On May 7, the U.S. Court of Appeals overturned a ruling by a Merit Systems Protection Board (MSPB) administrative judge that the U.S. Office of Special Counsel (OSC) warned would set a dangerous precedent for federal whistleblower cases. The Court of Appeals ruled that the administrative judge failed to account for certain protected disclosures under federal whistleblower law in deciding a case involving a Department of Veterans Affairs (VA) whistleblower.
In an amicus curiae brief filed following the initial MSPB decision, the OSC argued that the administrative judge made too narrow of a ruling which left “federal employees uncertain about their individual right of action appeal rights under civil service laws and vulnerable to retaliation explicitly prohibited by the statute.” The OSC requested that the Court of Appeals overturn the decision.
The case in question involves Debra Tao, a pharmacist at the VA, who alleged she was demoted in response to making whistleblower disclosures, testifying on behalf of a colleague, and reporting labor violations to the Federal Labor Relations Authority. As a federal employee, Tao is entitled to seek corrective action for retaliation in proceedings before the MSPB through an Individual Right of Action (IRA) appeal.
However, the MSPB administrative judge ruled against Tao’s IRA appeal, stating that she had not proved that her actions were protected disclosures under the Whistleblower Protection Act (WPA). The OSC argued that the judge made “reversible error” in this ruling and that several of Tao’s actions, including filing complaints with the OSC and sending a letter to a member of Congress, were clearly protected disclosures under the WPA.
In the end, the U.S. Court of Appeals, OSC, and even the MSPB itself, determined that the administrative judge erred in the decision. The court ruled that several of Tao’s actions were actually protected disclosures and that her IRA appeal is valid.
Following the court’s decision, Tao’s retaliation case will return to the MSPB. However, the court ruled that the case must be heard by a different administrative judge due to the severity of the errors.
Under normal circumstances, Tao could have appealed the administrative judge’s opinion with the MSPB Board. However, the Board has lacked a quorum for over four years and thus has been unable to rule on any whistleblower retaliation cases. The lack of quorum has caused an unprecedented backlog of thousands of cases at the MSPB.
On April 28, President Biden announced his intention to nominate Cathy Harris to be the Chair of the MSPB. Even if Harris is confirmed by the Senate, however, the Board will still be short of the two-member total needed to form a quorum.
On May 4, a bipartisan group of U.S. Representatives reintroduced the Whistleblower Protection Improvement Act of 2021 (WPIA). The WPIA reforms the WPA in a number of ways, including allowing federal whistleblowers to pursue their retaliation claims in federal court if the MSPB does not issue a ruling within 180 days.