LAW OF THE LAND: Merit Systems Protection Board — limiting whistleblowing pro

William L. Martin III

“I’ve got nothing to say.  All the good quotes have already been taken.”  Woody Paige, Around the Horn, June 12, 2013

The number and variety of “courts” or their equivalent is a fascinating area of the legal profession. Recently I wrote about the US Armed Services Board of Contractor Appeals, where government contractors can appeal a contracting officer’s decision denying a claim.  There is a different forum where government employees can appeal personnel decisions — the Merit Systems Protection Board or “MSPB.”

The MSPB is an independent, quasi judicial agency in the Executive Branch that serves as the guardian of Federal merit systems. The mission of the MSPB is to “Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.” 

An agency may remove an employee for unacceptable performance if it follows certain procedures; including providing 30 days’ advance written notice identifying specific instances of unacceptable performance, critical elements of the employee’s position involved in each instance of unacceptable behavior; that the employee is entitled to counsel; the employee is given a chance to respond in writing; and a written decision which specifies the grounds for the action.

Employees covered by certain protections can file an appeal with the MSPB. The MSPB will overturn the agency action if the employee shows that the agency committed harmful error, based its action on a prohibited personnel practice, or the action was otherwise not in accordance with law.

In my most recent MSPB case, the employee was terminated and raised an affirmative defense that he was retaliated against for “whistleblowing,” or disclosing wrongdoing on behalf of his agency. To prevail on a whistleblowing claim, the employee must prove that his or her disclosure was a contributing factor in a personnel action.  One way to “prove” this factor is to submit evidence showing that the official taking the personnel action knew of the disclosure and that the personnel action occurred in a sufficiently proximate period of time such that a “reasonable” person could conclude that the disclosure was a contributing factor in the personnel action.

Does the term “reasonable person” sound familiar? In a criminal case, the jury must be convinced beyond a “reasonable” doubt. The term “reasonable” is an ambiguous word that allows the jury or, in this case, the MSPB, to assess the facts and rule one way or the other.  In other words, the MSPB, like the USASBC, like the EEOC, and a myriad of other forums, are modeled after our judicial system — providing due process to protect the rights of federal employees.

Bill Martin is a former B-52 and B-1B pilot and senior attorney for the Federal Deposit Insurance Corporation. He is currently a partner in the law firm of Keefe, Anchors & Gordon in Fort Walton Beach, Fla.