MSPB Law Blog

By John V. Berry, www.berrylegal.com

The U.S. Court of Appeals for the Federal Circuit, in Whitmore v. DOL, Case No. 2011-3084 (May 30, 2012), issued a new major ruling with respect to federal employee whistleblower cases in reversing the decision of the Merit Systems Protection Board (MSPB) to dismiss Mr. Whitmore's whistleblower retaliation appeal.  

The Whitmore Decision for Whistleblowers

The case at issue involved a federal employee who had been removed from his position with the Department of Labor (DOL). The DOL, in removing the federal employee, had alleged that the federal employee's removal had been due to his alleged disruptive and insubordinate behavior while at work.  The employee, however, had alleged that the removal was the result of unlawful retaliation for his lawful whistleblowing disclosures to the DOL.

The MSPB Appeal

The federal employee appealed his removal to the Merit Systems Protection Board (MSPB) where the case was then dismissed by the assigned administrative judge.  In the proceedings before the administrative judge, most of Mr. Whitmore's witnesses on the whistleblower claims were excluded by the judge.  The full MSPB Board then affirmed the administrative judge's decision.  The employee filed an appeal of the decision to the U.S. Court of Appeals for the Federal Circuit based mostly on the fact that the administrative judge had excluded important evidence as to the whistleblowing activities by the federal employee.

The Federal Circuit Reverses in a New Major Whistleblower Decision

The Federal Circuit, in evaluating the case on appeal, found that the MSPB had improperly excluded or ignored evidence offered by the federal employee necessary to adjudicate his whistleblower retaliation claim, and had applied the law incorrectly in the dismissal.  As a result the Federal Circuit vacated the decision and remanded the case to the MSPB.  In closing their opinion, the Federal Circuit took the unusual step of reminding the MSPB about the critical responsibilities they have in whistleblower retaliation cases:

“The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the public, yet whistleblowers are at a severe evidentiary disadvantage to succeed in their defenses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove—by clear and convincing evidence—that the same adverse action would have been taken absent the whistleblowing.

Despite Robert Whitmore’s highly unprofessional and intimidating conduct, which may well ultimately justify some adverse personnel action, he is nevertheless a bona fide whistleblower. Mr. Whitmore is therefore entitled to the full scope of protection afforded by the Whistleblower Protection Act, which ensures for him and whistleblowers everywhere that they need not fear retribution for disclosing to the public such vital information concerning an agency or official as “a violation of any law, rule, or regulation, or . . . gross mismanagement, 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).

Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation."

Whitmore, at 42-43.

What the Whitmore Decision Means for Whistleblowers at the MSPB

 One of the most important issues that will result out of this decision is that administrative judges at the MSPB will now likely permit more testimony and evidence to be heard on whistleblower retaliation claims which will help to establish these claims.  The Whitmore decision makes it clear that the Federal Circuit believes that the MSPB must fully consider the evidence that an employee wishes to present in support of his or her claims under the Whistleblower Protection Act. This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding an individual’s federal employment issues. 

The full case is located at www.cafc.uscourts.gov/images/stories/opinions-orders/11-3084.pdf.