How do I file a claim under the Whistleblower Protection Act?
What does the Whistleblower Protection Act Prohibit?
What remedies or damages are available under the Whistleblower Protection Act?
To prove whistleblower retaliation under the WPA, 5 U.S.C. 2302(b)(8), a whistleblower must establish the following by preponderant evidence:
If the whistleblower meets this test, then the burden shifts to the employer to prove by clear and convincing evidence—which is significantly more onerous than the preponderance standard—that it would have taken the same action against the employee even if they had never blown the whistle.
If you are seeking representation in a Whistleblower Protection Act case, call us at 202-262-8959.
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The WPA protects federal employees against retaliation for making any disclosure that the employee reasonably believes evidences:
Passed in 2012, the WPEA clarifies that a disclosure is protected even if the disclosure:
An employee who believes a federal employer has unlawfully retaliated against him or her has several options:
It is important for employees to know that they may choose only one of the following options when they want to challenge an adverse action that:
Whichever option is chosen first is deemed an “election of remedies,” which means that the other two options can no longer be used.
This election of remedies does not, however, affect the right to pursue an EEO complaint (an EEO and OSC complaint may be pursued at the same time).
The OSC is an independent, federal investigative and prosecutorial agency. Its primary mission is to safeguard employee rights and hold government accountable, primarily by protecting employees from whistleblower retaliation
The MSPB is a quasi-judicial agency that adjudicates employee appeals and provides independent review and due process for employees and agencies.
There are two ways in which an employee can bring an IRA appeal at the MSPB: 1) if OSC does not seek corrective action within 120 days of the filing of the complaint; or 2) if OSC closes its investigation of the complaint, the complainant has 65 days from the date of the written notice, or 60 days from the date of receipt of the notice, to file an IRA appeal. 5 U.S.C. § 1214(a)(3). The regulation incorporates the presumption of 5 C.F.R. § 1201.4(l) that a letter is received 5 days after mailing as applicable to the 60-day deadline for filing specified in the statute.
Prior to the enactment of the WPEA, the IRA appeal option was available only for § 2302(b)(8) claims. The WPEA expanded IRA appeals to cases brought under the following provisions of § 2302(b)(9):
The IRA appeal option is not available for claims brought under § 2302(b)(9)(A)(ii), i.e., exercising any appeal, complaint, or grievance right granted by any law, rule, or regulation other than with regard to remedying a violation of paragraph (8).
In an IRA appeal, the Board may consider only the charges of whistleblowing that the appellant raised before OSC, i.e., the appellant must prove exhaustion of administrative remedies. Therefore, if the complainant is subjected to additional retaliation after filing an initial complaint with OSC, it is critical to document efforts to supplement the initial complaint.
An AJ’s inquiry into exhaustion of administrative remedies is limited to identifying (1) the whistleblowing disclosures and (2) the personnel actions that the appellant raised before OSC. The appellant must “give the [OSC] sufficient basis to pursue an investigation which might have led to corrective action.” Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992) (citing Knollenberg v. Merit Sys. Prot. Bd., 953 F.2d 623, 626 (Fed. Cir. 1992)).
IRA appeals are reviewed de novo, i.e., the IRA appeal must be viewed independently from OSC’s decision to close the complaint. Section 1221(f) of title 5, United States Code, expressly states: “[A] decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.” 5 U.S.C. § 1221(f) (emphasis added). Section 1214 contains a similar prohibition:
A determination by the Special Counsel under this paragraph shall not be cited or referred to in any proceeding under this paragraph or any other administrative or judicial proceeding for any purpose, without the consent of the person submitting the allegation of a prohibited personnel practice.
5 U.S.C. § 1214(a)(3) (emphasis added). Under this statutory scheme, OSC’s internal decisions regarding an appellant’s complaint have no legal relevance to whether he or she may proceed with an IRA appeal. Congress took pains to protect OSC’s internal deliberations regarding the disposition of a complaint from Board review “to ensure that a whistleblower is not ‘penalized’ or ‘prejudiced’ in any way by OSC’s decision not to pursue a case.” Costin v. Dep’t of Health and Human Servs., 64 M.S.P.R. 517, 531 (1994). The MSPB can only order an appellant to produce OSC’s determination letter if the AJ explains why the letter is necessary and provides the opportunity to consent. See 5 U.S.C. § 1214(a)(2)(B); Bloom v. Dep’t of Army, 101 M.S.P.R. 79, 84 (2006).
An IRA appellant must show exhaustion of administrative remedies and make non-frivolous allegations that the appellant made a protected disclosure that was a contributing factor to the personnel action taken or proposed. Recently the Federal Circuit clarified that at the pleading stage, a MSPB AJ should not weight the evidence:
This court has made clear that the MSPB must “separate the issue of jurisdiction from that of the merits of a petitioner’s case.” Spencer v. Dep’t of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003) (citation omitted). And on several occasions, we have identified instances where the MSPB did not meet this requirement in the past. See id. We reiterate that at the jurisdictional stage, a petitioner need only assert non-frivolous allegations—allegations that are not “vague, conclusory, or facially insufficient,” and that the petitioner “reasonably believe[s]” to be true—of a protected disclosure that was a contributing factor to a reprisal. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 910 (Fed. Cir. 2008) (internal quotation marks and citation omitted). A petitioner’s credibility including, as in this case, consideration of affidavits submitted by an allegedly retaliatory supervisor claiming no knowledge of the petitioner’s protected disclosure or motivation to retaliate, “relate[s] to the merits of [the] claim.” Id. at 911, 912 n.3; see J.A. 6 (improperly considering affidavit of Mr. Piccolo’s supervisor at the jurisdictional stage). Non-frivolous allegations suffice at the jurisdictional stage precisely because, as here, the petitioner may not have access to all relevant documents or have been provided an opportunity to conduct discovery. See Johnston, 518 F.3d at 912; see Pet’r’s Original Br. 11-15, ECF No. 9 (detailing outstanding requests under the Freedom of Information Act). We have also required that petitioners in IRA appeals be provided “notice of deficiencies before a claim is finally dismissed” and “an opportunity to cure” their pleadings where specific details are “readily available.” Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1375, 1376 (Fed. Cir. 2016).
Piccolo v. Merit Systems Protection Board, No. 2016-2374 (Fed. Cir. 2017).
A prevailing whistleblower can recover:
In addition, a whistleblower can recover fees, costs, or damages reasonably incurred due to a retaliatory investigation. Retaliatory investigations can take many forms, such as unwarranted referrals for criminal or civil investigations or extraordinary reviews of time and attendance records.
Yes. Under 5 U.S.C. 2302(b)(9), agency officials may not take, fail to take, threaten to take a personnel action because an employee:
KEY TIP: whistleblowers should generally follow the doctrine of “obey now, grieve later”—unless carrying out an order would violate a statute, place the employee in clear physical danger, or result in irreparable harm
To establish a prima facie case of retaliation for exercising whistleblowing, complaint, appeal, or grievance rights under Section 2302(b)(9), an employee must prove the following four elements by preponderant evidence:
The WPEA split Section 2302(b)(9)(A) claims into two subcategories:
If you are seeking representation in a whistleblower protection case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.