A recent Merit Systems Protection Board (MSPB) ruling that could have caused disruption for federal employees pursuing whistleblower claims has been overturned. The U.S. Court of Appeals for the Federal Circuit ruled on May 7, 2021 that an MSPB Administrative Judge (AJ) ignored several protected disclosures in the case of Debra Tao v. Merit Systems Protection Board (MSPB).
After filing her whistleblower complaint with the Office of Special Counsel (OSC) in 2018, claiming that she was the victim of retaliation by the U.S Department of Veterans Affairs (VA), Tao was advised by OSC, “that she may have a right to seek corrective action from the Board by filing an IRA.”
After filing a timely individual rights of action (IRA) appeal and raising multiple protected disclosures that were protected under the whistleblower statutes, the MSPB AJ dismissed the case, citing that Tao, “had not sufficiently alleged in making protected disclosures under § 2302(b)(8).”
Federal employees often find themselves in the difficult position of having to expose agency wrongdoings while fearing retaliation for their protected activities. However, by statue, 5 U.S.C. § 2302, federal employees are protected from suffering adverse actions in retaliation of their whistleblower activities. The OSC assists with the upholding of these protections by serving as an independent federal investigative agency over these issues. When the OSC advised Tao of her right to file an IRA, Tao then had the right to pursue her case with the MSPB.
After the MSPB dismissed Tao’s case, Tao then appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that the MSPB erred by failing to recognize her allegations of retaliation in response to her protected activity and the disclosures to the OSC. The Court reviewed Tao’s protected disclosures, vacated the MSPB decision, and ordered a new MSPB AJ to be assigned on remand. In the recent amicus curiae brief, OSC discussed how the AJ’s ruling contradicts whistleblower laws and the protections that federal employees have against whistleblowing retaliation. The MSPB concurred with OSC, noting at various times that the AJ erred in multiple aspects and granted the request of a reassignment for a new MSPB AJ on remand.
The Federal Circuit decision to order a new MSPB AJ to be assigned on remand is rare. The magnitude of that decision may cause the MSPB and its AJs to be more careful in dismissing whistleblower cases in the future. Employees should view the case as an example of due process and be encouraged to use their right to blow the whistle and assert their rights.