Pop Quiz: If an individual who is not a federal employee discloses an agency’s gross mismanagement and then is denied federal employment in reprisal by an agency for making that disclosure, is that individual entitled to pursue a whistleblower reprisal claim through OSC and the Board?
And the answer is: Nobody knows.
That’s why on January 19, the Board issued a Federal Register notice calling for amicus briefs to address the issue, 81 Federal Register 11 (January 19, 2016), pp. 2913-2914. Seems as though there’s a case pending at MSPB that raises a similar hypothetical and the Board would like to know what you wonderful practitioners think about the issue, Mark Abernathy v. Army, MSPB Docket No. DC–1221–14–0364–W–1.
Now, I know many of you readers have a lot of spare time on your hands and are looking for something extra to do. And you’d like to show off your employment law chops just in case our next President’s transition team is looking for a new Board member (actually, two) over at MSPB about this time next year. What better way to have a sample of your work to send to them than an elucidating legal brief, discussing the pros and cons of both interpretations of the Whistleblower protection legislation (especially in light of the Department of Defense Authorization Act of 1987 – zzz), while reaching the conclusion that everyone on Earth, natural-born citizens and genetically-modified organisms alike, as well as citizens as yet unborn, and perhaps even visitors from other planets (with a proper visa, of course) is a protected whistleblower.
On one hand, it’s nice to see the Board members asking for an opinion from us practitioners. Goodness knows, they should have done that before they went down the dark road of Miller-reassignments and world-wide comparator employee analysis. On the other hand, although this is no doubt an important question for Mr. Abernathy (and perhaps your loyal reporter, were he seeking future federal employment), does it really concern enough potential appellants to be worth the effort of a call for amici?
As Pope Francis once said, “Who am I to judge?” The Members want to know your opinions, and now’s your chance to tell them. The deadline is February 9 so don’t dilly-dally. Be sure to review the Federal Register notice carefully so that you can fully understand this issue. Write well, write strongly, and perhaps affect the future course of federal employment law.
And, simultaneously create a nice writing sample for the President-elect to consider on her way to being inaugurated.