Whistleblowing Claim Reinstated

On September 14, 2011, the Merit Systems Protection Board (MSPB) issued its decision in King v. Dept. of the Army, 2011 MSPB 83. Reversing the administrative judge's dismissal of the case, the MSPB reinstated King's claim of whistleblower reprisal and remanded the case for further proceedings.

King had applied for a civilian position with the Army. At her October 2009 interview for the position, King was allegedly asked by the panel why she had left a previous position with a different federal agency. King claimed that she responded that she had been fired for whistleblowing, to which one of the panel members allegedly responded that Army whistleblowers were immediately reassigned. King was not selected for the position.

King filed a complaint with the Office of Special Counsel, alleging whistleblower reprisal in her nonselection. King specifically alleged that the Army had retaliated based on its perception of her as a whistleblower rather than from any specific recent whistleblowing activities. King also alleged that the MSPB had previously found her to be a whistleblower in unspecified prior appeals. OSC declined to prosecute, and so King appealed her claim to the MSPB as an Independent Right of Action appeal.

The MSPB administrative judge dismissed King's claim for lack of jurisdiction, finding that King had failed to identify any specific protected whistleblowing disclosure she had made, and thus had failed to make a non-frivolous allegation showing a causal connection between that disclosure and the personnel action at issue. The administrative judge further found that prior Board findings that King was a whistleblower in other instances did not properly qualify her as a whistleblower on this particular nonselection. King then petitioned the full Board for review.

The MSPB reversed the administrative judge's dismissal. The Board held that while the ordinary test for MSPB jurisdiction over a whistleblower reprisal claim requires the appellant to identify a specific protected whistleblower disclosure, the Board does recognize a second test for MSPB jurisdiction applicable to cases of perceived whistleblowing. The Board went on to discuss several prior cases where the perceived whistleblowing analysis applied: actions taken against an employee erroneously perceived as having blown the whistle, actions taken against an employee who had compiled a list of possible violations and who was perceived as preparing to blow the whistle, actions taken against an individual who had voiced internal complaints and was perceived management as potentially likely to blow the whistle, and actions taken against an employee identified in the news as having disclosed unspecified violations.

As the administrative judge did not instruct King about the possibility of pleading jurisdiction under a perceived whistleblowing analysis, the Board remanded the case to the administrative judge to give King the opportunity to show jurisdiction under the perception analysis.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.