The Federal Circuit Court of Appeals has overruled the Merit Systems Protection Board in its interpretation of what constitutes a failure to take a personnel action in the context of whistleblower protections. The case is Ruggieri v. Merit Systems Protection Board, C.A.F.C. No. 05-3311 (precedent), 7/11/06. The facts reported below are taken from the court’s opinion.
Ruggieri was removed from his electrical engineer position with the Coast Guard, appealed, and ended up settling with an agreement that changed the personnel action to a resignation. A couple of months later, he applied for an electrical engineer vacancy at another agency–Department of the Interior’s Materials Management Service. He was interviewed for the position, but the agency then canceled the announcement and informed Ruggieri that no selection had been made under it.
A couple of months later, Interior issued two new electrical engineer announcements and did not consider applications received under the previously canceled announcement. Ruggieri did not apply under the new announcements. One person was later selected.
At that point, Ruggieri went to the Office of the Special Counsel and argued that Interior’s cancellation of the earlier announcement was in retaliation for his whistleblowing activity in his earlier employment with the Coast Guard. OSC investigated but declined to pursue the case. This triggered Ruggieri’s right to go to the MSPB with an Individual Right of Action appeal.
The issue was the Board’s jurisdiction and the question came down to this—did cancellation of a vacancy announcement amount to a failure by the agency to take a personnel action within the meaning of the whistleblower law? The AJ found that Ruggieri had met all the tests required to give the Board jurisdiction to hear his whistleblowing allegations, except for this one, noting that the Board “has consistently held that the cancellation of a vacancy announcement is not a personnel action under 5 U.S.C. §2302(a).” (Opinion p. 3)
After unsuccessfully petitioning the full Board for review of the AJ’s decision, Ruggieri decided to try the appeals court.
In a precedent-setting decision, the court threw out a long line of MSPB cases. Pointing out this was a matter of “first impression” for the court, it found the Board’s position “reflects an unduly narrow construction of the statutory language ‘fail to take…a personnel action.’” (p. 4) Elaborating, the court stated, “To endorse the Board’s 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.” (p. 6)
The court reversed the Board’s decision that it had no jurisdiction, and remanded the case for further proceedings. In short, Ruggieri gets his day in court before the Board.