Defining Protected Disclosures under 5 U.S.C. § 2302(b)(8): Excluding Policy Disagreements and Performance Disputes

Introduction

Daniel Lockhart v. Department of Defense, No. 24-11177 (11th Cir. Apr. 14, 2025) concerns an auditor’s pro se appeal after being removed from a supervisory position at the Defense Contract Audit Agency (DCAA). Lockhart claimed that his demotion at the end of a one-year probationary period was retaliation for making “protected disclosures” under the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8). He argued that he had revealed gross mismanagement, rule violations, and unfair performance evaluations. Both the Merit Systems Protection Board (MSPB) and an administrative law judge (ALJ) found that his statements amounted only to policy disagreements and personal disputes over performance ratings. The Eleventh Circuit, applying the deferential standard of review in 5 U.S.C. § 7703(c), affirmed the Board’s decision.

Summary of the Judgment

The Eleventh Circuit denied Lockhart’s petition for review. Key holdings include:

The Board’s finding that Lockhart failed to establish a prima facie case of whistleblower retaliation was neither arbitrary nor capricious and was supported by substantial evidence.
Lockhart’s disclosures (criticism of his supervisor’s management, disagreements over evaluations) did not involve violations of law, rule, or regulation, or show gross mismanagement as required by § 2302(b)(8).
Even if some statements had been protected disclosures, Lockhart did not show they contributed to the personnel action; performance concerns predated his disclosures.
The ALJ did not abuse her discretion in denying a discovery motion; the requested information was not material to the dispositive issue.
Lockhart failed to demonstrate bias or prejudice by the ALJ warranting disqualification.

Analysis

1. Precedents Cited

The court relied primarily on four precedents:

5 U.S.C. § 2302(b)(8): Defines “protected disclosures” and bars personnel actions for whistleblowing.
Herman v. Department of Justice, 193 F.3d 1375 (Fed. Cir. 1999): Emphasizes that the WPA protects disclosures of genuine legal violations, not policy debates or performance squabbles.
Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999): Introduces the “reasonable belief” standard—an objective test based on what a disinterested observer could conclude.
Kelliher v. Veneman, 313 F.3d 1270 (11th Cir. 2002): Sets forth the MSPB review standard under 5 U.S.C. § 7703(c): decisions must not be arbitrary, contrary to law, or unsupported by substantial evidence.

2. Legal Reasoning

The court’s reasoning centers on two elements of a whistleblower claim:

Protected Disclosure: Under § 2302(b)(8)(A), an employee must show a reasonable belief that the disclosure revealed a violation of law, rule, or regulation, gross mismanagement, or abuse of authority. The ALJ and MSPB concluded that Lockhart’s complaints were limited to interpersonal management style and evaluation fairness—classic policy disagreements rather than statutory breaches.
Contributing Factor: Even if a disclosure is protected, the employee must show it contributed to the adverse personnel action. Here, supervisory concerns about Lockhart’s performance predated his alleged disclosures, breaking any causal chain.

The court applied the deferential standard of 5 U.S.C. § 7703(c), affirming the Board’s factual determinations so long as they were supported by relevant evidence. It refused to reweigh credibility or substitute its judgment for that of the ALJ.

3. Impact

This decision reiterates and clarifies the boundary between protected whistleblowing and ordinary workplace grievances:

Employees must identify specific legal or regulatory breaches, not just bad management or unfair evaluations.
Agencies and judges retain broad discretion to assess whether disclosures rise to the level of “gross mismanagement” under an objective standard.
Future claimants will face careful scrutiny of whether their complaints implicate statutory violations or merely reflect disagreement with supervisory decisions.
Agencies benefit from deference in whistleblower appeals, so long as they articulate reasonable, document-based findings.

Complex Concepts Simplified

Protected Disclosure: A report by an employee about wrongdoing that objectively appears to violate a law, rule, or regulation—or amounts to gross mismanagement, waste of funds, or abuse of authority.
Prima Facie Case: The initial showing an employee must make to trigger the legal protection—here, demonstration of a protected disclosure and a link to the personnel action.
Reasonable Belief Test: Asks whether a neutral observer with the same facts would view the employee’s report as evidence of wrongdoing, not simply a disgruntled criticism.
Substantial Evidence: Enough relevant evidence that a reasonable mind could accept the agency’s conclusion, even if other conclusions are possible.
Deferential Review: Under 5 U.S.C. § 7703(c), appellate courts do not reweigh facts or credibility but ensure the agency’s process was lawful, rational, and supported by substantial evidence.

Conclusion

Daniel Lockhart v. Department of Defense reaffirms that the WPA is designed to protect disclosures of genuine legal or regulatory violations—not disagreements over policy or personal performance appraisals. The Eleventh Circuit’s decision underscores the objective “reasonable belief” standard and the high bar for showing causation in whistleblower retaliation claims. Agencies and future review boards will cite this case to reinforce the distinction between protected whistleblowing and ordinary workplace disputes, ensuring that the WPA remains focused on systemic wrongdoing rather than individual grievances.