federal whistleblower; WPEA; WPA;

Whistleblowers with axes to grind are protected

Wrongdoing is no less wrong because it was brought to light by an employee with an axe to grind[,]” argues the U.S. Office of Special Counsel’s (OSC) in a recent amicus brief in a Whistleblower Protection Act case.

Last week, the OSC filed an amicus brief about whether a federal employee must have “pure” motives when they blow the whistle to be protected.  In Ryan v. Dep’t of Defense, DC1221-16-0264-W-1, 2017 WL 134320 (Jan. 10, 2017), OSC contends that an otherwise protected disclosure should not lose its protection simply because the whistleblower had an ulterior—even tainted—motive.

The OSC is a small, independent federal agency that, among other things, protects federal employees from whistleblower retaliation.  The 2012 Whistleblower Protection Enhancement Act (WPEA) gave OSC expanded authority to file amicus briefs and OSC has filed 11 briefs since 2013.

Background of the case

James Ryan is a police officer in the Pentagon Force Protection Agency.  He made disclosures about alleged misconduct by two fellow police officers who were reportedly sleeping on the job.  Ryan believes his agency then retaliated against him through, among other things, verbal and written counseling statements.

The Administrative Judge’s decision

The Administrative Judge (AJ) found that Ryan’s information was not a protected disclosure because, among other things:

I find his motive was not genuinely to prove information that evidenced protected significant wrongdoing, and interpersonal squabbling of this kind does not constitute a protected disclosure under the WPEA.  See Ramos v. Department of Treasury, 72 M.S.P.R. 235, 241 (1996).

Note I: the Ramos decision relied on by the AJ was decided before Congress enacted the WPEA in 2012, which, as described below, clarified that a whistleblower’s motive is irrelevant when deciding the protected status of a disclosure.

Note II:  the AJ made this ruling even though a police officer sleeping on the job would likely violate a law, rule, or regulation under 5 U.S.C. 2302(b)(8).

The decision flouts the plain language of the WPEA

OSC’s primary argument is that the plain language of the WPEA makes clear that “a disclosure shall not be excluded from [5 U.S.C. 2302(b)(8)] because … of the employee or applicant’s motive for making the disclosure.”  5 U.S.C. 2302(f)(1)(C).

And Section 2302(b)(8) states that agency officials may not take or threaten a personnel action based on “any disclosure of information … which the employee reasonably believes evidences” one of the categories of wrongdoing listed in the statute.

The AJ’s holding disregards this plain language.

Legislative history of the Whistleblower Protection Act and Whistleblower Protection Enhancement Act

The legislative history of the WPA and WPEA are also clear that the motive of the whistleblower is irrelevant on the question of whether the disclosure should be protected:

[The WPEA] makes clear, once and for all, the Congress intends to protect “any disclosure” of certain types of wrongdoing in order to encourage such disclosures.   It is critical that employees know that the protection for disclosing wrongdoing is extremely broad and will not be narrowed retroactively by future MSPB or court opinions.  Without that assurance, whistleblowers will hesitate to come forward.  S. Rep. No. 112-155, at 4-5 (2012) (emphasis added)

SEC Whistleblower Lawyers“In passing the WPA, Congress intended to encourage the reporting of government waste, fraud, and abuse.  That objective is thwarted when we protect only those who can prove their virtuous intentions in sounding the alarm[,]” the OSC noted.

The decision ignores precedent

According to OSC, the AJ’s decision is also unsupported by prior case law:  “The MSPB has repeatedly affirmed that a whistleblower’s motive does not determine whether the disclosure is protected.”  See, e.g., Carter v. Dep’t of the Army, 62 M.S.P.R. 393, 402 (1994) (other citations omitted).

Personal bias and self-interest of the whistleblower may affect credibility but OSC argues that it should not impact whether the disclosure is protected.  Indeed, OSC points out that a whistleblower may reasonably believe that the wrongdoing she observed is the kind covered by the WPA/WPEA, but not disclose it until some other influence motivates her to do so.  “The Board has long acknowledged that such whistleblower activity is protected.” OSC argued.  “It should continue to do so now.”

Experienced whistleblower attorneys

Navigating the federal employee whistleblower laws can be complicated, and if you have questions about a potential claim, you should contact an attorney who is experienced in federal whistleblower claims.

Eric Bachman litigates employment discrimination, including "glass ceiling," claims as well as whistleblower retaliation cases. He is Chair of the discrimination and retaliation Practices at Zuckerman Law. Previously, Bachman served as Special Litigation Counsel with the U.S. Department of Justice’s Civil Rights Division, and Deputy Special Counsel for Litigation and Legal Affairs with the U.S. Office of Special Counsel.