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U.S. Office of Special Counsel

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    The U.S. Office of Special Counsel (OSC) today praised the July 6, 1999 decision of the Merit Systems Protection Board (MSPB), which rejected a narrow interpretation of the Whistleblower Protection Act (WPA) that would have imposed an unprecedented burden of proof on federal employees who allege that they have suffered retaliation for disclosing government misconduct. In the decision, the Board agreed with OSC’s argument as amicus curiae that an employee is protected against retaliation by the Act, whenever he makes a covered disclosure that he reasonably believes to be true. Again agreeing with OSC, the Board rejected the determination of an administrative judge that the Act does not apply unless an individual’s disclosure contains the degree of detail necessary to launch a formal investigation, Keefer v. Department of Agriculture, SE-1221-96-0549-W-4 (July 6, 1999).

    The appellants in Keefer were employed by the Forest Service in certain law enforcement positions related to timber theft investigations. They claimed that they had suffered retaliation for, among other things, disclosing the obstruction of such investigations by agency officials, providing information to the agency’s Inspector General, and testifying before Congress. The administrative judge (AJ), however, found most of the employees’ disclosures were not protected by the WPA. He applied an unprecedented legal standard that required the employees to show that their disclosures were sufficiently detailed “to allow the recipient of the disclosure to initiate a reasonably well focused investigation of the alleged misconduct.” According to the AJ, under this standard, an employee’s disclosure would not be protected if such an investigation could not be launched without taking what he called the “intermediate step” of returning to the employee to ask for further, specific detail.

    The MSPB held that the AJ had added an additional requirement “not supported by the statute and the case law.” The statute, the Board recognized, simply requires an employee to show that he or she reasonably believes that his disclosure evidences the covered misconduct. While the employee cannot rely upon general conclusory allegations, the statute does not require the degree of specificity the AJ required. The Board observed that the WPA is remedial legislation, intended to improve protections for federal employees, and that the new burden the AJ imposed is contrary to its purposes.

    Special Counsel Elaine Kaplan praised the MSPB’s ruling. “The Board’s decision in this case is right on the mark,” she said. “The Whistleblower Protection Act was intended to provide a broad guarantee against retaliation to employees who have the courage to disclose what they reasonably believe to be violations of law, gross mismanagement, gross waste of funds, abuse of authority, or a danger to the public health and safety. It is a disservice to that intent to impose additional burdens of proof upon whistleblowers who seek the Act’s protection.” “The Board’s decision,” she observed, “reaffirms the broad scope of protection that the Act was designed to afford.”