Federal Circuit Rejects Perceived Whistleblowing Claim
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
The Merit Systems Protection Board (MSPB) has long recognized whistleblowing claims even where the employee has not made a protected disclosure, where the employee’s supervisors perceive the employee to be a whistleblower and act against them. On February 16, 2022, the Court of Appeals for the Federal Circuit rejected one such claim, clarifying its standard of review of MSPB decisions in the process.
The case arose when a Department of Energy (DOE) general engineer who worked in the agency’s National Nuclear Security Administration made “repeated attempts to correct what he considered a seriously erroneous agency decision related to the mission of providing space-based nuclear detection.”
The engineer was unsuccessful in convincing his chain of command that Section 1065 of the National Defense Authorization Act (NDAA) of 2008 required DOE, rather than the Department of Defense (DOD), to maintain a Space and Atmospheric Burst Reporting System (SABRS) to meet the law’s requirement for maintenance of a “space-based nuclear detection at a level that meets or exceeds the level of capability” as of the date of the NDAA of 2008.
Although the law assigns the responsibility to the Secretary of Defense, the “division of labor” between DOD and DOE has been muddled “in no small part” by other provisions of the statute, including the provision that states that the law is only violated “if detection capability falls below a pre-set standard, and a National Security Council (NSC) interagency policy committee has the discretion to decide how best to maintain the standard.
As the Federal Circuit summarized: “[w]hile the Secretary [of Defense] in the past has relied on the DOE’s SABRS program to assist in carrying out its mission, [Section 1065] does not require that the Secretary do so. Similarly, nothing in the statute requires that the DOE continue to provide its SABRS program to the Secretary [of Defense].”
After some back and forth debate with the engineer, the engineer’s chain of command decided to cease funding “ground segment support” related to the program at issue. On September 23, 2015, the engineer sent an e-mail entitled “Obstruction of Public law 110-118, NDAA 2008, Maintenance of Space-based Nuclear Detonation Detection System,” to a variety of high-level officials, including the Office of Defense Nuclear Nonproliferation Research and Development (DNN) Deputy Administrator, and the U.S. Office of Special Counsel (OSC). The engineer claimed in the e-mail that his supervisor was “obstructing compliance with” Section 1065.
The DNN Deputy Administrator e-mailed the engineer’s supervisor to ask his opinion, and the supervisor responded that the engineer “raises, what he believes, are serious issues.” The supervisor denied obstructing implementation of Section 1065, and stated that DOE had “increased funding for this important area and have driven the interagency to keep this a priority–to meet US law.”
In August 6, 2020, the engineer filed an Individual Right of Action appeal with the MSPB, claiming that his chain of command retaliated against him for his efforts to change their policy by not selecting him for Director position in 2014, 2015, and 2017. His allegation was this: his chain of command believed that the DOE was responsible under Section 1065, and that the engineer was engaging in protected whistleblowing when he opposed efforts to “defund and cease work” on the SABRS program. The MSPB AJ denied corrective action, finding that the engineer did not demonstrate that the agency perceived him as a whistleblower, i.e. someone who had reported a violation of law, rule, or regulation. The engineer appealed to the Federal Circuit.
The appeals court found that the evidence presented by the engineer that management viewed him as a whistleblower made this a close call. But because the appeals court can only review the Board’s conclusion under the “substantial evidence” standard of review, it was required to sustain the Board’s decision. As the appeals court noted, “substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
The appeals court cited In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002), in finding that “where two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency's decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.”
Again and again, the appeals court acknowledged that the engineer’s interpretation of the evidence (that it showed the agency perceived him as a whistleblower) was “possible,” but that the Board’s finding to the contrary was supported by “substantial evidence.”
For this reason, the United States Court of Appeals for the Federal Circuit affirmed the MSPB’s decision denying the engineer corrective action in his whistleblower appeal.
Read the full case: Standley v. Energy.
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