A federal court has said that an employee’s disclosures can qualify for whistleblower protections even if they involve matters of disagreements over policy, overturning an MSPB decision and sending the case back for reconsideration.

In a case before the Court of Appeals for the Federal Circuit, a VA doctor alleged she suffered reprisal for raising concerns to senior officials about issuing of prescriptions for drugs that were more expensive and that exposed patients to more side effects than alternatives. However, “relying heavily on statements from agency witnesses,” the court said, the MSPB found that the disclosures involved mere disagreements over debatable practices that did not qualify under whistleblower protection law.


The court, though, held that “when evaluating the Board’s jurisdiction over a whistleblower action, the question of whether the appellant has non-frivolously alleged protected disclosures that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true , to state a claim that is plausible on its fac e. The Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether the alleged disclosures fell within the protected categories or whether the disclosures were a contributing factor to an adverse personnel action.”

The court further ruled that under a 2012 law expanding the Whistleblower Protection Act, “Congress made clear that policy decisions and disclosable misconduct under the WPA are not mutually exclusive. The fact that there was an ongoing debate” about the most effective and efficient means of treatment does not exclude the disclosures from whistleblower protection, it said.

The court said that a reasonable person in the employee’s position could conclude that the disclosures met the law’s standards of evidence of a gross waste of funds, gross mismanagement and a substantial and specific danger to public health and safety.

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