Fedweek Legal

When a federal employee claims to be retaliated against for blowing the whistle, that employee can, after exhausting the administrative procedures provided by the Office of Special Counsel, file an appeal with the Merit Systems Protection Board called an “individual right of action” or IRA. An IRA appeal is different from an adverse action appeal, which is an appeal filed to the MSPB by an employee who has been fired, demoted or suspended for 15 calendar days of more. MSPB has issued a decision making it easier for whistleblowers to receive a hearing on the merits of IRA appeals.

In the case of Rusin v. Dept. of Treasury (MSPB Docket No. CH-1221-00-0028-W-1 September 4, 2002), the Board adopted the decision of the U.S. Court of Appeals for the Federal Circuit in Yunus v. Dept. of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) and, as a result, overruled one of its own decisions in Geyer v. Dept. of Justice, 63 M.S.P.R. 13 (1994). Under Geyer, if an appellant established a non-frivolous allegation that he (1) made a disclosure protected by the Whistleblower Protection Act, (2) the agency took, failed to take or threatened to take a personnel action, and (3) he exhausted the procedures at the Office of Special Counsel, the appellant was then only entitled to a hearing to prove that the Board has jurisdiction over the appeal (a so-called jurisdictional hearing). At the jurisdictional hearing, the appellant then had to prove by a preponderance of evidence these three (3) elements to demonstrate that the Board had jurisdiction over the appeal. According to the old law under Geyer, only if the appellant proved those three elements in the jurisdictional hearing would he or she be entitled to a hearing on the merits of a claim of retaliation for blowing the whistle.

However, under the rule announced in Rusin, the Board made it easier for whistleblowers to prove jurisdiction before the Board and thus to receive a hearing on the merits of their retaliation claims. According to Rusin, an appellant will have established Board jurisdiction and, therefore, be entitled to a hearing on the merits of the whistleblower appeal if he/she makes a non-frivolous allegations that: (1) he/she made a protected disclosure; (2) he/she has exhausted the procedures at the Office of Special Counsel; and (3) that the disclosure was a contributing factor in the agency’s decision to take or fail to take a covered personnel action against him/her.

The Board’s decision in Rusin is significant because it will allow employees who have been retaliated against for whistleblowing to actually present their claims before the MSPB without summarily getting dismissed for jurisdictional reasons.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **