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Prohibited Personnel Practice of the Month

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 8
Protected Activity

PROHIBITED PERSONNEL PRACTICE NUMBER 8 - Whistleblower Protection

 

Where can I find this provision?
This month’s prohibited personnel practice is part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.  It is codified at 5 U.S.C. § 2302(b)(8), with the other prohibited personnel practices (PPP).

What is the eighth prohibited personnel practice?
Under the law, any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of —

  1. any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences - -
    1. a violation of any law, rule, or regulation, or
    2. gross mismanagement, a gross waste of funds, an abuse of authority, or
      a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

In addition, even disclosures that are prohibited by law or required to be kept secret are protected if they are made to the Special Counsel or to an agency’s Inspector General.

What is the purpose of the eighth prohibited personnel practice?
Simply put, this PPP protects Federal employees and applicants from retaliation if they make a disclosure as defined by 2302(b)(8)(A)(i) and/or (ii), and also serves to eliminate Government wrongdoing by mandating that employees or applicants should not suffer adverse consequences for making such disclosures.  Schmittling v. Department of Army, 92 M.S.P.R. 572, ¶¶ 16 and 17 (2002).  “Adverse consequences” includes a personnel action that is taken as well as a personnel action that is not taken and even one that is threatened as a result of such a disclosure.  A “disclosure” under this section is also referred to as a “whistleblower disclosure” or a “protected disclosure.”

What is the difference between section 2302(b)(8) and section 2302(b)(9)?
Allegations of reprisal “based upon exercising one’s right to complain” are protected under 5 U.S.C. § 2302(b)(9), while those that are “based on disclosure of information,” are protected under 5 U.S.C. § 2302(b)(8).  Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1574-75 (Fed. Cir. 1996); Luecht v. Department of Navy, 87 M.S.P.R. 297, ¶ 9 (2000).   For example, allegations of reprisal based upon Equal Employment Opportunity (EEO) or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act and, therefore, are outside the Merit Systems Protection Board’s (MSPB or the Board) individual right of action appeal jurisdiction.  Mason v. Department of Homeland Security, 116 M.S.P.R. 135, 145 n.6 (2011). 

How can I raise an alleged violation of section 2302(b)(8) with MSPB?
There are two avenues by which an individual may pursue an alleged violation of section 2302(b)(8) with MSPB.  Specifically, an appellant may raise a whistleblower claim in the context of an otherwise appealable action or in an Individual Right of Action appeal pursuant to the Whistleblower Protection Act.  5 U.S.C. § 1221(a).

How do I raise a section 2302(b)(8) claim in the context of an “otherwise appealable” action?
When MSPB has jurisdiction over a claim filed by an appellant, the appellant may, with some exceptions, also raise an “affirmative defense” by claiming that the agency’s personnel action was the product of retaliation for his or her whistleblowing activity.  An affirmative defense is an assertion by the employee that, if proven, constitutes a defense to the charged action even when the charged action is proven.

5 C.F.R. § 1201.56(b).  Thus, if an agency removes, suspends or demotes a tenured employee as defined by 5 U.S.C. § 7511(a) and the employee files an MSPB appeal from this action under 5 U.S.C. § 7513, the employee may also raise a claim (affirmative defense) that the agency took the action at issue in retaliation for his or her protected whistleblowing activity.  See www.mspb.gov/appeals/whistleblower.htm.

How do I prove the agency violated section 2302(b)(8) in the context of an “otherwise appealable” action?
In order to establish a prima facie case of retaliation in the context of an otherwise appealable action, the appellant must show by preponderant evidence that he or she made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him or her. 

5 U.S.C. § 1221(e)(1); Ryan v. Department of the Air Force, 117 M.S.P.R. 362, ¶ 12 (2012).  Prima facie means that a party produces evidence that – unless rebutted – is sufficient to prove a particular proposition or fact.  Preponderant evidence means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 

5 C.F.R. § 1201.56(c)(2).  The term protected disclosure means a disclosure of information an employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 

5 U.S.C. § 2302(b)(8).  Significantly, however, vague or conclusory allegations of wrongdoing are generally not protected disclosures.  Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 13 (2007).  Contributing factor means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure. 

5 C.F.R. § 1209.4(c). A personnel action means: (1) an appointment; (2) a promotion; (3) an adverse action as defined by section 7512 or other disciplinary or corrective action; (4) a detail, transfer, or reassignment; (5) a reinstatement; (6) a restoration; (7) a reemployment; (8) a performance evaluation; (9) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action; (10) an order for psychiatric testing or examination; and (11) any other significant change in duties, responsibilities, or working conditions.  5 U.S.C. § 2302(a)(2)(A); 5 C.F.R. § 1209.4(a).  See also www.mspb.gov/appeals/whistleblower.htm.

If I establish a prima facie case of retaliation under section 2302(b)(8) in an otherwise appealable action, will I prevail? 
No, not necessarily.  Once the appellant establishes a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. 

5 U.S.C. § 1221(e)(2); Fellhoelter v. Department of Agriculture, 568 F.3d 965, 970-71 (Fed. Cir. 2009); Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010).  Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than preponderant evidence.

5 C.F.R. § 1209.4(d).  If the agency fails to demonstrate that it would have taken this action in the absence of the disclosure, then the employee prevails.  See also www.mspb.gov/appeals/whistleblower.htm.

How do I raise a section 2302(b)(8) claim in the context of an Individual Right of Action (IRA) appeal?
The Board has jurisdiction over an IRA appeal when an employee, former employee, or applicant for Federal employment demonstrates that he or she has exhausted administrative remedies before the Office of Special Counsel (OSC)  and makes nonfrivolous allegations that:  (1) he or she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take, or threaten to take or fail to take, a personnel action covered by section 2302.  Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).  See also www.mspb.gov/appeals/whistleblower.htm.

How do I exhaust my administrative remedies before OSC? 
To meet the exhaustion requirement, the appellant must prove by preponderant evidence that he or she filed a complaint with OSC and provided OSC with a sufficient basis to pursue an investigation which might have led to corrective action.  The MSPB’s jurisdiction in an IRA appeal is limited to issues the appellant raised before OSC.  Briley v. National Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001); Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993).  The Board will only consider the actual claims the appellant made to OSC in the complaint and not the individual’s later characterization of those statements before the Board.  Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶ 13 (2010).  See also www.mspb.gov/appeals/whistleblower.htm.

Are there any time limits for filing a section 2302(b)(8) claim with MSPB?
Yes.  When the appellant raises a whistleblower retaliation claim (affirmative defense) in the context of an otherwise appealable action, he or she must file an MSPB appeal no later than 30 days after the effective date of the agency’s action, or 30 days after the date of the appellant’s receipt of the agency’s decision from the action, whichever is later. 

5 C.F.R. § 1201.22(b).  In contrast, when the appellant raises a whistleblower claim in the context of an IRA appeal, the appeal must be filed within 65 days after the date OSC notifies the appellant in writing that it is terminating its investigation into the appellant’s allegations or, if no action is taken by OSC within 120 days of the date the individual filed their complaint with OSC, at any time after 120 days have passed.  5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1209.5(a).  See also www.mspb.gov/appeals/whistleblower.htm.

If I establish that MSPB has jurisdiction over my section 2302(b)(8) claim as an IRA, how do I prevail?
Once an employee, former employee or applicant for Federal employment demonstrates that the Board has jurisdiction over his or her IRA appeal, the appellant will prevail if:  (1) he or she proves by preponderant evidence that he or she made a protected disclosure that was a contributing factor in a personnel action at issue; and (2) the agency fails to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. 

An appellant is not required to prove the merits of their protected disclosure.  Rather, the appellant must establish only that he or she had a reasonable belief that he or she was disclosing gross mismanagement, a gross waste of funds, an abuse of authority, a violation of law, rule, or regulation, or a substantial and specific danger to public health or safety.   The proper test for determining whether an employee had a “reasonable belief” that his disclosures revealed misconduct so as to be protected under the WPA is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the government evidence wrongdoing as defined by the WPA.  See Downing v. Department of Labor, 98 M.S.P.R. 64, 69-70 (2004).  See also www.mspb.gov/appeals/whistleblower.htm.

If I prevail on a claim that an agency violated section 2302(b)(8), what type of corrective action may MSPB order?
If an appellant prevails on a 2302(b)(8) whistleblower claim, MSPB may, depending on the circumstances, order:  (1) that the agency place the individual in the position the individual would have been in had the prohibited personnel practice not occurred; (2) back pay and related benefits; (3) medical costs incurred; (4) travel expenses; (5) any other reasonable and foreseeable consequential damages; and (6) attorney fees and costs.  5 U.S.C. § 1221(g).

Are there any recent decisions of note by the courts or MSPB that address this PPP?
There are too many to discuss in this brief article, but here are two examples.
Although the Board’s case law states that disclosure of information that is publicly known is not a disclosure under the WPA, the Board qualified this requirement when it held that if an employee’s disclosure adds “additional information necessary to recognize” the nature or seriousness of a publicly known problem, and this is information the public would not have otherwise had, then the disclosure is protected under the WPA.  Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 9 (2009). 

For many years, the Board and the courts found the WPA did not protect disclosures regarding policy disputes where “reasonable people” might disagree over the merits of a given policy.  See, e.g., White v. Department of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004).  In effect, a policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy is not debatable among reasonable people.  Nevertheless, the U.S. Court of Appeals for the Federal Circuit has refined and clarified this legal principle to the effect that the WPA’s protection now covers disclosures about policy, even where reasonable people might disagree on the merits of that policy, when the policy concerns a substantial and specific danger to public health or safety.  Chambers v. Department of the Interior, 515 F.3d 1362, 1368-1370 (Fed. Cir. 2008); see also Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶¶ 16-24 (2011)

Has MSPB studied this practice?
Yes, MSPB most recently studied this prohibited personnel practice in its November, 2011 report, Blowing the Whistle:  Barriers to Federal Employees Making Disclosures. This report discusses results from MSPB’s 2010 Merit Principles Survey regarding perceptions related to whistleblowing and provides a comparison to the results of a similar survey MSPB conducted in 1992.

Data from these surveys indicate that since 1992, the percentage of employees who perceive any wrongdoing has decreased.  However, perceptions of retaliation against those who blow the whistle remain a serious concern.  In both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both.

Our survey data indicate that the most important factor for employees when deciding whether to report wrongdoing is not about the personal consequences employees may experience.  Saving lives was more important to survey respondents than whether they would experience punishment or a reward.  In addition, whether the agency would act on a report of wrongdoing mattered more than any fear of an unpleasant consequence for the employee making the report.  This means that agencies have the power to influence employees’ decisions about reporting wrongdoing.  The most important step that agencies can take to prevent wrongdoing may be the creation of a culture that supports whistleblowing.

Other MSPB reports that discuss this prohibited personnel practice include Whistleblower Protections for Federal Employees(2010) and Prohibited Personnel Practices: Employee Perceptions (2011).  All MSPB study reports can be found at www.mspb.gov/studies.