Federal Legal Corner: Disclosures Ruled Not Whistleblowing

On April 9, 2014, the U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in O’Donnell v. Merit Systems Protection Board, Case No. 2014-3020.The Federal Circuit upheld the dismissal of O’Donnell’s whistleblower reprisal complaint, finding that disclosures concerning administrative adjudications fall outside the definition of whistleblowing disclosures protected by the Whistleblower Protection Act.

O’Donnell’s duties involved determinations of whether particular landowners qualified for U.S. Department of Agriculture (USDA) financial assistance.O’Donnell found a particular landowner qualified for assistance, but his determination was overruled by his supervisor and USDA assistance was cancelled.The landowner filed an administrative appeal of this cancellation.During the appeal, O’Donnell testified about his approval of the assistance and stated that the landowner’s appeal should prevail.USDA suspended O’Donnell for three days for failing to respect his supervisor’s decision.O’Donnell filed a whistleblower reprisal complaint with the U.S. Office of Special Counsel, and then appealed to the Merit Systems Protection Board (MSPB).The MSPB’s administrative judge dismissed O’Donnell’s appeal, and the MSPB upheld the dismissal.O’Donnell then appealed to the Federal Circuit.

The Federal Circuit sustained the dismissal of O’Donnell’s whistleblower reprisal complaint.The Federal Circuit noted that, although the 2012 Whistleblower Protection Enhancement Act (WPEA) had clarified and expanded many aspects of federal-sector whistleblower protections, WPEA Section 102 had also added a provision to the definition of protected “disclosures” to exclude “a communication concerning policy decisions that lawfully exercise discretionary authority.”The Federal Circuit held that this WPEA Section 102 exception applied to administrative adjudications.Pre-WPEA precedent had also excluded disclosures concerning administrative adjudications from whistleblower reprisal protections, under Meiwassen v. Dept. of Interior, 234 F.3d 9 (Fed. Cir. 2000).

O’Donnell argued that the WPEA overruled Meiwassen, noting that the WPEA’s legislative history included express criticism of Meiwassen.The Federal Circuit disagreed, interpreting the criticism in the WPEA Senate report as applying to a different part of the Meiwassen decision.The court further held that since USDA’s authority in implementing the financial assistance statute was discretionary, O’Donnell could not show a “reasonable belief” that USDA had violated a law, rule or regulation in exercising discretionary decision-making under that statute (neither the Federal Circuit’s opinion nor the MSPB’s decision show any indications of O’Donnell alleging an abuse of authority).

As the MSPB had noted, errors of law in the administrative adjudication process are corrected through the appeals process, and not through whistleblowing.As the Federal Circuit found O’Donnell’s disclosures did not meet the definition of protected whistleblowing under the WPA, it upheld dismissal of his whistleblower reprisal appeal for lack of jurisdiction.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.