WHISTLEBLOWER PROTECTION ACT

Diefenderfer v. Merit Systems Protection Board, 194 F.3d 1275 (Fed. Cir. 1999)
The Board does not have jurisdiction over whistleblower claims brought by employees of the Federal Aviation Administration.  [NOTE: This decision was issued prior to the enactment of the Wendell H. Ford Aviation Investment and Reform Act for the 21^st Century, Pub.L. No. 106-181, signed April 5, 2000. This Act restored the MSPB appeal rights of FAA employees.]
 

Ganski v. Interior & OSC, 86 M.S.P.R. 32 (2000)
The holding in Thomas v. Treasury, 77 M.S.P.R. 224, that the disclosure of a violation of personnel rules is unprotected if it does not involve the type of waste, fraud, or abuse the WPA was intended to uncover, was overruled; instead, under 5 U.S.C. § 2302(b)(8)(A), "the inquiry into whether a disclosure is protected under subsection (i) ends upon the determination that the appellant disclosed a violation of law, rule, or regulation," without further examination of the type of matter disclosed. Subsection (ii), however, requires the substantive judgments to be made on whether the disclosure was of "gross" mismanagement or "a substantial and specific" danger.
 

Meuwissen v. Department of the Interior, 234 F.3d 9 (Fed. Cir. 2000)
A disclosure of information that is publicly known is not a "disclosure" under the WPA. The purpose of the WPA is to protect employees who possess knowledge of wrongdoing that is concealed or not publicly known and who step forward to help uncover and disclose that information.
 

Bohac v. Department of Agriculture, 239 F.3d 1334 (Fed. Cir. 2001)
Non-pecuniary damages are not recoverable under the Whistleblower Protection Act (WPA).
 

Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001)
Complaints to a supervisor about the supervisor’s wrongful conduct do not constitute "disclosures" under the WPA. However, complaints to a supervisor about other employees’ conduct or other misconduct may be disclosures covered by the WPA. Reports made as part of an employee’s assigned normal job responsibilities are not covered by the WPA when made through normal channels.
 

Langer v. Department of the Treasury, No. 00-3388 (Fed. Cir. Sept. 18, 2001)
In an individual right of action (IRA) appeal, the standard for establishing subject matter jurisdiction and the right to a hearing is assertion of a non-frivolous claim, while the standard for establishing a prima facie case in an IRA appeal is preponderant evidence.
 

Singleton v. Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001)
The Board’s orders in IRA appeals are not enforceable against State national guards or other State officials.
 

Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001)
The court recognized that the Board and the court have taken different approaches to jurisdictional issues in IRA appeals. The court noted its precedent holding that the Board has jurisdiction in an IRA appeal if the appellant has exhausted his administrative remedies before the Special Counsel and makes non-frivolous allegations that: (1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in a covered personnel action as defined by 5 U.S.C. § 2302(a). When the Board’s jurisdiction is clear, the court will not remand pursuant to Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. Cir. 2000), if the Board bypasses the question of its jurisdiction in order to decide the case on a non-jurisdictional ground.
 

Luecht v. Department of the Navy, 87 M.S.P.R. 297 (2001)
This decision points out that the difference between 5 U.S.C. § 2302 (b)(8) and 5 U.S.C. § 2302 (b)(9) is between reprisal based on disclosure of information and reprisal based on the exercise of a right to file an appeal, complaint, or grievance. The filing of an EEO complaint alleging discriminatory treatment in violation of Title VII does not constitute a whistleblowing disclosure under section 2302(b)(8), but instead, falls under section 2302(b)(9)(A). The decision, however, finds that coverage under section 2302(b)(9) does not necessarily exclude it from section 2302(b)(8), if the appellant also made a disclosure based on the same operative facts but outside of his (b)(9) activity.
 

Kinan v. Department of Defense, 87 M.S.P.R. 561 (2001)
Among other Whistleblower Protection Act (WPA)-related issues, this decision discusses the "reasonable belief" requirement. It holds that in determining whether the appellant had a reasonable belief in the truth of the matters he disclosed, the fact that the agency had conducted two investigations into the matters he raised, and issues arising from them, "lends a degree of legitimacy" to his claims. Under Lachance v. White, 174 F.3d 1378, the Board is to consider the appellant’s self-interest and potential bias, and the rule is that the fact that others may have shared the appellant’s belief is not sufficient to find a reasonable belief. Nonetheless, the fact that his view was shared by others is not thereby made irrelevant; nor must every appellant’s bias be viewed as dispositive. Where the appellant did not file EEO complaints on his own behalf, but complained to management about what he viewed as the agency’s failures to remedy under-representation in the EEO Office and to enforce the sexual harassment policy, his allegations come within 5 U.S.C. § 2302(b)(8), as a whistleblowing disclosure, not (b)(9), as one of retaliation for the exercise of an appeal, complaint, or grievance right.
 

Pastor v. Department of Veterans Affairs, 87 M.S.P.R. 609 (2001)
The Board’s authority to award consequential damages under the WPA includes the authority to award compensation for future medical expenses which are the result of the retaliation and which can be proven with reasonable certainty.
 

Arauz v. Department of Justice, 89 M.S.P.R. 529 (2001)
When the Government’s interests and good name are implicated in the alleged wrongdoing at issue by a private organization, and when the appellant shows that she reasonably believed that the information she disclosed evidenced that wrongdoing, the disclosure is protected under 5 U.S.C. § 2302(b)(8). Cases holding or implying to the contrary were overruled, e.g., Coons v. Department of the Treasury, 85 M.S.P.R. 631 (2000) . The decision also notes that evidence that would support a finding that the appellant would have been granted one kind of leave in the absence of her protected disclosures would not necessarily be sufficient to support a finding that she would have been granted another kind of leave in the absence of those disclosures. Denial of administrative leave is not the denial of a benefit under the WPA unless the agency has a policy of granting such leave in the same circumstances.
 

Brown v Air Force, 88 MSPR 22, March 7, 2001.  After the OSC terminated its inquiry into the employee’s claim of whistleblower reprisal in March 2000, the employee filed an individual right of appeal (IRA) to MSPB.  In his IRA, the employee alleged that all the agency’s personnel actions involving him between October 1990 and June 1993 were motivated by retaliation for whistleblowing.  The Board noted that courts are loath to apply a presumption of laches (the theory that an action may barred by passage of time) in any case where the statutory time limit for filing has not expired.  There is no statutory time limit for filing a request for corrective action with OSC.  Nevertheless, even absent the presumption of laches, the Board found that the agency established it was prejudiced by the employee’s unreasonable delay in requesting corrective action in that it would be unable to mount a defense to the action.  The agency pointed out that the passage of time impacted both the documents and personnel that would be available to the agency.  Furthermore, the employee had no satisfactory explanation for the delay.  The Board dismissed the appeal.
 

Shriver v VA, 89 MSPR 239, August 9, 2001.  An allegation of "gross mismanagement" under the WPA "does not include management actions that are merely debatable, nor does it include action or inaction which constitutes simple negligence or wrongdoing; there must be an element of blatancy."  "It means a management action or inaction that creates a substantial risk of significant adverse impact on the agency's ability to accomplish its mission."  Here the employee discovered over 1,000 items of unprocessed mail, some of which were over two years old, in the mailroom of the Board of Veterans Appeals..  He alleged that his disclosure  of this discovery resulted in his nonselection for a vacancy 8 months later.  The Board found, contrary to its administrative judge, that he had met the jurisdictional requirements for Board review of his IRA appeal. 
 

Huffman v. OPM, Fed. Cir. No. 00-3184, August 15, 2001.  An employee’s complaints made in his or her normal course of duties to a supervisor about the supervisor’s own conduct are not protected disclosures.  Similarly, complaints made as part of an employee’s assigned normal job responsibilities are not covered by the Whistleblower Protection Act when made through normal channels.  The Court stated: “If every complaint made to a supervisor concerning an employee’s disagreement with the supervisor’s actions were considered to be a disclosure protected under the WPA, virtually every employee who was disciplined could claim the protection of the Act.”  With regard to disclosures made outside “normal channels,” such as to persons or offices outside the normal chain of command, such matters would be covered. 
 

Arauz v Justice, 89 MSPR 529, September 4, 2001.  When the government's interests and good name are implicated in the alleged wrongdoing at issue, and when an appellant shows that she reasonably believed that the information disclosed evidenced that wrongdoing, the disclosure is protected under the Whistleblower Protection Act.  Here the employee alleged that she was denied administrative leave and sick leave in reprisal for statements made to Congressional aides and to the news media regarding the actions of a private organization in allegedly filling out voter registration cards for persons who were not U.S. citizens.  The Board remanded the case back to the administrative judge for additional analysis.
 

Langer v. Department of the Treasury, Fed. Cir. No. 00-3388, September 18, 2001.  In an individual right of action (IRA), the standard for establishing subject matter jurisdiction and the right to a hearing is assertion of a non-frivolous claim, while the standard for establishing a prima facie case in an IRA appeal is preponderant evidence.