The U.S. Court of Appeals for the Federal Circuit recently issued a decision finding that while
disclosure of debatable differences of opinion about policy matters are not protected under the
Whistleblower Protection Act (“WPA”), the WPA coverage does not have a blanket exception for policy
disputes between an employee and the agency.
The employee, John E. White, was responsible for administering off-duty education programs at Nellis
Air Force Base. Mr. White expressed a number of concerns about the Bright Flag Quality Education
System (“QES”), a new Air Force education program that mandated standards for colleges and
universities contracting with the Air Force to provide education services. Through his discussion of
the QES program with various educational institutions, Mr. White received a number of complaints
criticizing the QES program for duplicating regional accrediting, being academically unsound,
necessitating excessive administrative burdens, and imposing excessive costs. Mr. White also received
complaints regarding the process by which the Air Force had developed the program without sufficient
notice and input from the schools and without performing a cost-benefit analysis.
Frustrated by the Air Force’s inattention to their concerns, several educational institutions
requested a meeting with Air Force officials. At this meeting, Mr. White repeated the criticisms of
the QES program, relayed the threats of various institutions to withdraw from the program and
suggested that this would lead to a loss of educational opportunities for lower ranking airmen. The
QES standards were later implemented without responding to most of Mr. White’s concerns. Because of
Mr. White’s comments about QES, the Air Force reassigned him to a non-educational Administrative
Officer position without a reduction in pay. The Air Force based this reassignment on a loss of
confidence in Mr. White’s ability to support the QES program.
Mr. White filed an individual right of action appeal (IRA) with the Merit Systems Protection Board
(“MSPB”) alleging that he was retaliated against when he “blew the whistle” by disclosing gross
mismanagement. The WPA prohibits retaliation against federal employees and applicants for federal
employment, who have made protected disclosures, including, but not limited to, disclosures made by an
employee who reasonably believes that the disclosures evidence gross mismanagement. The MSPB rejected
the appeal.
After exhausting his administrative remedies, Mr. White’s case was first heard by the U.S. Court of
Appeals for the Federal Circuit where the court determined that the MSPB had applied the wrong test to
determine whether Mr. White had a reasonable belief that his disclosure evidenced gross mismanagement.
The court held that the proper test was whether a disinterested observer who had knowledge of the
essential facts known and readily available to Mr. White could reasonably conclude that the disclosure
evidenced gross mismanagement. On remand, the MSPB held that Mr. White’s disclosures were not
protected because the disclosures regarded merely a “debatable management decision” on a policy matter
and as such Mr. White could not have a reasonable belief that he was disclosing gross mismanagement.
When the case came before the U.S. Court of Appeals for the Federal Circuit for a second time, the
court affirmed the MSPB’s decision that Mr White’s disclosures regarded only a “debatable management
decision” and he was therefore not protected by the WPA. While it affirmed the MSPB’s decision, the
court determined that, contrary to the government’s assertion, there is no blanket exception for WPA
coverage of policy disputes between an employee and the agency. The court explained that many
government policies, desirable or at least debatable in their inception, sometimes remain in place
because of inertia or because those responsible do not want to admit that the policies are no longer
useful. The court further stated that the WPA was designed to protect those employees who call
attention to such instances through a disclosure.
This decision means that federal employees who are subjected to retaliation for making disclosures
regarding a disputed agency policy may still be protected by the WPA if the disclosure concerned a
policy that constitutes gross mismanagement. For a policy to constitute gross mismanagement, an
employee must disclose such serious errors by the agency that a conclusion that the agency erred is
not debatable among reasonable people. To determine whether there is gross mismanagement, an employee
need only establish that there was gross mismanagement based on the information known and readily
ascertainable by the employee. If the employee’s disclosure indicates that error in adoption or
continuation of the agency’s policy was not debatable, then the disclosure is protected, regardless of
whether the agency can provide other information, not readily available to the employee, to support
the policy. To meet the gross mismanagement standard, there is no requirement for any unanimous
agreement that the policy was a mistake. On the contrary, gross mismanagement requires only that a
claimed agency error in the adoption or continuation of an agency policy be a matter that is not
debatable among reasonable people.
White v. Department of the Air Force, Fed. Cir. No. 04-3045, 95 M.S.P.R. 1 (Dec. 15, 2004)
** 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
