The MSPB erred by relying on information that would not have been known to or readily ascertainable by a disinterested observer. Image: rawf8/Shutterstock.com
By: FEDweek StaffA federal appeals court has stressed that whistleblower protections apply to disclosures that federal employees have reason to believe are true, even if the topic is subject to other interpretations.
In case No. 2022-2042, the Court of Appeals for the Federal Circuit added that “when applying the test for what constitutes a reasonable belief, the [Merit Systems Protection] Board must look to the information that would have been available to or ascertainable by a disinterested observer at the time they made the disclosure.”
The court told MSPB to reconsider a case in which it held that a VA employee did not qualify for whistleblower protection for asserting that a change in policy regarding who could obtain a patients consent for an endoscopic procedure would violate the department’s Handbook. The MSPB had ruled that he incorrectly interpreted the Handbook’s definition of the qualifications needed for someone obtaining that consent and therefore refused to consider that his later denial of a pay raise was an act of retaliation.
However, the Federal Circuit wrote that under its precedent, “an employee’s belief that a violation occurred can still be reasonable even if it is wrong. Even if the agency’s interpretation of the Handbook is a possible interpretation, it is not, as the Board erroneously held, the only plain interpretation.”
“The definition in the Handbook is ambiguous at best” and both the employee’s and the agency’s interpretations were reasonable, it said.
The opinion noted that after the employee raised his concern, he was given information about how the policy change came about, which included extensive internal and external considerations. He “could not have known about the steps [the facility] had taken to get the new policy approved because he was not involved in this decision-making process, nor was this information publicly available,” it said.
“The Board erred by relying on information that would not have been known to or readily ascertainable by a disinterested observer, because such information cannot support a finding that [the employee’s] belief was unreasonable,” it said.
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