Case No. 2024 MSPB 15 involved a hearing officer’s rejection of a second retaliation complaint. Image: Lightspring/Shutterstock.com
By: FEDweek StaffThe MSPB has rejected an appeal by an employee in a case of alleged whistleblower retaliation on grounds that the personnel actions at issue were the same as in a prior appeal, even though the employee alleged they were based on whistleblowing activities not raised in the earlier appeal.
Case No. 2024 MSPB 15 involved a hearing officer’s rejection of a second “individual right of action” (IRA) retaliation complaint on grounds of “administrative efficiency”—that the case sought to re-litigate matters that were or could have been raised in the first one. The personnel actions that were alleged to be retaliatory were the same, the hearing officer ruled.
The merit board agreed, saying that the two cases involved the same “causes of action” that give an employee the right to seek relief at the MSPB from a personnel decision.
It cited its own precedent preventing an employee from “challenging, in a second IRA appeal, the same personnel actions that were the subject of a prior IRA appeal, despite the appellant’s assertion that he was challenging the personnel actions under a new legal theory.”
It added, though, that there would be no such bar against a second appeal “alleging that different personnel actions were taken in retaliation for protected disclosures that were raised in a prior IRA appeal,” because in that case the “cause of action” would not be the same.
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