On August 11, the U.S. Office of Special Counsel (OSC) filed an amicus curiae brief arguing against a recent ruling by a Merit Systems Protection Board (MSPB) administrative judge in a federal whistleblower case. The OSC calls for a reversal of the MSPB’s dismissal of a whistleblower’s retaliation claims, arguing that the MSPB made too narrow of a ruling. The OSC warns that this ruling sets a dangerous precedent for federal whistleblower cases.
The case in question involves Debra Tao, a pharmacist at the Veterans Affairs Department, who alleged she was demoted in response to her 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. But earlier this year, an MSPB administrative judge ruled against Tao’s IRA appeal, stating that she did not have a reasonable belief that the wrongdoing Tao disclosed evidenced a violation of law. Federal whistleblower protections, as outlined in U.S. Code Section 2302(b)(8), require whistleblowers to disclose violations of law in order to be protected. Tao appealed the decision.
In their brief, the OSC requests that the U.S. Court of Appeals for the Federal Circuit reverse the decision. The OSC argues that the MSPB made too narrow of a ruling and committed reversible error in the case. According to the OSC, the MSPB failed to analyze Tao’s retaliation claim under U.S. Code Section 2302(b)9, which includes two separately-defined provisions prohibiting retaliation for making a protected disclosure or engaging ina protected activity. Section 2302(b)9 differs from Section 2302(b)8 by covering a broader range of protected actions and by having different legal standards. Whereas Section 2302(b)8 requires complainants to have a reasonable belief that their disclosures evidence a violation of law, Section 2302 imposes no such requirement.
Thus, the OSC argues, the MSPB committed an error by not recognizing that Tao’s complaint is valid according to Section 2302(b)9 because she was retaliated against for partaking in protected actions. In their brief, the OSC stated that the MSPB’s “legal analysis contradicts the plain text of federal whistleblower statutes and neglects Congress’s purpose and intent to provide broad IRA appeal rights against retaliation both for making whistleblower disclosures as well as for engaging in activities related to whistleblowing.” The OSC adds that the MSPB’s “improper approach here is not in accordance with law and leaves federal employees uncertain about their IRA appeal rights under civil service laws and vulnerable to retaliation explicitly prohibited by the statute.”
The OSC enforces whistleblower protection laws for federal workers. The main law which protects federal whistleblowers is the Whistleblower Protection Act. Originally passed in 1978, the bill was amended in 1989, 1994, and 2012 in order to fix problems which made it ineffective. However, due to a lack of incentive awards and access to federal jury trials for whistleblowers, the legislation is not as strong as the whistleblower laws that protect most corporate employees.