Court sets risky WPA precedent

A recent decision by the Court of Appeals for the Federal Circuit [Case 97-3250, William E. Willis II v. Department of Agriculture; April 15, 1998] sets a dangerous precedent for federal employees who want protection under the Whistleblower Protection Act. According to my reading of the ruling, only federal employees who have risked their careers to benefit the public are qualified for protection through the WPA.

The case was brought by William Willis, a district conservationist with the Agriculture Department, who reviewed farm operations for compliance with conservation plans. In 1992 Willis found that 16 of the 77 farms he inspected were not in compliance. Owners of seven of the 16 farms appealed Willis' findings, and the USDA's Soil Conservation Service (SCS) reversed his determination in six cases. The USDA's Office of the Inspector General later sustained those reversals.

All in all, Willis' record does not seem too bad, but his supervisor did not see it that way. In an August 1992 letter, the supervisor wrote that Willis had not performed his job satisfactorily. Willis challenged each of his supervisor's criticisms a month later in a letter of his own. He also accused his supervisor of harassing him.

In November 1992, his supervisor's boss, Jeffrey Vonk, called the two to a meeting to discuss their poor working relationship. During this meeting, Willis repeatedly expressed a desire to be transferred to another position.

In April 1993, the USDA announced a vacancy for a position in Fairfield, Iowa, outside of Willis' commuting area. The series and grade of this position were the same as the position Willis held at the time, but he rejected an offer to transfer to the Fairfield position. In May 1993, Vonk directed Willis to accept the new position. Instead of accepting, Willis elected to retire.

Before the paperwork finalizing his retirement was completed, Vonk told Willis he did not have to retire and could remain in his position. Willis declined the offer and retired effective June 11, 1993.

In August 1994, Willis sent a letter to the Office of Special Counsel (OSC) requesting an investigation of personnel actions taken against him since 1986. He also requested a review of the 1992 reversals by SCS of the rulings on the farms that he had found did not comply with USDA conservation plans.

Clearly, Willis was a man who believed he had been wronged, and he was intent on exhausting all available remedies. In October 1995, unable to obtain relief from the OSC, Willis filed an Individual Right of Action appeal with the Merit Systems Protection Board. He sought corrective action for a low performance rating, a verbal reprimand and a directed reassignment. He also asked the MSPB to take action against the USDA for compelling him to accept involuntary retirement.

Willis claimed that these adverse personnel actions were taken in retaliation for disclosures he made regarding the reversals of his 1992 compliance findings and that the disclosures were protected under the WPA.

In an opinion written in June 1996, an MSPB administrative judge noted that Willis sent the disclosures to the OSC and the Center for Resource Conservation (CRC) after his retirement, so they could not have contributed to adverse personnel actions or to Willis' retirement. The judge also concluded that the issues raised by Willis regarding farms' compliance with conservation requirements were not protected disclosures under the WPA because they were not included in the complaint to the OSC.

The full board denied Willis' request for an appeal in February 1997, and he promptly took the case to the court of appeals. The court had to decide whether the MSPB was correct in its opinion that Willis' complaint to the OSC was not covered by the WPA.

To prevail in these cases, an employee must show by a preponderance of the evidence that a protected disclosure was made and that it was a contributing factor to the personnel action. Willis admitted that he sent the letters to the OSC and the CRC after the effective date of his retirement, so they could not be considered protected disclosures under the WPA. Instead, he argued that his 1992 complaints to his supervisors regarding the reversal of his findings should be considered protected disclosures.

The court ruled that those complaints were not disclosures of the type the WPA was designed to encourage and protect. The court's ruling noted that "discussion and even disagreement with supervisors over job-related activities is a normal part of most occupations."

The court pointed out that Willis did not contact a higher authority until after he had retired in 1993, so his complaints were not covered by the WPA, which "is designed to protect employees who risk their own personal job security for the benefit of the public."

Apparently, the court believes that a federal employee must stick his neck out quite a bit if he wants protection by the WPA, and Willis didn't stick his out far enough.

It is not clear whether Willis was a victim of retribution or just a disgruntled employee. But the standard established by this court for protection under the WPA causes me some concern. Denying WPA protection to a federal employee because his action did not sufficiently advance the public good is, in my opinion, a distortion of the act.

A whistle-blower, by definition, is someone who discloses the improper activity of a superior. And when someone discloses an improper activity, he advances the public good. So shouldn't WPA cover any disclosure of improper activity, regardless of whether such a disclosure threatens the whistle-blower's career?

The court's preoccupation with this definition is fraught with peril and threatens the protection that federal employees should have under the WPA. I sincerely hope that other courts do not follow in the footsteps of this ruling.

Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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