Court: MSPB should not have required that the employee show a guarantee of future employment in order to claim loss of future pay. Image: Margoe Edwards/Shutterstock.com
By: FEDweek StaffPayments to federal employee whistleblowers who are victims of workplace retaliation could extend to compensation for loss of future earnings, a federal appeals court has held, meanwhile setting precedent on the burden of proof for those seeking such payments.
In Case No. 2023-1091, the Court of Appeals for the Federal Circuit sent back to the MSPB a case in which the merit board had denied that form of payment to a former VA research specialist. The MSPB had found she suffered reprisal—through the department not renewing a term appointment that had been renewed annually for the seven prior years—after disclosing that money was missing from a study’s funding.
The merit board awarded back pay covering more than two years, up to the point her project ended, but refused claims for certain other types of damages, including for lost future earnings.
On appeal, the court first affirmed that “future lost earnings are recoverable as compensatory damages” under the Whistleblower Protection Act, citing several changes over the years in which “Congress expressed its intent to provide protected employees with make-whole relief.”
The court added that it had not previously addressed the burden of proof that those seeking compensatory damages under the whistleblower law must show, but said the proper standard is “preponderance of the evidence”—in which a reasonable person would find that a contested fact is more likely true than not.
Under that standard, it said, the MSPB erred by requiring that she show a “guarantee” of future employment and sent the case back for reconsideration.
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