As we’ve been mentioning, next week the Federal Circuit will hear oral argument in three cases that attracted amicus briefs. On Wednesday, a panel will consider Farrington v. Department of Transportation, a case that attracted one amicus brief. In this case, Farrington challenges the Merit Systems Protection Board’s determination that she was not protected under the Whistleblower Protection Enhancement Act. This is our argument preview.
In her opening brief, Farrington, a former Federal Aviation Administration employee, argued that she “disclosed information related to aviation safety to the National Transportation Safety Board (NTSB) and her FAA division manager,” disclosures she contends “are protected under the WPEA.” According to Farrington, the Merit System Protections Board improperly interpreted the Whistleblower Protection Enhancement Act, “which shields federal employees from retaliation for disclosing information they reasonably believe evidence violations of law.” According to Farrington, the Board wrongly invoked “the most restrictive interpretation” of the statute by relying on “old rules” overturned by the WPEA. The WPEA, she explained, “protect[s] disclosures made through any channel” under 5 U.S.C. § 2302(f)(1) and, under a heightened proof standard, “protects whistleblowers who regularly investigate and disclose wrongdoing.” Moreover, she argued, even though Farrington’s disclosures were transmitted through independent, external channels, they “were not subject to diminished protections” because the WPEA is “designed to protect employees” from retaliation “regardless of their regular job responsibilities and normal reporting channels.” Lastly, Farrington argued, her belief in “regulatory and safety violations were objectively reasonable,” and the Board erred in finding her job entailed “regularly investigating and disclosing . . . ‘wrongdoing’ by FAA employees.”
In its response brief, the Department of Transportation argued that the court “should affirm the board’s decision denying the corrective action sought by Ms. Farrington.” As for why, the government argued the Board “reasonably concluded that Ms. Farrington’s four disclosures were not protected whistleblowing disclosures under 5 U.S.C. § 2302(b)(8).” According to Farrington, the administrative judge “did not err in analyzing whether [Farrington] reasonably believed there had been a violation of law or danger to public safety.” Moreover, the government contended, Farrington “waived any challenge to the [B]oard’s conclusion by failing to present developed arguments” opposing the AJ’s findings that her four disclosures were not protected. Without “a protected disclosure,” the Department continued, there is “no reason for the Court to consider the remainder of her arguments.” Nevertheless, the Department contended, substantial evidence supported the Board’s conclusion that her “disclosures were made in the normal course of her duties,” which triggered Farrington’s burden to show “the alleged personnel actions were taken in reprisal for her disclosure.” The Department asserted that the heightened burden on employees “with a principal job function of regularly investigating and disclosing wrongdoing applied.”
In her reply brief, Farrington maintained the Department’s “waiver argument is meritless” because the Board utilized it’s “broad authority” to “reopen and issue a new Final Order” and the “Board’s broad authority upon reopening is not constrained by alleged preservation failures.”
One amicus brief was filed in support of the petitioner. The Public Employees for Environmental Responsibility, Project on Government Oversight, and Whistleblowers of America argued in their brief that the “Board erred in relying solely on the employer’s position description” to identify Farrington’s “normal duties.” Moreover, they argued, the Board “failed to distinguish” Farrington’s duty to cooperate with the NTSB from her disclosure that was “outside her chain-of-command and normal job duties.”
We will continue to follow this case and report on developments.