U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Eugene Johnson v. Department of Health and Human Services, DC1221000199-W-1(August 21, 2000).

A Federal employee may make disclosures, which are protected under the Whistleblower Protection Act (WPA), even if the disclosures are part of the employee's job duties, provided the disclosures involve wrongdoing by Federal employees (as opposed to reports of possible breach of law or regulation by private parties.)

Mr. Johnson was employed by the Department of Health and Human Services. He filed an Individual Right of Action with the MSPB alleging the agency had taken numerous actions against him, including reassignment of duties and nonselection, for having made protected disclosures. After the AJ dismissed his action, the appellant filed a petition for review with the MSPB, stating several issues including the fact that his disclosures may have been part of his job but that did not make him any less entitled to whistleblower protections under the Whistleblower Protection Act (WPA).

After finding that the appellant had not been afforded notice as to what exactly was required for a showing of jurisdiction, the Board restated the concept that "the definition of a 'protected disclosure' includes disclosures made by employees as part of the performance of their duties." Garrett v. Dept. of Defense, 62 MSPR 666, 671 (1994). The Board recognized a balance must be struck between disciplining an employee for making protected disclosures, which violate agency policy, and the protections afforded an employee who makes protected disclosures under WPA. Citing legislative history, the Board made plain that there are no requirements for whistleblower status beyond those in WPA. The Board remanded the IRA to afford the appellant the "opportunity to establish that he made protected disclosures and that the agency took or failed to take, or threatened to take or fail[ed] to take, a 'personnel action,' as defined in 5 USC §2302(a)(2)", which contributed to the agency's failure to take a'personnel action' based on a preponderance of evidence.

It should be noted that the MSPB distinguished Willis v. Dept. of Agriculture, 141 F.3d 1139 (Fed. Cir., 1998) and the situation at issue here. Willis involved a Federal employee who disclosed that several farms were not complying with Dept. of Agriculture plans. The court found that the disclosures were not protected under the Whistleblower Protection Act (WPA) because the disclosures involved breach of regulation or law by a private party. The court also stated that protection of Federal employees for disclosures of possible breach of law or regulation by a private party was not the goal of the WPA. The Board held Willis to be fundamentally different from the issue presented here based on the disclosure by the appellant of wrongdoing by Federal employees, not wrongdoing by private parties.

Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.

Other questions or comments may be mailed to the U.S. Office of Personnel Management, Room 7H28, Theodore Roosevelt Building, 1900 E Street, NW., Washington, DC 20415-2000. You may call us at (202) 606-2930; fax (202) 606-2613; or email lmr@opm.gov.