With a Quorum, MSPB Begins Issuing Federal Sector Whistleblower Decisions – Part 1

On March 1, 2022, the Senate finally confirmed two of President Biden’s nominees to serve on the Merit Systems Protection Board (MSPB), ending a five-year period during which the Board lacked a quorum and could not issue any decisions. The President’s nominee to serve as Chair of the MSPB, Cathy Harris, still awaits Senate confirmation. During the period awaiting a quorum, 3,400 cases piled up waiting for the arrival of Board members who could issue decisions.

The new Board members, Vice Chair Raymond Limon and Member Tristan Leavitt, have already begun issuing decisions, including some decisions involving whistleblower protections. During their September 22, 2021, confirmation hearing, Mr. Leavitt stated, “Anyone who knows me might perhaps know me best for being passionate about the importance of protecting whistleblowers.” In his testimony, he expressed concern about the culture in many agencies that discourages whistleblowers from coming forward. Mr. Limon agreed that culture is a problem and testified about the importance of transparency in the Board’s decisions. Ms. Harris expressed how whistleblowers are afraid that nothing will happen when they raise concerns. She said she would be interested in petitions by the Office of Special Counsel (OSC) to protect whistleblowers from retaliation. Mr. Limon testified that the area of whistleblower protection has been shifting since the MSPB last studied the issue in 2011.

On April 13, 2022, the two new Board members issued an Opinion and Order in Garilynn Smith v. Department of the Army, 2022 MSPB 4. While serving in the Army in 2006, Ms. Smith’s husband was killed in Iraq. In 2011, the Air Force Mortuary Affairs Operations (Dover MAO) told her that his remains had been cremated and sent to a Virginia landfill. Upset, Ms. Smith, who was a civilian employee of the Army, notified members of Congress and the media, including the Washington Post, about the mishandling of service member remains. In 2012, the Army transferred Ms. Smith to Naval Sea Systems Command where she continued as a GS-8 employee. She applied for a GS-9 position back with the Army. After two more news stories named Ms. Smith as the source of concern about the mishandling of remains, the Army canceled the vacancy announcement, reissued it with new requirements and then selected a candidate other than Ms. Smith. In 2017, the MSPB Administrative Judge (AJ) found that Ms. Smith showed her disclosures about mishandling remains had contributed to her non-selection and the Army failed to prove by clear and convincing evidence that it would have made the same decision without her disclosures.

Importantly, the AJ also ordered the Army to provide “interim relief” to Ms. Smith; in the event the Army chose to appeal the decision, it was required to place her in the position as of the date of AJ’s decision (May 19, 2017). The Army did appeal, but it failed to include in that appeal the required statement that it granted Ms. Smith the “interim relief” to which she was entitled. In fact, the Army placed Ms. Smith in a position effective three months later, in August 2017.

The Board’s regulations permit the Board to dismiss any petition for review by an Agency that fails to certify it has complied with any order of interim relief. 5 C.F.R. § 1201.116(e). The Board did not dismiss the Army’s appeal, however, on the startling ground that because it ultimately decided in Ms. Smith’s favor (denying the Army’s appeal) the issue is “now moot.” The Board did not address how choosing not to dismiss the Army’s appeal would lead federal agencies to think that they could ignore—without consequence—an AJ’s order to provide interim relief.

In the course of deciding in Ms. Smith’s favor, the Board made a number of holdings that will be helpful to whistleblowers. The AJ held that Ms. Smith’s disclosures were protected because she reasonably believed that dumping her husband’s remains in a landfill violated a DoD directive that required remains to be treated with “reverence, care and dignity.” The Board went further, however, and added that even if there were no specific DoD directive, Ms. Smith could reasonably believe that such treatment violated some law, rule or regulation, thereby protecting her disclosures under the Whistleblower Protection Act of 1989 (“WPA”). This holding is particularly important to whistleblowers, who may not be familiar with applicable laws, rules and regulations. With the Smith decision, they will no longer have a duty to conduct legal research if an AJ can otherwise find their belief was reasonable that wrongdoing had been committed.

Under the “knowledge/timing” test, a whistleblower can prove reprisal by showing that an official who knew of the disclosures took the personnel action shortly after the disclosures. The AJ held that in Ms. Smith’s case, her disclosures were so widely known within the Army that timing alone was sufficient to conclude that the disclosures contributed to her non-selection. The Army argued to the Board that Ms. Smith failed the “knowledge” part of the “knowledge/timing” test because she could not prove that the officials who failed to select her were aware of her disclosures. The Board rejected that argument, holding that evidence of the Army’s displeasure with Ms. Smith’s disclosures was sufficient to satisfy the knowledge/timing test.

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 first in a series of blogs discussing the Board’s new whistleblower cases.

This blog also appeared in FEDweek on May 18, 2022.