Whistleblower Q&A

Introduction

Whistleblowing means disclosing information that you reasonably believe is evidence of a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.  Other activities related to whistleblowing are also protected by whistleblower laws.  They include filing a complaint, grievance, or appeal to remedy whistleblowing reprisal; testifying for or assisting someone else with their complaint, grievance, or appeal; cooperating with or disclosing information to an Inspector General or the Office of Special Counsel (OSC); or refusing to obey an order that would require the individual to violate a law, rule, or regulation.  For purposes of this discussion, all protected activities under the whistleblower laws are referred to as whistleblowing.

MSPB's regulations governing appeals generally are contained in Title 5 of the Code of Federal Regulations (C.F.R.), Chapter II, Part 1201. Additional regulations applying to whistleblower appeals are contained in Part 1209. Because the Part 1209 regulations contain only the special provisions applying to whistleblower appeals, they must be used in conjunction with Part 1201, except as expressly provided by Part 1209. 5 C.F.R. § 1209.3.

This publication covers the provisions of these laws and MSPB's regulations that apply to whistleblower appeals. This discussion of whistleblower appeals is not all-inclusive, nor is the information regulatory in nature. Such appeals are governed by the pertinent statutes, regulations, and case law.

Further information about filing whistleblower claims, an appeal form to complete when filing an initial appeal, and MSPB's regulations covering whistleblower claims are available on the MSPB website. You can send email to MSPB at mspb@mspb.gov.

You may not file an appeal with MSPB by email. To file an appeal electronically, go to U.S. MSPB e-Appeal Online.

Information applying to all appeals to MSPB is contained in a separate MSPB publication entitled How to File an Appeal.

Please see MSPB at Your Fingertips at the end of this publication for information on how to locate MSPB decisions, case summaries, press releases, addresses of MSPB regional and field offices, and other information about MSPB.

Whistleblowing

An agency official shall not retaliate against an employee for whistleblowing.  This prohibited personnel practice prohibits agency officials from taking, failing to take, or threatening to take a personnel action because of an employee's whistleblowing.   Protected whistleblowing includes disclosures that the employee reasonably believes to be:

• a violation of law, rule, or regulation;
• gross mismanagement;
• gross waste of funds;
• an abuse of authority; or
• a substantial and specific danger to public health or safety.

5 U.S.C. § 2302(b)(8).

An agency official shall also not retaliate because an employee engaged in other protected whistleblowing activities, such as:

• filing a complaint, grievance, or appeal to remedy whistleblowing reprisal (i.e., retaliation for whistleblowing);
• testifying for or helping someone else with one of these activities;
• cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or to OSC; or
• refusing to obey an order that would require the employee to violate a law, rule, or regulation.

5 U.S.C. § 2302(b)(9). 

Two Types of Whistleblower Appeals

There are two types of whistleblower appeals that can be filed with MSPB. The principal difference between them is how they reach MSPB.

Otherwise Appealable Action: The first type of appeal involves a situation where the employing agency subjected the individual to a personnel action directly appealable to MSPB, and the individual claims the action was taken because of whistleblowing. This type of appeal is known as an "otherwise appealable action" because the individual may file an appeal directly with MSPB after the action has been taken. In such an appeal, both the appealable matter and the claim of reprisal for whistleblowing will be reviewed by MSPB. Personnel actions that are directly appealable to MSPB include adverse actions (removals, reductions in grade or pay, suspensions for more than 14 days, and furloughs for 30 days or less for cause that will promote the efficiency of the service), removals or reductions in grade for unacceptable performance under chapter 43, denials of within-grade pay increases, reduction-in-force actions, and denials of restoration or reemployment rights.  5 C.F.R. § 1201.3(a). 

Individual Right of Action: The second type of appeal is referred to as an individual right of action (IRA) appeal. The type of appeal involves a situation where the agency subjected the individual to a covered personnel action, and the individual claims the action was taken because of whistleblowing. The action does not need to be directly appealable to MSPB. Personnel actions that can be raised in an IRA appeal include:  

• an appointment;
• a promotion;
• an adverse action under chapter 75 of title 5, United States Code or other disciplinary or corrective action;
• a detail, transfer, or reassignment;
• a reinstatement;
• a restoration;
• a reemployment;
• a performance evaluation under chapter 43 of title 5, United States Code;
• 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;
• a decision to order psychiatric testing or examination;
• the implementation or enforcement of any nondisclosure policy, form, or agreement; and
• any other significant change in duties, responsibilities, or working conditions.

5 C.F.R. § 1209.4(a).

An individual must seek corrective action from the Office of Special Counsel (OSC) before appealing to MSPB unless the action being appealed is otherwise appealable directly to MSPB and the individual has elected a direct appeal. 5 C.F.R. § 1209.5(a).  If OSC does not seek corrective action on the individual's behalf, the individual may then appeal to MSPB.

When an individual elects to file a complaint with OSC regarding an otherwise appealable action prior to filing a direct appeal with MSPB, the procedures of an IRA appeal will be followed.  The IRA appeal in such a case will be limited to resolving the claim(s) of reprisal for whistleblowing or other protected activity, and MSPB will not directly review the merits of the personnel action. 5 C.F.R. §§ 1209.2(d)(2), 1209.3, 1209.5(a).

Questions and Answers

Before you can file an individual right of action appeal with MSPB, you must first seek corrective action with the Office of Special Counsel (OSC), as required by 5 U.S.C. § 1214(a)(3). This is done by filing a complaint with OSC. OSC's Complaint Form and further information about their procedures are available at the OSC website. For time limits on filing an appeal with MSPB after seeking corrective action from OSC, please see the separate MSPB publication entitled Initial Appeal Process for more information.

In an otherwise appealable action, you have the option of first seeking corrective action with OSC, as described above, or you can file a direct appeal with MSPB without first seeking corrective action from OSC.

An employee, former employee, or applicant for employment seeks corrective action from the Office of Special Counsel (OSC) by filing a complaint of a prohibited personnel practice, including retaliation for whistleblowing, by completing Form OSC-14 (Complaint of Prohibited Personnel Practice or Other Prohibited Activity). OSC requires this form be used. For more information, visit OSC's website.

The right to file an individual right of action (IRA) appeal with MSPB is determined by whether the individual is an employee or former employee in, or applicant for, a "covered position" in an agency as defined by 5 U.S.C. § 2302(a)(2)(B).  These positions generally include:

• positions in the competitive service;
• a career appointee position in the Senior Executive Service;
• most positions in the excepted service; and
• most positions in Government corporations and the Government Publishing Office

Among those individuals specifically excluded from coverage are those in positions in the Government Accountability Office and various intelligence agencies.

In the case of an otherwise appealable action, please see the separate MSPB publication Appellant Questions and Answers for more information on who may generally file direct appeals to MSPB.

Please see the separate MSPB publication How to File an Appeal for information on filing a whistleblower appeal with MSPB.  In general, you must file an appeal with MSPB's regional or field office serving the area where your duty station was located when the action was taken, or, if an applicant for employment, with MSPB's regional or field office serving the area where the sought position is located.  This requirement applies to all whistleblower appeals, both otherwise appealable actions and individual right of action (IRA) appeals.

An appeal must be in writing and contain all the information specified in MSPB's regulations.  5 C.F.R. §§ 1201.24 (otherwise appealable actions); 1209.6 (IRA appeals).  Using MSPB's Appeal Form or its e-Appeal Online application will ensure that all required information is provided, but using the form is not required. 

MSPB does not accept new appeals via email; e-Appeal Online is the only method allowed for electronic filing.  If you do not want to file your appeal electronically, you may download MSPB's Appeal Form and file your appeal by mail, facsimile, or commercial or personal delivery.

The time limits are different for an otherwise appealable action and for an individual right of action appeal.  Please see the separate MSPB publication entitled Initial Appeal Process for more information.

A stay orders the agency to suspend the personnel action being appealed. You may request a stay of a personnel action allegedly based on whistleblowing in connection with either kind of whistleblower appeal--an otherwise appealable action or an individual right of action appeal--at any time after you become eligible to file an appeal with MSPB, but no later than the time limit the administrative judge sets for the close of discovery in the appeal. 5 C.F.R. § 1209.8(a). You may file a stay request prior to, simultaneous with, or after the filing of a whistleblower appeal. 5 C.F.R. § 1209.8(a).

If you file the stay request first, the whistleblower appeal must be filed within 30 days after the date you receive the order ruling on the stay request. Failure to timely file the appeal will result in the termination of any stay that has been granted unless a good reason for the delay is shown. 5 C.F.R. § 1209.5(c).

A stay request must be filed with the same MSPB regional or field office where you should file your whistleblower appeal, as described above, by mail, facsimile, commercial or personal delivery, or electronic filing using MSPB's e-Appeal Online application.

A stay request must be in writing and contain all the information specified in MSPB's regulations.  5 C.F.R. § 1209.9(a). A stay request must be simultaneously served upon MSPB's regional or field office and upon the agency's local servicing personnel office or the agency's designated representative, if any. A certificate of service stating how and when service was made must accompany the stay request. 5 C.F.R. § 1209.8(c).

After a stay request has been filed, the administrative judge will allow the agency an opportunity to respond and submit evidence. After considering all the arguments and evidence, the administrative judge will either grant or deny the request.

If the stay request is granted, the administrative judge will specify the duration for which the agency must suspend the personnel action. 5 C.F.R. §§ 1209.10(b)(3), 1209.11(a). A typical stay order will suspend the personnel action indefinitely, until it is later modified or vacated by another MSPB order.

If the stay request is denied, a written request may be filed with the administrative judge asking that the stay request and the decision denying the stay request be referred to MSPB's Board members in Washington, D.C., for their review. This is called "petitioning" the administrative judge to "certify" the decision as an "interlocutory appeal." MSPB's regulations regarding interlocutory appeals are found at Title 5 of the Code of Federal Regulations, Part 1201, sections 1201.91 to 1201.93.

In whistleblower appeals, you have the burden of proving by a preponderance of the evidence:

• you engaged in whistleblowing or other protected activity; and
• the whistleblowing or other protected activity was a contributing factor in the agency's decision to threaten, propose, take, or not take a covered personnel action with respect to you. 

5 C.F.R. § 1209.7(a).
An appellant may establish the contributing factor element through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or protected activity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.

If you are filing an individual right of action appeal, you must also prove by a preponderance of the evidence you exhausted your claims of whistleblower retaliation with the Office of Special Counsel.  5 C.F.R. § 1209.5(a).

If a finding is made that a protected disclosure or other protected activity was a contributing factor in one or more covered personnel actions, MSPB will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of such disclosure or activity. 5 C.F.R. § 1209.7(b). The clear and convincing standard of proof is a higher standard than the preponderance of the evidence.  5 C.F.R. § 1209.4(e).

No. When MSPB considers your appeal, it may not consider the decision of the Office of Special Counsel (OSC) to terminate an investigation of your complaint. If you file your IRA appeal with MSPB because 120 days have passed without you being notified that OSC will seek corrective action on your behalf, OSC may not proceed to seek corrective action without your permission. Furthermore, OSC may not intervene in your MSPB appeal without your permission.

As with other decisions on appeals to MSPB, you have the right to ask the 3-member Board in Washington to review the initial decision of the administrative judge. Please see the separate MSPB publication entitled Petition for Review Process for more information. 

MSPB At Your Fingertips

A listing of MSPB regional and field offices is available at the MSPB Website. You may contact those offices to file an appeal or if you have questions or need additional information.

For information on filing a petition for review with the Board, you may contact the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW, Washington, DC 20419-0001. You may send e-mail to MSPB Headquarters at mspb@mspb.gov, or by calling (202) 653-7200. You also may call, toll free, and leave a message at 1-800-209-8960.

MSPB's regulations are in Title 5 of the Code of Federal Regulations (C.F.R.) at 5 C.F.R., Chapter II, Parts 1200 through 1210 (5 C.F.R. Part 1200). They are available on the MSPB website as well as at any MSPB office, agency libraries, agency personnel or administrative offices, and most public libraries.  Part 1201 describes MSPB's appellate procedures and requirements; Part 1208 describes the special provisions applying to cases involving the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) and Veterans Employment Opportunities Act of 1998 (VEOA); and Part 1209 describes the special provisions applying to "whistleblower" cases. MSPB's regulations were substantially revised as of November 13, 2012, so printed copies may not reflect the current regulations. You must rely only on the current regulations.

MSPB decisions, MSPB regulations, a form for filing appeals, Office of Policy and Evaluation reports, a listing of regional and field offices and their geographic jurisdictions, and background information about the MSPB are available on the MSPB Website.

MSPB's Strategic Plan can be found on the Agency Plans and Reports page.

U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001, (202) 653-7200, Toll Free 1-800-209-8960, V/TDD 1-800-877-8339 (Federal Relay Service)