Fedweek Legal

On October 30, 2013, the Merit Systems Protection Board in Belyakov v. Dept. of Health and Human Services, 2013 MSPB 86, ordered a new hearing to reverse major errors in the original proceedings before the MSPB’s administrative judge.

Belyakov was a staff scientist at the National Cancer Institute on a term appointment whose Title 42 appointment was not renewed.Prior to the non-renewal ofBelyakov’s appointment, he had made disclosures of possible violations of hiring rules by his supervisor, allegations of rigging a hiring process to select a particular candidate instead ofBelyakov.Belyakov ultimately filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC).OSC declined to prosecute, andBelyakov then took his whistleblower reprisal complaint to the MSPB on an Independent Right of Action.The MSPB administrative judge assigned dismissedBelyakov’s appeal for lack of jurisdiction.On Petition for Review, the MSPB reversed, finding that the non-renewal ofBelyakov’s term appointment was a personnel action within MSPB jurisdiction, and remanded the case for a merits hearing.At the merits hearing, the administrative judge found in favor of the agency.Belyakov then filed a second Petition for Review.

On appeal, the MSPB ordered a new merits hearing, citing two major errors by the administrative judge.First, the administrative judge had barredBelyakov from presenting his prima facie case of whistleblower reprisal at hearing in a manner now prohibited by the Whistleblower Protection Enhancement Act of 2012 (WPEA). In a whistleblower reprisal case, the whistleblower has the burden of first showing that an intent to retaliate for whistleblowing was a contributing factor in personnel actions taken against the whistleblower (the prima facie case).The burden then shifts to the agency to prove, by the high standard of clear and convincing evidence, that it would have still taken the action against the whistleblower even absent whistleblowing.

WPEA Section 114 abolished the prior practice of skipping an appellant’s prima facie case at hearing, splitting the hearing into two parts; the first hearing only involves examination of whether the agency meets its clear and convincing evidence standard, and if it does not, then and only then does the second hearing on the prima facie case occur. As a result of this splitting of the hearing, the administrative judge had excluded most of the evidence concerningBelyakov’s whistleblowing claims.The MSPB declined to decide whether Section 114 applied retroactively toBelyakov’s case, finding that even under the pre-WPEA caselaw the administrative judge erred in barringBelyakov’s whistleblower reprisal evidence from the hearing.

Second, the MSPB also found that the administrative judge had erred by prohibitingBelyakov himself from testifying at the hearing.Belyakov had no attorney and was representing himself in his MSPB appeal, and so did not know that he had to list himself as a requested witness for his own hearing. The MSPB ordered thatBelyakov be allowed to testify at the remand hearing. This case illustrates the need for experienced counsel for representation in complex whistleblower reprisal appeals before the MSPB.

* 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.

The attorneys at Passman& Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.