A Rare, Important Win, for Federal Employee Whistleblower

In my paper, Whither the Pickering Rights of Federal Employees?, I argue that not only do federal employees have no chance of succeeding on a First Amendment free speech Pickering claim against their public employer, but that they have little chance of succeeding in Whistleblower Protection Act (WPA) claims either.

One of the cases that I discuss in detail in my paper involves Teresa Chambers and her firing from the National Park Police as Chief because of her public disagreement with the Department of the Interior over budget and security issues. My discussion of Chambers v. Dept. of Interior focused on the MSPB's flawed First Amendment analysis under Garcetti:

The administrative law judge upheld her dismissal finding that she had disclosed sensitive security and budget information, failed to carry out supervisor's instructions, and failed to follow the chain of command.196 On the First Amendment issue, the AJ held that she did not speak as a citizen and therefore, under Garcetti v. Ceballos, had no First Amendment protection.

The Board granted the [petition for review] and affirmed the AJ decision. Specifically on the
First Amendment claim, the Board recognized that public employees have constitutional
rights under Connick and Pickering, but then stated the applicable Federal Circuit precedent as requiring that, "[e]mployees' free speech rights must be balanced . . . against the need of government agencies to exercise 'wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.'” Nevertheless, the MSPB decided the case under Garcetti, finding that her speech to the reporter was pursuant to her official duties and thus, not protected by the First Amendment. In support of this conclusion, the Board noted that Chambers had contested a gag order that would not allow her to speak to the press under any circumstance because it was her job to speak to the press about agency issues. The Board thus defined the scope of her job duties based on how they believed Chambers perceived them.

Although the Fedeal Circuit did not revisit the First Amendment claim, it did reverse and vacate (2-1) the MSPB on what constitutes a protected disclosure under the WPA, thus being one of a handful of cases in which a federal employee whistleblower has earned a victory at this level (though it does necessarily mean she will win on remand, it is another chance).

Next week, I will be talking why through cases like Chambers,  federal employees have it even worse than their state and local employee counterparts under Garcetti at the First Amendment Law Review Symposium at UNC.

PS