Management’s decision not to fill a vacancy it had posted and for which a whistleblowing employee had applied could be a prohibited act of reprisal against the employee, a federal court has said.

However, the Court of Appeals for the Federal Circuit said that it was not clear whether the agency in this case would have canceled the position—which would have been a promotion for the employee—regardless of the whistleblowing. The court sent the case back to an MSPB hearing officer.


The court found that the employee had made disclosures that invoked whistleblower protections but that in three of the four actions that were alleged to be retaliatory, the agency met its burden of showing that it would have acted in the same way in any case.

The fourth involved a vacancy for which the employee applied but which the agency later canceled without filling.

The court held that hearing officer had erred in concluding that the management official who canceled the vacancy didn’t know of the disclosures, saying the record showed that he did.

The court meanwhile rejected the agency’s invitation to rule as a matter of law that the cancelation was not retaliatory, saying that the facts need to be more fully developed.

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Federal Manager’s Handbook, 6th Ed.