By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. [email protected]

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