Whistleblower Jurisdiction Found

The U.S. Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board (MSPB), holding that the Board erred when it dismissed a case alleging reprisal for whistleblowing. Johnston v. MSPB, No. 2007-3167 (Fed. Cir. 3/3/08). The court found that “Because we conclude Johnston’s allegations of reprisal for disclosures protected under the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8), were sufficient to establish board jurisdiction, we reverse and remand.”

The appellant has been employed for several years as safety and health expert at the Department of Energy which is responsible for transporting the nation’s nuclear stockpile. The issue in dispute was whether Ms. Johnston established Board jurisdiction by making nonfrivolous allegations that she suffered reprisal for expressing her opinion that the agency’s implementation of a safety management policy would place agency personnel and others at risk for serious injury. The court explained the fundamental difference between the requirements necessary to establish Board jurisdiction and those necessary to prevail on the merits:

“To prevail on the merits, an employee must establish, by a preponderance of the evidence, that a protected disclosure was a contributing factor in an adverse personnel action. See Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 2003). At the jurisdictional threshold, however, the employee’s burden is significantly lower: for individual right of action appeals “the Board’s jurisdiction is established by nonfrivolous allegations that the [employee] made a protected disclosure that was a contributing factor to the personnel action taken or proposed.” Stoyanov v. Dep’t of the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007) (citing Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc).”

Therefore, the appellant could establish jurisdiction by making non-frivolous allegations that: (1) her disclosures were within the purview of the WPA, and (2) she suffered reprisal in the wake of these disclosures.

The court went on to find that appellant had made protected disclosures which she “reasonably believes” to be a “substantial and specific danger to public health or safety,” citing 5 USC 2302(b)(8); Herman v. Dep’t of Justice, 193 F.3d 1375, 1378-79 (Fed. Cir. 1999). It noted that Ms. Johnston disclosed that agency employees and others in the vicinity could suffer serious injury due to inadequately trained personnel, her beliefs were objectively reasonable, and she had expressed her fears regarding safety concerns to the agency Office of Inspector General, an office with authority to correct the alleged wrongdoing. Willis v. Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998). The MSPB decision was erroneous because it required the same level of proof to establish jurisdiction with that required to prevail on the merits of a WPA claim. Also, the Board erred as an appellant’s motivation for making the disclosures and her credibility pertain to the merits of her claim, not MSPB jurisdiction.