Court of Appeals Reverses Dismissal of Whistleblower Case by MSPB
The United States Court of Appeals for the Federal Circuit reversed the MSPB’s dismissal of a Department of Homeland Security employee’s Individual Right of Action (“IRA”) whistleblower retaliation appeal.
The appeals court held that the Board made a legal error when it considered the case’s merits when determining jurisdiction over the appeal.
After the Office of Special Counsel declined to prosecute the employee’s whistleblower retaliation complaint, the employee filed an Individual Right of Action appeal with the Merit Systems Protection Board, which has original jurisdiction over such appeals in order to determine whether employees have been subjected to whistleblower retaliation.
The MSPB administrative judge dismissed the appeal, however, finding that the employee did not meet a portion of the jurisdictional test: making a non-frivolous allegation that his disclosure was a contributing factor in a contested personnel action. The employee appealed the dismissal to the United States Court of Appeals for the Federal Circuit.
After the first round of briefing at the appeals court, the MSPB changed its position and agreed with the employee that the employee did establish jurisdiction, and that the case should be remanded. The MSPB agreed that the administrative judge made “legal errors in his jurisdictional findings” and “misread the record.” The appeals court noted that the MSPB has jurisdiction over an IRA appeal if an employee has exhausted all administrative (namely, Office of Special Counsel) remedies and makes “non-frivolous allegations that the [employee] made a protected disclosure that was a contributing factor to the personnel action taken or proposed.” A demonstration that the disclosure was a contributing factor can be accomplished through circumstantial evidence at the jurisdictional stage that “the official taking the personnel action knew of the disclosure” and the “action occurred within a period of time such that a reasonable person could conclude” that the employee’s disclosure contributed to the official taking the personnel action.
The appeals court noted that the issue of jurisdiction must be separated from the merits of the employee’s case, and reminded the parties that on several occasions, the appeals court has identified instances wherein the MSPB did not meet that requirement. The appeals court reiterated that at the jurisdictional stage, the allegations of retaliation need only be more than “vague, conclusory, or factually insufficient” and that the employee reasonably believe that his or her protected disclosure was a contributing factor in reprisal.
The MSPB administrative judge in this case considered affidavits by the employee’s supervisor claiming no knowledge of the disclosure and no intent to retaliate, despite the fact that the employee had not yet been granted access to discovery or all of the relevant documents (some of which the employee had requested through the Freedom of Information Act but had yet to receive). The appeals court noted that “non-frivolous allegations suffice at the jurisdictional stage precisely because, as here, the [employee] may lack such access.”
The appeals court found that the employee made protected disclosures alleging serious breaches in DHS’s practices that “threatened the safety and security of minor children” and that his allegations that his disclosures were a contributing factor in a personnel action were non-frivolous, thus warranting a merits hearing.
For the above stated reasons, the United States Court of Appeals for the Federal Circuit reversed the finding of the MSPB administrative judge, and remanded the case to the administrative judge for a hearing.
Read the full case: Piccolo v. MSPB
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For 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.