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Equal Pay Merit System Principles

MERIT SYSTEM PRINCIPLE OF THE MONTH

NUMBER 9

"Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences—
(A) a violation of any law, rule, or regulation, or (B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety."

What is the intent behind the ninth Merit System Principle?
The intent of this principle is to protect whistleblowers against reprisal when they disclose wrongful conduct in an attempt to create a more effective civil service.  Whistleblowers help to create an effective civil service because they often are in the best position to witness agency wrongdoing.  Without their disclosures, wrongdoing might go unchecked.  One of the first pieces of legislation to recognize the value of whistleblowers was the False Claims Act of 1863, which sought to protect the U.S. Government against rampant fraud from unscrupulous suppliers during the Civil War by offering a percentage of the recovered damages to people who disclosed such fraud.  Nevertheless, nothing in the False Claims Act specifically protected Federal employees from whistleblower reprisal. 

In 1912, Congress enacted the Lloyd-LaFollette Act, which gave Federal employees certain statutorily defined minimum rights in the event that their employing agencies sought to remove them from the civil service.  This legislation can now be seen as a forerunner to laws that Congress later passed because it was the first to protect whistleblowers.  During a Congressional debate regarding this legislation, Senator LaFollette noted an example of the type of abuse the law sought to correct:  the Government had removed a Federal employee from the civil service after he had disclosed to the press the unsanitary and “simply horrible” conditions at the Chicago Post Office.

In its next significant legislation affecting Federal whistleblowers, Congress passed the Civil Service Reform Act of 1978, which, among other things, attempted to protect Federal whistleblowers by giving them an appeal right to the Merit Systems Protection Board (MSPB) when they suffered reprisal for disclosing specific types of wrongdoing.  This was the first time that Congress expressly recognized the need of Federal employees to be protected against reprisal for disclosing the wrongdoing of their employers.  Nevertheless, various studies showed that Federal employees were still reluctant to bring their employer’s wrongdoing to light due to fear of reprisal.For example, findings from one of these studies showed that 45% of all surveyed Federal employees knew of at least one incident of illegal or wasteful activity within the past 12 months, that 70% of them chose not to report it, and that about one-fifth of that number cited fear of reprisal as their reason for remaining silent.

Congress thereafter revisited the issue and passed the Whistleblower Protection Act of 1989 (WPA), which – unlike the broader Civil Service Reform Act – was specifically tailored to help Federal employees who jeopardized their careers by making whistleblower disclosures in the public interest.  The purpose of the WPA is to:

[S]trengthen and improve protections for the rights of federal employees, to prevent reprisals, and to help eliminate wrongdoing within the government by (1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and (2) establishing . . . that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.

Whistleblower Protection Act § 2(b).

Congress found that protecting employees in this way would be a “major step” toward a more effective civil service and would serve the public interest by assisting in the elimination of fraud, waste, abuse, corruption, illegality, and unnecessary Government expenditures.  Whistleblower Protection Act § 2(a).  Together with the provisions of the Civil Service Reform Act, the WPA makes it possible for MSPB to hear and take corrective action over a broad range of whistleblower appeals. 

What is whistleblowing?
Whistleblowing occurs when an employee makes a specific and detailed allegation of instances of wrongdoing.  Under the WPA, employees are protected when they make allegations of wrongdoing by disclosing a violation of law, gross mismanagement, a gross waste of funds, an abuse of authority, or a “substantial and specific danger” to public health or safety. 

How does MSPB protect whistleblowers?
Unlike many of the Merit System Principles, for which there is no specific law or regulation that allows an affected employee to appeal a violation, MSPB can order an agency to take corrective action for whistleblower retaliation.  This would require an agency to place the whistleblower, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred.  The MSPB can even award the whistleblower back pay and certain reasonable and foreseeable consequential damages such as medical costs and travel expenses.  In some cases, it may also award attorney fees.

However, only whistleblowers who legally fall within MSPB’s jurisdiction may seek such relief.  The WPA allows a whistleblower who has suffered reprisal to appeal a personnel action that is not normally appealable if he or she first files a complaint with the Office of Special Counsel (OSC) and exhausts his or her administrative remedy with OSC.  An individual who is challenging an action that is already directly appealable to MSPB (e.g., a removal or suspension for more than 14 days) may raise his or her whistleblowing activity as an affirmative defense to that action. 

Are there any recent decisions of note by the courts or MSPB that address the ninth Merit System Principle?
Although the Board’s case law states that disclosure of information that is publicly known is not a disclosure under the WPA, the Board qualified this requirement when it held that if an employee’s disclosure adds “additional information necessary to recognize” the nature or seriousness of a publicly known problem, and this is information the public would not have otherwise had, then the disclosure is protected under the WPA.  Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 9 (2009). 

For many years, the Board and the courts found the WPA did not protect disclosures regarding policy disputes where “reasonable people” might disagree over the merits of a given policy.  See, e.g., White v. Department of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004).  In effect, a policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy is not debatable among reasonable people.  Nevertheless, the U.S. Court of Appeals for the Federal Circuit has refined and clarified this legal principle to the effect that the WPA’s protection now covers disclosures about policy, even where reasonable people might disagree on the merits of that policy, when the policy concerns a substantial and specific danger to public health or safety.  Chambers v. Department of the Interior, 515 F.3d 1362, 1368-1370 (Fed. Cir. 2008); see also Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶¶ 16-24 (2011).

Has MSPB ever studied whistleblower protection issues?
Since 1981, MSPB has published several studies tracing the effectiveness, challenges, and successes of whistleblowers in the Federal service.  See, e.g., Do Federal Employees Face Reprisal for Reporting Fraud, Waste, or Mismanagement?  (1981).  The MSPB’s most recent study focused on the challenges that a whistleblower must face in order to prevail on his or her claim.  This study cautioned that it is critical for a whistleblower to know precisely what must be proven in order to prevail on his or her claim, as any criteria found lacking will strip MSPB of jurisdiction over the appeal.  The report describes these criteria and explains what constitutes wrongdoing, how disclosures must be reported, what qualifies as reprisal or retaliation, and what other important issues must be considered in a whistleblower claim.  Whistleblower Protections for Federal Employees (2010).  These studies and others are available online on MSPB’s website at http://www.mspb.gov/studies/viewallstudies.htm

Where can I go to learn more about whistleblowing and the MSPB?
In addition to the MSPB studies, we have other helpful information, such as “Questions and Answers About Whistleblower Appeals,” available online at http://www.mspb.gov/appeals/whistleblower.htm.  It describes the appeal process for whistleblowing cases in an easy-to-follow format.  Also, from time to time, MSPB addresses current developments in whistleblower law in its newsletter, Issues of Merit, an archive of which is available on MSPB’s website at http://www.mspb.gov/studies/newsletters.htm.