L)uestiGas & Answers About Whistleblower Appeals http://www.mspb.gov/toia/torms-pubs/qawhistle.htmi 

;tions and Answers About Whistleblower 

Appeals 

Contents 

Introduction 

Whistleblowinq and Whistleblower Appeal Rights 

Two Kinds of Whistleblower Appeals 

Questions and Answers 

MSPB at Your Fingertips 

MSPB Customer Service Standards 

Introduction 

Whistleblowing means disclosing information that you reasonably believe is 

evidence of a violation of any law, rule, or regulation, or gross mismanagement, a 

gross waste of funds, an abuse of authority, or a substantial and specific danger to 

public health or safety. 

On July 9, 1989, the Whistleblower Protection Act of 1989 (Public Law 101-12) 

became effective. Congress enacted this law to strengthen protections for Federal 

employees, former employees, and applicants for employment who claim that they 

have been subject to personnel actions because of whistleblowing activities. The 

103rd Congress further expanded whistleblower protections by enacting Public Law 

103-424, which became effective October 29, 1994, making additional personnel 

actions subject to coverage and extending whistleblower protections to employees 

of Government corporations and to employees in the Veterans Health 

Administration. 

The Board's regulations governing appeals generally are contained in Title 5 of the 

Code of Federal Regulations, Chapter II , Part 1201. Additional regulations that 

apply only to whistleblower appeals are contained in Title 5 of the Code of Federal 

Regulations, Part 1209. Because the Part 1209 regulations contain only the special 

provisions applying to whistleblower appeals, they must be used in conjunction 

with Part 1201. 

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This publication covers the unique provisions of the law and the Board's regulations 

that apply to whistleblower appeals. The discussion of whistleblower appeals in this 

publication is not all-inclusive, nor is the information regulatory in nature. Such 

appeals are governed by the pertinent statutes, regulations, and case law. 

Further information about filing whistleblower claims, an 

appeal form to complete when filing an initial appeal, and 

the Board's regulations covering whistleblower claims are 

available on the MSPB Web site at www.mspb.gov You can 

send email to the Board at mspb@mspb.gov. 

Information on procedures that apply to all appeals to the 

Board is contained in a separate MSPB publication entitled 

"Questions & Answers About Appeals," which is available on 

the MSPB World Wide Web site or at any MSPB office. 

Please see MSPB at Your Fingertips at the end of this 

publication to find out how to locate Board decisions, case 

summaries, press releases, addresses of MSPB regional and 

field offices, and other information about the Board. 

Whistleblowing and Whistleblower Appeal Rights 

It is a prohibited personnel practice for an agency to subject you to a personnel 

action if the action is threatened, proposed, taken, or not taken because of 

whistleblowing activities. You are protected if you make such a disclosure to the 

Special Counsel, the Inspector General of an agency, or another employee 

designated by an agency head to receive such disclosures. You are also protected if 

you make such a disclosure to any other individual or organization (e.g., a 

congressional committee or the media), provided that the disclosure is not 

specifically prohibited by law and the information does not have to be kept secret 

in the interest of national defense or the conduct of foreign affairs. 

The Office of Special Counsel has jurisdiction over prohibited personnel practice 

complaints with respect to a broad range of personnel actions, including 

appointments, promotions, details, transfers, reassignments, and decisions 

concerning pay, benefits, awards, education, or training. A whistleblower may file a 

complaint with the Special Counsel with respect to most personnel actions allegedly 

based on whistleblowing. Prior to the Whistleblower Protection Act, if a 

whistleblower filed a complaint with the Special Counsel and the Special Counsel 

did not seek corrective action from the Board, no further recourse was available, 

unless the action was directly appealable to the Board. 

Under the Whistleblower Protection Act, a whistleblower may appeal directly to the 

Board if he first complains to the Special Counsel and the Special Counsel does not 

s.eek corrective action on his behalf. This right exists with respect to any personnel 

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action that can be the subject of a prohibited personnel practice complaint to the 

Special Counsel, even though the action may not be directly appealable to the 

Board. 

A whistleblower has the right to appeal directly to the Board if he is subject to a 

personnel action that is appealable to the Board. The Whistleblower Protection Act 

does not change that. Actions that are directly appealable to the Board include 

adverse actions, performance-based removals or reductions in grade, denials of 

within-grade salary increases, reduction-in-force actions, and denials of restoration 

or reemployment rights. 

Two Kinds of Whistleblower Appeals 

There are two kinds of whistleblower appeals. The principal difference between the 

two is in the way they reach the Board. 

Otherwise Appealable Action: In the first kind of case, the individual is subject 

to a personnel action that is directly appealable to the Board, and the individual 

claims that the action was taken because of whistleblowing. This kind of case is 

referred to by the Board as an "otherwise appealable action," and the individual 

may file an appeal directly with the Board after the action has been taken. 

Individual Right of Action: The second kind of case was created by the 

Whistleblower Protection Act and is referred to as an "Individual Right of Action." In 

this kind of case, the individual is subject to a personnel action and claims that the 

action was taken because of whistleblowing, but the action is not one that is 

directly appealable to the Board. In this kind of case, the individual can appeal to 

the Board only if he files a complaint with the Special Counsel first and the Special 

Counsel does not seek corrective action on the individual's behalf. 

An individual who is subject to a personnel action that is directly appealable to the 

Board, and who claims that the action was taken because of whistleblowing, may 

choose to file a complaint with the Special Counsel rather than appeal to the Board. 

If the Special Counsel does not seek corrective action on his behalf, the individual 

may then appeal to the Board. While this is considered an "otherwise appealable 

action," the time limits for filing are the same as for an "individual right of action." 

Questions and Answers 

1. Who may file whistleblower appeals with the Board? 

The right to file an individual right of action appeal with the Board is determined by 

the employee's eligibility under the "Prohibited Personnel Practices" statute (Title 5 

of the United States Code, section 2302) to file a complaint with the Special 

Counsel alleging that a personnel action was taken because of whistleblowing. 

Covered employees include: 

• Competitive service employees; 

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. Most excepted service employees in Executive agencies; 

. Employees of Government corporations who allege whistleblower reprisal; 

• Employees of the Government Printing Office; and 

• Former employees of and applicants for employment with covered agencies. 

Employees specifically excluded from coverage are those in the General Accounting 

Office, the FBI, and various intelligence agencies. A covered employee who files a 

whistleblower complaint with the Special Counsel becomes eligible to file an 

individual right of action appeal with the Board only if the Special Counsel does not 

seek corrective action on his or her behalf. 

In the case of an otherwise appealable action, any employee eligible to appeal the 

particular action can appeal directly to the Board. The regulations applying to the 

particular action being appealed govern who may appeal that action. In general, 

competitive service and preference-eligible employees (e.g., veterans) have Board 

appeal rights with respect to most appealable actions. Most excepted service 

employees may appeal adverse actions and performance-based actions. Former 

employees and applicants for employment can appeal some actions. 

If there is any question as to whether you come under the 

jurisdiction of the Special Counsel with respect to complaints 

of personnel actions allegedly based on whistleblowing, or 

under the Board's jurisdiction with respect to actions that 

may be appealed directly to the Board, you should file your 

complaint or appeal with the Board in order to preserve your 

appeal rights. 

2. How do I file a whistleblower appeal with the Board? 

You must file your timely appeal in writing with the Board's regional or field office 

serving the area where your duty station was located when the action was taken. 

This requirement applies to all whistleblower appeals, both otherwise appealable 

actions and individual right of action appeals. 

A form for filing a petition for review is available on the 

MSPB Web site at 

http://www.mspb.qov/foia/forms-pubs/pfrform.html. A 

listing of addresses of all MSPB regional and field offices are 

available on the MSPB Web site at 

http://www.mspb.qov/offices/reaions/reqions.html. 

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Your appeal must contain the following: 

. All of the information required by the Board's regulations at Title 5 of the Code 

of Federal Regulations, Part 1201, for other types of appeals, including the 

signature of the appellant or the appellant's representative and a certificate of 

service stating how and when a copy of the appeal was served on the agency. 

. A description of the whistleblowing disclosure and a chronology of facts 

concerning the personnel action—including the name and position of the 

person(s) taking the action. 

. An explanation as to why you believe the personnel action is in reprisal for 

whistleblowing and any supporting evidence you have. 

• In the case of a threatened action not yet taken, the specific indications giving 

rise to your apprehensions. 

• If you have sought corrective action from the Special Counsel first, evidence 

that your appeal is being filed within the required time limits. 

Appeals may be filed by mail, by facsimile, by commercial overnight delivery, or by 

personal delivery. The date of filing by mail is considered to be the postmark date. 

The date of filing by facsimile is the date of the facsimile. The date of filing by 

commercial overnight delivery is the date you deliver the appeal to the commercial 

overnight delivery service. 

3. What are the required time limits for filing a whistleblower appeal? 

The time limits are different for an otherwise appealable action and for an 

individual right of action appeal. 

Otherwise Appealable Action: You must file within 30 calendar days of the effective 

date of the action, if any, or within 30 calendar days after the date of receipt of the 

agency's decision, whichever is later. (If the filing deadline falls on a Saturday, 

Sunday, or Federal holiday, the filing deadline is extended to the next working 

day.) However, if you have been subjected to an otherwise appealable action and 

you choose to seek corrective action from the Special Counsel first, the time limits 

for appealing to the Board are the same as for an individual right of action appeal. 

Individual Right of Action: The time limits for filing an individual right of action 

appeal depend on what the Special Counsel does with your complaint. 

• If the Special Counsel notifies you that the office is terminating its 

investigation of your complaint, you have 65 days from the date of the Special 

Counsel's written notice, or 60 days from your receipt of the notice, whichever 

is later, to file an individual right of action appeal with the Board. 

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. If 120 days pass after you file a complaint with the Special Counsel and that 

office has not notified you that it will seek corrective action on your behalf, 

you may file an individual right of action appeal with the Board anytime 

thereafter. 

4. What is a "stay" and how does it apply to whistleblower appeals? 

A stay orders the agency to suspend the personnel action being appealed. You may 

file a stay request with the Board in connection with either kind of whistleblower 

appeal—an otherwise appealable action or an individual right of action appeal. You 

may file a stay request at any time after you become eligible to file your appeal, 

but no later than the time limit the judge sets for close of discovery in the appeal. 

You may file a stay request before, at the same time as, or after you file your 

appeal. If you file the stay request first, you must file your appeal within 30 days 

after the judge rules on the stay request. 

5. How do I file a stay request with the Board? 

You file a stay request in writing with the same Board regional or field office where 

you file your appeal. You may file the request by personal delivery, by facsimile, by 

commercial overnight delivery, or by mail. 

Your stay request must contain the following information: 

• Your name and the names and addresses of the agency and your 

representative, if you have one. 

• A chronology of the facts, including a description of the whistleblowing 

disclosure and the personnel action that the agency has threatened, taken, or 

failed to take. 

• An explanation as to why you believe the personnel action is based on 

whistleblowing. You should support your explanation with documentary proof 

because a stay will be granted only if you show a "substantial likelihood" that 

your appeal will succeed. 

. An explanation as to how long the stay should remain in effect and whether 

the stay will cause a hardship on the agency. 

• If you first sought corrective action from the Special Counsel, evidence that 

the request is timely filed. 

6. How does the Board decide on a stay request? 

After you have filed your stay request, the administrative judge will allow the 

agency an opportunity to comment and submit evidence. After considering all the 

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arguments and evidence, the administrative judge will either grant or deny your 

request. 

If your stay request is granted, the administrative judge will specify the time period 

during which the agency must suspend the personnel action. A typical stay order 

will suspend the personnel action indefinitely, until it is later modified or vacated by 

another Board order. 

If your stay request is not granted, you may file a written request with the 

administrative judge asking that he refer your request and his decision denying 

your request to the Board members in Washington, D.C. for their review. This is 

called "petitioning" the administrative judge to "certify" his decision as an 

"interlocutory appeal." The Board's regulations regarding interlocutory appeals are 

found at Title 5 of the Code of Federal Regulations, Part 1201. 

Please see MSPB at Your Fingertips at the end of this publication 

for information about obtaining the Board's regulations. 

7. What are the burden of proof and degree of proof in whistleblower 

appeals? 

In whistleblower appeals, you have the burden of proving by a preponderance of 

the evidence that whistleblowing was a contributing factor in the personnel action 

threatened, taken, or not taken against you. The Board will order the agency to 

correct the action if you demonstrate that the whistleblowing was a contributing 

factor in the personnel action. You may demonstrate that the whistleblowing was a 

contributing factor by showing that the official taking the action knew about the 

whistleblowing and that the action occurred within a time period such that a 

reasonable person would conclude that the whistleblowing was a contributing factor 

in the personnel action. 

The Board will not order corrective action, however, // the agency demonstrates by 

clear and convincing evidence that it would have taken the same action in the 

absence ofthe whistleblowing. The clear and convincing standard of proof is a 

higher standard than the preponderance of the evidence standard that you must 

meet. 

8. If I file a whistleblower appeal with the Board after the Special Counsel 

has terminated an investigation of my complaint, will that termination 

influence the Board's decision? 

No. Under the Whistleblower Protection Act, when the Board considers your appeal, 

it may not take into account the Special Counsel's decision to terminate an 

investigation of your complaint. Moreover, if you file your appeal because 120 days 

have passed without your being notified that the Special Counsel will seek 

corrective action on your behalf, the Special Counsel may not proceed to seek 

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corrective action without your permission. Furthermore, the Special Counsel may 

not intervene in your appeal before the Board without your permission. 

9. What can I do if I am not satisfied with the administrative judge's 

decision on my whistleblower appeal? 

As is the case with other decisions on appeals to the Board, you have the right to 

ask the 3-member Board in Washington to review the initial decision of the 

administrative judge. You do this by filing a petition for review in accordance with 

the Board's regulations at Title 5 of the Code of Federal Regulations, Part 1201. If 

no party files a petition for review, the initial decision of the administrative judge 

becomes final 35 days after it is issued. If a petition for review is filed, the decision 

issued by the Board becomes the final decision. 

You may request judicial review of a final Board decision on your whistleblower 

appeal—either an initial decision of an administrative judge that has become final 

or the Board's decision on a petition for review—by the U.S. Court of Appeals for 

the Federal Circuit. The court must receive your request for review within 60 days 

of your receipt ofthe Board's final decision. The court normally will not waive this 

time limit and filings that do not meet the deadline will be dismissed. 

MSPB at Your Fingertips 

MSPB Customer Service Standards 

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