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Federal Circuit Vacates MSPB Ruling on the Standard for Evaluating Protected Conduct under the Whistleblower Protection Act

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In Chambers v. Dept. of Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008), the Federal Circuit held that the Merit Systems Protection Board erred by conflating the standards for evaluating disclosures of risks to public health and safety and disclosures of gross mismanagement under the Whistleblower Protection Act (WPA). Chambers, the former Director of the National Park Service, was placed on administrative leave and subsequently terminated shortly after she disclosed to the media and to Congress staffing and security problems at the national monuments. The MSPB evaluated her disclosures as pertaining solely to gross mismanagement, a category of protected conduct that is difficult to establish because it requires a showing that reasonable people could not debate the error in the policy. The Federal Circuit held that Chambers’s disclosures about the consequences of a policy decision to provide what she considered inadequate funding for security at national monuments can be considered disclosures about a danger to public safety, a category of protected conduct that is established where the employee reasonably believes that the problem evidences a substantial and specific danger to public safety: While Chambers certainly expressed a disagreement with a policy decision, she also potentially disclosed a danger to public safety that may have resulted from that decision . . . . Chambers’s opinions about the consequences of the policy decisions could have disclosed a danger to public safety.  Coincidentally, the Interior Department’s Inspector General released a report lapproximately one week prior to the issuance of the Federal Court’s opinion revealing that the Park Service is understaffed and that security at the national monuments is inadequate, thereby corroborating the concerns that Chambers raised in 2004. Chambers should not have had to wait nearly four years for her disclosures to be validated. Fortunately, both the House and Senate recently approved amendments to the WPA that would provide genuine protection for whistleblowers in the federal government, including the option to remove WPA actions into federal court for a jury trial. Hopefully, Congress will soon enact amendments to the WPA.

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