Court Backs Prominent Whistleblower
On April 21, 2010, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Chambers v. Dept. of the Interior (____ F.3d____, Docket No. 2009-3120), the latest decision in a long-running case concerning the 2004 firing of the Chief of the U.S. Park Police, one of the most prominent of the current whistleblowing cases involving federal employees. Reversing the Merit Systems Protection Board, the Federal Circuit vacated one of the four remaining charges against Chambers because the sole specification in that charge was grounded in Chambers’ protected whistleblowing activities, and remanded the case to the MSPB for further consideration.
The Chambers litigation has been analyzed at least twice 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). Although differing on their rationale, the two MSPB members affirmed four of the six original charges against Chambers: making public remarks (to a Washington Post reporter) regarding security in areas under Park Police jurisdiction, improperly disclosing budget deliberations to the Washington Post, failing to carry out a supervisor’s instructions and failing to follow the chain of command. The other two charges had been reversed by the MSPB administrative judge at the trial level. Chambers then appealed this latter MSPB decision to Federal Circuit.
In its decision, the Federal Circuit reversed the MSPB with the regard to the charge of making public remarks to the Post reporter regarding security in areas under Park Police jurisdiction, but affirmed the charge pertaining to disclosure of budget deliberations to the same reporter. The court distinguished between the two based on its analysis of the Whistleblower Protection Act (“WPA”). Under the WPA, several categories of whistleblowing activity are protected; the relevant category in Chambers is disclosures evidencing a substantial and specific danger to public health or safety. The Federal Circuit found Chambers’ disclosures to the Washington Post of increased traffic accidents occurring on a parkway under Park Service jurisdiction due to reductions of Park Police staffing on that highway to be protected disclosures. The court held that this disclosure was itself protected activity under the WPA, and as such could not provide a viable basis for a disciplinary charge against Chambers. The court further found that this protected disclosure was a contributing factor to the agency’s decision to take adverse action against Chambers
The Federal Circuit distinguished the disclosure of budget information. While noting that a budget for a law enforcement agency necessarily has effects on public health and safety, the court found that Chambers had not alleged a “substantial or specific danger” to public health and safety connected to the budget issues she disclosed to the Post reporter.
The Federal Circuit remanded to the MSPB for further proceedings on two issues. First, the MSPB is to examine whether the penalty of removal was reasonable based on the three sustained charges against Chambers, since prior testimony at trial did not indicate whether the agency would have removed Chambers based on the three ultimately-sustained charges alone. Second, the MSPB was ordered to determine whether or not the agency had met its burden of clear and convincing evidence showing that it would have removed Chambers based on the three ultimately-sustained charges.
* 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 https://www.passmanandkaplan.com.