The Merit Systems Protection Board recently ruled that an individual who was not selected for a position with the IRS failed to prove that his non-hire resulted from whistleblowing.

After the individual revealed that an agency office allegedly had been misapplying a tax credit to the detriment of taxpayers, the individual applied for an attorney and an economist position with the agency. When he was not selected, he filed an individual right of action appeal alleging the IRS violated the Whistleblower Protection Act, claiming that the agency retaliated against him for his disclosure. Specifically, the individual argued that some of the same IRS officials involved with his potential selection also knew of his whistleblowing activities.

An administrative judge rejected his initial appeal based on lack of jurisdiction.

On appeal to the Board, MSPB reversed the administrative judge finding that it had jurisdiction over the individual’s appeal because he had exhausted his administrative remedies with the Office of Special Counsel, and made non-frivolous allegations that he made a protected disclosure under the Whistleblower Act, and that his disclosure contributed to his non-selection.

The MSPB additionally found that though the administrative judge labeled the hearing jurisdictional, the hearing was held on the merits. Noting the administrative judge found the IRS officials credibly testified they had no knowledge of the whistleblowing activity, the MSPB denied the individual’s IRA appeal on the merits. Get Full Text