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News from the Courts: 9th Circuit Breaks With the Federal Circuit in Whistleblower Cases

News from the Courts:  On December 9, 2013, a panel of the U.S. Court of Appeals for the 9th Circuit issued its decision in Kerr v. Salazar, No. 12-35084.  The 9th Circuit took a strong position in opposition to the Federal Circuit's pre-2012 decisions restricting the definition of protected whistleblowing.

The Kerr case, which was previously discussed in this blog, had reached the 9th Circuit as a 'mixed case', since Ms. Kerr claimed that her constructive discharge by the Fish and Wildlife Service was not just whistleblower reprisal, but also retaliation for her protected EEO activity.  The trial court granted summary judgment for the Agency on both the EEO and whistleblower reprisal counts, a decision Ms. Kerr then appealed to the 9th Circuit.  

Kerr drew the involvement of the Office of Special Counsel as a "friend of the court" -- as well as the attempted participation of the Merit Systems Protection Board -- in this first test of the Whistleblower Protection Enhancement Act of 2012 (WPEA) in the courts. Specifically at issue was the WPEA Section 101's expansion of the definition of "protected whistleblowing".  The 9th Circuit, although noting the existence of the MSPB's recent decisions finding the WPEA's expansion was retroactive, did not rely on the expanded definition in the WPEA to reverse the lower court.  Instead, the 9th Circuit took an even stronger stand and rejected outright the Federal Circuit's pre-WPEA decisions as an incorrect interpretation of the original Whistleblower Protection Act (WPA).  The previous Federal Circuit caselaw had set stringent limitations as to the form and manner of disclosures which could fall within the WPA definition of protected whistleblowing.  In contrast, the 9th Circuit held that the facial text of the WPA protects "any disclosure" whose content falls in the category of protected whistleblowing. 

The 9th Circuit's rebuke of the Federal Circuit's case law demonstrates the benefits of  Congress' decision, in the WPEA, to take  exclusive review of whistleblower cases away from the Federal Circuit and give it back to the regional circuits.  The Federal Circuit will no longer have a stranglehold on cases which have allowed it to flout congressional intent.

If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan to request an initial consultation

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