A number of days ago, an MSPB Administrative Judge out of New York applied the Meuwissen/O’Donnell exception to the Whistleblower Protection Enhancement Act to find that an FAA employee’s disclosure was not protected. Meuwissen/O’Donnell, if you’ll recall, ruled that disclosures about adjudicative errors/violations are not protected under whistleblower laws because a remedy already exists in an appeals process.
This latest decision broke new ground, however, because the disclosure in this case did not stem from an adjudication, but ordinary workplace instructions and disclosures. Here’s the specific disclosure, as characterized by the AJ:
On May 3, 2012, the appellant filed a complaint with the Office of Special Counsel (OSC), alleging that she was retaliated against for having made protected disclosures involving violations of law, rule or regulation; gross mismanagement; and abuse of authority. See IAF, Tabs 1 and 6, Exhibits 5 and 6. Specifically, she alleged that on August 1, 2011, she complained to her supervisor, [JC], concerning his requirement that she train subordinate employee [LA], as it was not within her job duties and therefore violated FAA regulations. See id. She further alleged that Ms. [M] was aware of her stated objection to training Ms. [A]. See id. The appellant claimed she suffered reprisal for these alleged protected whistleblowing disclosures when she was issued the 5-day suspension. n2 See id.
Here is how the judge analyzed the disclosure:
The appellant has not established, by preponderant evidence, that she made protected disclosures that were a contributing factor in the personnel action against her.
Protected whistleblowing occurs when an appellant makes a disclosure that she reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial or specific danger to public health and safety. See5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the employee could reasonably conclude that the actions evidenced one of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A). SeeLachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
It is well-settled that statutory protection for whistleblowers “is not a weapon in arguments over policy or a shield for insubordinate conduct. Policy makers and administrators have every right to expect loyal professional service from subordinates….” LaChance, 174 F.3d at 1381. Furthermore, the Federal Circuit has found that an employee’s disagreement with an agency ruling or adjudication does not constitute a protected disclosure even if that ruling was legally incorrect. See Meuwissen v. Department of the Interior, 234 F.3d 9, 13-14 (Fed. Cir. 2000). Such rulings are corrected through the appeals process–not through insubordination and policy battles between employees and their supervisors. See id. at 14.
Mr. [C] testified that he asked Ms. [A] to go to the appellant’s desk to observe her a few hours as part of a training detail. He stated that Ms. [A] was not supposed to do anything other than observe the appellant perform her duties. He further stated that this was a common practice as it was a way for employees in other departments to become familiar with how their department worked. See Hearing CD, [C] Testimony. This testimony was unrefuted. During her testimony, the appellant admitted that she had trained subordinates in the past and that this was how training in her department often occurred. She failed to cite to any agency rule, regulation or policy which prohibited Mr. [C] from requesting that she train subordinate employees. See Hearing CD, Appellant Testimony.
I find that the appellant has failed to establish that she had a reasonable belief that Mr. [C]’s request to train Ms. [A] constituted an abuse of his authority or gross mismanagement, as such a request was within his discretion as the appellant’s supervisor. Nor do I find that the appellant reasonably believed that Mr. [C]’s request was a violation of law, rule or regulation, especially in light of her admission that that she had trained other employees in the past in a similar fashion. See Meuwissen, 234 F.3d at 13-14 (holding that an employee’s disagreement with an agency ruling does not constitute a protected [*12] disclosure under 5 U.S.C. § 2302(b)(8)); O’Donnell v. Department of Agriculture, 120 M.S.P.R. 94, P 14-15 (2013), aff’d, ___ Fed. Appx. ___, 2014 U.S. App. LEXIS 6472 (Fed. Cir. 2014) (recognizing that “a subordinate’s refusal to abide his supervisor’s instructions in this regard supplants the orderly appeals process with chaotic agency in-fighting”).
See what the AJ did there?
“…the Federal Circuit has found that an employee’s disagreement with an agency ruling or adjudication does not constitute a protected disclosure even if that ruling was legally incorrect.”
“Such rulings are corrected through the appeals process–not through insubordination and policy battles between employees and their supervisors.”
There’s no “adjudication” here, only an instruction by a supervisor for a subordinate to train others. That instruction is now an “agency ruling,” according to this decision. If any supervisory instruction is an “agency ruling” in the eyes of the MSPB, then when does Meuwissen/O’Donnell not apply? When would whistleblower protections apply? Isn’t this exception one that swallows the entire statute?
Further, what is the “appeals process” here? A union grievance? If so, under 5 U.S.C. 7121(g), the employee would then be barred from going to OSC or MSPB. That renders the WPA null and void, in effect. There’s a canon of construction in the law that says that judges should not reach absurd results, or render statutory language void through their interpretations.
One final point: did we not see this coming? When O’Donnell was issued last September, I argued in an amicus that the Board’s analysis of the issue was “unbounded.” What’s more unbounded than a decision that converts garden-variety disclosures to “agency rulings” that fall outside the scope of the WPA?
Note: The case name is Hawkins-Garcia v. DOT, Docket Number NY-1221-13-0072-W-2, 2014 MSPB LEXIS 3692 (June 10, 2014; decision by Maureen Briody, AJ).
I requested a copy of the decision via FOIA. This post will be updated once it arrives.
Related: Coverage of O’Donnell v. MSPB and Daniels v. MSPB.