Federal Circuit Rules That Agencies Can Retaliate Against Whistleblowers

The U.S. Court of Appeals for the Federal Circuit has issued a groundbreaking interpretation of the Whistleblower Act. According to the ruling issued April 18, federal agencies can conduct retaliatory investigations against employees who blow the whistle on wrongdoing without violating anti-reprisal laws. The court noted that the Act does not explicitly include investigations in its definition of retaliatory personnel action, and referenced the Act’s legislative history which indicates congressional concern about agencies’ abilities to engage in routine investigations. The case involved a director at a VA facility who made disclosures to the VA inspector general about agency spending and “contractual anomalies.” An Administrative Investigation Board subsequently investigated him concerning an inappropriate office relationship, and later cited him for failing to report it. The director brought a case before the Merit Systems Protection Board, arguing that the VA retaliated against him. An administrative judge ruled in the VA’s favor, leading him to appeal the decision in the federal circuit court.