Employers bewildered by ambiguous whistleblower complaints have a newfound ability to win dismissal where the facts pleaded do not show protected activity and articulate an entitlement to relief. The decision by the Administrative Review Board (ARB) in Evans v. United States Environmental Protection Agency(ARB Apr. 30, 2010) (pdf) adopts and applies the U.S. Supreme Court's ruling in Ashcroft v. Iqbal (pdf), which holds that a complaint is subject to dismissal if it fails to plead sufficient facts to state a claim.

A 2-member majority of the ARB upheld dismissal of a complaint about “compliance issues”, because it did not articulate factual allegations showing that the underlying action was within the reach of federal whistleblower statutes. Having failed to ground his complaint in the environmental laws he invoked, the whistleblower was not able to survive dismissal of his retaliation claims.

Quoting from Iqbal, the ARB majority observed that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Instead, the whistleblower “must present a factual allegation indicating that the activity could qualify for protection” under the statute on which the complaint is based.

The ARB has final review authority over administrative law judge decisions under 17 federal whistleblower statutes, many of which share some common elements. Whistleblowers alleging retaliation, and parties charged in whistleblower complaints with unlawful reprisals, are certain to examine the allegations and their support to determine whether a complaint can satisfy the sufficiency requirements set out in Iqbal, and now required by the ARB.