Fedweek

The court reasoned that the catch-all provision of a change in working conditions is too broad and could apply to almost any routine investigation.

An investigation of a federal employee that may be a retaliatory action for whistleblowing is not itself a “personnel action” that is banned by whistleblower protection law, a key federal court has ruled.

The case before the Court of Appeals for the Federal Circuit – the main court hearing cases arising from the MSPB – involved an investigation that the employee said was reprisal for his disclosures about agency financial practices.

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An MSPB hearing officer held that while whistleblower law allows for damages relating to retaliatory investigations when raised in conjunction with a covered personnel action, such an investigation is not in and of itself such an action.

The employee appealed that decision directly to the court, pointing to MSPB precedent that an investigation may be so closely related to the personnel action that it could have been a pretext for gathering evidence to retaliate for whistleblowing.

The court ruled, though, that while the hearing officer erred by not directly considering that issue, “such error was harmless because there was no evidence that the official who initiated the allegedly retaliatory investigation had knowledge of any of the appellant’s protected disclosures,” said an MSPB summary of the decision.

The employee also argued in court that while an allegedly retaliatory investigation is not listed in the law, it amounted to a significant change in working conditions, which is.

“The court reasoned that the catch-all provision could not be satisfied by conduct, as occurred here, that would apply to almost any routine investigation that results in a letter of reprimand,” MSPB said.

OSC Warns Against Narrow Reading of Whistleblower Protections

Report: Whistleblowing, Anti-Bias Protections Falling Short

Whistleblower Protection
A federal employee or applicant for employment engages in whistleblowing when the individual discloses to the Special Counsel or an Inspector General or comparable agency official (or to others, except when disclosure is barred by law or by executive order to avoid harm to the national defense or foreign affairs) information which the individual reasonably believes evidences the following types of wrongdoing:

-a violation of law, rule, or regulation;
-gross mismanagement;
-a gross waste of funds;
-an abuse of authority; or
-a substantial and specific danger to public health or safety.

From: Appeals and Procedures at ask.FEDweek.com

2020 Federal Employees Handbook