The U.S. Court of Appeals for Tthe Federal Circuit has
reversed and remanded a decision by the Merit Systems
Protection Board exempting a former Navy supervisory
contracts specialist from whistleblower protections,
finding that her organization was not “specifically
designated” by the President as exempt.
The Navy Office of Special Projects removed Carol
Czarkowski’s supervisory responsibilities in 1997 and
placed her in a performance improvement plan, something
she claimed was done in reprisal for disclosures she made
to her supervisor that she said are protected under
whistleblower law, according to the appeals court decision.
It said that after an initial complaint to the Office of
Special Counsel she filed an individual right of action
with the Board, but an administrative judge dismissed it,
saying she had not made a protected disclosure as a Schedule
A employee covered by the act.
On appeal, the Board remanded her claim, but the agency
argued it did not have jurisdiction to do so because the
OSP, where she initiated her complaint, was exempt from
Board jurisdiction, according to the decision.
It noted that certain employees are exempt from Board
appeal rights under the whistleblower act, and it came
down to whether the Office of Special Projects has been
“determined by the President” to be an executive agency
or unit thereof “the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities.”
According to the decision, “the record in this case
reveals without dispute that the President, or his lawful
delegate, has not made an actual determination expressly
naming Ms. Czarkowski’s unit as an exempt agency.”
The Navy again appealed, arguing that express action by
the President identifying a particular agency is
unnecessary to exempt an agency from Board review in WPA
cases, yet without explicit exemption of her agency,
according to the decision, Czarkowski “met her burden
of establishing Board jurisdiction, and is protected by
an appeal right to the Board of her claim of adverse
personnel action by the agency in response to her
allegedly protected disclosure,” according to the appeals
court.
It said that on that basis it reversed the finding that
her unit is exempt from the merit systems appeal process,
and remanded for further adjudication under her
whistleblower claim.
target=”_blank”>www.fedcir.gov/opinions/03-3300.pdf
