurrence on its final three pages.
Because we hold that Dr. Oguntade has nonfrivolously alleged a reasonable belief that his March, April, and May Disclosures were protected disclosures of "gross mismanagement" under 5 U.S.C. ยง 2302(b)(8), this determination suffices to establish that the Board erred in dismissing for lack of jurisdiction. ยท Oguntade v. MSPB, No. 2025-1114, Part III.B.ii, page 11, 22 September 2026
FAQ
Did the court find that the VA retaliated against the whistleblower?
No. It decided only that the Board had jurisdiction because his allegations were nonfrivolous, and it said it does not pass on whether he will succeed. The retaliation claim goes back to the Board.
Is the decision precedential?
Yes, on the face of the slip opinion. It carries no nonprecedential notation, and Judge Lourie's concurrence refers to it as precedential while cautioning that it should not be overread.
What did he allege was wrong with the AI tool?
That CAAPI gave wrong predictions and, on his statistical analysis, slowed claims processing, and that a renamed version went into production without any change to its classifier. These are his allegations, accepted as true at the jurisdictional stage.
Does the ruling discourage agencies from testing AI tools?
The concurrence says it should not be read that way, and that under different facts a failure of this kind may be at least debatable as an expected cost of trying new approaches to the claims backlog.
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