Federal Circuit Clarifies Definition of “Abuse of Authority”
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
An Army doctor working in Germany testified in an internal investigation that the commanding officer of the Army hospital harassed his wife and intimidated him at a hospital function after his wife complained about the care she received. On January 19, 2022, the U.S. Court of Appeals for the Federal Circuit held that allegations that a high-ranking official engaged in sexual harassment and bullying were allegations of “abuse of authority,” and therefore protected whistleblower disclosures subject to U.S. Office of Special Counsel (OSC) and Merit Systems Protection Board’s (MSPB) jurisdiction.
The Army doctor was a Lieutenant Colonel who “occasionally saw patients at [an Army hospital in Germany] as a visiting provider.” In December 2017, his wife received allegedly “substandard” treatment at the facility, and filed a complaint. That complaint “made its way up the chain of command” to “the hospital’s commander.”
Shortly thereafter, the Army doctor and his wife attended an Army clinic’s Holiday Ball, where they encountered the hospital’s commander. According to the Army doctor, the commander was “visibly intoxicated, attempted to intimidate [the Army doctor] as a lower-ranking officer, and…made [the doctor’s wife] extremely uncomfortable by whispering in her ear and touching her to the point where she remarked that if she had been alone…she thought he would have assaulted her.” After the ball, the Army doctor filed a complaint regarding this behavior, and the Army convened an internal investigation. During the investigation, the Army doctor testified against the commander, as did his wife.
Despite that testimony, the Army reinstated the commander in June 2018. According to the Army doctor, he and his wife were then subjected to a series of retaliatory actions. First, his wife was allegedly barred from participating in volunteer services at the facility. She complained about this to the deputy commanding officer, Colonel Bennett. Then, in July 2018, the Army doctor applied for a position as a Supervisory Physician in the Traumatic Brain Injury Clinic of the Army hospital. The Army deemed him qualified and extended him a tentative job offer. However, a month later, the deputy commander who received the wife’s complaint “sent a memorandum launching an investigation into undisclosed ‘ethical concerns regarding [the Army doctor’s hiring action].” The Army put a hold on hiring the doctor.
On November 1, 2018, the Army notified the doctor it was withdrawing its tentative job offer, explaining that it was “re-evaluated by the Command and subsequently cancelled.” Later that month, the Army reposted the same position on its website, and the doctor reapplied. This time the Army rejected him as not qualified.
In May 2019, the doctor filed a complaint with the OSC. He alleged that the ethics investigation, withdrawal of the tentative job offer, and non-selection after reposting the job were retaliation for his wife’s patient complaint and his April 2018 testimony against the commander in the internal investigation.
In August 2019, he applied for the same position again, was selected, and extended a final job offer. He countered the “final job offer,” asking for a higher salary. As the court put it, “[t]hen there was silence.” Finally, in February 2020, Army came back with a new final offer that was tens of thousands of dollars less than the original “final” offer.
In June 2020, OSC sent the doctor a closure letter, stating without explanation that it had determined not to take any further action due to evidence the Army had provided that it would have taken the actions regardless of the doctor’s disclosures. The Army doctor appealed to the MSPB, where his case was dismissed for lack of jurisdiction. The MSPB found that none of the doctor’s disclosures were “protected” under 5 U.S.C. § 2302(b)(8) or (b)(9), including his April 2018 testimony about the hospital commander’s conduct.
The Federal Circuit disagreed. It held that “[b]oth sexual harassment and bullying by a superior officer under the circumstances alleged would be abuses of authority.”
Because Section 2302 does not define “abuse of authority,” the appeals court looked elsewhere to land on a definition, including recent statutes extending whistleblower protections to federal contractors for Congress’ definition of “abuse of authority.” There, in 41 U.S.C. § 4712(g)(1), an abuse of authority was defined as “an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned.” As the court stated, “For whatever the Army’s mission is, [the commander’s] alleged bullying and sexual harassment were inconsistent with it.”
As such, the appeals court found that the MSPB erred in dismissing the Army doctor’s appeal for failure “to allege sufficient factual matter to state a plausible claim that his testimony was protected under § 2302(b)(8),” the whistleblower reprisal law, and remanded the matter to MSPB. Thus, the MSPB will be required to adjudicate whether the Army subjected the Army doctor to retaliation for protected disclosures of abuse of authority, as well as violation of law, rule, or regulation.
Read the full case: Smolinski v. MSPB.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.