shaw bransford & roth case law update

OSC Files Amicus Briefs in Cases Regarding Heightened Evidentiary Burden

On April 7, 2016, and April 12, 2016, the United States Office of Special Counsel filed an amicus curiae (“friend of the court”) brief in two separate cases: Acha v. Department of Agriculture, and Benton-Flores v. Department of Defense, respectively. The Acha case is currently pending before the United States Court of Appeals for the Tenth Circuit, while the Benton-Flores case is on remand to an MSPB administrative judge.

Both cases involve the question of whether the disclosures made by the employees in question were made within the employee’s “normal course of duties.” 5 U.S.C. § 2302(f)(2) states that if a disclosure is made within the normal course of an employee’s duties, it will not be excluded as a protected disclosure under the statute if “any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.” This creates an additional evidentiary burden for employees whose disclosures came as a result of their normal course of duties.

As OSC noted in its April 13, 2016, press release, the Senate report on the Whistleblower Protection Enhancement Act provided that the “purpose of the additional burden was to preserve a supervisor’s ability to manage investigatory employees in carrying out their basic job functions, but still ensure those employees are protected from retaliation.” In other words, because some employees investigate potential wrongdoing as part of their job, any negative findings they make as part of their job could potentially be classified as a protected disclosure in the absence of the statutory provision.

OSC argued, however, that neither employee at issue here (a goods and services purchase agent and a teacher) was employed as an investigator, and that investigation was part of neither’s core job responsibilities. Therefore, OSC asserted, neither should be subject to the heightened evidentiary burden under 5 U.S.C. §2302(f)(2).

Furthermore, OSC argued in its briefs that 5 U.S.C. § 2302(f)(2) was created to prevent the exclusion from protection a “narrow category of disclosures from federal employees who regularly investigate and report wrongdoing as principal job functions,” and that “it would be perverse to impose this heightened standard” on disclosures that have been protected even prior to the Whistleblower Protection Enhancement Act. Special Counsel Carolyn Lerner noted that the Whistleblower Protection Enhancement Act was passed in order to bolster, rather than weaken, whistleblower protection for federal employees, and that expanding the heightened burden to these employees could undermine the reforms achieved by recent legislation.

Read the full amicus curiae briefs:




This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: OSC, case law update, conor d dirks, conor dirks



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