Washington, DC — Federal agencies may not cancel a vacancy announcement as a means of refusing to hire a job applicant because the applicant has a history of blowing the whistle, according to a decision this week by the U.S. Court of Appeals for the Federal Circuit. The ruling expands coverage of the federal Whistleblower Protection Act and overruled a longstanding policy of the civil service court, called the Merit Systems Protection Board (MSPB).
The decision came in the case of James Ruggieri, an electrical engineer, who was apparently selected to fill a vacancy at the Minerals Management Service (MMS), an arm of the Interior Department which collects royalties from oil and gas production on public lands. Ruggieri was later told by an MMS official that he would not be hired because he had been a whistleblower at a previous position in the U.S. Coast Guard. MMS then cancelled the vacancy announcement, waited a few months and reposted the same job.
Armed with a tape of his conversation with the MMS official, Ruggieri filed a complaint of whistleblower retaliation with the U.S. Office of Special Counsel which, after 18 months, ruled that the tape recording was not sufficient evidence of a retaliatory motive by MMS. Ruggieri then appealed to the MSPB which ultimately ruled that since MMS had cancelled the vacancy announcement there was no “personnel action” and therefore it was not covered by the Whistleblower Protection Act.
Represented by John J. Rigby of the Arlington, VA firm of McInroy & Rigby, Ruggieri took his complaint to the U.S. Court of Appeals for the Federal Circuit which has exclusive jurisdiction over appeals from the MSPB. Judge William Bryson, writing for a unanimous court, held that:
“To endorse the Board’s [MSPB] interpretation of the statute would immunize an agency’s decision not to hire a whistleblower, so long as the agency was willing simply not to fill the position for which the whistleblower had applied, even if the agency’s conduct was plainly motivated by whistleblowing activity. This case illustrates the potential mischief that could be caused by the Board’s interpretation.”
“The Court of Appeals for the Federal Circuit was persuaded by our arguments that MSPB was ignoring the plain language of the statute in this and previous cases,” said Rigby. “This case is an important victory for whistleblowers.”
The Federal Circuit, which sent the case back to MSPB for “further proceedings,” has historically been considered unsympathetic to whistleblower claims. According to figures compiled by the Government Accountability Project, a non-profit whistleblower defense organization, the Federal Circuit has, prior to this decision, ruled in favor of a whistleblower in only one of 119 cases since 1994. Congress is now considering legislation to remove whistleblower jurisdiction from the Federal Circuit and allow “all circuit review” in which cases would go to the U.S. circuit court from the region where they originated.
“This case is a perfect illustration of what is wrong with the federal whistleblower protection system in that Jim Ruggieri has been waiting more than five years in order to finally get his day in court,” stated Jeff Ruch, Executive Director of Public Employees for Environmental Responsibility (PEER) which represented Ruggieri through the Office of Special Counsel investigation. “Even armed with a smoking gun tape recording, Jim Ruggieri may have to wait years more before he finally prevails in this case.”