A disclosure that an agency is not meeting a “discretionary and aspirational” timeline for action is not protected as whistleblowing, a federal court has said in upholding an MSPB decision.
The appeal involved an employee who alleged that an agency rule was being violated as a backlog of cases was building up; he raised the concern to numerous agency officials and later alleged that management retaliated against him. However, the MSPB and the Fourth Circuit Court of Appeals noted that the rule at issue says only that decisions in those cases will “ordinarily” be issued within seven months and that the agency has discretion to take longer.
The court though agreed with the employee that another rule he alleged was violated, involving notices to the parties if the case is delayed beyond the goal, is a binding rule. It sent the case back to the MSPB to determine whether his disclosures regarding that rule were protected from retaliation.