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MSPB: MSPB Whistleblower Decision breathes life back into Whistleblower Protection Act (WPA)

MSPB: MSPB Whistleblower Decision breathes life back into Whistleblower Protection Act (WPA)

The new Full MSPB has released what appears to be a first step towards improving the protections for Federal employees who are whistleblowers.

In a recent decision, the MSPB clarified what constitutes a personnel action in an Individual Right of Action (IRA) Appeal. Weed v. Social Security Administration, 2010 MSPB 23 (January 28, 2010).

In that case, an applicant for Federal Employment complained that an Agency decided not to select him for a postion in reprisal for disclosures he had made in 2006 to the Office of Special Counsel (OSC). The MSPB Administrative Judge specifically found that the appellant did not have standing to file an IRA appeal because he was not an agency employee or applicant for employment with the agency when he made his 2006 disclosures to OSC or when the agency allegedly took, or failed to take, a personnel action with respect to him. In other words, the MSPB Administrative Judge found that the Whistleblower Protection Act (WPA) only protected whistleblowers that were harmed by the same agency against whom they blew the whistle and were employed by that Agency when the reprisal existed.

This is one example of how, over the past decade or longer, Administrative Judges of the MSPB, helped by a pro-Agency Full MSPB has slowly eroded the Whistleblower Protection Act (WPA), with the end result that Federal Employees do not feel safe reporting government waste, fraud, abuse, threats to public health or safety, or government violations of law without a substantial fear that they will lose their career or income.

Attorney Chris Attig said: “It has gotten so bad in the MSPB that unless you blow the whistle on Tuesday afternoon, between 1 :01 and 1:03 pm, to an undisclosed individual outside your chain of command who goes by the code-name “Mr. Smith”, while wearing green shoelaces and speaking in professorial English accent, you do not get whistleblower protection or relief through the MSPB.”

Mr. Attig’s colorful reference is backed up by statistics; the Legal Director the Federal Ethics Center, David B. Nolan, says: “In the thirty-one years since the passage of the CSRA, twenty-five thousand whistleblowers have alleged fifty thousand violations of law to OSC. Out of this number, OSC misfeasance and malfeasance have limited the number of corrective actions to fewer than two hundred.”

Against this back-drop, the new members of the MSPB took action – and they did it well. The new members started with Federal Court cases and the Board’s own precedent to the effect that the Whistleblower Protection Act (WPA) is a remedial statute, and Administrative Judges should construe its terms broadly. The members then proceeded to explain that the failure to give such a broad reading to the Whistleblower Protection Act (WPA) runs counter to the intent of the law.

Next, the MSPB proceeded to explain that a whistleblower does not need to be an employee, an applicant for employment or a former employee at the time he/she made his protected disclosures. To those of us in the real world, this makes good sense – as the new Board members noted, such a limitation would not provide whistle-blower protection to those who know of government waste, fraud or abuse or violation of law, but who are not employed by the government or a particular agency when they disclose it. In other words, under the old analysis, whistleblowers at the Internal Revenue Service who tried to leave and go to Bureau of Engraving and Printing would not be considered whistleblowers deserving protection from reprisal because they didn’t blow the whistle against the ‘new’ Agency.

Most interesting, though, was the MSPB’s analysis of the question of whether or not the failure to fill a vacancy announcement could be considered a personnel action against a Whistle-blower who had applied for the job. The MSPB made this statement in dicta in the decision: “Given that an agency’s action can be considered a covered personnel action simply by leaving a position vacant and not filling it with anyone, then an agency could engage in a prohibited retaliatory personnel action by intentionally using a particular selection process as part of a scheme that would deny a whistleblower an opportunity to seek the appointment.” This phrase is not the holding of the case – just dicta that helps lawyers, practitioners, and observers understand the Courts reasoning. This reasoning suggests that the days of MSPB rulings that Federal Agencies have unfettered discretion to cancel a vacancy announcement may be behind us.

The new MSPB did not find that the employee in this case was a whistle-blower, only that the MSPB Administrative Judge had jurisdiction to hear his case. For that reason, the new MSPB’s decision is particularly well-received: it allows the Appellant the right to his “day in Court”, where one can only hope that his chances turn on how well he presents his facts and legal arguments to the MSPB Administrative Judge.

The bottom line is that the MSPB, in a very well-reasoned and simply explained decision, effectively gave CPR to the Whistleblower Protection Act (WPA) anti-reprisal provisions. The Whistleblower Protection Act (WPA) is not alive and well, just yet, but it just might make it to the hospital.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If your Agency has taken an adverse action against you based on careless or negligent performance of duties, contact an attorney familiar with MSPB appeals.