NELA Amicus to MSPB seeks protection for federal job applicants

In 2002, Mark Abernathy worked for a government contractor at the U.S. Army’s Europe Regional Medical Command (ERMC) in Germany. He became concerned that managers were mismanaging funds appropriated by Congress by using the funds to buy video teleconference (VTC) equipment. He made a report to the Army’s Inspector General (IG) who eventually decided that there was no mismanagement.

In 2004, Mr. Abernathy applied for a Health Systems Specialist position at ERMC and was not selected. He filed a whistleblower complaint claiming that his non-selection was on account of his 2002 IG complaint.

The Army claimed that the Whistleblower Protection Act did not apply because Mr. Abernathy made his IG complaint while he was still employed by a contractor and before he had applied for any direct federal employment. An Administrative Judge of the Merit Systems Protection Board (MSPB) agreed and made an Initial Decision to dismiss Mr. Abernathy’s case.

Mr. Abernathy appealed to the full MSPB. Last month, the MSPB announced in the Federal Register that it would accept amicus briefs from interested parties on the issue of whether disclosures are protected when made before the whistleblower applies for federal employment.

On behalf of the National Employment Lawyers Association (NELA), I joined with attorneys Andrew Permutter, Alan Kabat, Kathryn Piscitelli and Matt Koski to submit an amicus brief to MSPB on behalf of Mr. Abernathy.

Our brief first notes that the dismissal “is contrary to the plain text of the WPA, which explicitly protects ‘applicants,’ including those who have never been federal employees.” We also cited to two prior cases in which the MSPB had held that whistleblowers were protected for disclosures they made before applying for federal employment. You can find the cases here and here.

More fundamentally, the very purpose of protecting applicants is to encourage everyone to make disclosures when they have a reasonable belief about waste, fraud, and violations of law. Requiring whistleblowers to apply for a federal job before they blow the whistle would undercut that purpose by discouraging other employees from making disclosures.

While employee tips account for 49% of discovered frauds, law enforcement detects only 1.9% of frauds.The federal government risks losing its most valuable source of tips by denying protections to those who have to risk their careers to speak up for taxpayers. We argued:

The Initial Decision below unjustifiably tears a gaping hole in the web of federal whistleblower protections. … This holding is inconsistent with the remedial purposes of both laws and would discourage both federal and private sector employees from coming forward with valuable information.

In 2012, Congress strengthened the law by passing the Whistleblower Protection Enhancement Act (WPEA). Congress explained that it was wrong for the MSPB and courts to create exceptions to the whistleblower protections when the law clearly protects “any disclosure.” Our brief concludes:

The Board’s application of the explicit language of the WPA will strengthen this web, and will reaffirm its clear precedent on this issue. The Initial Decision, if undisturbed, would punch a wide hole in this web, and return this Board to the type of judicial undercutting of WPA coverage that the WPEA sought to end forever.