Federal Circuit, whistleblower decision

The US Court of Appeals for the Federal Circuit, in a high-profile Whistleblower Protection Act decision involving the former head of the US Park Police, who was terminated for speaking to a Washington Post reporter about safety problems due to budget cuts, gave a partial victory to the plaintiff.  Chambers v. Dept. of the Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008). 

The Federal Circuit found that the MSPB improperly applied the "gross misconduct" standard of the WPA, and not the "public health or safety" standard, in analyzing whether the plaintiff's disclosures were protected under the WPA.  The court remanded to the MSPB for further determination under the correct standard.  However, the dissenting opinion (Judge Mayer) suggests that the result would still be the same under the correct standard, which may foreshadow the result on remand.

The opinion is online at:

http://www.cafc.uscourts.gov/opinions/07-3050.pdf

Some excerpts follow:

United States Court of Appeals for the Federal Circuit 2007-3050

TERESA C. CHAMBERS, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent.

Before MAYER, DYK, and PROST, Circuit Judges.

PROST, Circuit Judge.

      Teresa Chambers petitions for review of an adverse decision of the Merit Systems Protection Board ("MSPB" or "Board"). Chambers v. Dep't of the Interior, DC1221040616-W-1, DC0752040642-I-1 (M.S.P.B. Sept. 21, 2006) ("Board Decision"). We find no error with the portion of Board's decision affirming the administrative judge's findings and conclusions on the charges of misconduct and the penalty imposed, and therefore we affirm-in-part. Because the Board, however, applied an incorrect standard to determine if Chambers made a protected disclosure under the Whistleblower Protection Act, we remand for reconsideration under the correct standard.

BACKGROUND

      Chambers served as Chief of the United States Park Police, a component of the National Park Service ("NPS"), from February 10, 2002, until she was removed on July 9, 2004. The NPS acts as a sub-agency of the Department of the Interior ("DOI" or "the agency"). In 2003, the Office of Management and Budget ("OMB") decided not to seek increases in the Park Police budget. Dissatisfied with that decision, Chambers spoke with a reporter from The Washington Post and also with a United States House of Representatives ("House") Interior Appropriations Subcommittee staffer about the budget and its implications for the Park Police. The newspaper then published an article attributing several statements regarding the budget to Chambers, prompting Chambers's supervisor, Donald Murphy, to first restrict Chambers from further communication with the press and then to place her on administrative leave pending review.

      On December 17, 2003, Murphy proposed to remove Chambers from service based on six charges of misconduct. Chambers, in response, filed a complaint with the Office of Special Counsel ("OSC"), claiming reprisal for a protected disclosure, and also appealed the proposed removal and her administrative leave. After the deciding official sustained all six charges of misconduct and effectuated the removal, Chambers filed another appeal with the Board. . . .

      

      On appeal, Chambers argues that the Board erred by denying her claim that, by removing her from service, the agency acted in retaliation for a protected disclosure by Chambers. Specifically, she alleges that a number of her actions constitute disclosure of substantial and specific dangers to public safety under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) ("WPA"). Further, the National Treasury Employees Union, as amicus curiae, argues that the Board applied an incorrect and overly narrow standard for what constitutes a protected disclosure of a risk to public health or safety. . . .

      

      To prevail on a claim under the WPA, an employee must show that she disclosed information she reasonably believed "evidences (i) a violation of law, rule, or regulation, or (ii) 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)(A); see Reid v. Merit Sys. Prot. Bd., 508 F.3d 674, 678 (Fed. Cir. 2007) (concluding that, to make a protected disclosure, a whistleblower need only disclose what he reasonably believes is an imminent-not actual-violation of law, rule, or regulation).

      With respect to the denial of her claims under the WPA, Chambers only challenges the Board's conclusion regarding her alleged disclosure of a danger to public safety. Specifically, she and the amicus point to the disclosures to the Washington Post reporter and the House staffer. According to Chambers, she disclosed information she reasonably believed identified substantial and specific dangers to public safety, and the agency removed her in response. She argues that the Board applied an erroneous standard when reviewing the administrative judge's decision, and therefore reached the wrong conclusion with respect to her disclosures.

      We agree with Chambers and the amicus that the Board applied an incorrect standard when evaluating her WPA claim relating to disclosure of a risk to public safety. In our view, the Board improperly blended the concepts of gross mismanagement and risk to public safety.

      The Board considered Chambers's disclosures under the standard from White, 391 F.3d at 1382. Board Decision, slip op. at 12-14. Where the Board considered whether Chambers's disclosures evidenced gross mismanagement, White does provide the applicable standard. As discussed in White, a lawful but problematic policy constitutes gross mismanagement when reasonable people could not debate the error in the policy. 391 F.3d at 1382. But White concerned only gross mismanagement, not a danger to public health or safety. Id. at 1381.

      The Board failed to distinguish disclosures of a danger to public health or safety from allegations of gross mismanagement. In particular, it applied the White standard to "a statement that a particular policy choice raises risks to the citizenry." Board Decision, slip op. at 13. While Chambers certainly expressed a disagreement with a policy decision, she also potentially disclosed a danger to public safety that may have resulted from that decision. The Board classified "[t]he personal opinions that [Chambers] shared with the newspaper reporter and congressional staffer regarding the funding level and priorities consciously set by policymakers for her agency," as different from disclosures of a danger to public safety, id., slip op. at 15; but Chambers's opinions about the consequences of the policy decisions could have disclosed a danger to public safety. The Board should have considered those aspects of Chambers's disclosures directed to public safety and determined if she disclosed information she reasonably believed evidenced a substantial and specific danger to public safety.

      

      

CONCLUSION

      Because the Board applied an incorrect standard when evaluating Chambers's claim that the agency removed her in reprisal for a protected disclosure under the WPA, we vacate and remand for application of the correct standard, as explained above. As to all other aspects of the Board's decision, however, we affirm.

[Alan R. Kabat, Bernabei & Wachtel PLLC]