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

Kenneth D. Huffman v. Office of Personnel Management, No. 00-3184 (Fed. Cir., August 15, 2001).

The Court of Appeals for the Federal Circuit held that:

• An employee's complaints made in his or her normal course of duties to a supervisor about the supervisor's conduct are not protected disclosures.
• Complaints made as part of an employee's assigned normal job responsibilities are not protected by the Whistleblower Protection Act when they are made through normal channels.
• Complaints to a supervisor about the conduct of other employees or misconduct other than by the supervisor potentially may be disclosures protected by WPA.

The appellant claimed that he was removed from his position of Assistant Inspector General in reprisal for making protected disclosures to his supervisor about his supervisor's conduct and about the conduct of other office employees. Among other things, the appellant complained about alleged falsification of Government documents and illegal hiring practices. The appellant took the matter to the Office of Special Counsel (OSC), which found that protected disclosures had not been made. He then filed an Individual Right of Action (IRA) appeal with the Merit Systems Protection Board (MSPB).

An MSPB administrative judge dismissed the appeal for lack of jurisdiction after finding that the alleged disclosures were not protected disclosures since they were part of the petitioner's required everyday job responsibilities and they were not made to persons in a position to correct the misconduct. The judge further decided that none of the alleged disclosures involved alleged instances of gross mismanagement, gross waste of funds, or abuse of authority. The judge did not distinguish between complaints made to the supervisor about the supervisor himself, and those made about other employees. After the full Board dismissed the appellant's petition for review of the judge's decision, the appellant took the matter to the Court of Appeals for the Federal Circuit.

The Federal Circuit reiterated its holdings in Willis v. Department of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 1998), and Horton v. Department of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995), that complaints to a supervisor about the supervisor's own conduct are not disclosures protected by the Whistleblower Protection Act (WPA). The court also held that complaints made as part of an employee's assigned normal job responsibilities are not protected by WPA when they are made through normal channels. However, the court did hold that complaints to a supervisor about the conduct of other employees or misconduct other than by the supervisor potentially could be disclosures protected by WPA depending on the circumstances. The court vacated the Board's administrative judge's decision in part, noting that Willis and Horton do not require disclosures be made to a person with actual authority to correct the wrong. Finally, the court concluded that the appellant's allegations were sufficiently serious that they could constitute gross mismanagement, gross waste of funds, or an abuse of authority.

The court remanded to the Board to clarify whether the disclosures concerning the conduct of other employees meet the first, second or third standard articulated by the court in this case. The first standard applies to employees with investigatory and reporting responsibilities as part of their normal duties, and who disclose wrongdoing through normal channels. Disclosures under this standard would not be protected.

The second standard applies to employees with such investigatory and reporting responsibilities but who disclose wrongdoing outside of normal channels, thereby incurring risk to their own job security. Disclosures under this standard would be protected.

The third standard applies to employees obligated to disclose wrongdoing, such as required by statute, but the disclosure is not part of their normal duties, and they have not been assigned those duties. Disclosures under this standard may be protected by WPA.

The court also required the Board on remand to address whether appellant personally had the required "reasonable belief" that his disclosures covered gross mismanagement, gross waste of funds, or an abuse of authority.