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Developments at the MSPB: Whistleblower Nonfrivolous Allegation

Developments at the MSPB:  On September 1, 2016, the Merit Systems Protection Board (MSPB) issued its precedential decision in Bradley v. Dept. of Homeland Security, 2016 MSPB 30.  The MSPB reinstated Bradley's whistleblower reprisal complaint, taking the opportunity to clarify the standards of proof for showing jurisdiction over whistleblower reprisal claims.

For the MSPB to take jurisdiction over a given appeal, the appellant must make a "nonfrivolous allegation" of facts and arguments--and notably has to do so before discovery becomes available.  This standard is far lower than the standard for the appellant to prove their case outright, but it is still an important procedural hurdle in certain MSPB cases such as whistleblower reprisal claims and constructive adverse action cases.  A whistleblower's ultimate prima facie case requires showing protected whistleblowing activity by the employee, as well as a causal connection between the protected activity and the personnel action (usually either through direct evidence or the knowledge-timing test). 

At issue in Bradley is how much proof the appellant must show to establish that the managers were aware of the protected activity, in order to meet nonfrivolous allegation initial threshold under the knowledge-timing test.  The administrative judge had dismissed Bradley's appeal, finding no proof of actual knowledge by the relevant managers.  On petition for review, the MSPB reversed.  The MSPB held that, at least for purposes of meeting the nonfrivolous allegation threshold, it is sufficient for an appellant to show that the managers had constructive knowledge of the protected activity, or that an individual with knowledge of the protected activity influenced the decision to impose the personnel action (under a 'cat's paw' theory).  In Bradley's case, the MSPB found that evidence existed raising issues of fact as to whether managers who were the targets of Bradley's protected disclosures were involved in his nonselection.  Because this issue of fact could not be resolved in favor of the agency at the nonfrivolous allegation phase, the MSPB found that Bradley had met his nonfrivolous allegation burden, and remanded the appeal to the administrative judge for hearing.

If you are a federal employee and you believe that you have suffered whistleblower reprisal, please feel free to contact Passman & Kaplan to request an initial consultation.

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