by Stephen Kohn
Although confusing, it is important to remember that if you file your case directly to the OSC, the only issue that can be addressed is whether your adverse action violated the Whistleblower Protection Act. Even if the case is appealed to an MSPB judge, the only issue is the WPA issue. But if you are able to file directly with the MSPB judges, the MSPB and Court of Appeals also can decide whether your adverse action complied with the rules governing the civil service.
Another major distinction between filing your case with the OSC and filing it directly with an MSPB judge concerns the statute of limitations. The WPA has no statute of limitations; a complaint can be filed at any time with the OSC. However, if you are able to file a case directly with the MSPB, there is a thirty-day statute of limitations. The WPA is available to federal employees who missed the deadline, for whatever reason, for filing a direct case with the MSPB. There is no logic to these rules, and in some ways they defy common sense. That is the result of patchwork legislation, covering large groups of employees, enacted over a forty-year time period.
WHO CAN FILE A CASE DIRECTLY WITH THE MSPB?
Generally, employees in the competitive service who have completed a probationary period and those in the excepted service (other than the Postal Service) with at least two years of continuous service may appeal certain adverse actions directly to the MSPB. A rule of thumb is that in order to appeal directly to the Board you must suffer a suspension of over 14 days. All other lesser adverse actions are only subject to OSC jurisdiction. The following adverse actions can be appealed directly to the MSPB: removals, suspensions that exceed fourteen days, reductions in grade or pay, furloughs for thirty days or less, denials of within-grade salary increases, reduction-in-force actions, and denials of restoration or reemployment rights. Thus, if you are given a poor performance review or forced to undergo a psychiatric examination in retaliation for whistleblowing, you must file your case with the OSC. But if you are fired, you have an option of appealing the termination directly to the board or filing with the OSC.
Because a fully tenured federal civil servant has employment rights above and beyond the rights afforded employees under the WPA, it is generally to the employee’s advantage to file a wrongful discharge case directly with the MSPB so that a hearing concerning those rights can be incorporated into the whistle-blower case. It is possible to lose a whistleblower case but prevail on issues related to your status as a tenured civil servant, or vice versa.
If you file your case directly with the MSPB, or appeal a denial by the OSC to the Board, be aware that the Board operates on a rocket-docket. All deadlines are short, and discovery must be immediately commenced or it will be waived. Be prepared to complete discovery, respond to pretrial motions, and participate in a full evidentiary hearing within a matter of months. It is the official policy of the MSPB to have their judges complete the entire pretrial and hearing proceedings and issue their initial decisions within 120 days of a case being docketed. Extensions of time can be obtained, but the case will proceed far faster than any typical federal or state lawsuit.
DISCOVERY
One of the major traps in the MSPB process concerns discovery. Discovery permits employees to question managers and obtain agency documents. Whistleblowers can learn all the justifications for the adverse action and try to obtain evidence that supports a finding that the discipline was not justified but motivated by retaliatory animus. But, as set forth in Figure 9, the MSPB’s regulations concerning the timing of discovery requests are very tricky and can result in a waiver of discovery rights. Here are the rules:
• All initial discovery must be filed within thirty days of the administrative judge issuing the initial docketing order. In other words, it is best to have your discovery prepared and served at the time you file your request for a hearing.
• Responses to discovery must be served by the agency within twenty days. If the agency does not answer your discovery, or if the answers are incomplete, you must file a motion to compel within ten days. Failure to file a motion to compel waives all your objections to the answers (or non-answers) of the agency.
• If you are intending to file a second round of discovery, it must be filed within ten days of the agency’s responses to your initial discovery (or within ten days of the agency’s failure to respond) or else discovery is considered completed.
BURDEN OF PROOF AND REMEDIES
Regardless of whether you initially file a case with the MSPB or the OSC, the substantive law governing a whistleblower case is the same. The scope of protected activity is identical regardless of which forum in which your case is filed, as are the burdens of proof and the remedies available to a prevailing employee.
Congress created a pro-whistleblower standard of proof under the WPA. The first step to prevailing in a WPA case is for the whistleblower to demonstrate that his or her protected disclosure was a “contributing factor” in the adverse personnel action. The proof necessary to demonstrate a “contributing factor” was intended to be very low. The WPA specifically authorized the use of “circumstantial evidence” alone to meet this burden, and codified “timing” test. Thus, if the employee can demonstrate that the manager who took or approved the adverse action knew of the protected activity, and the discipline “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,” the timing sequence alone satisfied this element of the case.
If the employee can meet the low “contributing factor” threshold, the actual burden of proof shifts to the agency. Thereafter, the agency must demonstrate by “clear and convincing evidence that it would have taken the same personnel action in the absence” of the protected disclosures. The “clear and convincing” standard is a high burden of proof. These shifting burdens were designed by Congress to make it easier for whistleblowers to win their cases.
If the whistleblower prevails, the MSPB must order “corrective action,” which may include the following relief: (i) placing the whistleblower “as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred”; (ii) back pay and related benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs); (iii) attorney fees and costs for the WPA case; (iv) attorney fees and costs incurred as a result of any investigation conducted by the agency in retaliation for the protected disclosures.
Contacting Congress
In the early 1900s Presidents Theodore Roosevelt and William Taft battled with Congress over whistleblower rights. Federal workers were providing information to Congress, and Roosevelt and Taft wanted to silence them. The implemented “gag” rules restricting federal employees from communicating to Congress and triggered a major dispute between Congress and the president. After strenuous debate, in 1912 Congress exercised its authority and passed the Lloyd-LaFollette Act. This law prohibits retaliation against federal employees who provide information to any member or committee of Congress. Additionally, any nondisclosure agreement that restricts a federal employee’s right to communicate with Congress is unenforceable.
Communications with Congress are often a key to successful whistleblowing by federal employees. A supportive member of Congress can exert significant pressure on the federal bureaucracy to prevent or stop retaliation. The law remains in effect today and is commonly relied upon by federal whistleblowers.
The Alternative to Blowing the Whistle at Work: Outside Speaking and Writing (including talking to the Press)
One of the most effective avenues for public employees to expose wrongdoing is by speaking or writing outside of work. In 1968 the Supreme Court held that public employees had a First Amendment constitutional right to directly attack the policies and priorities of their government-employer in the press. That case remains good law and has been expanded over time. Today, court p
recedents support the right of federal employees, acting outside of work and in their capacity as private citizens, to blow the whistle. These rights would include talking to the news media, communicating on social media, and speaking at conferences.
But like all constitutional rights, freedom of speech has its limits. Not all outside speech is protected.
The basic rules governing the right of public employees, on their own time, to criticize their government agencies was established in the 1968 landmark case of Pickering v. Board of Education. Simply said, the Supreme Court held: “Individuals do not automatically relinquish their rights under the First Amendment by accepting government employment” and consequently, “it is essential that” government employees “be able to speak out freely on [matters of public concern] without fear of retaliatory dismissal.” This speech is protected even though the government employee is attacking his superiors: “Statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.” The Pickering case and the scope of its protection is also discussed in Rule 13.
Although Pickering was authored fifty-years ago by liberal Supreme Court Justice Thurgood Marshall, it was reaffirmed by the Supreme Court in 2006 in a decision by Justice Anthony Kennedy, joined by all of the so-called “conservative” members of the Court: “a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” In the Garcetti v. Ceballos case Justice Kennedy explained:
The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion. . . . Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.
Although Pickering and Garcetti concerned the rights to state and municipal government workers, the U.S. Supreme Court and D.C. Circuit Court of Appeals applied these principles to federal employees. In United States v. National Employees Treasury Union, the Supreme Court ruled that restricting the right of federal employees to engage in outside speaking and writing activities was unconstitutional. The NTEU decision was further clarified in the case of William Sanjour, a Policy Analyst for the Environmental Protection Agency, who sought permission to publicly criticize the Agency’s decision to permit toxic waste incinerators in poor and predominantly minority communities. The EPA argued that an official government regulation limited Sanjour’s rights. Sanjour challenged the constitutionality of that rule, and won. In Sanjour v. EPA, the D.C. Court of Appeals held that government regulations that empower officials to restrict outside-employee speech based on the content or viewpoint of the speaker were unconstitutional:
[A] law or policy permitting communication in a certain way for some but not for others raises the specter of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official. . . . [W]e have often and uniformly held that such statutes or policies impose censorship on the public or press, and hence are unconstitutional.
Both NTEU and Sanjour concerned challenges to government regulations that placed restrictions on outside speaking, writing or teaching. In each case the employees did not seek money damages, or relief from individual retaliatory actions. Instead the cases requested broad injunctive relief, finding the challenged laws and regulation unconstitutional and unenforceable.
In 2015 the U.S. Supreme Court decided a more typical whistleblower-retaliation case filed by Robert J. MacLean. MacLean was a federal Air Marshal, assigned to protect passenger flights from potential hijackings. In 2003 the Department of Homeland Security warned that al Qaeda may be planning other “suicide hijackings” with the intent to “destroy aircraft in flight, as well as to strike ground targets.” MacLean was personally informed by his managers that terrorists planned to “smuggle weapons in camera equipment or children’s toys through foreign security,” and then “fly into the United States . . . overpower the crew or the Air Marshals and . . . fly the planes into East Coast targets.”
Just days after this briefing MacLean learned that Air Marshals were being removed from airplanes. MacLean was shocked, and “believed that cancelling those missions during a hijacking alert was dangerous.” MacLean went to his bosses to try to change the policy, but they refused, and told him that the Air Marshals were grounded “to save money on hotel costs because there was no more money in the budget.”
Frustrated, MacLean leaked the story to an MSNBC reporter, and NBC ran a story titled “Air Marshals pulled from key flights.” After the press exposed the scandal, the Department of Homeland Security/TSA reversed its decision, and placed Marshals back on flights. MacLean’s disclosures served the public interest. But DHS wanted to take revenge on the whistleblower who embarrassed the agency. Eventually DHS investigated the press leaks and MacLean admitted he was the source. He was fired.
MacLean sought protection under the Whistleblower Protection Act. MacLean argued that his leaks to NBC were protected disclosures. But the Department of Homeland Security claimed that his disclosures were not permitted, as they were “specifically prohibited by law.” Significantly, in MacLean’s case there was no law that prohibited his communications with the press. Instead, he violated regulations issued by his employer. The case dragged on in the courts and administrative agencies for over ten years and eventually landed in the U.S. Supreme Court. In Department of Homeland Security v. MacLean Chief Justice John Roberts ruled that MacLean was illegally fired. MacLean’s disclosures to NBC were not “specifically prohibited by law.” Thus, he had the right to expose the threat to public safety caused by the government’s irresponsible decision to withdraw Air Marshals from transnational flights during a major terrorist alert. MacLean prevailed in the case even though this disclosure of information violated an agency rule. Justice Roberts did not buy off on the agency’s argument that its internal rule should have the force of law, writing, “Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks.” MacLean eventually returned to his job as an Air Marshal.
Limits on Outside Speaking and Writing
The right of government employees to speak out on matters of public concern is broad, but not without limits. Federal employees should try to ensure that their outside disclosures are covered under the definition of a protected disclosure under the Whistleblower Protection Act. Other cautionary steps include:
• Make sure that you clearly indicate that you are not representing the official position of the U.S. government. Employees have been sanctioned for not giving a “disclaimer” when speaking out on their own time;
• Do not release information that must be held in confidence as a matter of law, or which is classified;
• Do not release information protected under the Privacy Act;
• Do not use government property when speaking out as a citizen.
• Do not use government laptops or cell phones or utilize government-owned servers when blowing the whistle or communicating with counsel;
• If your agency has a prepublication clearance policy, follow those rules;
• Exercise common sense. Be aware that your managers or those in higher positions may be listening/reading. You should strongly consider obtaining confidential legal advice before you engage in controversial outside speaking or writing
, to make sure you do not make an easily correctable mistake when exercising your constitutional rights as a citizen.
Major cases and laws establishing the right of government employees to engage in outside speaking, writing, and teaching critical of their employing agency:
• United States v. Treasury Employees, 513 U. S. 454 (1995) (applying Pickering to federal employees).
• Department of Homeland Security v. MacLean, 135 S.Ct. 913 (2015) (permitted disclosures to the press).
• Sanjour v. Environmental Protection Agency, 56 F.3d 85 (1995) (en banc) (viewpoint based restrictions on employee speech made on their own time is unconstitutional).
• Whistleblower Protection Act, 5 U.S.C. § 2302(a)(2)(D), (b)(8) and (9), and (f).
Options outside a WPA Case
In addition to the WPA, there are a few other laws federal employees can utilize. The nuclear whistleblower law covers employees of the Nuclear Regulatory Commission and Department of Energy, if the disclosures relate to nuclear safety. Federal employees who raise concerns about violations of environmental laws may also be protected under regulations implemented by the U.S. Department of Labor. Banking whistleblower laws cover employees at the Federal Reserve, the Comptroller of the Currency, and other federal banking offices.
Federal employees can file discrimination and retaliation cases under Title VII of the Civil Rights Act (covering cases of discrimination based on race, sex, religion, national origin, age, and disability). Under the controlling rules, employees must seek “counselling” from their employing agency within 45 days of a discriminatory or retaliatory action. The failure to timely seek “counselling” can result in a waiver of the right to pursue a discrimination case. After exhausting administrative remedies, the Title VII case can be adjudicated either before a EEOC judge or in federal court (with the right to a jury trial). Remedies include reinstatement, back pay, compensatory damages, and attorney fees.
