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Whistleblower Protection Act triggered by canceling vacancy
July 12, 2006 by Ross Runkel at LawMemo
If an alleged whistleblower applies for a job, and then the job vacancy is cancelled, can the applicant claim foul?
Yes. Ruggieri v. MSPB (Fed Cir 07/11/2006)
Ruggieri appealed from an order of the Merit Systems Protection Board (MSPB) dismissing his Individual Right of Action appeal under the Whistleblower Protection Act (WPA). The Federal Circuit reversed.
Ruggieri was not selected for a federal position because the agency that posted the vacancy announcement decided to cancel the announcement and not hire anybody.
The question for the court:
Whether an agency triggers the Whistleblower Protection Act by 'fail[ing] to take ... a personnel action.' 5 USC Section 2302(b)(8), when the agency declines to hire an applicant pursuant to a vacancy announcement, but instead of hiring a different person cancels the vacancy announcement and hires no one for the position at that time."
The answer: Yes.
A contrary conclusion "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."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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