New MSPB Whistleblower Decisions – Part 2

As we noted in Part 1 of this blog, the Merit Systems Protection Board now has a quorum (a Member and a Vice-Chair assumed their posts in early March 2022) and has been working on the backlog of 3400 appeals by issuing decisions. Through May 9, 2022, the Board has issued 9 Precedential and 114 Non-Precedential Decisions. Several of these decisions involve whistleblower appeals, and we have begun highlighting some important ones.

On April 20, 2022, the MSPB issued a precedential decision in Soto v. Department of Veterans Affairs, 2022 MSPB 6. Javier Soto was a reemployed annuitant. That means he had already retired but was rehired to meet an agency staffing need. The VA ultimately fired Mr. Soto, and he alleged to the Special Counsel, and then to the Board in an Individual Right of Action (IRA) appeal, that his removal was a reprisal and violated the Whistleblower Protection Act (WPA).

In its decision, the Board had to resolve a number of serious issues. First, the VA argued that the Board could not hear Mr. Soto’s case because he was a reemployed annuitant. Individuals who are “receiving an annuity” are excluded from the definition of “employee” who have the right to appeal an adverse action to the Board. 5 U.S.C. § 7511(b)(4).  The MSPB rejected that argument on the ground that Mr. Soto was not “appealing” his termination to the Board; rather, he was claiming his removal was based on disclosures that are protected under a different statute, 5 U.S.C. § 2302(b)(8), and on Union activities protected under § 2302(b)(9)(A)(i) and (B). In the statute providing federal employees with whistleblower protections, Congress identified a different group of individuals who were precluded from claiming that protection. 5 U.S.C. § 2302(a)(2)(B)(i), (ii). Because Mr. Soto’s status as a reemployed annuitant was not included on that list, he could pursue his appeal at the Board. The Office of Special Counsel (OSC) maintains a list of employees who are not protected by the WPA.

Second, with respect to causation, if an employee can show that their actions were a “contributing factor” in the personnel action, the Agency bears the burden of proving by “clear and convincing evidence” that it would have taken the same action even absent those protected activities. 5 U.S.C. § 1221(e)(2).  As part of that burden, the Board cautioned agencies that they could not prevail merely by showing that an “action was justifiable; rather, the agency must show by clear and convincing evidence that it would have taken the same action in the absence of his protected activity.” Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012) (“the agency must still prove by clear and convincing evidence that it would have imposed the exact same penalty in the absence of the protected disclosures.”).

In this case, while the Agency argued that it would have taken the same action even absent Mr. Soto’s activity, and listed several annuitants who had been fired, the Board rejected that argument. The Board held that the Agency failed (1) to name the other reemployed annuitants the Agency had fired, or (2) to establish their positions and their alleged misconduct. Importantly, the record provided no way of knowing whether the other fired annuitants had engaged in any protected activities.

Finally, in IRA reprisal appeals, many judges have required the employee to show that the official who took the action against the employee was aware of the protected activity.  Relying on Whitmore, however, the Board also held in Soto that the analysis of whether the Agency had a motive to retaliate is not limited to whether the disclosures implicated the individual who made the final decision; it must include consideration of whether the criticism of “those responsible for the agency’s performance overall . . . reflects on them in their capacities as managers[.]” In other words, the search for retaliatory motive is not confined to the whistleblower’s immediate supervisory chain; it “could be imputed more broadly.” Because the AJ took too narrow a view of retaliatory motive, the Board remanded the case for consideration of the background evidence of “the tense relationship between the union and agency management[.]”

Soto is an important addition to the Board’s whistleblower caselaw.

If you have any concerns or questions regarding whistleblower protections, the attorneys at KCNF are experienced in whistleblower laws and employment retaliation and can be contacted here. This is the second in a series of blogs discussing the Board’s new whistleblower cases.

This blog also appeared in FEDweek on June 3, 2022.