News from the Courts: The U.S. Courts of Appeals for the 7th and 9th Circuits each issued recent whistleblower reprisal decisions. Both courts reversed rigid Merit Systems Protection Board (MSPB) decisions requiring specific fact allegations in whistleblower claims at the Office of Special Counsel (OSC).
The two decisions were issued under a temporary all-circuit review statute, previously analyzed in this blog, which expired in late 2017.
On January 29, 2018, the 7th Circuit issued its decision in Delgado v. MSPB, No. 16-1313. The MSPB administrative judge dismissed Delgado's Independent Right of Action (IRA) appeal because Delgado had not provided a copy of his original electronically-filed OSC complaint, even though he produced the filing confirmation and detailed submissions concerning his claims. The MSPB reasoned that Delgado could not prove what issues he raised at OSC without a copy of the actual complaint. The 7th Circuit reversed, noting the difficulty for appellants who electronically filed their appeals to prove what allegations were raised at OSC. The court held that appellants are not required to produce a copy of their OSC complaint as a prerequisite for an IRA appeal at the MSPB, noting that OSC could provide a copy of the complaint if needed. The court found that Delgado's testimony could evidence the facts in Delgado's OSC submissions. The court also found error in the MSPB's finding Delgado's disclosure of alleged courtroom perjury by an ATF agent was not a protected disclosure. The court noted that a reasonable belief standard only required Delgado to show facts supporting a reasonable belief that perjury occurred, not to prove the intent element of the crime. The court criticized the MSPB for requiring appellants to plead every factual detail necessary for their case at OSC. The court, citing GAO statistics, expressed concerns that only 15% of whistleblower reprisal cases reached hearing at the MSPB (more than half were dismissed).
On February 26, 2018, the 9th Circuit issued its decision in Johnen v. MSPB and Dept. of the Army, No. 16-73427. The court found that Johnen's complaint was sufficiently detailed in alleging nepotism and retaliation, such that the MSPB should not have dismissed Johnen's appeal. OSC, in an amicus brief, criticized the MSPB's requirement that appellants give precise details of each alleged whistleblower disclosure to OSC, arguing it was contrary to legislative history, and noting that appellants only need to plead sufficient details to allow OSC to then investigate. OSC noted that only 10% of OSC whistleblower complaints have attorneys, and argued that the MSPB's rule ignoring appellants' lack access to information in agencies' records.
If you believe you have been retaliated against because of protected whistleblowing, consider contacting Passman & Kaplan to request an initial consultation.