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    Special Counsel Elaine Kaplan, head of the U.S. Office of Special Counsel, the independent agency charged with protecting federal employee whistleblowers against retaliation, expressed concern today over the implications of a decision of the United States Court of Appeals for the Federal Circuit in Huffman v. Office of Personnel Management, No. 00-3184 (August 15, 2001). In Huffman, the Court ruled that whistleblowers are not protected against retaliation where they make disclosures of wrongdoing during the course of performing their official duties or where they disclose to their own supervisor their belief that he is engaging in misconduct. 

    In Huffman, an Assistant to the Inspector General at the Office of Inspector General (OIG), Office of Personnel Management, alleged that he had been removed from his position in retaliation for confronting the Inspector General (IG) with charges that the IG and other individuals within OIG had violated federal civil service hiring rules, that a Deputy IG had directed applicants to falsify their employment applications, and that the IG had engaged in gross mismanagement and a gross waste of funds when he hired a contractor to perform an organizational study of the OIG. An administrative judge with the Merit Systems Protection Board (MSPB) had dismissed the Assistant IG’s complaint without reaching the merits of his claims of retaliatory dismissal, holding that the disclosures he made were not protected by the Whistleblower Protection Act (WPA). The full MSPB denied the Assistant IG’s petition for review of the administrative judge’s decision and he filed an appeal with the Court of Appeals for the Federal Circuit.

     The Court of Appeals held that the WPA does not protect whistleblowers who disclose wrongdoing during the course of performing their normal job duties. It asserted, among other things, that employees who disclose wrongdoing during the course of their normal job duties do not risk their personal job security and so, fall outside the Act’s protection. The Court also held that the Act does not protect employees who confront their supervisors with information which they reasonably believe demonstrates that the supervisors engaged in misconduct or violated the law. The Court concluded that in such circumstances, the employees would not be making a “disclosure” because the supervisor would already know about the conduct in which he himself had engaged.

    At the same time that it issued these narrowing constructions of the WPA, the Court rejected the arguments of the Justice Department, representing the Office of Personnel Management, that would have narrowed the Act’s protections even further. The Justice Department argued that disclosures are not protected unless they are made directly to an individual who has the actual authority to correct the wrongdoing himself. The Court held that disclosures can be protected if they are made to others who could bring the matter to the attention of those individuals who possessed the actual authority to remedy the wrongdoing.

    On the basis of its rulings, the Court remanded the case back to the MSPB for further findings. In particular, the Court directed the Board to determine, among other things, whether the Assistant IG’s disclosures concerning the alleged misconduct of individuals other than the IG himself were made as a part of his normal job duties. 

    Special Counsel Kaplan expressed her agreement with the Court’s rejection of the Justice Department’s argument that would have left whistleblowers unprotected except where they made their disclosures to persons with the actual authority to correct the alleged wrongdoing. She noted that “had the Court endorsed this argument, it would have gutted the WPA; obviously, whistleblowers cannot be required to guess at their peril whether the individual to whom they are disclosing wrongdoing possesses the legal authority to correct it.” “Moreover,” she noted, “the adoption of this argument would have meant that whistleblowers would not be protected when they made disclosures to the media or the public at large—precisely the opposite of what Congress intended when it enacted the WPA.” 

    She observed, however, that the Court’s other rulings “appear to undermine in crucial respects the policies underlying the Whistleblower Protection Act: to encourage employees to come forward when they uncover serious wrongdoing during the course of their employment.” Kaplan noted that under the Court’s ruling employees are not protected when they make disclosures during the course of performing their duties, “an auditor at the Department of Defense, for example, who uncovers massive fraud and waste of funds, would not be protected against retaliation when he reports the fraud as part of his job duties up the chain of command. Similarly, a meat inspector with the Department of Agriculture would not be protected against retaliation by his superiors if they were displeased with his reports of serious health and safety violations by a meat packing plant.” “The whole point of the WPA,” Special Counsel Kaplan observed, “is that government employees, because of their job duties, are in a position to discover misconduct and malfeasance.”

    Further, Kaplan noted, “the Federal Circuit’s ruling that the WPA does not protect employees who make their disclosures directly to the person they suspect of wrongdoing is contrary to public policy because it would discourage employees from attempting to raise and resolve their concerns within the chain of command. An employee may reasonably suspect that their superior has engaged in misconduct, but may wish to confront the superior with their suspicions first, before making them public.” In such situations, Special Counsel Kaplan observed, “the Federal Circuit’s ruling would perversely require the employees to go public and embarrass the agency in order to maintain the Act’s protection, where their concerns might well have been resolved in-house.”

    The Court’s ruling comes at a time when the Senate Committee on Governmental Affairs is considering S. 995, a bill that would amend the WPA to clarify that the kinds of disclosures found unprotected in Huffman are, in fact, within the Act’s protection. S. 995 would also confer independent litigating authority upon the Special Counsel, which would permit her to appear in court on her own behalf in cases involving the interpretation of the WPA. Currently, the Special Counsel has a very limited role in the court of appeals, and must be represented by the Justice Department in those few cases in which she may appear in court. Finally, S. 995 would also provide for multi-circuit review of MSPB decisions; under current law, all appeals of MSPB decisions must be heard in the Court of Appeals for the Federal Circuit.