The MSPB has authority to review whether the withholding of FECA injury compensation benefits from a federal employee was an act of retaliation for whistleblowing, a court has held, although it agreed that the employee failed to make such a case.
The U.S. Court of Appeals was considering a case in which a Navy employee argued that his benefits were cut off because of a disclosure he made to the IG of the Labor Department—which administers FECA–on issues related to those benefits. MSPB, however, ruled that it has no authority to review Labor’s decisions on granting or withholding injury compensation payments.
The court disagreed, holding that the law giving Labor final say on those benefits “does not close the door on review of all decisions that may overlap or touch on” that determination, according to an MSPB summary. The question of whether the department retaliated for whistleblowing is a different one than whether it correctly terminated his benefits, it said.
However, the court agreed with MSPB that proving reprisal requires a showing that the decision maker knew of the disclosure and that there was no evidence presented that those involved in the benefits decision knew that the employee had contacted the IG.
