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Fourth Circuit Broadens Scope of Protected Activity Under Whistleblower Protection Act

In Bonds v. Leavitt, the United States Court of Appeals for the Fourth Circuit reversed the lower court’s grant of summary judgment, holding that Dr. Duane Bonds’s disclosure to a supervisor that the National Institute of Health (NIH) unlawfully retained cell lines created from the blood of participants in a clinical trial without their consent was a protected disclosure under the Whistleblower Protection Act (WPA).   The Court suggested that Huffman v. Office of Pers. Mgmt., a Federal Circuit decision creating a “duty speech” loophole in the WPA, may not apply to the Fourth Circuit.  And assuming Huffman even applies, the Court held that Bonds went beyond her normal job duties when she disclosed the illegal activity to a supervisor, because there was no evidence that Bonds had a responsibility to report any concerns to that supervisor.  The Court also rejected the argument that its 2001 decision in Hooven Lewis v. Caldera requires that, to constitute protected conduct, the report must be made to a person the would-be whistleblower believes has actual authority to correct the wrongdoing.

The Employment Law Group® law firm principals R. Scott Oswald and Jason Zuckerman submitted an amicus brief to the Court on behalf of the Project On Government Oversight (POGO) and the Public Employees For Environmental Responsibility, arguing against the adoption of the Hooven-Lewis and Huffman loopholes by the Fourth Circuit.  For more information about the Whistleblower Protection Act, click here.

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