The MSPB and whistleblowing

The American people have a vested interest in their government agencies acting in accordance with the law. In the United States, no one, not even federal government employees, are above the law. However, it can be difficult to know if a government agency or employee is breaking the law until the illegal behavior has resulted in damages. Accordingly, federal law protects federal employees and federal job applicants who allege that they have been retaliated against for properly reporting the violation of a law, the gross mismanagement of an agency, an abuse of authority, or a substantial and specific danger to the public health and safety.

What is Whistleblowing?

Generally, a person is considered to be a “whistleblower” if the person:

• Is an applicant, employee or former employee of a government agency;

• Had specific knowledge about: (a) a violation of law or regulation, (b) gross mismanagement of an agency, (c) an abuse of authority by a government agency or employee, or (d) a substantial and specific danger to the public health and safety that was imminent because of the actions (or inactions) of an employee or agency; and

• Reported the information to the Special Counsel, the Inspector General of an agency, or another employee designated by an agency head to receive such disclosures.

When does the MSPB Have Jurisdiction over Whistleblowing Allegations?

In some cases the whistleblower must seek the assistance of Special Counsel before filing an appeal with the MSPB. Specifically, in cases where the MSPB would not otherwise have jurisdiction, the Whistleblower Protection Act requires employees to first seek the assistance of the Special Counsel regarding their allegations. If the Special Counsel does not take action, then the whistleblower can appeal directly to the Merit System Protection Board. The whistleblower can file an appeal with the MSPB, without prior assistance from the Special Counsel, if the whistleblower has suffered a consequence of the whistleblowing, such as an adverse action, that is within the general jurisdiction of the MSPB.

How can the MSPB Help?

The MSPB can help whistleblowers who have been retaliated against by the government for their legally protected whistleblowing activities. For example, employees who were fired, demoted, or suffered adverse working conditions due to their protected whistleblowing activities may be entitled to financial damages for the harm that was caused to them.

Government agencies typically put up strong defenses in whistleblowing cases. They do not take kindly to job applicants or employees accusing them of illegal, unethical, or dangerous activities. However, often whistleblowers are justified in their actions, and their proper reporting of improper behavior is important to the continued ethical and legal operation of our federal government. Therefore, whistleblowers often benefit from hiring employment lawyers who have experience before the MSPB. Employment law attorneys who represent whistleblowers before the MSPB know how to best present a case to an MSPB administrative law judge, and how to persuade an MSPB administrative law judge to award damages to wronged whistleblowers.

Federal law protects whistleblowers, but in order for that law to have its intended effect, whistleblowers must both properly report improper behavior and stand up for their rights by filing an appeal if they are retaliated against for their actions.