Federal Manager's Daily Report

The Office of Special Counsel has intervened in a case pending before a federal appeals court that it says would create “unwarranted procedural hurdles for federal employees alleging whistleblower retaliation.”

In a case before the Court of Appeals for the Federal Circuit, the MSPB had ruled against a Navy employee asserting he suffered a retaliatory suspension due to his disclosures, including a letter he sent to a senator. The merit board held that he had failed to exhaust his administrative remedies before OSC, as required by the Whistleblower Protection Act because the letter was allegedly “vague.”

In a “friend of the court” brief, the OSC argues that the board “improperly conflated the initial administrative exhaustion standard with the subsequent merits determination in a whistleblower retaliation case,” the OSC said.

The board also held that the employee was not protected because he did not make his complaint in accordance with law. “OSC argues in its brief that the Board’s approach—requiring an affirmative demonstration of legal compliance—transforms a general obligation to comply with the law into a new specific legal burden on whistleblowers, which is not consistent with Board precedent or congressional intent. OSC argues that this additional burden would harm whistleblowers and undermine administrative efficiency,” a summary said.