The Whistleblower Protection Act

The Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act (WPEA), prohibits an agency from retaliating against an employee for making a protected disclosure or engaging in protected activity. See 5 U.S.C. § 2302(b)(8)-(9). As relevant to this appeal, WPA-protected activity includes the exercise of any appeal granted by law seeking to remedy an alleged violation of § 2302(b)(8), which prohibits an agency from taking or failing to take a personnel action because of any protected disclosure by an employee. See 5 U.S.C. § 2302(8)-(9)(A)(i); 5 C.F.R. § 1209.4(c).

A disclosure is protected if the employee reasonably believes that it evidences (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A).

To establish gross mismanagement, an employee must disclose “such serious errors by the agency that a conclusion the agency erred is not debatable among reasonable people,” and the matter that is the subject of the disclosure must be “significant.” White v. Dep’t of Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004). “[D]ebatable differences of opinion concerning policy matters are not protected disclosures.” Id.

Abuse of authority is “arbitrary or capricious exercise of power by a federal employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.” R.G. v. MSPB, 657 F. App’x 955, 958 (Fed. Cir. 2016).

A “substantial and specific danger to the public health or safety” is determined by weighing the likelihood of harm resulting from the danger, when the alleged harm may occur, and whether the harm is contingent on speculative or improbable conditions. Chambers v. Dep’t of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008).

An employee can establish a prima facie case of reprisal for whistleblowing if they can prove that they engaged in protected activity that was a contributing factor in the agency’s personnel action. 5 U.S.C. § 1221(e)(1).

If an employee establishes by preponderant evidence that their protected activity was a contributing factor in the agency’s personnel action, the burden shifts to the agency to demonstrate by clear and convincing evidence that it would have taken the personnel action regardless of such activity. 5 U.S.C. § 1221(e)(2); Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1364 (Fed. Cir. 2012).

To determine if the agency has satisfied this burden, the board considers the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency decision-makers; and (3) any evidence that the agency takes similar actions against similarly situated employees who are not whistleblowers. See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).

Unless they have a right to appeal directly to the board, an employee must prove that they presented their claims before the Office of Special Counsel (OSC) to raise them in an individual right of action (IRA) appeal. 5 U.S.C. § 1214(a)(3).

This statutory exhaustion requirement gives OSC the opportunity to take corrective action before involving the board in the case. See Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992).

An employee must “articulate with reasonable clarity and precision the basis for [her] request for corrective action” and provide OSC with a sufficient basis to pursue an investigation. McCarthy v. Merit Sys. Prot. Bd., 809 F.3d 1365, 1374 (Fed. Cir. 2016); (quoting Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1577 (Fed. Cir. 1996)).

The board’s jurisdiction is limited to issues previously raised before OSC. See McCarthy, 809 F.3d at 1374.