MSPB Solicits Amicus Briefs on Whistleblower Issue
Check your Federal Register (it has to be somewhere on your desk) for January 19, 2016, and you will see the Board's request for amicus briefs on the principal issue of whether a federal contractor employee has IRA rights under the WPA or WPEA. The notice talks about Board law, but does not explain the facts of the case, Abernathy v. Dept. of Army, DC-1221-14-0364-W-1. Facts help to inform legal discussion, so, gentle readers, here's a summary of the facts from the judge's initial decision:
As noted previously, the agency argued that the Board lacks jurisdiction over the appellant's appeal, in part, because the personnel action at issue (the agency's failed to refer him for selection for a GS-12 Health Systems Specialist position (Vacancy Announcement EUHM1203697739652) is not a covered personnel action. However, contrary to the agency's argument, I find that the agency's alleged failure to refer him for the GS-12 Health Systems Specialist position was in essence an allegation that the agency failed to appoint him for the position, as described at 5 C.F.R. § 1209.4(a)(1), and I find that it is a covered personnel action under 5 U.S.C. § 2302(b)(8).
The agency correctly argues, however, that the appellant's disclosure in August of 2012 was not a protected disclosure, because he was not an employee, former employee, or applicant for employment, at the time he made his disclosure, but rather, he was a Federal contractor. The appellant clearly stated in his February 18, 2014 response to the jurisdictional issue that he made his disclosure to the ERMC-IG (MEDCOM) in August 2012, and the agency submitted evidence which shows that the open period for applying for the Health Systems Specialist position at issue was from September 4-14, 2012. . . . The appellant also did not dispute the agency's argument made in its December 9, 2010 Response to Order to Show Cause, that because he was not an employee, former employee, or applicant for employment, at the time he made his disclosure.
Under 5 USC 1221:
. . . an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.
And under 5 USC 2302:
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-
. . .
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of-
(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences-
(i) any violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,
Does an applicant for a job state an IRA case for reprisal based on a disclosure before he or she was an applicant (or federal employee)? You be the judge.
Send your comments to the Board (which asked for comments on a few other, somewhat related, matters) by February 9, 2016, and check the Register notice at mspb.gov.