MSPB proposed the change to correct an inconsistency between its own case law and the current U.S. statute, said Jim Eisenmann, general counsel for the board. The new regulation, published in the Federal Register earlier this month, would bring MSPB policy in line with existing law, and inform employees that the choice between two appeals processes makes a difference in how their case might be handled.
Currently, employees who wish to challenge perceived reprisal for whistleblowing (major personnel actions such as firing, long-term suspensions, geographic location changes or pay grade decreases) have several options. They can go directly to MSPB, a quasi-judicial body that handles appeals of disciplinary actions and whistleblower issues, or they can first turn to the Office of Special Counsel. If OSC elects not to take corrective action or does not notify the appellant that it will take corrective action within 120 days, then the employee can take the case to MSPB.
During both processes, employees must prove they were punished for whistleblowing actions. But under current procedure, agency officials also must prove the penalties they’ve selected for the whistleblowers are reasonable. Under the proposed change, if employees go to OSC first, then their agencies would no longer have that burden of proof.
“Let’s say they got in a fight, the agency has to prove that and prove the penalty they’ve selected is reasonable: They were terminated for getting into a fight,” Eisenmann told Government Executive. “Let’s say [the employee’s] defense is, well, I got into a fight but the reason I’m getting fired is because I’m a whistleblower.” In that scenario, if the employee files directly with the MSPB, then the agency must prove that the employee did, in fact, get in a fight. Under the proposed rule, however, if the employee filed with OSC before going to MSPB, the agency no longer has the burden of proving that the employee got into the fight or that termination was an appropriate penalty.
The official language of the proposed change states that in an appeal that went to OSC first, “the only issue before [MSPB once the case gets there] is whether the agency took one or more covered personnel actions against the appellant in retaliation for making protected whistleblowing disclosures,” whereas in an “adverse action” that goes directly before the MSPB, “the agency must prove its charges, nexus and the reasonableness of the penalty by a preponderance of the evidence, and the appellant is free to assert any affirmative defense he might have, including harmful procedural error and discrimination.”
An employee might choose the OSC appeal first, since the agency does not have a deadline for appeals, whereas an appellant must file with MSPB within 30 days.
Although whistleblower appeals that go before OSC first make up only about 4 percent of MSPB’s caseload, the proposed change represents the most significant modification the board is attempting, said Peter Broida, an attorney who advised on issues before MSPB.
John Palguta, vice president for policy at the nonprofit Partnership for Public Service, said he believes the change is intended to be helpful to whistleblowers since MSPB also seeks to make agencies responsible for fully advising employees of their rights and “the consequences associated with exercising the different options available to employees.”
The comment period on the MSPB proposal ends July 23.
CORRECTION: The comment period on the MSPB proposal published in the Federal Register ends Monday, July 23.