Prominent Whistleblower Reinstated

On January 11, 2011, the Merit Systems Protection Board issued its decision in Chambers v. Dept. of the Interior (2011 MSPB 7), the latest decision in a long-running case concerning the 2004 firing of the Chief of the U.S. Park Police. Finding that the agency had failed to meet its burden of proving it would have removed Teresa Chambers even without her protected whistleblowing disclosures, the MSPB reversed the agency's removal and ordered Chambers's reinstatement. The agency has since indicated that it plans to reinstate Chambers to her former position with back pay and attorney fees rather than filing another court appeal.

The Chambers litigation has been analyzed at least three times before in the Federal Legal Corner. After a February 2008 remand from the Federal Circuit (515 F.3d 1362, analyzed at /CM/FederalLegalCorner/Disclosing-Danger-To-Public-Safety.asp), the MSBP affirmed Chambers' firing in a split opinion in January 2009 (110 M.S.P.R. 321, analyzed at /CM/FederalLegalCorner/FederalLegalCorner103.asp). Chambers again appealed to the Federal Circuit, which reversed and remanded again to the MSPB in April 2010 (602 F.3d 1370, analyzed at /CM/FederalLegalCorner/FederalLegalCorner161.asp).

The Federal Circuit had instructed the MSPB on remand to consider two issues: whether the penalty of removal was reasonable for the three remaining charges which it had sustained, and whether the agency had met is burden of showing that it would have removed Chambers based on those three ultimately-sustained charges even without Chambers' whistleblowing. The MSPB in addition called for the parties to brief the several additional issues, including whether the case should be remanded to the administrative judge for a new hearing, and what corrective action (if any) was appropriate for the actions taken against Chambers prior to her removal (placement on administrative leave with restrictions on media access).

The MSPB first held that the record was sufficiently developed from the original hearing to allow for a merits decision without further remand to the administrative judge. The MSPB declined to examine the media access issue, reasoning that the Federal Circuit (in its first Chambers decision) had implicitly affirmed the MSPB's holding that denial of media access was not an appealable personnel action under the Whistleblower Protection Act (WPA), and further that Chambers had failed to raise the claim with the Office of Special Counsel in her earlier filings.

The MSPB then examined the remaining disclosures by Chambers to the Washington Post and to the House of Representatives subcommittee staff not previously analyzed by the Federal Circuit to see if they met the standard of protected disclosures under the WPA. The MSPB found that all but two of the remaining statements to the Post and the House subcommittee staff did not constitute protected disclosures of "substantial and specific danger to public health or safety," either because the disclosure failed to expressly identify a specific negative consequence of the danger cited or because the disclosure failed to expressly identify enough facts to show that danger was a reasonable conclusion based on the circumstances.

The Federal Circuit in its second Chambers opinion had found that Chambers's disclosure to the Post was a "contributing factor" in the agency's decision to remove Chambers. The MSPB concurred, and further found that Chambers's separate disclosure to the House subcommittee staff also was a "contributing factor" in her removal, based on evidence of record as to the timing of the protected disclosure before the removal decision and as to the fact that the deciding official was aware of Chambers' disclosure to the House subcommittee staff at the time he removed her.

The MSPB then examined whether the agency met its burden of showing, by clear and convincing evidence, that it would have removed Chambers in the absence of her protected whistleblowing. This assessment looked at three factors: the strength of the agency's evidence in support of the adverse action, the existence and strength of any motive to retaliate by the agency officials involved in the removal, and whether the agency imposes similar penalties against non-whistleblower employees engaged in similar conduct.

On the first factor, the MSPB carefully examined the evidence behind each of the three charges which had been sustained and found it was not strong due to various factual inconsistencies and the agency's failure to fully investigate the charges prior to removing Chambers. On the second factor, the MSPB found evidence of motive to retaliate in testimony that the agency officials were greatly concerned with maintaining good relations with the House subcommittee staff (in particular, a staffer who was annoyed that Chambers had aired her concerns in the press rather than coming to the subcommittee), in the fact that Chambers was placed on administrative leave promptly after her disclosures to the Post and the House subcommittee staff, and the fact that, prior to her protected disclosures, no efforts had been taken to initiate adverse action proceedings against Chambers for alleged misconduct predating her protected disclosures. The MSPB discounted the argument that the agency officials had no personal interests harmed by Chambers' disclosures, finding that Chambers's disclosures affected the budget and other interests of the agency which they represented, raising concerns for them as managers of that Agency. On the third factor, the MSPB found that the agency had failed to produce evidence that it took similar adverse actions against non-whistleblower employees alleged to have engaged in similar infractions.

As a result, the MSPB overturned Chambers's removal, ordering Chambers reinstated with back pay. In a concurring opinion, MSPB Member Rose noted that the sole reason that the MSPB had jurisdiction over the removal of a high-level manager such as Chambers was that the agency had opted not to except Chambers's position from the competitive service as a position of a confidential, policy-making, policy-determining or policy-advocating character.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.