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The Senate report on the Whistleblower Protection Enhancement Act of 2012 produced information long-held by advocates and federally employed truth tellers concerning the mistreatment of whistleblowers and the woeful lack of protections provided by the nations largest employer.  The following sums up precisely how the federal government fails to protect employees under the Whistleblower Protection Act (WPA):

“Often, the whistleblower’s reward for dedication to the highest moral principles is harassment and abuse. Whistleblowers frequently encounter severe damage to their careers and substantial economic loss.”

The report also states the Merit System Protection Board (MSPB) is arbitrary and blind to justice:

“Perhaps the most troubling precedents involve the [MSPB’s] inability to understand that ‘‘any’’ means ‘‘any.’’  The WPA protects ‘‘any’’ disclosure evidencing a reasonable belief of specified misconduct, a cornerstone to which the MSPB remains blind.” 

That statement is so powerful because it publicly repeats what whistleblowers have known for almost 2 decades.  Evidence that wrongdoing exists at the MSPB is eloquently stated below:

“Despite the clear legislative history and the plain language of the 1994 amendments, the Federal Circuit and the MSPB have continued to undermine the WPA’s intended meaning by imposing limitations on the kinds of disclosures by whistleblowers that are protected under the WPA. S. 743 makes clear, once and for all, that Congress intends to protect ‘‘any disclosure’’ of certain types of wrongdoing in order to encourage such disclosures. It is critical that employees know that the protection for disclosing wrongdoing is extremely broad and will not be narrowed retroactively by future MSPB or court opinions. Without that assurance, whistleblowers will hesitate to come forward.”

Based on what is articulated, the quasi-judicial agency willfully conspired to defeat the intent of Congress in protecting whistleblowers from retaliation, thereby showing a deep-seated favoritism towards federal management. In lay persons terms, the MSPB became the  best friend and defender of those who violated federal law.

Among other things, the MSPB found ways to defeat a whistleblowers retaliation claim by ruling that the disclosure did not qualify if found during the course of performing the employees work.  This twisted MSPB theory defies credulity since it is the duty of a federal employee to report fraud, waste, abuse, mismanagement and substantial and specific dangers to public health and safety under the 14 Ethical Principles of Conduct, legally mandated as seen here on the Department of Justice (DOJ) website.  6rqmajo

Is it any wonder that the GSA employees openly squandered tax payer money?  Few people have the courage to speak the truth.  Fewer speak up when the courts (MSPB & the Federal Circuit) supply the bullets and guns to shoot the messengers.  To understand how pervasive the punishment whistleblowers received waiting for the law to help them, we called the administrative proceedings at MSPB, Region9, Kafkaesque in a brief back in 2007.

Upon review of the legislative changes recommended in the report, Whistlewatch.org is opposed to providing MSPB with Summary Judgment powers.  To give the MSPB broad power where a claim could be summarily dismissed would be a travesty of justice.  Particularly since the MSPB has abused its authority, ignoring federal whistleblower claims for years by citing lack of jurisdiction.

If the MSPB did not understand the term “any” previously, it is believed the biased Administrative Judges should not be rewarded with Summary Judgment authority.  We defer to the excellent analysis provided by Stephen Kohn at the National Whistleblower Center (NWC) on this topic which states:

“Make no mistake about it. The MSPB does not have summary judgment authority, and once it gets that authority, every whistleblower case will be seriously and irreparably harmed.”  More information on this topic and NWC can be found here.  2an9474

Section 118—Merit Systems Protection Board Summary Judgment

Section 118(a) amends 5 U.S.C. § 1204(b) to authorize the MSPB to consider and grant summary judgment motions in WPA cases involving major personnel actions when the MSPB or an administrative law judge determines that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.

Section 118(b) provides that the MSPB’s summary judgment authority is subject to a five-year sunset. The MSPB would maintain
summary judgment authority for those claims pending, but not yet resolved, at the time of the sunset.

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