Federal Employees News Digest
Legal Matters: Whistleblower reprisal: The good news and the deceiving good news
Even though the number of whistleblower complaints received by the Office of Special Counsel rose to an all-time high in fiscal 2014, the number of whistleblower retaliation appeals the Merit Systems Protection Board received during the same period actually declined by almost a one-third, according to a new MSPB report. But it is too early to break out the champagne and celebrate a victory over whistleblower retaliation.
First, the deceivingly good news: The MSPB in fiscal 2014 received 133 otherwise appealable action (OAA) initial appeals, which concern claims over adverse actions (e.g., removal) that a federal employee could challenge before an administrative judge even if he or she never blew the whistle. The MSPB also received 318 individual right of action (IRA) appeals, which concern claims over personnel actions (e.g., poor performance evaluation) that do not rise to the level of an adverse action. The employee can only file an IRA appeal after filing a complaint to the OSC and when that agency either declined to pursue the case or failed to act within 120 days after the complaint was received.
In all, the MSPB last fiscal year received 451 initial appeals with whistleblower reprisal claims, down 32 percent from the 657 such appeals it received in fiscal 2013. A footnote of the report, however, provided that the “large number of furlough appeals filed in FY 2013, and the subsequent processing of those appeals beginning in FY 2014 has likely impacted the number (and proportion) of whistleblower appeals filed.” So despite the drop in OAA and IRA appeals, whistleblower retaliation is alive and well in the federal government. In fiscal 2014, 19.5 percent of federal employees reported they did not believe they could disclose a suspected violation of any law, rule or regulation without fear of reprisal, according to weighted data in the 2014 Federal Employee Viewpoint Survey. In 2013, that figure was 18.8 percent.
The good news is that the settlement rate for all appeals with whistleblower reprisal claims inched up from 20 percent to 21 percent. In fiscal 2014, 92 OAA and IRA appeals were settled.
Further, fewer federal employees who filed IRA appeals had their initial appeals dismissed because they failed to exhaust their options with OSC. In fiscal 2014, only 17 IRAs, or 6 percent of all such appeals decided, were dismissed for failure to exhaust options at OSC. In contrast, 42 IRAs, or 15 percent of all such appeals decided, were dismissed for the same reason in fiscal 2013. It appears more whistleblowers understand the process, meaning fewer individuals are wasting time and money barking up the wrong tree by filing an MSPB appeal when they should file an OSC complaint.
Even more, in fiscal 2014, OSC successfully negotiated with agencies in 138 favorable actions—up 25 percent from the previous fiscal year, according to a recently released agency report. Whistleblowers subjected to personnel actions, instead of adverse actions, need to know that the requirement to file a complaint with the OSC, rather than file an appeal with the MSPB, does not make representation by an experienced federal employment law attorney any less important.
Remember, those 138 favorable actions were negotiated. Employees who are strangers to the negotiating table – and most are – should not risk their federal careers by trying to work out a deal with the agency without the representation of seasoned counsel.
Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military personnel and federal employees and can be reached at email@example.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice