Abernathy v. Dept. of Army Amicus Brief

7/25/2019 Abernathy v. Dept. of Army Amicus Brief

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

____________________________________)

MARK ABERNATHY, )

Appellant, )

) MSPB Docket Numbe

v. ) DC-1221-14-0364-W-1

)

DEPARTMENT OF THE ARMY, )

Agency )____________________________________)

AMICUS BRIEF OF THE NATIONAL EMPLOYMENT LAWYERS ASSO


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Table of Contents

STATEMENT OF INTEREST . . . . . . .

STATEMENT OF THE ISSUES AND NELAS SUMMARY RESPONSES .

SUMMARY . . . . . . . . . .

BACKGROUND . . . . . . . . .

ARGUMENT . . . . . . . . .

I. The WPA Covers Applicants Who Made Protected Disclosures Prior to Appl

where the Retaliatory Act Occurred While the Individual Was an Applicant

A.

Job Applicants are Covered by the WPA . . . .

B. The Board Has Previously Held that Disclosures are Protected

Even If Not Made During the Pendency of Employment or

Application for Employment . . . . . .

C.

Case Law Involving Former Employees Is Not Relevant to theApplication of the WPA to Applicants for Federal Employment .

II. The Decision Below Ignores the Perception Theory of Whistleblower Repris

III. The Decision Below Is Contrary to the Public Policy of Broadly Construing

Whistleblower Reprisal Protections as Remedial Statutes . . .

IV. Whistleblower Reprisal Statutes Often Overlap, with Potentially Concurrent

Coverage and Standing . . . . . . .

CONCLUSION . . . . . . . . .


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Table of Authorities

Cases:

Cases principally relied upon are marked with an asterisk.

Amarille v. Office of Personnel Management, 28 F. Appx 931 (Fed. Cir. 2001) .

Bechtel v. Competitive Techs., Inc., ARB No. 09-052, ALJ No. 2005-SOX-033(ARB Sept. 30, 2011) . . . . . . . .

Bell v. Equal Employment Opportunity Commission, 15 M.S.P.R. 491 (1983) .

Board of Trustees of the Hotel & Restaurant Employees Local 25 v. JPR, Inc.,

136 F.3d 794 (D.C. Cir. 1998) . . . . . .

Bobreski v. J. GivooConsultants, Inc., ARB No. 13-001, ALJ No. 2008-ERA-3

(ARB Aug. 29, 2014) . . . . . . . .

Boyd v. Department of Homeland Security, MSPB Docket No. AT-1221-13-3375-W

(Nov. 14, 2014) . . . . . . . .

Chafin v. Chafin, 568 U.S. __, 133 S. Ct. 1017, 1023 (2013) . . .

Coleman v. District of Columbia, 794 F.3d 49 (D.C. Cir. 2015) . . .

Couch v. Department of Energy, EEOC Appeal No. 0120131136 (Aug. 13, 2013) .

Day v. Department of Homeland Security,2013 MSPB 49 (2013) . .

DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983) . . . .

DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015) . . . .


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Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946) . . .

Flanagan v. Bechtel Power Corp., 81-ERA-7 (Secy June 27, 1986) . .

Gerlach v. Federal Trade Commission9 M.S.P.R. 268 (1981) . . .

Glover v. Department of the Army, 94 M.S.P.R. 534 (2003) . . . .

* Greenup v. Department of Agriculture, 106 M.S.P.R. 202, 2007 MSPB 167 (2007)

Guzman v. Office of Personnel Management, 53 F. Appx 927 (Fed. Cir. 2002) .

Horton v. Department of the Navy, 66 F.3d 279 (Fed. Cir. 1995) . . .

IBM Corp. v. United States, 58 F. Appx 851 (Fed. Cir. 2003) . . .

International Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329 (Fed. Cir. 200

Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Secy, May 18, 1994)

Juffer v. U.S. Information Agency, 80 M.S.P.R. 81 (1998) . . . .

Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985) . . .

Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-031

(ARB Sept. 30, 2003) . . . . . . . .

Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389,

01962390 (May 29, 1998) . . . . . . .

Macy v. Dept of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) . .

Makovsky v. Department of the Navy, EEOC Appeal No. 01A60197 (April 7, 2006)


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McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265 (1958) . . .

Meuwissen v. Department of Interior, 234 F.3d 9 (Fed. Cir. 2000) . . .

Minnard v. Nerco Delamar Co., Case No. 92-SWD-1 (Secy, Jan. 25, 1994) .

Moore v. Glickman, 113 F.3d 988 (9th Cir. 1997) . . . . .

Morrison v. Department of the Army, 77 M.S.P.R. 655 (1998) . . .

Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977) . . .

Nasuti v. Merit Systems Protection Board, 376 F. Appx 29 (Fed. Cir. 2010) .

Pastor v. Department of Veterans Affairs, 87 M.S.P.R. 609 (2001) . . .

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) . . . . .

Preiser v. Newkirk, 422 U.S. 395 (1975) . . . . . .

Princeton Univ. v. Schmid, 455 U.S. 100 (1982) (per curiam) . . .

Redschlag v. Department of the Army, 89 M.S.P.R. 589 (2001) . . .

Reed v. Department of Veterans Affairs, 122 M.S.P.R. 165 (2015) . . .

Robinson v. Shell Oil, 519 U.S. 337 (1997) . . . . . .

Savage v. Department of the Army, 122 M.S.P.R. 612 (2015) . . .

Schneider v. Department of Homeland Security, 98 M.S.P.R. 377 (2005) . .

Silva v. Department of Homeland Security 112 M.S.P.R. 362 (2009) . .


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Special Counsel v. Smith, 2011 MSPB 69 (2011) . . . . .

Sternberg v. Department of State, EEOC Request No. 05890976 (Jan. 8, 1990) .

Trueblood v. Von Roll Am., Inc., ALJ Nos. 2002-WPC-003 to 006, 2003-WPC-001

(ALJ Mar. 26, 2003) . . . . . . . .

United States v. Massey, 380 F.3d 437 (8th Cir. 2004) . . . .

Usharauli v. Department of Health and Human Services, 116 M.S.P.R. 383 (2011) .

Veretto v. United States Postal Service, EEOC Appeal No. 0120110873 (July 1, 201

Watson v. Department of Justice, 64 F.3d 1524 (Fed. Cir. 1995) . . .

*Weed v. Social Security Administration, 113 M.S.P.R. 221 (2010) . . .

Whittacre v. Office of Personnel Management, 120 M.S.P.R. 114 (2013) . .

Statutes:

5 U.S.C. 1204(h) . . . . . . . . .

5 U.S.C. 1221 . . . . . . . . .

5 U.S.C. 1221(e)(1) . . . . . . . . .

5 U.S.C. 2302(a) . . . . . . . . .

5 U.S.C. 2302(b)(1) . . . . . . . . .

5 U.S.C. 2302(b)(3) . . . . . . . . .


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5 U.S.C. 2302(b)(10) . . . . . . . .

5 U.S.C. 2303(a) . . . . . . . . .

6 U.S.C. 1142, National Transit Systems Security Act (NTSSA) . . .

10 U.S.C. 2409 . . . . . . . .

10 U.S.C. 2409(c)(6) . . . . . . . .

12 U.S.C. 5567, Consumer Financial Protection Act of 2010 (CFPA), Section 105

of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 .

15 U.S.C. 2087, Consumer Product Safety Improvement Act (CPSIA) . .

18 U.S.C. 1514A, Sarbanes-Oxley Act (SOX) . . . . .

21 U.S.C. 399d, FDA Food Safety Modernization Act (FSMA) . . .

29 U.S.C. 218C, Affordable Care Act (ACA) . . . . .

31 U.S.C. 3730(h) . . . . . . . . .

38 U.S.C. 4302 . . . . . . . . .

38 U.S.C. 4303(4)(A)(v) . . . . . . . .

38 U.S.C. 4303(b) . . . . . . . . .

38 U.S.C. 4311(a) . . . . . . . . .

38 U.S.C. 4322(a) . . . . . . . . .

38 U.S.C. 4324 . . . . . . . . .


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42 U.S.C. 5851, Energy Reorganization Act (ERA) . . . .

46 U.S.C. 2114, Seamans Protection Act (SPA), as amended by Section 611 of th

Coast Guard Authorization Act of 2010 . . . . . .

49 U.S.C. 20109, Federal Railroad Safety Act (FRSA) . . . .

49 U.S.C. 30171, Moving Ahead for Progress in the 21st Century Act (MAP-21)

49 U.S.C. 31105, Surface Transportation Assistance Act (STAA) (1982), as amend

by the 9/11 Commission Act of 2007 (Public Law No. 110-053) . . .

49 U.S.C. 42121, Wendell H. Ford Aviation Investment and Reform Act for the

21st Century (AIR21) . . . . . . . . .

49 U.S.C. 60129, Pipeline Safety Improvement Act (PSIA) . . .

50 U.S.C. 3234 . . . . . . . . .

50 U.S.C. 3341(j) . . . . . . . . .

Pub. L. 101-12 (1989) . . . . . . . . .

Rules and Regulations:

Presidential Policy Directive/PPD-19, Protecting Whistleblowers with Access to

Classified Information (Oct. 10, 2012) . . . . . .

20 C.F.R. 1002.5(c) . . . . . . . . .

20 C.F.R. 1002.40 . . . . . . . . .


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H.R.REP.No. 99-718 (1986) . . . . . . . .

S.REP.NO. 100-413 (1988) . . . . . . . .

H.R.REP.NO. 103-769 (1994) . . . . . . .

S.REP.NO. 103-358 (1994) . . . . . . . .

S.REP.NO. 112-155 (2012) . . . . . . . .

Secondary Sources:

Alexander Dyck, Adair Morse & Luigi Zingales, Who Blows the Whistle on Corpo

Fraud?,The Journal of Finance, Vol. 65, Issue 6 (Dec. 20, 2010) . . .

Association of Certified Fraud Examiners, 2014 Report to the Nations . .

GAO, The Federal Workforce: Observations on Protections From Discrimination a

Reprisal for Whistleblowing, GAO Report No. GAO-01-715T (May 9, 2001) .

OPM, Addressing Sexual Orientation and Gender Identity Discrimination in FederCivilian Employment (2015). . . . . . . .


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STATEMENT OF INTEREST

The National Employment Lawyers Association (NELA) is the largest

membership organization in the country comprising lawyers who represent work

employment, and civil rights disputes. Founded in 1985, NELA advances employ

serves lawyers who advocate for equality and justice in the American workplace. N

69 circuit, state, and local affiliates have a membership of over 4,000 attorn

committed to working on behalf of those who have been illegally treated in the w

ensure that the rights of working people are protected, NELA has filed numerous a

briefs before the U.S. Supreme Court and other federal appellate courts, as well

Merit Systems Protection Board (Board),1 regarding the proper interpretation of

rights and worker protection laws.

Among the employees NELA members represent are whistleblowers (in

service employees and employees of government contractors) in administrativ

federal proceedings, including in matters before the Board. NELA members a

plaintiffs in cases arising under other federal whistleblower statutes, including the s

analogues to the federal Whistleblower Protection Act (WPA). As the courts look t

decisions to construe those counterpart statutes,2NELA has an interest in the Board

the case at bar that extends beyond the direct scope of matters under Board jurisdict


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STATEMENT OF THE ISSUES AND NELAS SUMMARY RESPON

Issue: Whether an individual seeking protection under the WPA and WPE

been either an employee or an applicant at the time of both the disclosure and the s

of the disclosure?

NELAs Response: The WPA covers individuals who were employees or

the time of the alleged retaliatory personnel action, irrespective of whether or n

employees or applicants at the time that they made their whistleblowing disclosure.

Issue: Whether the standing requirements under the WPA and WPEA ar

with USERRA?

NELAs Response: As USERRA was not implicated in the fact patte

Board does not need to reach USERRA issues or to give an advisory opinion to de

at bar. USERRAs specific statutory language gives it an especially broad coverage

Issue: Whether a finding that a ruling in this case addressing coverage un

(as amended by the WPEA) would impact other federal whistleblower production st

NELAs Response: No negative impact would occur, as many of

whistleblower protection statutes overlap (sometimes by design), and such overlaps

unproblematic in other areas of the Boards jurisdiction.

SUMMARY

The proper bright-line test for standing under the WPA and WPEA is

individual was an employee, a former employee or an applicant for employment a


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actions taken by the federal government are not taken for prohibited reasons. Thu

the standing analysis is whether or not the federal personnel action at issue was

whistleblower reprisal.

The decision below is contrary to the plain text of the WPA, which expli

applicants, including those who have never been federal employees. The deci

also contrary to clear Board precedent in Greenup and Weed, which unambiguously

WPA covers nonselection claims by individuals who blew the whistle prior to ap

WPEA does not modify this expansive scope of jurisdiction to the contrary, the W

express intent of ensuring a broad interpretation of coverage. To construe the W

would cause the perverse result of denying protection to individuals who blew the

past but were not in federal service at the exact time of their disclosureseffective

word applicant out of the statuteand undermining the overall purpose of the w

reprisal protection laws. The decision below is also inconsistent with the Congre

underlying the WPA as a remedial statute favoring broad coverage. It further errs i

Boards precedent on perception theory of whistleblowing, which would provide

with protection from a retaliatory nonselection if the reason for the nonselection

Agency perceived the employee to be a whistleblower, irrespective of whether th

specific disclosures otherwise met the statutory requirements of a WPA protected di

Recognizing Board jurisdiction over cases such as the one at bar wou

consistent with the Boards existing caselaw for the knowledge-timing test, a contr


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Because USERRA was not implicated in the fact pattern below, the Board

to address USERRA or give an advisory opinion to resolve this case. While t

applied in pari materia analysis to USERRA, that interpretation conflicts with bot

language of the statute and its implementing regulations. USERRAs specific statu

(in particular, 38 U.S.C. 4302) gives it an especially broad coverage defin

implementing regulations make clear that the statute should provide coverage to

employment, employees, and former employees.

Federal whistleblower reprisal protections are a mixture of sometime

statutes that were enacted piecemeal. For example, 41 U.S.C. 4712 and 10 U.S.C

government contractors, overlap with the qui tam reprisal protections under 31 U.S

This sort of overlap is known to occur in other areas of the Boards jurisdiction, e.g

sexual orientation discrimination claims under Title VII (post-Macy) and 5 U.S.C.

overlaps with 5 U.S.C. 2302(b)(10). The Board indicated in its recent joint repo

FLRA and OPM that this overlap was not problematic.

BACKGROUND

Congress attempt to protect public employees from retaliation for disclosin

dates back to the Civil Service Reform Act of 1978 (CSRA), which stated in rele

a public employer could not:

take or fail to take a personnel action with respect to an employee or appfor employmentas a reprisal for

(A) a disclosure of information by an employee or applicant


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whistleblowers, Congress intended the CSRA to prohibit reprisals against em

divulge information to the press or the public (generally known as whistleblowe

violations of law, agency mismanagement, or dangers to the publics health and

REP.NO. 95-1403 at 4 (1978).3 This protection extended to allemployees and w

prevent discrimination, political coercion or unfair, arbitrary, or illegal actio

appointments and advancements within the civil service. Id. (emphasis added).

Despite this strong statement of Congressional intent, subsequent rulings

and Federal Circuit within just a few years significantly narrowed the application o

whistleblower protection. These decisions created numerous exceptions that den

for large swaths of disclosures made by federal employees. For example, in 19

undermined the intent of the CSRAs whistleblower protections by ignoring

prohibition on retaliation for a protected disclosure, and instead applying the Sup

decision inMt. Healthy City School District v. Doyle, 429 U.S. 274 (1977), to find t

could take a personnel action that was motivated by retaliation for making a protect

so long as the action could also be upheld on other, unrelated grounds. Gerlach v. F

Commission 9 M.S.P.R. 268, 276 (1981). In Fiorello v. Department of Justice, 7

1550 (Fed. Cir. 1986), the Federal Circuit held that an employees disclosures were

because the employees primary motivation was personal and not for the public g

In response to these and other cases, Congress passed the Whistleblower P

of 1989 (WPA). In passing the WPA, Congress reaffirmed its intent to protect a


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public health or safety. Congress specifically declared that it:

. . . intends that disclosures be encouraged. The OSC, the Board and the should not erect barriers to disclosures which will limit the necessary fl

information from employees who have knowledge of government wrongFor example, it is inappropriate for disclosures to be protected only if the

made for certain purposes or to certain employees or only if the employee

first to raise the issue . . .

S.REP.NO. 100-413 at 13 (1988). Congress emphasized its intent to protect all suc

by rephrasing the statutory definition of a protected disclosure in 5 U.S.C. 2302(b

a disclosure to any disclosure. See id. Congress purpose in making this cla

simply to stress that anydisclosure is protected (if it meets the requisite reasonab

and is not required to be kept confidential). Id.(emphasis in original).

Congress again expressed its concern with judicial interpretations of the WP

update to the WPA. As the House Report noted:

Perhaps the most troubling precedents involve the [MSPBs] inabil

understand that any means any. The WPA protects any discevidencing a reasonable belief of specified misconduct, a cornerstone to whi

MSPB remains blind. The only restrictions are for classified informatimaterial the release of which is specifically prohibited by statute. Employee

disclose that type of information through confidential channels to ma

protection;otherwise there are no exceptions.

H.R.REP.NO. 103-769 at 19 (1994) (emphasis added). The Senate concurred, no

plain language of the Whistleblower Protection Act extends to retaliation for an

regardless of the setting of the disclosure, the form of the disclosure, or the person

disclosure is made. S.REP.NO. 103-358 at 10 (1994).


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of disclosures that were protected. For example, shortly after the 1994 amendment

Circuit held that disclosures otherwise protected by the WPA were not protected

made to the alleged wrongdoer. Horton v. Department of the Navy, 66 F.3d 279, 2

1995) (such disclosures were not viewable as whistleblowing.). In another cas

that a disclosure was unprotected, the Federal Circuit took into account that the e

violated agency procedures by making his disclosure after going off duty. Watson v

of Justice, 64 F.3d 1524, 1530-31 (Fed. Cir. 1995). The court also held that dis

unprotected if the disclosed information was already known by the agency.

Department of Interior, 234 F.3d 9, 12 (Fed. Cir. 2000).

In response, Congress passed the WPEA in 2012, [making] clear, once an

Congress intends to protect any disclosure of certain types of wrongdoing in order

such disclosures. S.REP.NO. 112-155 at 5 (2012). As discussed below, the WP

overruled the aforementioned exceptions of prior Board and Federal Circuit d

made clear Congress intent that the protection for disclosing wrongdoing [be] extr

and to encourage whistleblowers to come forward by guaranteeing that this protec

be narrowed retroactively by future Board or court opinions. Id. As the Board

Day v. Department of Homeland Security, 2013 MSPB 49 (2013), The provisions

at issue in this appeal clarify, rather than effect substantive changes to, existing law.

ARGUMENT

I. The WPA Covers Applicants Who Made Protected Disclosures Prior


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for a position, where the retaliatory act occurred while they were an applicant, i

through the agencys refusal to hire the applicant. The Board should hold that

covered under the WPA, regardless of when the protected disclosures were made.

A. Job Applicants are Covered by the WPA.

First, Congress and the Executive Branch have consistently recognized that j

are covered by the WPA. The plain language of the WPA, as noted supra, consi

three times, to any employee or applicant. See5 U.S.C. 2302(b)(8) (three refe

other provisions of Section 2302 governing prohibited personnel practices also

cover both employees and applicants. See, e.g., 5 U.S.C. 2302(a), 2302(b)(1

2302(b)(6), 2302(b)(9), 2302(b)(10). The statutory provision creating an Indivi

Action that can be enforced by the Board similarly refers to employee, former

applicant for employment at least eight times. See 5 U.S.C. 1221. Althou

Congressional reports are silent on why applicants were included in the WP

assuredly had in mind at least two predecessors Title VII, the federal

discrimination statute, expressly includes job applicants, see 42 U.S.C. 2000e

Pendleton Act of 1883, which established the U.S. Civil Service Commission, and

to address the spoils system in the hiring of federal employees. The WPA has b

several times since 1978, but Congress has not reduced the protections afforded app

In fact, Congress and the Executive Branch have made clear when to

applicants from coverage under federal whistleblower statutes, and have done exac


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employee 5 U.S.C. 2303(a) (enacted 1978, amended 1989). As Congress rec

considering the amendments proposed in 2012 to the WPA, the FBI statute expre

job applicants: the [proposed] provisions are like the protections for FBI emplo

U.S.C. 2303, but unlike the WPA, which does protect applicants as well as emplo

REP. 112-155, at 34 n.132 (2012).

Similarly, in 2014, when Congress provided for a limited review proc

components of the Intelligence Community, those provisions were limited to emplo

not expressly include job applicantsalthough some of the protections could h

extend to applicants for employment as well. See50 U.S.C. 3234 (enacted by Pub

601(a)); 50 U.S.C. 3341(j) (enacted by Pub. L. 113-126, 602(b)).

Further, when the Executive Branch established limited whistleblow

protections for other components of the Intelligence Community, those protections

to employees, and did not include applicants:

A.

Prohibition on Retaliation in the Intelligence Community.

Any officer or employee of a Covered Agency who has authority to take,

others to take, recommend, or approve any Personnel Action, shall notrespect to such authority, take or fail to take, or threaten to take or fail to t

Personnel Action with respect to any employee serving in an Intell

Community Element as a reprisal for a Protected Disclosure.

SeePresidential Policy Directive/PPD-19, Protecting Whistleblowers with Access

Information, at A (Oct. 10, 2012) (emphasis added).4

The express exclusion of applicants from the FBI and Intelligence Commun


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agencies is consistent with the protection of applicants under the federal civil servic

Therefore, the WPA expressly includes job applicants within its scope, co

over 130 years of regulating the federal hiring process to prohibit improper action

applicants for the civil service. This furthers the Congressional purpose of the WP

that anyone, whether employee or applicant, is free to report their concerns abou

misconduct, whether a violation of law, rule or regulation, or a report of gross mis

gross waste of funds, abuse of authority, or a substantial danger to public health or s

B. The Board Has Previously Held that Disclosures Are Protected

Made During the Pendency of Employment or Application for Em

The Board has consistently held that the WPA protects disclosures made b

even if their disclosures were not made while the individual was an active emplo

pending application. Nearly a decade ago, the Board held, in the seminal Greenup

an applicant could bring a claim based on disclosures made well prior to he

Greenup v. Department of Agriculture, 106 M.S.P.R. 202, 2007 MSPB 167 (2007).

In Greenup, the applicant was formerly employed by a county committee

Farm Services Agency,5and reported what she believed to be government miscondu

the projects that were jointly run with the U.S. Department of Agriculture. G

M.S.P.R. 202, 9 (2007). The Board held that while Ms. Greenup could not

termination by the county government (since as a county employee, she was not c

WPA), she could bring a WPA claim based on her allegation that the USDA did


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resigned from her County Committee Program Technician position. Id.at 8. The

The statute does not specify that the disclosure must have been made the individual seeking protection was either an employee or an applica

employment. In the case of applicants for employment who were not Femployees at any time prior to their application, such a limitation

severely restrict any recourse they might otherwise have, since the discl

would necessarily have to be made while their application was pending

do not believe that Congress intended to grant such a limited right of rewhen it determined to protect applicants for employment. See, e.g., Fishb

Department of Health & Human Services, 102 M.S.P.R. 4, 8 (2006) (becauWPA is remedial legislation, the Board will construe its provisions liberaembrace all cases fairly within its scope, so as to effectuate the purpose

Act). Thus, we find that the appellant may file an IRA appeal regardin

agencys failure to select her for the secretarial position . . .

Id.(emphasis added). In Greenup, the Board went on to hold that the applicant ha

pled that her alleged disclosures were a contributing factor in the determination no

for the Office of General Counsel position, including that she was selected cont

reference check, but that her selection was withdrawn after her former supervis

actual knowledge of her disclosures . . . influenced [the hiring manager] to withdraw

providing a negative reference. Id.at 11.

InDorney v. Department of the Army, the Board subsequently held that a j

who engaged in protected conduct during a prior period of federal employment, and

years later re-applied for employment with the same agency, could bring a claim un

based on allegations that she was not selected because of her protected conductfou

to her job application. Dorney, 117 M.S.P.R. 480 (2012). The MSPB held that it w

error for the Administrative Judge to reject the applicants WPA claims, where th


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In Weed, the Board held that a job applicant could bring a WPA claim for fai

one agency based on protected disclosures he made while employed at anotheragen

Further, contrary to the agencys argument, a whistleblower does not n

be an employee, an applicant for employment or a former employee

time he made his protected disclosures. In Greenup v. Departm

Agriculture, 106 M.S.P.R. 202, 6 (2007), we found that a former Pr

Technician with a County Agricultural Stabilization and Conservation Commwho had been a county employee and not a federal employee, could raise an

appeal alleging that the agency denied her an appointment to a federal pobecause of whistleblower protected disclosures that she made while a cemployee. In Greenup, we determined that the statute does not specify

disclosure must have been made when the individual seeking protection

either an employee or an applicant for employment. 106 M.S.P.R. 202

Indeed, we noted that, in the case of applicants for employment, who a

federal employees at any time prior to their application, such a limi

would severely restrict any recourse they might otherwise have, sinc

disclosure would necessarily have to be made while their applicationpending. Thus, we found that Congress did not intend to grant such a l

right of review, when it determined to protect applicants for employment. Id

Weed v. Social Security Administration, 113 M.S.P.R. 221, 12 (2010) (emphas

Weed, the applicant alleged that he made protected disclosures while employed

Force, and that those disclosures influenced the Social Security Administrations d

hire him, even though the disclosures had nothing to do with the operations of the la

Thus, under Greenup and Dorney, the issue is whether the applican

disclosures contributed, in any way, to the personnel action (refusal to hire), not the

protected disclosures. Further, under Weed, the applicant need not show that

instructs that this knowledge/timing analysis looks at the delay from the date

learned of the protected activity (or perceived protected activity), not the date of th

protected activity itself [T]he language of 5 U S C 1221(e)(1)(B) does no


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disclosures were made while the applicant had any connection with the hiring age

that the protected disclosures related specifically to operations of the hiring agenc

applies stare decisis to its decisions. See, e.g., Bell v. Equal Employment

Commission, 15 M.S.P.R. 491 (1983). No factors in this case warrant refraining f

stare decisis and disturbing the settled holdings of Greenup and its progeny.

Therefore, under this consistent line of cases over the past decade, the Boa

be creating new law if it were to hold that the proper test for job applicants is si

their protected disclosures had any role in influencing the hiring agencys decisio

them, so that it is immaterial whether the disclosure was made during the penden

application. Instead, the focus must be on the hiring agencys conduct in re

applicant who had made a protected disclosure. Keeping that focus will serve

Congressional purpose of encouraging anyone to raise concerns with governmen

without fear of reprisal should they later decide to apply for employment (or re-

with the federal government.

C. Case Law Involving Former Employees Is Not Relevant to the A

the WPA to Applicants for Federal Employment.

In its request for amicus briefs, the Board noted a separate line of non

Federal Circuit decisions holding that former employees could not bring WPA cla

disclosures made afterthe individual had left federal employment. SeeNotice o

to File Amicus Briefs, 81 Fed. Reg. 2913, 2914 (Jan. 19, 2016) (citing Nasuti v. M


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Circuits nonprecedential decisions, to the extent the Board finds them persuasive.

Here, however, the Board need not consider whether to follow these no

decisions in this case, because those decisions have no bearing on the issues pr

statutory text of the WPA is clear: it covers disclosures made by both employees a

but is silent on whether it covers disclosures made by former employees after the

Moreover, the WPEA did not change the inclusion of both employees and appli

language in 5 U.S.C. 2302(b)(8) dates back to the CSRA in 1978 and was not mo

WPEA. Thus, the WPA, both before and after the enactment of the WPEA, ha

covered job applicants.

Whether the WPA should cover former federal employees for alleged disc

after their separation from the federal government is not an issue presented by

would have no effect on the outcome of Mr. Abernathys case on remand. Address

would therefore amount to the Board offering an advisory opinion to other, unname

unrelated claims. It is settled law that the issuance of advisory opinions is inap

only because such opinions have no bearing on the parties, but also because the pa

legitimate reason to advocate regarding issues that would not affect them. The B

prohibited from issuing advisory opinions. 5 U.S.C. 1204(h); accord, e.g., Spec

Smith, 2011 MSPB 69 at 9 n.3 (2011).

This statutory restriction is consistent with the Boards adjudicatory role, a

caselaw prohibits issuance of advisory opinions. The Federal Circuit, in addressi


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Appx 851, 853 (Fed. Cir. 2003) (We decline IBMs invitation to issue an adviso

this question.). The Supreme Court has similarly made clear that it is not the rol

tribunal to issue advisory opinions, since they are not necessary to decide the issu

parties: Federal courts may not decide questions that cannot affect the rights of l

case before them or give opinion[s] advising what the law would be upon a hypo

of facts. Chafin v. Chafin, 568 U.S. __, 133 S. Ct. 1017, 1023 (2013) (quo

Continental Bank Corp., 494 U.S. 472, 477 (1990)); see also Princeton Univ. v. Sch

100, 102 (1982) (per curiam) (We do not sit to decide hypothetical issues or to

opinions about issues as to which there are not adverse parties before us.) (citati

Preiser v. Newkirk, 422 U.S. 395, 401-02 (1975) ([A] federal court has neither

render advisory opinions nor to decide questions that cannot affect the rights of li

case before them. Its judgments must resolve a real and substantial controversy

specific relief through a decree of a conclusive character, as distinguished from

advising what the law would be upon a hypothetical state of facts.).

While the issue of whetherformerfederal employees should be covered un

for protected disclosures made after their separation from the government

intellectually interesting issue, and may be presented in the future by another indivi

different agency based upon disclosures unrelated to those in this case, that issue is

here. The Board need not, and should not, decide that issue in resolving the s

presented by this appeal, particularly where the prior case law and the rationale for p


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II. The Decision Below Ignores the Perception Theory of Whistleblower

In the decision below, the administrative judge further erred through failur

Mr. Abernathys case under the perception theory of whistleblower reprisal, und

Abernathy could also be covered. It is settled law that the WPA protects individual

taken by agencies in the mistaken belief that the individual engaged in protected co

the individual in fact never made any disclosures protected under the WPA. See,

Department of Veterans Affairs, 122 M.S.P.R. 165, 26 (2015) (citing King v. Depa

Army, 116 M.S.P.R. 689, 6 (2011) and Special Counsel v. Department of the Navy

274, 278-80 (1990));Juffer v. U.S. Information Agency, 80 M.S.P.R. 81, 12 (1998)

The Board recently spoke to the application of this perceived-whistleblower

to job applicants with nonselection claims in a nonprecedential decision, ins

administrative judges need to look at both the normal whistleblower reprisal th

perception theory of reprisal in deciding whether a nonfrivolous allegation of ju

been made. See Boyd v. Department of Homeland Security, MSPB Docket No.

3375-W-1 (November 24, 2014).

III. The Decision Below Is Contrary to the Public Policy of Broadly

Whistleblower Reprisal Protections as Remedial Statutes.

The WPA makes clear that whistleblowing provides an important public ben

be encouraged when necessary by taking away fear of retaliation. Horton v. Depa

Navy, 66 F.3d 279, 282 (Fed. Cir. 1995) (The purpose of the Whistleblower Protec


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retaliation or reprisal for reportingblowing the whistle onwaste, fraud, and a

The Federal Workforce: Observations on Protections From Discrimination and

Whistleblowing, GAO Report No. GAO-01-715T (May 9, 2001),

http://www.gao.gov/assets/110/108818.pdf.

Disclosures of fraud and waste increase transparency and prompt official i

Empirical analyses of whistleblower cases note the importance of employee d

prosecuting fraud. A study conducted at the Booth School at the University of C

that 19.2% of corporate fraud is detected by the employees, compared to 14.1%

auditors. Alexander Dyck, Adair Morse & Luigi Zingales, Who Blows the

Corporate Fraud?,The Journal of Finance, Vol. 65, Issue 6 (Dec. 20, 2010), at 54,

Association of Certified Fraud Examiners (ACFE) has conducted biennia

occupational fraud since 2002. ACFEs 2014 Report to the Nations, at 21, 2

employee tips detected 49% of reported frauds, compared to only 1.9% dete

enforcement (in large organizations). In addition, another 14.6% of frauds

anonymously indicating that there is often a risk of backlash forwhistleblowers

By forcing potential whistleblowers to choose between their careers and the tr

protection to whistleblowers risks losing the 65% of fraud cases disclosed by emplo

The public benefit of providing a remedy to whistleblowers suffering reta

was recognized by Congress even in the earliest legislative history for f

whistleblower protections:


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Protecting employees who disclose government illegality, waste, and corrupa major step toward a more effective civil service. In the vast F

bureaucracy it is not difficult to conceal wrongdoing provided that n

summons the courage to disclose the truth. Whenever misdeeds take placFederal agency, there are employees who know that it has occurred, and w

outraged by it. What is needed is a means to assure them that they will not

if they help uncover and correct administrative abuses. What is needed is a

to protect the Pentagon employee who discloses billions of dollars inoverruns, the GSA employee who discloses widespread fraud, and the n

engineer who questions the safety of certain nuclear plants. These consciecivil servants deserve statutory protection rather than bureaucratic harassmeintimidation.

[...] For the first time, and by statute, the Federal Government is givmandate--through [...] the Merit Systems Protection Board--to

whistleblowers from improper reprisals.

S.REP.NO. 95-969 at 8 (1978). That same remedial purpose, squarely grounded in

policy considerations, continues to the present. As the Board has taught, [i]t is we

that the Whistleblower Protection Act of 1989, which authorized the filing of IR

remedial legislation. Remedial statutes are to be interpreted liberally, to embrace a

within their scope, so as to effectuate the purpose of the statute[s]. See Glover v

of the Army, 94 M.S.P.R. 534, at 8 (2003); accord Pastor v. Department of Vetera

M.S.P.R. 609, at 13 (2001). [T]he remedial intent of the law favors inclusion, n

Morrison v. Department of the Army, 77 M.S.P.R. 655 (1998). Further, as the Board

It is well established that the WPA is a remedial statute, and we are requiconstrue its terms liberally to embrace all cases fairly within its scope so

effectuate its purpose. See, e.g., Weed v. Social Security Administration

M.S.P.R. 221, 9 (2010); Fishbein, 102 M.S.P.R. 4, 8. Further, our revi

court has found that the language used in 5 U.S.C. 2302(b)(8) indicate


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Accordingly, the Board should give the WPEA its broadest reading as a remedia

apply Congress clarifications to the preexisting WPA definition of protected disclo

presently pending before the Board and OSC.

The WPA plays a prominent role in the web of whistleblower protection

Congress. Its enhanced standards of causation in 5 U.S.C. 1221(e)(1) are now inc

a dozen other federal whistleblower protection statutes.

9

The Department of Labo

whistleblower laws that cover private and federal sector employees. Its Administr

Board (ARB) has observed that the burdens of proof provisions of the Wendell H. F

Investment and Reform Act for the 21st Century (AIR21) and Energy Reorganizatio

are ultimately modeled after the WPAs burden of proof provisions. See Bechtel v

Techs., Inc., ARB No. 09-052, ALJ No. 2005-SOX-033, slip op. at 24, n.124 (A

2011); Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-E

op. at 7, n.15 (ARB Sept. 30, 2003). In Kester, the ARB observed that Congress ad

onerous contributing factor standard in order to facilitate relief for employees w

retaliated against for exercising their [whistleblower rights]. Kester (quoting 13

No. 142 (Oct. 5, 1992)).

The Department of Labor has recognized whistleblower protections for ap

9 Affordable Care Act (ACA), 29 U.S.C. 218C; Consumer Financial Prot

2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer P

of 2010, 12 U.S.C. 5567; Consumer Product Safety Improvement Act (CPSIA)

2087; Energy Reorganization Act (ERA), 42 U.S.C. 5851; FDA Food Safety M

Act (FSMA) 21 U S C 399d; Federal Railroad Safety Act (FRSA) 49 U S


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under laws that protect employees and do not explicitly cover applicants. B

Givoo Consultants, Inc., ARB No. 13-001, ALJ No. 2008-ERA-3, Decision a

Remand (ARB Aug. 29, 2014) (ERA case). In Flanagan v. Bechtel Power Corp

(Secy June 27, 1986), the Secretary of Labor held that the ERA definition of em

include former employees applying for reemployment. The ALJ had analyzed the p

Act, the Senate Report, the fact that the regulation refers to blacklisting, and anal

authority. In doing so, the Secretary noted the following from Phelps Dodge Corp.

U.S. 177, 188 (1941):

To differentiate between discrimination in denying employment and in t

would be a differentiation not only without substance, but in defiance o

which the prohibition of discrimination is directed.

In 2013, Congress explicitly adopted the legal burdens of proof specifi

1221(e) of title 5 for whistleblower claims by the employees of federal contractors

2409(c)(6); Pub. L. 112239, 827(c)(5); see alsoNational Defense Authorization

(NDAA FY13), 41 U.S.C. 4712(c)(6). Congress enacted 10 U.S.C. 2409 becaus

. . . would protect employees of defense contractors from reprisals for go

appropriate government officials with information of wrongdoing. The comrecognizes that employees of defense contractors are frequently the first to

about illegal contract padding or hidden defects in weapon systems.

employees should not lose their jobs or suffer other reprisals because they d

patriotic duty in reporting wrongdoing to appropriate government officials.

Act] would define reprisal the same way that term would be defined ...section 2302 of title 5, United States Code (relating to Federal civil servan

H.R.REP.No. 99-718, at 266 (1986).


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Clean Air, 478 U.S. 546, 558-60 (1986)). Whistleblower protections are such laws

are enacted to further law enforcement by encouraging individuals to come

concerns and information. Consequently, there is a need for broad construction

to effectuate their purposes. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6

Narrow or hypertechnical interpretations to these laws, are to be avoided as

Congressional purposes. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 15

1985). In evaluating protected activity, the Fourth Circuit recently emphasized the

a holistic approach that is also consistent with the broad remedial purpose o

DeMasters v. Carilion Clinic, 796 F.3d 409, 418 (4th Cir. 2015) (The court mus

course of a plaintiffs conduct through a panoramic lens, viewing the individual s

broader context and judging the picture as a whole.).

In Robinson v. Shell Oil, 519 U.S. 337, 346 (1997), the Supreme Court h

employment retaliation violates Title VII which must have the broadest possib

[m]aintain[] unfettered access to statutory remedial mechanisms.10 Employe

contractors must similarly be protected even as they leave the employ of the co

apply for direct federal employment. To deny them protection would hinder a

statutory remedies and discourage others from coming forward.

10 Analogously, the EEOC has held that, in federal sector EEO cases, retalia

applies even for former employees and applicants See e g Mares v Departmen


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USERRA was not implicated in the fact pattern below; at no point do

Decision indicate any possible uniformed service for Mr. Abernathy, and there is no

an attempt to raise a USERRA claim at the Board, OSC or DOL/VETS. According

does not need to reach USERRA issues to decide the instant case, and there is a

such opinion on USERRA issues would venture, as discussed supra, into prohib

opinion territory.

In the alternative, the Board has applied in pari materia analysis to const

USERRAs provisions. See Whittacre v. Office of Personnel Management, 120

(2013). However, in pari materia is a tool for statutory interpretation, but cannot

plain text of the statute itself. As the Board instructs, Where, as here, there is spe

language delineating who may file a Board appeal under USERRA, we will not

general language in other statutes to determine USERRAs standing requiremen

Department of Homeland Security 112 M.S.P.R. 362, 7 (2009).

USERRA contains an express provision (38 U.S.C. 4302) which specifi

event of a conflict between USERRA and some other legal protection, whichev

better protections to the veterans controls. As a result, any comparative tex

involving USERRA must ensure maximum protection for veterans. USERRAs

does not use the terms applicant, employee, and former employee in the sa

they are used in the WPA. References to applicants typically mean applican

uniformed services, while coverage for applicants for employment in the WPA sens


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C.F.R. 1002.40.12

USERRA also covers protection from retaliation to former em

20 C.F.R. 1002.5(c); cf.38 U.S.C. 4303(b) (definition of benefit includes s

supplemental unemployment benefits).

The Initial Decision below unjustifiably tears a gaping hole in the w

whistleblower protections. While the employees of federal contractors are protected

2409 and 41 U.S.C. 4712, and applicants for federal employment are protected b

2302, the Initial Decision denies WPA protection for the employees of federal con

they become applicants for federal employmentor for that matter, any individual

in whistleblowing up to the minute before they file their application for federal

This holding is inconsistent with the remedial purposes of both laws and would di

federal and private sector employees from coming forward with valuable inform

WPA, Congress explicitly included applicants, thereby ensuring seamless protec

the applicants prior employment and a subsequent application. Reading applicant

of the WPA now with a judicially-narrowed definition of who constitutes a protecte

would improperly weaken the Congressionally-erected structure for expansive w

reprisal protections.

12 The statutory standing provisions for federal sector USERRA cases are not f

U.S.C. 4324 (a procedural provision that discusses the procedural aspects of adjudUSERRA claims before the Board), but instead in the definitional provisions (e.g. 3

4303) and the provisions which establish the acts which give rise to a USERRA cau


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IV. Whistleblower Reprisal Statutes Often Overlap, with Potentially

Coverage and Standing.

Federal whistleblower reprisal protections are not based on any single sta

not concurrently enacted. Instead, whistleblower reprisal protections are often

individual statutes, each with their own filing deadlines, remedial provisions, a

coverage. This reflects the earnest policy of Congress, which has consistently pas

in order to protect whistleblowers from reprisal.

As such, coextensive coverage and overlap between statutory whistlebl

protections for government employees, applicants, and contractors is not unusual.

For example, consider the hypothetical of a former civil service emp

working as a government contractor for the Department of Defense, who blows t

fraudulent overbilling of the government by their employing contracting com

kickback arrangement for the contracting officers representative (COR), and

reprisal when a Department of Defense employee orders the government contractin

fire the employee. This individual potentially would be covered by four

whistleblower protection statutes: the WPA (covering the employee as a former em

U.S.C. 2409 (covering the employee as an employee of a contractor blowing th

misconduct in a Department of Defense contract), 41 U.S.C. 4712 (covering the

an employee of a contractor blowing the whistle on misconduct in a federal contra

pilot program) and 31 U.S.C. 3730(h) (protecting the employee from qui tam


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EEOCs recent decisions inMacy, Veretto and Couch,13

and 5 U.S.C. 2302(b)(1) o

U.S.C. 2302(b)(10), a situation which the Board indicated was not problematic

joint report with OSC, FLRA and OPM.14

As a result, there is no reason that USE

is not explicitly codified as a PPP in 5 U.S.C. 2302(b)necessarily would h

standing requirements as the WPA.

The overlap is perhaps also helpful in ensuring more comprehensive p

whistleblowers. The Board has historically rejected application of joint employ

WPA cases,15

even though the Board recognizes the joint employer analysis

claims16

and the EEOC accepts the joint employer analysis in its federal sector d

caselaw.

17

Absent the benefit of joint employer principles, the existence of

whistleblower reprisal statutes increases the chance that a given act of whistlebl

does not fall through the cracks between different statutes.

The Department of Labor has recognized that whistleblower laws can

whistleblowers may assert claims under more than one at the same time. See,e.g.

Von Roll Am., Inc., ALJ Nos. 2002-WPC-003 to 006, 2003-WPC-001, at 25 (ALJ M

13 See Couch v. Department of Energy, EEOC Appeal No. 0120131136 (Au

Macy v. Dept of Justice, EEOC Appeal No. 0120120821 (April 20, 2012); Ver

States Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011).

14 OPM, Addressing Sexual Orientation and Gender Identity DiscriminatiCivilian Employment (June 2015), available at https://www.opm.go

oversight/diversity-and-inclusion/reference-materials/addressing-sexual-orientation

identity-discrimination-in-federal-civilian-employment.pdf.

15See e g Special Counsel ex rel Hardy v Department of Health & Human


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(citing Jayko v. Ohio EPA, 1999-CAA-5 ALJ Oct. 2, 2000)) ([A] complaina

jurisdiction under all of these statutes in the same proceeding, if the complainant ha

in activities in furtherance of the objectives of all the statues.); Jenkins v. U.S. E

Protection Agency, 92-CAA-6 (Secy, May 18, 1994);Minnard v. Nerco Delamar C

92-SWD-1 (Secy, Jan. 25, 1994).

NELA urges the Board to do the same, by recognizing that the WPA is par

whistleblower protections Congress stitched together to accomplish the purpose of

employees to speak up whenever remaining silence can cause serious prob

government and the public. The Boards application of the explicit language of

strengthen this web, and will reaffirm its clear precedent on this issue. The Initia

undisturbed, would punch a wide hole in this web, and return this Board to the ty

undercutting of WPA coverage that the WPEA sought to end forever.

CONCLUSION

NELA urges the Board to reverse the decision below, find that job applicant

by the WPA, even if the protected disclosure was made prior to their filing of thei

applications, and remand for a hearing on the merits.

Respectfully submitted by:

_____________________ _______________________

Richard R. Renner Andrew J. PerlmutterKalijarvi, Chuzi, Newman & Fitch, P.C., Passman & Kaplan, P.C.


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Abernathy v. Dept. of Army Amicus Brief

Documents

Transcript of Abernathy v. Dept. of Army Amicus Brief