Federal Whistle-Blowers Must Get Administrative Review

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By Hassan A. Kanu

Sept. 6 — A former wildlife refuge director who alleged she was told to “be more feminine” and was fired for reporting alcohol abuse among U.S. Fish and Wildlife Service employees can’t pursue her whistle-blower claim in court without an administrative board review, a federal appeals court ruled ( Kerr v. Jewell , 9th Cir., No. 14-36000, 9/6/16 ).

Leslie Kerr presented several claims to the FWS’s Equal Employment Office, including sex discrimination and whistle-blower retaliation claims. The office ruled against her bias claim under Title VII of the 1964 Civil Rights Act but declined to consider her Whistleblower Protection Act retaliation claim. It said it lacks jurisdiction over retaliation claims unless they're based on bias, the court said. Kerr then appealed in federal court.

A straightforward reading of the WPA and the statute that governs federal employment shows that Congress didn’t intend to grant federal workers the right to court appeal of a whistle-blower claim that hasn’t been administratively reviewed by the Merit Systems Protection Board, the U.S. Court of Appeals for the Ninth Circuit found.

Nothing in the statutes authorizes “an employee to present an entirely unreviewed WPA claim in district court,” Judge Raymond Fisher wrote. Instead, the statutory scheme shows that the exclusive avenue to obtain judicial review of a WPA claim is to first request and exhaust administrative review with the MSPB, the court concluded.

Employment attorney Richard Renner of Kalijarvi, Chuzi, Newman & Fitch P.C. in Washington, D.C., told Bloomberg BNA Sept. 6 that he disagrees with the “unfortunate” decision and that it sets up a “circuit conflict” among federal appellate courts. Renner represented a federal worker in a Fourth Circuit case that made a holding contrary to the current decision. The Tenth Circuit has also read the law differently, Fisher observed.

Attorney: Court Misinterprets Statute

The relevant statute “explicitly allows federal workers to bring these cases to court when they have been processed either by an EEO office or the MSPB,” Renner said. He added that employees have a right to court review of their claims if they don’t receive a final decision from the EEO office or MSPB within 120 days—which would cover Kerr’s situation here.

“One thing I think the court overlooked is that four years ago, Congress made it explicit how important they thought whistle-blower protections are for federal workers, and how they wanted the courts to stop making excuses for dismissing these cases,” Renner said. “The Ninth Circuit is explicitly making their decision on what they consider the practicalities of handling federal sector claims, instead of following the language of the law.”

9th Cir.: Nothing to Review Here

The Ninth Circuit said the Tenth Circuit’s interpretation, which relied on the plain language of the statute, “lacks persuasive force where, as here, an agency’s EEO office refuses to consider the WPA claim.”

This is because the statute authorizes judicial review of the “ decision of the agency,” Fisher said. Here, “there is no decision on the merits of the WPA claim for the court to review” because the EEO office concluded that it lacked jurisdiction over the claim, the court said.

‘Unfortunate’ Ruling Should Be Appealed

“The Ninth Circuit is making up a new rule that is not in the plain text of statute, and in my reading of the law is contrary to the plain text,” Renner told Bloomberg BNA. A majority of circuit courts read the statute differently, he said.

“This is the unusual situation where the Ninth Circuit is taking a more conservative approach in terms of limiting access to the federal courts, compared to what other courts are doing,” Renner said. Many federal workers’ claims will be kept out of court under the ruling “until it’s reversed or otherwise overturned,” he said.

“The court does recognize that this creates a circuit conflict, and I think this sets up a possibility to petition the Supreme Court for certiorari, or to petition for a rehearing en banc,” Renner said.

T.M. Guyer and Ayers & Friends PC in Oregon represented Kerr. The U.S. Attorney’s Office represented the government.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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