Reporting Suspected Illegal Activity

The U.S. Court of Appeals for the Federal Circuit recently decided that an employee of the United States Agency for International Development (USAID) had legal protection when he disclosed possible on-duty intoxication of his co-workers to an agency official. Drake v. AID, No. 2008-3048 (10/7/08). The case was remanded to the Merit Systems Protection Board for further proceedings..

Matthew Drake is a Foreign Service investigator with USAID who was working in Budapest, Hungary. Mr. Drake attended one party at the U.S. Embassy in Budapest in July 2004 and another the following month. After the second party, Mr. Drake sent an email, with attached photographs, to the acting assistant inspector general for management. In this email, Mr. Drake described having seen large volumes of alcohol served and consumed, and intoxication among USAID and Dept. of State personnel while on duty. The Department of State’s Foreign Affairs Manual includes intoxication while on duty among the offenses subject to disciplinary action.

Responding to Mr. Drake’s email, the USAID/OIG special investigation division undertook an investigation of the incidents. The investigation concluded that while various high-level agency personnel had consumed alcohol during working hours, it could not determine whether the “employees were legally intoxicated while on duty.” Less than one month after Mr. Drake sent the email, his supervisor wrote a memorandum indicating that “Mr. Drake’s services are no longer needed in Budapest, Hungary.” The memorandum recommended that the agency transfer Mr. Drake to Washington, D.C. Mr. Drake then filed a complaint with the Office of Special Counsel alleging that the recommended transfer represented retaliation for whistleblowing activity (sending the email).

The circuit court limited the holdings of two earlier cases where it had found no discrimination after employees reported what the court characterized as, “at most, minor and inadvertent miscues occurring in the conscientious carrying out of one’s assigned duties, not violations of laws, rules or regulations.” Here, the court found that the violations Mr. Drake reported were neither inadvertent nor did they occur as part of the employees’ conscientious carrying out of their duties. The employees had taken deliberate and intentional action.

The court cited Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999), for the principle that in order to show that he had a reasonable belief in the violation of a law, rule or regulation, Mr. Drake would have to “show that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by him reasonably could conclude that employees were intoxicated.” The court affirmed Mr. Drake did not have to show that what he reported was in fact a violation of a law, rule or regulation, but only that a reasonable observer, given the facts, could have concluded that agency personnel were intoxicated and that a violation therefore occurred.

This case is interesting in that it reaffirms the limits of what kinds of disclosures are protected under 5 USC § 2302(b)(8). This decision gives added protection to those who report conduct which is later discovered to be lawful, or whose legality is never firmly decided. The case affirms that whistleblowers need not be absolutely certain that the conduct they report is actually a violation to benefit from the protection of the law against retaliation.