MSPB Finds Whistleblower Protection Appeal Rights Based on Use of Grievance Are Not Retroactive
In an OSC complaint, a Federal Deposit Insurance Corporation employee claimed that after making three disclosures in administrative grievances, he was subject to reprisal by agency employees. After OSC decided to terminate an investigation into the complaint, the employee petitioned the Merit Systems Protection Board for review of his Individual Right of Action (“IRA”) appeal. An MSPB administrative judge dismissed the appeal without prejudice to refiling pending the Board’s decision in Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629 (2014), which contemplated whether the expanded IRA appeal provisions in the Whistleblower Protection Enhancement Act (“WPEA”) should be applied retroactively. Since all of the material events in this case occurred before the relevant provisions of the WPEA took effect on December 27, 2012, the employee’s petition was dismissed. After the decision in Hooker, however, it was refiled, and the administrative judge ordered the employee to show cause why his appeal should not be dismissed for lack of jurisdiction, since the analysis in Hooker regarding retroactivity “appear[ed] equally applicable” to the facts in the employee’s case.
After the employee responded, the administrative judge dismissed the IRA appeal for lack of jurisdiction, finding that the alleged reprisal for grievance activity could potentially be a prohibited personnel practice (“PPP”) as described in 5 U.S.C. § 2302(b)(9), but that since Hooker had not given retroactive effect to extension of IRA appeal rights for reprisal claims based on 5 U.S.C. § 2302(b)(9), the Board lacked jurisdiction. The administrative judge also found that to the extent that the employee was alleging reprisal for whistleblowing disclosures outside of the context of the internal grievance process submitted to OSC, he had not exhausted his administrative remedies. The employee appealed to the full Board. On November 6, 2014, the Board denied the employee’s petition for review, affirmed the initial decision, and dismissed the employee’s appeal for lack of jurisdiction.
Regarding the employee’s additional allegations of reprisal, which he claimed resulted from disclosures made both inside and outside of the grievance process, the Board found that the Board only had jurisdiction over those disclosures that the employee included in his OSC complaint, since there was no evidence that the employee had ever exhausted his administrative remedies when it came to these new, different allegations.
The Board turned to the employee’s argument that his disclosures should be governed by 5 U.S.C. § 2302(b)(8) rather than the section of the statute concerning the exercise of grievance rights protected under subsection (b)(9)(a), in which he stated that “it simply does not matter that the protected disclosures were made within the grievance process when they otherwise establish the type of fraud, waste or abuse that the WPA was intended to reach.” After considering the employee’s argument, the Board found that although employees are not disqualified from pursuing an IRA appeal based on reprisal for making disclosures to OSC if they have also raised them as part of a grievance, the employee in this case had only been able to allege reprisal as a result of grievance activity, rather than disclosures of information in other contexts.
The Board held that under the law in effect at the time of the events at issue in this case, the Board lacked IRA jurisdiction over his claims. The WPEA, made effective after the events at issue, grants jurisdiction to the Board for violations of § 2302(b)(9)(a), which prohibits employees from taking or threatening to take any personnel action against any other employee because of the exercise of any appeal, complaint, or grievance right. But in Hooker, the Board explained, it used the analytical framework set forth in Landsgraf v. USI Film Products, 511 U.S. 244 (1994) to determine that the retroactive application of these new IRA appeal rights would be “impermissible because it would increase a party’s liability for past conduct as compared to pre-WPEA liability.
The Board stated that in Hooker, it declined to make retroactive a new Board appeal right established by the WPEA in IRA appeals for employees who allege a personnel action had been taken as a result of a PPP described in section 2302(b)(9)(A)(i), and that consistent with that decision, it would decline to make retroactive a new Board appeal right in this instance, even though the appeal was docketed after the effective date of the WPEA. The Board concluded that “even assuming that the [employee] had made a nonfrivolous allegation that he engaged in activity that would now be considered protected under 5 U.S.C. § 2302(b)(9)(A)(i),” the employee could not bring an IRA appeal on that basis regarding events that occurred before the effective date of the WPEA.
Finally, the Board considered a draft anti-harassment policy that the employee included with his petition for review, but found that even if it was properly viewed as new evidence, it was not of sufficient weight to warrant an outcome different from that of the initial decision.
For the above stated reasons, the Merit Systems Protection Board denied the petition for review, affirmed the initial decision as modified, and dismissed the appeal for lack of jurisdiction.
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Posted in Case Law Update