OSC Files Amicus Brief in MSPB Whistleblower Appeal
A Department of Homeland Security employee reported a potential security violation to Customs and Border Protection’s “Computer Security Incident Response Center,” (CSIRC) which led to an Internal Affairs investigation. An MSPB administrative judge ruled in an initial decision that the employee’s report did not constitute protected activity under the newly amended 5 U.S.C. section 2302(b)(9)(C). The administrative judge ruled as such notwithstanding recent changes to whistleblower protection law that broadened the scope of “protected activity” to include blowing the whistle to “any other [agency] component responsible for internal investigation or review.” The employee appealed the decision to the full Board, which is currently without a quorum.
According to OSC, the MSPB administrative judge misinterpreted the new amendment to section 2302(b)(9)(C) by creating an unwarranted distinction between agency components that investigate or review “the agency” and those that investigate or review “internal complaints and issues,” like Internal Affairs did in this case. The administrative judge found that CSIRC “does not investigate the agency; it investigates internal complaints and issues.”
OSC argued that Congress intended to expand the provision to include “any” agency component responsible for conducting internal investigations or reviews. OSC cited the “elementary rule of [statutory] construction” that “every word, clause, and sentence of a statute” must be given effect via a clear reading of the statute. Reading “any” to mean “one or some indiscriminately of whatever kind,” OSC argued that it was “clear that the statute intended to protect cooperation with or disclosures to “any” other agency component that conducts internal investigation or review, such as CBP’S CSIRC.
OSC noted that other MSPB administrative judges have interpreted the new statutory language in the broad, inclusive way OSC favors. It cited decisions finding that: 1) the “Compliance and Business Integrity Office at the Department of Veterans Affairs; 2) the Army’s Criminal Investigation Command; 3) the Department of Justice’s Office of Professional Responsibility; and 4) DHS’ own Joint Intake Center were all components “responsible for internal investigation or review.”
OSC also argued that the amendment should be analyzed “consistently with the common statutory interpretation canon that remedial statutes,” like the Whistleblower Protection Act, “are to be liberally construed to advance the remedy.” OSC observed that Congress passed the WPA in part to protect employees who disclose illegality, waste and corruption, and internal investigations and reviews are integral to those efforts. According to OSC, “[f]ailing to generously interpret the amendment to section 2302(b)(9)(C) will likely discourage employees from making such reports to agency components for fear that they will not be protected from retaliation.”
In its brief, OSC offered MSPB a “fair and workable standard for identifying agency components that would qualify under section 2302(b)(9)(C).” This new proposed standard would cover any agency component that had “formalized procedures for reviewing or investigating potential misconduct, deficiencies, or risks.” According to OSC, the formality of the procedures need not be uniform between components, as some may be “permanent offices with dedicated staff, while others may be convened as temporary boards comprised of agency officials selected for a specific inquiry.” Regardless, the component need only have formalized procedures for internal investigation or review.
OSC claims that this standard is consistent with Board precedent in Owen v. Department of the Air Force, in which the MSPB considered whether an employee reports to the agency’s safety office and OSHA were protected activity under section 2302(b)(9)(A)’s safeguard of employee’s right to exercise any “appeal, complaint, or grievance” available to them. In that decision, the MSPB held that those activities were only protected to the extent they involved “formalized adjudicative proceedings.”
For the above stated reasons, OSC “urge[d] the Board to clarify in its final decision the appropriate standard for determining what qualifies” under the newly amended section 2302(b)(9)(C), and to adopt OSC’s proposed standard.
Read OSC’s full amicus curiae brief in Mohler v. DHS.
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.