Contents
Introduction
Whistleblowing
and Whistleblower Appeal Rights
Two
Kinds of Whistleblower Appeals
Questions
and Answers
MSPB at Your
Fingertips
MSPB
Customer Service Standards
Introduction
Whistleblowing means disclosing information that you
reasonably believe is evidence of a violation of any law, rule, or regulation,
or gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.
On July 9, 1989, the Whistleblower Protection Act of 1989
(Public Law 101-12) became effective. Congress enacted this law to strengthen
protections for Federal employees, former employees, and applicants for
employment who claim that they have been subject to personnel actions because of
whistleblowing activities. The 103rd Congress further expanded whistleblower
protections by enacting Public Law 103-424, which became effective October 29,
1994, making additional personnel actions subject to coverage and extending
whistleblower protections to employees of Government corporations and to
employees in the Veterans Health Administration.
The Board's regulations governing appeals generally are
contained in Title 5 of the Code of Federal Regulations, Chapter II, Part 1201.
Additional regulations that apply only to whistleblower appeals are contained in
Title 5 of the Code of Federal Regulations, Part 1209. Because the Part 1209
regulations contain only the special provisions applying to whistleblower
appeals, they must be used in conjunction with Part 1201.
This publication covers the unique provisions of the law
and the Board's regulations that apply to whistleblower appeals. The
discussion of whistleblower appeals in this publication is not all-inclusive,
nor is the information regulatory in nature. Such appeals are governed by
the pertinent statutes, regulations, and case law.
Further information about filing
whistleblower claims, an appeal form to complete when filing an
initial appeal, and the Board's regulations covering whistleblower
claims are available on the MSPB Web site at www.mspb.gov You can
send email to the Board at mspb@mspb.gov.
Information on procedures that apply to all
appeals to the Board is contained in a separate MSPB publication
entitled "Questions & Answers About Appeals," which is available
on the MSPB World Wide Web site or at any MSPB office.
Please see MSPB
at Your Fingertips at the end of this publication to find out
how to locate Board decisions, case summaries, press releases,
addresses of MSPB regional and field offices, and other information
about the
Board. |
Whistleblowing and Whistleblower Appeal Rights
It is a prohibited personnel practice for an agency to
subject you to a personnel action if the action is threatened, proposed, taken,
or not taken because of whistleblowing activities. You are protected if you make
such a disclosure to the Special Counsel, the Inspector General of an agency, or
another employee designated by an agency head to receive such disclosures. You
are also protected if you make such a disclosure to any other individual or
organization (e.g., a congressional committee or the media), provided that the
disclosure is not specifically prohibited by law and the information does not
have to be kept secret in the interest of national defense or the conduct of
foreign affairs.
The Office of Special Counsel has jurisdiction over
prohibited personnel practice complaints with respect to a broad range of
personnel actions, including appointments, promotions, details, transfers,
reassignments, and decisions concerning pay, benefits, awards, education, or
training. A whistleblower may file a complaint with the Special Counsel with
respect to most personnel actions allegedly based on whistleblowing. Prior to
the Whistleblower Protection Act, if a whistleblower filed a complaint with the
Special Counsel and the Special Counsel did not seek corrective action from the
Board, no further recourse was available, unless the action was directly
appealable to the Board.
Under the Whistleblower Protection Act, a whistleblower
may appeal directly to the Board if he first complains to the Special Counsel
and the Special Counsel does not seek corrective action on his behalf. This
right exists with respect to any personnel action that can be the subject of a
prohibited personnel practice complaint to the Special Counsel, even though the
action may not be directly appealable to the Board.
A whistleblower has the right to appeal directly to the
Board if he is subject to a personnel action that is appealable to the Board.
The Whistleblower Protection Act does not change that. Actions that are directly
appealable to the Board include adverse actions, performance-based removals or
reductions in grade, denials of within-grade salary increases,
reduction-in-force actions, and denials of restoration or reemployment
rights.
Two Kinds of
Whistleblower Appeals
There are two kinds of whistleblower appeals. The
principal difference between the two is in the way they reach the Board.
Otherwise Appealable Action: In the first kind of
case, the individual is subject to a personnel action that is directly
appealable to the Board, and the individual claims that the action was taken
because of whistleblowing. This kind of case is referred to by the Board as an
"otherwise appealable action," and the individual may file an appeal directly
with the Board after the action has been taken.
Individual Right of Action: The second kind of case
was created by the Whistleblower Protection Act and is referred to as an
"Individual Right of Action." In this kind of case, the individual is subject to
a personnel action and claims that the action was taken because of
whistleblowing, but the action is not one that is directly appealable to the
Board. In this kind of case, the individual can appeal to the Board only if he
files a complaint with the Special Counsel first and the Special Counsel does
not seek corrective action on the individual's behalf.
An individual who is subject to a personnel action that is
directly appealable to the Board, and who claims that the action was taken
because of whistleblowing, may choose to file a complaint with the Special
Counsel rather than appeal to the Board. If the Special Counsel does not seek
corrective action on his behalf, the individual may then appeal to the Board.
While this is considered an "otherwise appealable action," the time limits for
filing are the same as for an "individual right of action."
Questions and
Answers
1. Who may file whistleblower appeals with the
Board?
The right to file an individual right of action appeal with the Board is determined by the employee's eligibility under the
"Prohibited Personnel Practices" statute (Title 5 of the United States Code,
section 2302) to file a complaint with the Special Counsel alleging that a
personnel action was taken because of whistleblowing. Covered employees
include:
- Competitive service employees;
- Most excepted service employees in Executive
agencies;
- Employees of Government corporations who allege
whistleblower reprisal;
- Employees of the Government Printing Office; and
- Former employees of and applicants for employment with
covered agencies.
Employees specifically excluded from coverage
are those in the General Accounting Office, the FBI, and various intelligence
agencies. A covered employee who files a whistleblower complaint with the
Special Counsel becomes eligible to file an individual right of action appeal
with the Board only if the Special Counsel does not seek corrective action on
his or her behalf.
In the case of an otherwise appealable action, any
employee eligible to appeal the particular action can appeal directly to the
Board. The regulations applying to the particular action being appealed govern
who may appeal that action. In general, competitive service and
preference-eligible employees (e.g., veterans) have Board appeal rights with
respect to most appealable actions. Most excepted service employees may appeal
adverse actions and performance-based actions. Former employees and applicants
for employment can appeal some actions.
If there is any question as to whether you
come under the jurisdiction of the Special Counsel with respect to
complaints of personnel actions allegedly based on whistleblowing,
or under the Board's jurisdiction with respect to actions that may
be appealed directly to the Board, you should file your complaint or
appeal with the Board in order to preserve your appeal
rights. |
2. How do I file a whistleblower appeal with the Board?
You must file your timely appeal in writing with the
Board's regional or field office serving the area where your duty station was
located when the action was taken. This requirement applies to all whistleblower
appeals, both otherwise appealable actions and individual right of action
appeals.
Your appeal must contain the following:
- All of the information required by the Board's
regulations at Title 5 of the Code of Federal Regulations, Part 1201, for
other types of appeals, including the signature of the appellant or the
appellant's representative and a certificate of service stating how and when a
copy of the appeal was served on the agency.
- A description of the whistleblowing disclosure and a
chronology of facts concerning the personnel action--including the name and
position of the person(s) taking the action.
- An explanation as to why you believe the personnel
action is in reprisal for whistleblowing and any supporting evidence you
have.
- In the case of a threatened action not yet taken, the
specific indications giving rise to your apprehensions.
- If you have sought corrective action from the Special
Counsel first, evidence that your appeal is being filed within the required
time limits.
Appeals may be filed by mail, by facsimile, by
commercial overnight delivery, or by personal delivery. The date of filing by
mail is considered to be the postmark date. The date of filing by facsimile is
the date of the facsimile. The date of filing by commercial overnight delivery
is the date you deliver the appeal to the commercial overnight delivery
service.
3. What are the required time limits for filing a
whistleblower appeal?
The time limits are different for an otherwise
appealable action and for an individual right of action appeal.
Otherwise Appealable Action: You must file within
30 calendar days of the effective date of the action, if any, or within 30
calendar days after the date of receipt of the agency's decision, whichever is
later. (If the filing deadline falls on a Saturday, Sunday, or Federal holiday,
the filing deadline is extended to the next working day.) However, if you have
been subjected to an otherwise appealable action and you choose to seek
corrective action from the Special Counsel first, the time limits for appealing
to the Board are the same as for an individual right of action appeal.
Individual Right of Action: The time limits for
filing an individual right of action appeal depend on what the Special Counsel
does with your complaint.
- If the Special Counsel notifies you that the office is
terminating its investigation of your complaint, you have 65 days from the
date of the Special Counsel's written notice, or 60 days from your receipt of
the notice, whichever is later, to file an individual right of action appeal
with the Board.
- If 120 days pass after you file a complaint with the
Special Counsel and that office has not notified you that it will seek
corrective action on your behalf, you may file an individual right of action
appeal with the Board anytime thereafter.
4. What is a "stay" and how does it apply to whistleblower
appeals?
A stay orders the agency to suspend the personnel action
being appealed. You may file a stay request with the Board in connection with
either kind of whistleblower appeal--an otherwise appealable action or an
individual right of action appeal. You may file a stay request at any time after
you become eligible to file your appeal, but no later than the time limit the
judge sets for close of discovery in the appeal. You may file a stay request
before, at the same time as, or after you file your appeal. If you file the stay
request first, you must file your appeal within 30 days after the judge rules on
the stay request.
5. How do I file a stay request with the
Board?
You file a stay request in writing with the same Board
regional or field office where you file your appeal. You may file the request by
personal delivery, by facsimile, by commercial overnight delivery, or by
mail.
Your stay request must contain the following
information:
- Your name and the names and addresses of the agency and
your representative, if you have one.
- A chronology of the facts, including a description of
the whistleblowing disclosure and the personnel action that the agency has
threatened, taken, or failed to take.
- An explanation as to why you believe the personnel
action is based on whistleblowing. You should support your explanation with
documentary proof because a stay will be granted only if you show a
"substantial likelihood" that your appeal will succeed.
- An explanation as to how long the stay should remain in
effect and whether the stay will cause a hardship on the agency.
- If you first sought corrective action from the Special
Counsel, evidence that the request is timely filed.
6. How does the Board decide on a stay
request?
After you have filed your stay request, the administrative
judge will allow the agency an opportunity to comment and submit evidence. After
considering all the arguments and evidence, the administrative judge will either
grant or deny your request.
If your stay request is granted, the administrative judge
will specify the time period during which the agency must suspend the personnel
action. A typical stay order will suspend the personnel action indefinitely,
until it is later modified or vacated by another Board order.
If your stay request is not granted, you may file a
written request with the administrative judge asking that he refer your request
and his decision denying your request to the Board members in Washington, D.C.
for their review. This is called "petitioning" the administrative judge to
"certify" his decision as an "interlocutory appeal." The Board's regulations
regarding interlocutory appeals are found at Title 5 of the Code of Federal
Regulations, Part 1201.
Please see MSPB
at Your Fingertips at the end of this publication for
information about obtaining the Board's
regulations. |
7. What are the burden of proof and degree of proof in
whistleblower appeals?
In whistleblower appeals, you have the burden of
proving by a preponderance of the evidence that whistleblowing was a
contributing factor in the personnel action threatened, taken, or not taken
against you. The Board will order the agency to correct the action if you
demonstrate that the whistleblowing was a contributing factor in the personnel
action. You may demonstrate that the whistleblowing was a contributing factor by
showing that the official taking the action knew about the whistleblowing and
that the action occurred within a time period such that a reasonable person
would conclude that the whistleblowing was a contributing factor in the
personnel action.
The Board will not order corrective action, however, if
the agency demonstrates by clear and convincing evidence that it would have
taken the same action in the absence of the whistleblowing. The clear and
convincing standard of proof is a higher standard than the preponderance of the
evidence standard that you must meet.
8. If I file a whistleblower appeal with the Board
after the Special Counsel has terminated an investigation of my complaint, will
that termination influence the Board's decision?
No. Under the Whistleblower Protection Act, when the Board
considers your appeal, it may not take into account the Special Counsel's
decision to terminate an investigation of your complaint. Moreover, if you file
your appeal because 120 days have passed without your being notified that the
Special Counsel will seek corrective action on your behalf, the Special Counsel
may not proceed to seek corrective action without your permission. Furthermore,
the Special Counsel may not intervene in your appeal before the Board without
your permission.
9. What can I do if I am not satisfied with the
administrative judge's decision on my whistleblower appeal?
As is the case with other decisions on appeals to the
Board, you have the right to ask the 3-member Board in Washington to review the
initial decision of the administrative judge. You do this by filing a petition for review in accordance with the Board's regulations at Title 5
of the Code of Federal Regulations, Part 1201. If no party files a petition
for review, the initial decision of the administrative judge becomes final 35
days after it is issued. If a petition for review is filed, the decision
issued by the Board becomes the final decision.
You may request judicial review of a final Board
decision on your whistleblower appeal--either an initial decision of an
administrative judge that has become final or the Board's decision on a petition
for review--by the U.S. Court of Appeals for the Federal Circuit. The court
must receive your request for review within 60 days of your receipt of the
Board's final decision. The court normally will not waive this time limit
and filings that do not meet the deadline will be dismissed.
MSPB at Your
Fingertips
MSPB
Customer Service Standards |