For over five years, the Merit Systems Protection Board (MSPB), the quasi-judicial agency which oversees federal employee whistleblower cases, lacked a quorum and was unable to issue rulings. On March 1, 2022 the Senate voted to confirm two nominees to the Board, Raymond Limon and Tristan Leavitt, restoring a quorum and allowing the MSPB to regain functionality.
Since then, the MSPB has begun to whittle away at the immense backlog of cases which piled up over the five years the Board lacked a quorum. In the first three months with a quorum, the MSPB issued 15 precedential and 173 nonprecedential decisions. A number of the precedential decisions concerned whistleblower cases and set noteworthy precedents on whistleblower retaliation issues.
Discrimination Cases are Not Under the MSPB’s Jurisdiction
In one precedential decision, the MSPB ruled that retaliation cases concerning disclosures of discrimination fall under the jurisdiction of the Equal Employment Opportunity Commission (EEOC), not the Board. This MSPB decision was released on May 5 in the case of John S. Edwards v. Department of Labor.
Edwards was a GS-15 Deputy Director at the Department of Labor’s Employment and Training Administration, Office of Information Systems and Technology. Edwards blew the whistle to supervisors that Black employees were not being offered assignments and opportunities due to their race. Edwards also filed complaints of systemic race discrimination against African American employees with the agency’s Equal Employment Opportunity (EEO) Office. A few months thereafter, Edwards was reassigned to a nonsupervisory GS-15 position.
Edwards filed a complaint with the Office of Special Counsel (OSC) alleging that his reassignment was in retaliation for blowing the whistle. When the OSC closed its investigation, he appealed to the MSPB.
The question at hand for the MSPB was whether or not it had jurisdiction over the matter. Edwards argued that because he was raising allegations of reprisal and not the discrimination in of itself, he should be afforded the whistleblower protections overseen by the MSPB.
However, the MSPB ruled that even allegations of reprisal for disclosing discrimination are issues of discrimination that are under the jurisdiction of the EEOC, overturning its own previous precedent. It established the precedent that any matters related to sex, race, color religion or national origin are excluded from whistleblower protections. Instead, these issues fall under Title VII of the Civil Rights Act, according to the Board.
“It is clear that separate remedies exist for redress of claims of discrimination and claims of reprisal for whistleblowing, and that claims must be brought under the appropriate statutory scheme,” the MSPB ruled. “This further supports the conclusion that allegations of discrimination may not be brought under the whistleblower protection statutes.”
“While the appellant appears to have been admirably motivated in seeking to remedy perceived discrimination in his agency, we find that he failed to meet his jurisdictional burden, and that the proper forum for his allegation of retaliation for filing an EEO complaint is with the Equal Employment Opportunity Commission (EEOC),” the MSPB decision reads.
Whistleblower Protections Extend to Reemployed Annuitants
In another precedential decision, the MSPB determined that whistleblowers extend to reemployed annuitants and that the MSPB therefore has jurisdiction over retaliation cases involving annuitants. The MSPB issued this precedent in their April 20 decision in Javier Soto v. Department of Veterans Affairs.
Soto was a reemployed annuitant at the VA’s Veterans Service Center in Orlando, Florida, meaning that he had previously retired but was rehired due to an agency staffing need. On June 30, 2014 Soto was removed from his position. He alleges that his removal was made in retaliation for “protected disclosures contained in two Quality Review Team (QRT) Studies, and for various grievances and complaints he filed in his capacity as Executive Vice President of the American Federation of Government Employees (AFGE) Local 1594,” according to the MSPB.
Because remployed annuitants serve “at the will of the agency” and are not necessarily defined as “employees,” Soto’s appeal to the MSPB brought forth the question of whether or not reemployed annuitants are afforded whistleblower protections.
The MSPB ruled that, while Soto is entitled to appeal his removal before the MSPB, he is entitled to seek whistleblower protections under the Board’s jurisdiction. The MSPB decided the Whistleblower Protection Enhancement Act outlined groups of individuals not covered by the law’s whistleblower protections and that because reemployed annuitants are not on that list, then they are covered.
Whistleblowers Do Not Need to Reply to OSC Initial Decision to Exhaust Administrative Remedies
In a third precedential decision the MSPB ruled that a whistleblower does not need to reply to an OSC initial decision in order to have fully exhausted all administrative remedies. This decision came in the case Dwyne Chambers v. Department of Homeland Security which was released on May 2.
The federal employee whistleblower protection system includes a multi-step process for filing retaliation complaints and appeals. A whistleblower cannot file an appeal before the MSPB until they have exhausted all administrative remedies. In this case, Chambers, a pipefitter at the Department of Homeland Security’s U.S. Coast Guard Yard in Baltimore, Maryland, filed a whistleblower retaliation complaint with the OSC on March 30, 2016. The OSC sent Chambers on a preliminary determination letter on October 14, 2016 followed by, on November 16, 2016, “a closure letter notifying him that it had not received any comments from him, it was terminating its investigation, and he could file an appeal with the Board,” according to the MSPB.
Chambers did appeal before the MSPB, but an administrative judge ruled that “the appellant failed to exhaust his administrative remedies before OSC because he failed to respond to OSC’s preliminary determination letter,” the MSPB decision states.
In a precedential decision, the MSPB overturned the administrative judge’s ruling on whether or not Chambers had exhausted his administrative remedies.
According to the MSPB, “the language in 5 U.S.C. § 1214(a)(1)(D) is permissive regarding an individual’s response to OSC’s preliminary determination letter and nothing in the statute requires an individual to respond to OSC’s preliminary determination letter to retain his IRA appeal rights. Thus, we find that the appellant was not required to respond to OSC’s preliminary determination letter to prove that he exhausted his administrative remedies and the administrative judge erred in misconstruing the appellant’s opportunity to respond under 5 U.S.C. § 1214(a)(1)(D) as a requirement to respond.”
Casting a Department in a Negative Light Can Be Cause for Retaliation
In a fourth precedential decision, the MSPB ruled that whistleblower disclosures which cast a whole department in a negative light can be seen as sufficient motivation for retaliation even if the management carrying out the retaliatory act are not expressly mentioned in the disclosure. This ruling was made in the case Garilynn Smith v. Department of the Army.
Smith’s husband, a U.S. Army sergeant and explosive ordnance disposal technician, was killed in action in 2006 in Iraq. Five years after her husband’s death, Smith blew the whistle to the media and Congress about the mishandling of his remains by the Air Force. Smith publicly revealed that the Air Force had dumped her husband’s remains at a landfill in Virginia.
At the time, Smith was employed as a civilian Army employee. She served as a GS-08 Management Support Assistant with the Office of the Project Manager, Maneuver Ammunition Systems (PM MAS). In 2012, Smith transferred to the Naval Sea Systems Command but, unhappy with her position, she decided to apply for a position back at PM MAS.
After the Army selected another candidate for the position, Smith filed a complaint alleging she was not selected due to her whistleblowing. In their ruling, the MSPB decided that the evidence shows that the Army did indeed pass over Smith due to her disclosures. Notably, the MSPB found that her disclosures provided clear motivation for retaliation even though the Army officials involved in the hiring process were not targets of Smith’s whistleblowing.
“In this matter, although none of the agency officials involved in the decision not to select the appellant was directly implicated in the mishandling of service members’ remains, the misconduct the appellant disclosed was egregious and her disclosures generated a significant amount of negative publicity for the DOD,” the MSPB decision reads. “Given these circumstances, the appellant’s disclosures reflected poorly on DOD officials as representatives of the general institutional interests of the DOD, which is sufficient to establish a retaliatory motive.”
Massive Backlog Still Looms Over Board
While the MSPB has begun issuing decisions again after regaining a quorum, the Board is still facing a massive backlog of over 3000 cases. In January, former MSPB member Mark Robbins predicted this backlog would take at least five years to resolve.
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