13. Federal Legal Corner: Eligibility for Whistleblower
The U.S. Court of Appeals for the Federal Circuit recently issued a
decision that recognizes appeal rights under section 2302(a)(2)(c)
(ii) of the Whistleblower Protection Act (WPA) for employees
working in agencies that have not been expressly determined by
the President to be an executive agency or unit whose principal
function is the conduct of foreign intelligence or
counterintelligence activities. In Czarkowski v. Merit Systems
Protection Board, No. 03-3300 (Fed. Cir. Nov. 8, 2004), the
court found that President, or his lawful designee, had not
made an actual determination expressly naming the Navy's Office
of Special Projects (OSP) as an exempt agency under 2302(a)(2)
The employee, Carol Czarkowski, was employed under a Schedule A
appointment in the excepted service. Her position included dealing
with classified contracts for large dollar amounts and was
subject to a periodic security background investigation. After
Ms. Czarkowski made disclosures protected by the WPA, the agency
removed her supervisory responsibilities and placed her on a
performance improvement plan. After filing an initial complaint
with the Office of Special Counsel, Ms. Czarkowski filed an
individual right of action (IRA) against the agency with the
MSPB, alleging retaliation.
The agency moved to dismiss this case, arguing that the Board
did not have jurisdiction over the complaint because OSP was
exempt from Board jurisdiction under 5 U.S.C. 2302(a)(2)(C)(ii).
This statute denies the Board jurisdiction over IRA appeals
involving certain agencies, such as the Federal Bureau of
Investigation, the National Imagery and Mapping Agency, and
the National Security Agency. The MSPB upheld the dismissal
of her case on jurisdictional grounds, noting that Ms.
Czarkowski had failed to present evidence contradicting the
OSP's intelligence function.
The court of appeals in reversing the Board explained that
although many agencies have the authority to, and do actively
conduct foreign intelligence activities, the statute
specifically assigned the President the task of identifying
which agencies meet the principal function test. Contrary
to the Board's position, the statute does not give the Board
the authority to determine which agencies meet this test.
Even in the presence of documents that suggest to the Board
that the President could have or should have made the
determination that an agency meets the principal function test,
the burden is on the agency to establish that the President,
or his delegate, has explicitly exempted an agency or a unit
The court noted that by establishing the Intelligence Community
Whistleblower Protection Act (ICWPA) of 1998, Congress
expressly provided all intelligence employees an alternate
scheme for disclosing information without fear of reprisal. The
legislative history of the ICWPA also supported the clear inteny
of Congress to require an express Presidential determination.
Further, the court of appeals noted that for policy reasons it
is important that employees are able to determine whether they
are covered by the WPA or the ICWPA, in order to decide how to
disclose information without fear of retaliation.
For employees of those agencies, like the OSP, whose function
includes, or is authorized to include an element of intelligence
activity, this decision will be extremely helpful in obtaining
WPA protection and establishing the jurisdiction of the MSPB over
their whistleblowing complaints. As a result of this decision,
an agency seeking to dismiss a WPA case on this basis will be
required to prove that the President, or his delegate, expressly
and explicitly determined that the principal function of the
agency is foreign intelligence or counterintelligence activity.
This information is provided by the attorneys at Passman & Kaplan,
P.C., a law firm dedicated to the representation of
federal employees worldwide. For more information on Passman &
Kaplan, P.C., go to http://www.passmanandkaplan.com.
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