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Developments at the MSPB: (b)(9) Prohibited Personnel Practices

Developments at the MSPB:  According to a recently-issued Government Accountability Office (GAO) report, officials of the Merit Systems Protection Board (MSPB) advised GAO that  "there have been fewer than 10 IRA appeals filed since the start of fiscal year 2013 in which only a section 2302(b)(9) claim is raised."  To help educate federal employees on some of the protections available to them under current law, Passman & Kaplan offers the following summary on what claims (b)(9) covers.

Independent Right of Action (IRA) appeal rights were extended to most (b)(9) PPPs under the Whistleblower Protection Enhancement Act of 2012 (previously analyzed in this blog).  Four categories of (b)(9) PPPs exist.

The first category ((b)(9)(A)) is retaliation for "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation."  The operative word is "any", giving (b)(9)(A) an extremely broad scope.  However, the IRA right created by the WPEA (and its compensatory damages provisions) only applies to a limited subset of (b)(9)(A) claims:  claims of retaliation for a prior whistleblower reprisal complaint ((b)(9)(A)(i) claims).  All other (b)(9)(A) claims fall under (b)(9)(A)(ii), which have no IRA appeal rights--but can be raised as an affirmative defense in an MSPB appeal.

The second category ((b)(9)(B)) prohibits retaliation for "testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii)".  Put simply, if you serve as a witness in the grievance, appeal or complaint of another employee (not your own), you potentially fall under the scope of protection of (b)(9)(B).  Similarly, if you are assisting another employee in their grievance, appeal or complaint, you also are potentially protected by (b)(9)(B) from retaliation.  All (b)(9)(B) complaints have IRA appeal rights.

The third category ((b)(9)(C)) prohibits retaliation for lawfully cooperating with, or lawfully providing information to, an Office of Inspector General or the Office of Special Counsel.  All (b)(9)(C) IRA complaints have IRA appeal rights.

The fourth category ((b)(9)(D)) prohibits retaliation for employees' refusing to obey an order that would require them to violate a law.  As analyzed in this blog, the courts have limited this protection to only violations of statutes--violations of regulations or other agency rules are not covered by (b)(9)(D).  All (b)(9)(D) IRA complaints have IRA appeal rights.

Please note that the (b)(9) provisions of the WPEA are not retroactive, so it is important to consider when the protected activity and the retaliation occurred, as (b)(9) claims predating the WPEA have no IRA appeal rights. 

Unless raised as an affirmative defense to the MSPB in an otherwise appelable action, complaints must first be filed with the Office of Special Counsel.

If you believe that you are being retaliated against in violation of 5 U.S.C. 2302(b)(9), please feel free to contact Passman & Kaplan to request an initial consultation.

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