Federal Circuit Opens Doors to Retaliatory Investigations

On April 8, 2020, the United States Court of Appeals for the Federal Circuit dealt whistleblower protections a crippling blow when the court ruled that retaliatory investigations do not constitute adverse personnel actions. This decision will create a considerable deterrent to Federal whistleblowers nationwide who already face limited protections under the Whistleblower Protection Act enforced by an almost inactive adjudicatory body, the Merit Systems Protection Board.

In Sistek v. DVA, Leonard Sistek, a former Department of Veterans Affairs (“VA”) Director in Denver Colorado, was subject to an investigation after blowing the whistle on suspicious financial practices at the VA. This investigation resulted in Mr. Sistek receiving a written reprimand. As a result, Mr. Sistek filed a complaint with the Office of Special Counsel, which closed his claim. Then the matter was reviewed by an administrative judge at the MSPB. Finally, Mr. Sistek took his case to Federal Court, asserting that the investigation was an act of retaliation for his whistleblowing on the financial misconduct at the VA, arguing that the MSPB was in error when it denied his claims for corrective action.

The Federal Court denied Mr. Sistek’s claim for corrective action based on the retaliatory investigation on the text of the WPA. The court noted that the Act does not explicitly include investigations as a retaliatory personnel action. Further, the court determined that the investigation did not result in a significant change in Mr. Sistek’s working conditions.

This decision notes that the legislative history supporting the WPA noted that retaliatory investigations were not included as prohibited personnel actions because Congress was concerned about agencies’ abilities to engage in routine investigations. However, this decision stokes concerns about a whistleblower’s ability and willingness to engage in protected activities – such as disclosing a reasonable concern that wrongdoing may be occurring – at the expense of taxpayers. In determining that the investigation did not result in a significant change in Mr. Sistek’s working conditions, the court neglects the realities of Mr. Sistek’s experience and the deterrent effect this experience may have on other potential whistleblowers. The court minimizes the fear and anxiety caused by the retaliatory investigation, which are the basis for anti-retaliation protections.

Retaliation is a tool known to silence and deter whistleblowers. Where there is retaliation, there should always be protections. The appeals court could have easily used the standard pretext analysis to determine whether the investigation was retaliatory and follow the spirit of the Whistleblower Protection Act to prohibit such conduct. Obvious retaliation cannot be allowed for the sake of protecting non-retaliatory investigations, and agencies should be held responsible for weaponizing their oversight mechanisms to penalize or silence whistleblowers.

The Federal Court decision is incredibly discouraging to potential Federal Whistleblowers. It comes at a time when whistleblowers are needed to ensure the appropriate use of resources to address an international health crisis. COVID-19 has brought a spotlight on whistleblowers and exposed the life and death consequences of focusing on retaliation and silencing over corrective action. These measures are reinforced by this recent court decision, which fails to protect whistleblowers who are subject to retaliatory investigations. As a matter of public policy, this decision is dangerous, and agencies should be encouraged to focus their resources on addressing wrongdoing and taking corrective action – not investigating whistleblowers in an act of retaliation.

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