Fedweek

A federal appeals court has returned to the MSPB a case in which the scope of whistleblower protections for federal employees is at issue, noting that the MSPB itself had conceded that many parts of the ruling were incorrect.

The case involves a VA employee who asserted that she was retaliated against for making disclosures and for activities including filing a complaint with VA’s office of accountability and whistleblower protection, filing an unfair labor practice complaint, and testifying in coworkers’ MSPB and EEO proceedings.

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An MSPB hearing officer rejected her complaint, though, after examining only issues related to the disclosures. That became the final MSPB decision due to the lack of a quorum at the MSPB board to hear appeals, and the employee then appealed to the Court of Appeals for the Federal Circuit.

The case, No. 20-1834, is notable because the Office of Special Counsel took the rare action of intervening with the court, saying the MSPB ruling would leave employees “uncertain about their appeal rights under civil service laws and vulnerable to retaliation explicitly prohibited.”

The OSC argued the issues of retaliation for making disclosures and of retaliation for engaging in activities such as filing complaints are separate and the MSPB erred by not considering the latter category. In particular, it said, while disclosures must meet certain legal standards to be considered whistleblowing, there is no such requirement regarding the other activities.

The appeals court noted those arguments but did not specifically rule on them in telling the MSPB to reconsider the case. It said that the MSPB’s hearing officer failed to address most of the personnel actions that the employee alleged were retaliatory, and that of the seven that were addressed, the MSPB conceded that ruling in five of those were in error.

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