The Merit Systems Protection Board (āMSPBā) recently cemented an important expansion of who is protected when making whistleblower disclosures under the Whistleblower Protection Act of 1989 (āWPAā). The WPA protects any employee or applicant who makes a whistleblowing disclosure. The MSPB, however, has historically held that an individual need not be an employee or applicant to qualify for protection from whistleblowing reprisal. Specifically, in Greenup v. Depāt of Agriculture, the Board found that while the language of the relevant statute refers to employees and applicants, the statute does not specify that the individual must have been an employee or applicant when the disclosure was made.[1]
In contradiction, however, the U.S. Court of Appeals for the Federal Circuit decided in three non-precedential cases that the WPA only applies to employees or applicants if the disclosure is made when they are applying or employed by the employer.[2] In Abernathy v. Depāt of the Army, the MSPB reconsidered its precedent on who is protected under the WPA in light of these conflicting decisions from the U.S. Federal Circuit.[3]
Abernathy v. Department of Army
Abernathy was a contractor for the Army when he filed a complaint with the Armyās Office of Inspector General (OIG) in August 2012 alleging that Army officials misappropriated funds. Later in 2012, the Agency did not select Abernathy for a position with the Army, prompting Abernathy to file a complaint with the Office of Special Counsel (OSC) alleging the Army did not select him in retaliation for his earlier disclosure. Abernathy filed an Individual Right of Action (āIRAā) to the MSPB, where the Administrative Judge dismissed his appeal for lack of jurisdiction because Abernathy was neither an employee nor applicant at the time he made the disclosure. Abernathy filed a Petition for Review to the Board of the MSPB.
The Board, noting that nonprecedential decisions from the Federal Circuit are not binding on the Board, agreed with the amici who unanimously urged that there was no reason to overturn the Boardās earlier precedent. As such, in its November 15, 2022, decision, the Board reversed the AJās dismissal and reaffirmed its earlier precedent finding that any individual who makes a disclosure at any time before they are a federal employee or applicant is protected under the WPA.
What This Means
The MSPBās decision gives much needed clarity not only to courts but to those making whistleblower disclosures. As noted in the OSCās amicus curiae brief, whistleblowers can now make crucial disclosures promptly, without having to choose between waiting until they are an applicant or an employee to make a disclosure or disclosing in fear that they will be without protection.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.
[1] Greenup v. Depāt of Agriculture, 106 M.S.P.R. 202 (2007).
[2] See Nasuti v. Merit Systems Protection Board, 376 F. Appāx 29, 33-34 (Fed. Cir. 2010); Guzman v. Office of Personnel Management, 53 F. Appāx 927, 929 (Fed. Cir. 2002); Amarille v. Office of Personnel Management, 28 F. Appāx 931, 933 (Fed. Cir. 2001).
[3] 2022 MSPB 37 (Nov. 15, 2022).
