On January 8, 2009, in Chambers v. Department of the Interior, 2009 MSPB 3, the Merit Systems Protection Board (MSPB) sustained a removal after reviewing a case remanded by the U.S. Court of Appeals for the Federal Circuit and failing to reach an agreement concerning whether the appellant’s disclosures to the Washington Post were "protected" under the Whistleblower Protection Act (WPA). Under the WPA, an agency may not take a personnel action against an employee for disclosing information the employee reasonably believes evidences, inter alia, a substantial and specific danger to public health or safety if the disclosure is not specifically prohibited by law, and if the information is not specifically required by executive order to be kept secret.
On December 2, 2003, the Washington Post published an article quoting statements that the appellant, then the Chief of U.S. Park Police, allegedly made concerning her organization’s need for additional resources. The same day, the Deputy Director of the National Park Service, her immediate supervisor, instructed her "not to grant anymore inerviews [sic] without clearing them with [him] or" the Director of the National Park Service. On December 5, 2003, the agency placed the appellant on administrative leave pending review of her conduct, and on December 17, 2003, the agency proposed her removal.
The appellant filed a complaint with the Office of Special Counsel (OSC), alleging reprisal. On June 28, 2004, six days before the agency decided to remove her, she filed an individual right of action (IRA) appeal with the Board. On July 12, 2004, she appealed her removal. To prevail on a claim of reprisal for making disclosures protected under the WPA, an appellant must show that the disclosures were a contributing factor in the agency’s personnel action. 5 U.S.C. § 1221(e)(1); Horton v. Department of the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995), cert. denied, 516 U.S. 1176 (1996). After a hearing, an administrative judge found the appellant failed to establish she made disclosures protected under the WPA, and that, even if she had, the agency established it would have removed her anyway.
The Federal Circuit, on appeal, determined that the Board incorrectly evaluated whether the appellant’s disclosures were protected, and remanded the appeals. The Federal Circuit also set forth the factors that guide the Board in determining "when a disclosed danger is sufficiently substantial and specific to warrant protection under the WPA." These are (1) "the likelihood of harm resulting from the danger;" (2) "when the alleged harm may occur;" and (3) "the nature of the harm—the potential consequences." The Board members, however, were unable to agree whether the appellant’s disclosures were in fact protected under section 2302(b)(8). For reasons described in their separate concurring opinions, however, they agreed the appellant’s removal must be sustained.
Board Chairman McPhie concluded certain statements the appellant made were protected because they constituted disclosures of information she reasonably believed evidenced a substantial and specific danger to public safety. For example, she made statements concerning the diversion of Park Police patrol officers from the Baltimore-Washington (BW) Parkway and national parks, and the resulting increase in traffic accidents on the BW Parkway and drug dealing and homeless vagrancy in smaller national parks. Chairman McPhie held that these statements "easily fall within those cases that have found disclosures to be protected. They are specific consequences that she alleged had already resulted from the diversion of Park Police patrol officers from the BW Parkway and the smaller national parks. These consequences, an increase in traffic accidents, drug dealing and homeless vagrancy, are objectively significant and serious dangers to public health and safety. The appellant’s belief that they were so is therefore reasonable." However, Chairman McPhie concluded that the appellant’s statements to the Washington Post had no bearing on several of the charges, and, therefore, upheld the removal.
Vice Chairman Rose found that the appellant’s "general references" to the harm that could result from inadequate funding or staffing "no more reveal a substantial and specific danger to public safety than do other general predictions related to resource allocation that the Board has found unprotected." See, e.g., Smart v. Department of the Army, 98 M.S.P.R. 566, ¶¶ 17-18 (2005) (noting, with respect to statements that public safety was at risk because of inadequate security at a prison, that "revelation of a negligible, remote, or ill-defined peril that does not involve any particular person, place, or thing is not a protected disclosure of a substantial and specific danger to public health or safety"). Vice Chairman Rose, therefore, declined to address the issue of whether, in the absence of her statements to the Washington Post and a subcommittee staff member, the agency would have removed appellant.
* 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/.
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