OSC: MSPB Misapplied Whistleblower Statute
On August 11, 2020, the United States Office of Special Counsel (OSC) filed an amicus curiae brief in Tao v. MSPB, a case pending before the United States Court of Appeals for the Federal Circuit, arguing that the Merit Systems Protection Board (MSPB) committed reversible error when it failed to properly analyze an employee’s allegation of whistleblower retaliation.
In Tao v. MSPB, a Department of Veterans Affairs pharmacist filed disclosures of wrongdoing with OSC, filed a complaint with VA’s Office of Accountability and Whistleblower Protection (OAWP), filed a complaint with the Federal Labor Relations Authority (FLRA), and “testified in support of two coworkers in EEO and MSPB proceedings.” The employee alleged that the agency subsequently took personnel actions against her in retaliation for protected activity, and filed an Individual Right of Action (IRA) claim at MSPB, seeking corrective action.
The MSPB Administrative Judge dismissed the IRA for lack of jurisdiction, finding that the employee failed to make non-frivolous allegations of retaliation because she did not have a reasonable belief that her disclosures showed wrongdoing covered by the Whistleblower Protection Act. According to OSC, MSPB’s legal analysis “contravenes the statute,” and improperly conflated the analysis for claims of retaliation under 5 U.S.C. § 2302(b)(8) and claims of retaliation under 5 U.S.C. § 2302(b)(9). Citing Serrao v. MSPB, 95 F.3d 1569, 1575 (Fed. Circ. 1996), OSC explained that “[t]he essential difference between the protections of sections 2302(b)(8) and (9) is between “reprisal based on disclosure of information and reprisal based upon exercising a right to complain.”
OSC explained that the two sections also have different legal standards. According to OSC, “[c]laims under section 2302(b)(8) require complainants to have a reasonable belief that their disclosures evidence a violation of law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” [emphasis added]. A “reasonable belief” under this standard is determined based on whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the government show wrongdoing as defined by the Whistleblower Protection Act.
But OSC argued that the requirement for an employee to have a “reasonable belief” that her disclosure exposes a violation of law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, does not apply to claims under section 2302(b)(9), even when an employee alleges retaliation for actions that could be protected under both sections 2302(b)(8) and (9). In those situtations, OSC argued, the MSPB must separately analyze whether the employee was subject to retaliation for exercising her right to complain. And according to OSC, that right to complain encompasses a wide range of activities, including each of the employee’s activities: disclosures of wrongdoing to OSC, complaints with OAWP, complaints with the FLRA, and testimony in support of colleagues.
In its brief, OSC argued that “[b]y ignoring [the employee’s] section 2302(b)(9) claim after disposing of her section 2302(b)(8) claim, the Board improperly made her section 2302(b)(9) claim redundant, and deprived her of a hearing on alleged retaliation for her protected activities. OSC observed that section 2302(b)(9) protects certain activities, whereas section 2302(b)(8) protects disclosures. Therefore, the reasonableness of the employee’s belief that she is disclosing actual wrongdoing covered by the statute is immaterial under section 2302(b)(9), because simply engaging in the protected activity is enough to trigger the statute’s protections. According to OSC, Congress has “reaffirmed time and time again that section 2302(b)(9) is intended to provide robust protection against retaliation for federal employees who engage in certain activities.”
For the above stated reasons, OSC requested that the Federal Circuit Court of Appeals reverse MSPB’s decision and remand the case for consideration on the merits.
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.