This week, the federal Merit System Protection Board (MSPB) released a report to President Obama. The report reviews hurdles federal employees have to jump before they can win a case of whistleblower retaliation. It is called Whistleblower Protections for Federal Employees. In the cover letter to President Obama dated September 2010, MSPB Chair Susan Tsui Grundmann states:
This report spells out in greater depth the difficulties a potential whistleblower may face when navigating the law to seek protection from agency retaliation. I hope you will find this report useful as you consider issues affecting the Government’s ability to protect employees who disclose fraud, waste, abuse, and other wrongdoing within the Federal Government.
An MSPB press release about the report lists some of the hurdles. (See the continuation of this blog entry for that list.) The MSPB report fails to mention other hurdles, particularly those of MSPB’s own making. Another study found that MSPB, under the prior administration, ruled for federal employees in only 1.7% of cases. The MSPB’s report cites the Federal Circuit case of Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153, 120 (2000), but does not mention that this case required the whistleblower to have “irrefragable proof” of mismanagement to have any protection from retaliation.
Also missing from MSPB’s report are a list of things that MSPB itself can do to improve the rights of federal employee whistleblowers. The MSPB can find that its past holdings have impeded whistleblowers from raising concerns about mismanagement, and urge the appellate courts to defer to its expertise under FCC v. Fox Television Stations, Inc., 556 U.S. ___, 129 S. Ct. 1800 (2009), and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). MSPB can hire Administrative Law Judges, and set standards for assuring that employees have adequate time and support to complete meaningful discovery. MSPB can simplify the process for whistleblowers and the Office of Special Counsel to seek stays of prohibited personnel practices and other forms of immediate relief.
Recognizing its role as an adjudicative body, MSBP declined to express any recommendations for changes in the law. Nowadays, it is hard to find anyone who would argue that there is no need to change the law. Unfortunately, the most prominent proposal for changing the Whistlebleblower Protection Act, S. 372, is itself flawed and would add additional hurdles for federal employee whistleblowers. I recently asked my colleagues in the National Employment Lawyers Association (NELA) if any of them would take contingent cases under S. 372 if it passed. I have had no takers. No experienced lawyer has come forward to say that this law will make it viable to represent federal employee whistleblowers. We are a long way from assuring that federal employees who speak up for taxpayers get the customary legal protections required by international law.
Here is the MSPB’s press release statement about the hurdles whistleblowers must clear:
To qualify as a whistleblower under the Whistleblower Protection Act, a Federal employee or applicant for employment must disclose: 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.
However, this disclosure alone is not enough to obtain protection under the law. The individual also must: avoid using normal channels if the disclosure is in the course of the employee’s duties; make the report to someone other than the wrongdoer; and suffer a personnel action, the agency’s failure to take a personnel action, or the threat to take or not take a personnel action. Lastly, the employee must seek redress through the proper channels before filing an appeal with the MSPB.
A potential whistleblower’s failure to meet even one of these criteria will deprive the MSPB of jurisdiction, meaning that by law, MSPB will be unable to provide any redress in the absence of a different (non-whistleblowing) appeal right.