Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB>

Sandra Y. Ganski v. Department of the Interior and U.S. Office of Special Counsel, PH12219801110-M-1, May 4, 2000.

The Merit Systems Protection Board holds that disclosure of a violation of law, rule, or regulation is protected whistleblowing regardless of the particular type of fraud, waste, or abuse the disclosure might involve.

The full Merit Systems Protection Board in Washington, D.C. ruled earlier (with then Vice Chair Slavet dissenting) that the Board did not have jurisdiction over this case because no whistleblowing as defined by the law had taken place. Once the appellant took the matter to the Federal Circuit, the Board requested that the case be remanded to it for "additional analysis." The court did so.

The appellant argued that disclosures to her employing agency about alleged violations of the agency's merit promotion plan and placement procedures constituted protected whistleblowing. She further argued that her 14-day suspension and the agency's failure to select her for a promotion were in reprisal for the whistleblowing. The Board, on remand, said that the question before it was whether the appellant had actually made a protected disclosure under law.

The Board noted that it earlier had determined that the appellant made a disclosure which she "reasonably believed" revealed a "violation of law, rule, or regulation." However, under its precedent decision, Thomas v. Department of Treasury, 77 M.S.P.R. 224 (1998), the Board then determined that this disclosure was not protected because it involved an alleged violation of personnel rules which, under Thomas, did not involve "the type of fraud, waste, or abuse that the [Whistleblower Protection Act] was intended to reach." The current Board commented that Thomas appeared to hold that a disclosure is protected only if it involves a particular type of "fraud, waste, or abuse" and that this conclusion was based on its interpretation of the Federal Circuit's 1993 decision in Ellison v. MSPB, 7 F.3d 1031.

Upon review of the plain language of the Whistleblower Protection Act and the Civil Service Reform Act of 1978 along with those Acts' legislative histories, the Board concluded that their language is unambiguous that any allegation of "fraud, waste, or abuse" is a disclosure protected by law. Thus, the Board determined that its decision in Thomas was in error and overruled it "to the extent that it holds that whether a disclosure of a violation of law, rule, or regulation is protected depends on the type of fraud, waste, or abuse involved." The Board commented that disclosure of "a violation of any law, rule, or regulation" under Section 2302(b)(8)(A)(i) of title 5 of the United States Code has no qualifying language and thus, without further analysis by the Board, involves the "fraud, waste, or abuse" covered by whistleblower law. This is contrasted with disclosures under Section 2302(b)(8)(A)(ii) where the Board must make judgements about whether alleged mismanagement is "gross" or whether alleged dangers to the public are "substantial and specific" before determining that the allegations are protected disclosures. Therefore, in this case, the Board concluded that the appellant had made non-frivolous allegations of facts, that, if proven, would establish she made a protected whistleblowing disclosure. The Board remanded the case to one of its regional offices for a jurisdictional hearing.

The key point of this case is that any time an employee has a "reasonable belief" that he or she is disclosing a "violation of law, rule, or regulation," no matter how insignificant it may actually be, the employee is protected from reprisal under whistleblower law. Agencies can no longer argue that such alleged violations do not "rise to the level" of the types of matters covered by whistleblower law.