Last week, the Federal Circuit heard oral argument in Farrington v. Department of Transportation, an employment law case on appeal from the Merit Systems Protection Board. There, the Board determined that Farrington was not subject to whistleblower protections under the Whistleblower Protection Enhancement Act. Judges Lourie, Mayer, and Prost heard the oral argument. This is our argument recap.
Thomas Devine argued on behalf of Farrington. He noted how, in 2012, Congress enacted new law governing “’duty speech.’” At that time, he said, Congress focused on a “narrow group of employees whose normal duties included regularly investigating wrongdoing.” Those employees, he explained, are required to prove “an ultimate conclusion of reprisal rather than just a causal link to protected speech.” The Board, however, misread the “narrow scope of ‘duty speech’ to cover virtually all communications permissible in a job description,” he argued. Farrington, he suggested, did not engage in “duty speech.”
One judge suggested the MSPB decision was based, in the alternative, on a finding that there “was not a protected disclosure covered” by 5 U.S.C.§ 2302, which “didn’t have anything necessarily to do with the more recent amendments to the statute.” Devine reiterated that Farrington’s concern was that the Board “discarded the statutory structure in order to make” its conclusion. The judge, however, noted that, if the Board simply relied on “§ 2302 without trying to rest on any of the new amendments,” the question in this case boils down to “whether it was a protected disclosure” and not whether it was within “her normal duties.”
In response, Devine explained that the “protected disclosures” by Farrington were “challenges to the division manager” related to “unsafe conditions.” In fact, he continued, “how the audience responded to her concerns” made it clear she had an “objective basis” for believing she was making protected disclosures. Devine reiterated, however, that the real issue before the Federal Circuit was the Board’s finding that “she hadn’t proved reprisal.”
Later in the argument, Devine argued that the Department was required “to prove that [its action] was independent of reprisal.” But Devine noted that the “Board did not apply the clear and convincing evidence standard,” and “you can’t reach [the] ultimate conclusion . . . of reprisal without considering” the applicable burdens of proof.
Amanda Tantum, representing the Department of Transportation, opened her argument by asserting that “the Board properly found that Ms. Farrington made no disclosures protected by 5 U.S.C. § 2302(b) since she could not have reasonably believed she was disclosing a violation of law or a danger to public safety.” As a result, she argued, there was “no reason for the court to consider Ms. Farrington’s arguments related to separate issues such as arguments related to ‘duty speech.'”
When asked by the judge whether the Board had abandoned the consideration of normal course of duties and other limitations in favor of simply determining whether the disclosure was protected, Tantum responded that she “understood the Board to reach the issue of normal course of duties and the issue of principal job function and found that those higher burdens applied to Ms. Farrington.” Tantum, however, added that the Board had also provided an independent reason for its conclusion: “These disclosures simply didn’t fit the criteria for being protected.” The Board, she explained, found that Farrington’s report contained “only a brief and vague description” of a possible regulatory violation and that Ms. Farrington had worked with her supervisor to correct any deficiencies, which “had been corrected” by the time she wrote the report. Tantum emphasized that an employee must “identify a specific law, rule, or regulation believed to be violated.” Here, Tantum explained, there was “no identifiable violation,” making the disclosure insufficient for protection.
On the burden of proving reprisal, Tantum argued that Farrington’s counsel had conceded that the petitioner bore the burden of proving retaliation. She argued that “the clear and convincing burden on the agency . . . is irrelevant” under 5 U.S.C. § 2302(f)(2), maintaining that Ms. Farrington “did not demonstrate reprisal,” as the Board concluded. Even if the amended language applied, Tantum continued, the administrative judge properly found that Farrington’s principal job function aligned with her position description, “meaning she was not exempt from showing reprisal.” And the Board correctly found no evidence that her removal was retaliatory, she argued.
During his rebuttal time, Devine responded to the government’s position, arguing that “the administrative judge improperly found that Ms. Farrington’s disclosures were not protected because” the relevant agencies “disagreed with her.” He emphasized that “a disclosure does not need be correct to be protected,” but instead the whistleblower must only hold “an objectively reasonable belief.” He argued that Farrington met this standard.
Devine closed by stressing that a central issue before the court was the proper boundaries of “duty speech.”
Notably, earlier this week the Federal Circuit summarily affirmed the judgment of the MSPB in this case.