Special Counsel Henry Kerner testifies on Capitol Hill in June 2019.

Special Counsel Henry Kerner testifies on Capitol Hill in June 2019. J. Scott Applewhite / AP

Federal Employee Protection Agencies Clash Over When to Protect Federal Employees

Special counsel says a judge at the Merit Systems Protection Board is setting a dangerous precedent that would harm federal workers.

Two agencies charged with protecting federal employees against civil service violations are disagreeing over the scope of those protections, leading to a showdown in federal court. 

The disagreement stems from a case involving a pharmacist at the Veterans Affairs Department, Debra Tao, who has alleged she was demoted as a result of her making whistleblower disclosures, testifying on behalf of a colleague and reporting labor violations to the Federal Labor Relations Authority. A Merit Systems Protection Board administrative judge ruled against Tao earlier this year, saying she could not have reasonably believed she was reporting wrongdoing as required by whistleblower protection statute. Because MSPB does not currently have a central board, the judge’s ruling became the agency’s final decision. 

The Office of Special Counsel, however, said the MSPB judge made too narrow a ruling and called for the U.S. Court of Appeals for the Federal Circuit, to which Tao has appealed, to reverse the decision. OSC, the agency that enforces whistleblower protection law for federal workers, said in a friend of the court brief that MSPB ignored that Tao’s other actions were protected activities and entirely separate from any disclosures of wrongdoing. Federal statute prohibits agencies from retaliating against workers for testifying in appeals, making disclosures to OSC or exercising grievance rights, among other activities. 

In addition to reporting information to OSC and FLRA, Tao testified on behalf of a colleague in front of MSPB and the Equal Employment Opportunity Commission. She also made a disclosure to VA’s Office of Accountability and Whistleblower Protection, an office mired in controversy after it was found to have retaliated against those it was set up to protect. 

Federal employees can appeal adverse actions against them on the grounds that they were retaliated against for blowing the whistle as well as other protected activities, OSC said, adding they can seek remedies under both provisions simultaneously. MSPB contradicted “the plain language of whistleblower law” and departed from “well-established precedent,” OSC wrote in its brief. The board “neglects Congress’ purpose and intent” and “erroneously blurs the line” between protected disclosures and other activities that Congress intentionally established, Special Counsel Henry Kerner and other top OSC officials said. 

OSC noted there is a different legal standard between proving retaliation for whistleblower disclosures and for other protected activities, meaning MSPB necessarily had to evaluate the merits of both. The agency warned the federal circuit could set a dangerous precedent if it does not rule in Tao’s favor. 

“The Board’s improper approach here is not in accordance with law and leaves federal employees uncertain about their [individual right of action] appeal rights under civil service laws and vulnerable to retaliation explicitly prohibited by the statute,” it said. 

The Tao case marks the second time this year OSC has chastised MSPB for not adequately standing up for federal employees.