Federal Circuit Rules for Whistleblower

The Federal Circuit, on July 11, 2006, reversed a MSPB decision, and ruled in favor of the whistleblower, under the Whistleblower Protection Act, a somewhat unusual occurrence.  The decision has some good language about how an agency cannot subvert the hiring process in order to avoid hiring (or promoting) known whistleblowers.

Ruggieri v. MSPB, No. 05-3311, (Fed. Cir. 2006), online at:

http://www.fedcir.gov/opinions/05-3311.pdf

The employee claimed that he was not selected for a position with the Mineral Management Services (Dept. of Interior), because he had been a whistleblower during a previous position with the Coast Guard.  Instead, the MMS simply canceled the position vacancy without hiring anyone, and then reopened it several months later, and once it became clear that the plaintiff did not apply this time around, the MMS filled the position with another applicant.  The government argued, and the MSPB agreed, that a WPA claim could not be stated unless the agency filled the position with someone else at the time the whistleblower applied.  The Federal Circuit rejected that as too narrow a reading of the WPA, and one that would circumvent the WPA, as the following excerpts make clear:


The Board's position on this issue reflects an unduly narrow construction of the statutory language "fail to take ... a personnel action." The Whistleblower Protection Act does not state that the failure to select an applicant for employment cannot be actionable unless someone else is selected for the position in the applicant's place. If the statute defined a failure to make an appointment as the act of hiring another applicant in place of the complainant, the Board's construction would have force. But it does not. It provides that an appointment is a personnel action and that a failure to make an appointment is a trigger for an Individual Right of Action appeal.

To endorse the Board's interpretation of the statute would immunize an agency's decision not to hire a whistleblower, so long as the agency was willing simply not to fill the position for which the whistleblower had applied, even if the agency's conduct was plainly motivated by whistleblowing activity. This case illustrates the potential mischief that could be caused by the Board's interpretation. . . .

. . . Including such conduct within the reach of the Whistleblower Protection Act is consistent with Congress's purpose to protect whistleblowers from a wide variety of actions taken against them in retaliation for protected disclosures. See Caddell v. Dep't of Justice, 96 F.3d 1367, 1372 (Fed. Cir. 1996); Marano v. Dep't of Justice, 2 F.3d 1137, 1139-41 (Fed. Cir. 1993). In light of that congressional purpose, as reflected in the broad statutory language, we hold that Mr. Ruggieri's evidence regarding his nonselection for the position of electrical engineer was sufficient to satisfy the requirement that an appellant in an Individual Right of Action appeal make a nonfrivolous allegation that the agency has failed to take a personnel action. We therefore reverse the decision on appeal and remand this case to the Board for further proceedings.

Alan R. Kabat
The Bernabei Law Firm, PLLC