Whistleblower protection may be broader than you think


The MSPB and the Federal Circuit have made it clear that the protection from retaliation provided under the Whistleblower Protection Act (WPA) is very broad. Activities that one may not associate with whistleblowing, and even employees who do not make whistleblowing disclosures, may be covered by the WPA.

The WPA generally provides whistleblower protections to an employee or applicant who discloses information that the person reasonably believes to reveal “any 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)(A).

The Supreme Court’s recent decision in Dept. of Homeland Security v. MacLean, 574 U.S. __ (2015), confirmed that the protections of the WPA are broad. In MacLean, a federal air marshall challenged his termination for disclosing information that the agency considered to be “secret security information.” The employee shared information with a reporter about the cancellation of certain TSA missions related to possible hijacking plots. The agency argued that the WPA did not protect an employee who disclosed secret security information. The Supreme Court ruled against the agency. Because TSA could point to no federal statute that prohibited the employee from disclosing the information that he provided to a reporter, TSA could not establish that the employee was not protected by the WPA.

The motivation of the employee making a disclosure is not relevant to the question of whether the employee is covered by the WPA. See, e.g., Johnson v. Dept. of Defense, 87 MSPR 454, 459 (2000) (rejecting assertion that employee not covered by WPA because activity was motivated by troublemaking). The employee need only have a “reasonable belief” of the information being disclosed – the employee does not have to be actually correct. See, e.g., Parikh v. VA, 116 MSPR 197, 205 (2011).

Further, even if a supervisor denies knowledge of an employee’s whistleblowing activity, the WPA may still prevent personnel actions being taken against the employee. The Board has found that an employee can establish that the supervisor had “constructive knowledge” of the whistleblowing disclosures, even if the supervisor denies any direct knowledge. See, e.g., Swinford v. Dept. of Transp., 107 MSPR 433, 439 (2007).

Employees who provide assistance to whistleblowers may also be protected from retaliation by the WPA. The MSPB and the Federal Circuit have determined that the WPA prevents retaliation against persons “associated with a whistleblower.” The Board held that such protection “is necessary to protect the integrity of the process, prevent employer intimidation and the drying up of channels of information.” Bodinus v. Dept. of Treasury, 7 MSPR 536, 540 (1981). The WPA also prohibits retaliation against an employee because of his relationship to another employee who has made a whistleblowing

disclosure. See, e.g., Di Pompo v. VA, 62 MSPR 44, 48 (1994) (son of whistleblower covered by WPA).

Even employees who have very limited rights to bring matters before the MSPB may be covered by the WPA. Employees at the Department of Veterans Affairs who are employed as Title 38 professional staff are protected by the WPA, and able to bring whistleblower retaliation claims before the Board. See Harding v. VA, 448 F.3d 1373 (Fed. Cir. 2006). In addition, employees of the Smithsonian are covered by the protections of the WPA. Pessa v. Smithsonian Inst., 60 MSPR 421, 425 (1994).
Given the breadth of the protection provided by the Whistleblower Protection Act, agency officials must be cautious before taking personnel actions. Before a personnel action moves forward, it would be wise for management officials and Human Resources personnel to question whether the broad coverage of the WPA could be implicated.


About Author

Jessica Parks

Jessica Parks is a member of Kator, Parks, Weiser & Harris, PLLC, where she serves as the Chair of the firm’s MSPB Practice section. Before joining the firm, Ms. Parks served as Vice Chair of the MSPB and previously was an Administrative Judge for the Board's Atlanta Regional Office.

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