MSPB: NAF employees of non-military instrumentalities may file IRA appeals. Image: Lightspring/Shutterstock.com
By: FEDweek StaffIn the latest in a series of recent decisions taking a broad reading of protections against retaliation for whistleblowing, the MSPB has said that the law applies to employees of “non-appropriated fund” entities outside the Defense Department.
Unlike the large majority of federal positions, those jobs are not funded by appropriations from Congress but rather from fees charged for the services. Most of those are in the Defense Department in functions such as post exchanges and clubs although they exist in a number of other agencies, as well.
Case No. 2023 MSPB 25 involved one of those, the Agriculture Department’s National Finance Center, which is funded by the fees it charges for providing payroll services to other agencies. An employee filed an “individual right of appeal” contending that he suffered workplace reprisal after disclosing that a charge to a client agency was too low and that the difference could be made up only by over-charging other agencies or by putting a financial strain on the NFC itself.
The MSPB said that because the case presented the “unique situation of an NAF employee who is not employed by a military exchange or instrumentality, we take this opportunity to clarify that NAF employees of non-military instrumentalities may file IRA appeals.” It said that while the law specifically excludes employees of NAF functions in the Defense Department, there is no such exclusion for such employees in other agencies.
The MSPB then overturned a hearing officer who had ruled against the employee on grounds that he had not shown he had a reasonable belief that he had disclosed a violation of law, rule or regulation. The board held that he had made such a showing and told the hearing officer to determine if the other standards for whistleblower reprisal were met.
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