UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

MARK ABERNATHY, 

Appellant, 

v. 

DEPARTMENT OF ARMY, 

Agency. 

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DOCKET NUMBER 

DC-1221-14-0364-W-1 

____________ __ ) 

BRIEF ON BEHALF OF THE UNITED STATES OFFICE OF SPECIAL COUNSEL 

AS AMICUS CURIAE 

IDENTITY OF THE AMICUS CURIAE 

Amicus curiae, the United States Office of Special Counsel (OSC), is an independent 

federal agency charged with protecting federal employees, former federal employees, and 

applicants for federal employment from "prohibited personnel practices," as defined in 5 U.S.C. 

§ 2302(b) of the Whistleblower Protect Act of 1989 (WPA), as amended by the Whistleblower 

Protection Enhancement Act of2012 (WPEA). In particular, OSC protects individuals who 

suffer personnel actions by federal agencies in retaliation for disclosing "any information" that 

they reasonably believe evidences 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 and safety, unless such disclosure is specifically prohibited by law. See 

5 U.S.C. § 2302(b)(8). 

The Merit Systems Protection Board (MSPB or Board) invited amicus curiae briefs in 

connection with the above-captioned matter. See Notice, 81 Fed. Reg. 2913 (Jan. 19, 2016). The 

MSPB set a filing deadline of February 9, 2016. As the agency charged with investigating and 
prosecuting violations of the WPA, OSC welcomes the opportunity to offer its views to the 

Board on the legal issue raised in this case. 

STATEMENT OF THE ISSUE 

Whether a whistleblower must be a federal employee or applicant for employment at the 

time he makes his disclosures to be protected by the WPA. 

INTRODUCTION AND SUMMARY 

On January 23,2015, an MSPB Administrative Judge (AJ) dismissed the appellant's 

individual right of action (IRA) appeal, concluding that the Board Jacked jurisdiction since "he 

was not ' an employee, former employee, or applicant for employment' at the time he made his 

disclosure, but rather, he was a federal contractor." Abernathy v. Dep't of Army, 2015 WL 

304961 (M.S.P.B. 2015). The appellant filed a petition for review of this decision on March 18, 

2015. 

OSC respectfully submits that the AJ erred. The key holding in the AJ's decision- that a 

whistleblower must be a federal employee or applicant at the time of the disclosure- is legally 

fl awed and undermines the public policy embodied in the WPA. Specifically, the AJ's ruling 

contradicts established Board precedent, is not mandated by the statutory text, runs counter to the 

WPA's purpose and legislative intent, and, if upheld, would weaken whistleblower protections. 

For these reasons, we ask the Board to reverse the AJ's legal ruling and remand the appellant's 

case for a hearing on the merits. 

STATEMENT OF FACTS1 

In August 2012, the appellant worked as a contract employee for the Department of the 

Army in Germany. That month, he disclosed to the Europe Regional Medical Command 

(ERMC) Office of the Inspector General what he believed to be "an illegal act governed by and 

1 All of the facts included in this section were taken from the appellant's IRA appeal fi lings. 

2 
contrary to Federal Acquisition Regulations." Specifically, the appellant explained that the 

ERMC Telehealth Program had allocated $99,000 in unfunded money to procure videoteleconference equipment for behavioral health screening of soldiers returning from Iraq and 

Afghanistan. He stated that the Army believed the equipment could be given to Primary Care 

Providers at the Landstuhl Medical Center in an effort to increase their monthly Telehealth 

Program production statistics. But the appellant argued that, because ERMC had purchased the 

equipment with congressionally-appropriated Overseas Contingency Operations money, it would 

be illegal to use it for this purpose. 

A few weeks after making his disclosure, three contract employee positions within the 

Telehealth Program, including the appellant's, were announced as federal jobs. The appellant, 

who had been performing the duties of the position, applied to become a federal employee. 

However, the Army's selecting official, who had endorsed alternative use of the videoteleconference equipment, told the appellant that he would not be selected "because he had 

become too confrontational." Soon after, the appellant learned that his name had not been 

referred for consideration. The other two contract employees, by contrast, were hired for their 

now-federal jobs. The appellant alleges that the Army did not select him in retaliation for his 

disclosure. 

ARGUMENT 

The MSPB has IRA jurisdiction over whistleblower retaliation claims filed pursuant to 5 

U .S.C. § 1221 (a) of the WPA. The WPA's primary provision on whistleblower retaliationsection 2302(b)(8)- states in relevant part: 

Any employee who has authority to take, direct others to take, recommend, or 

approve any personnel action, shall not, with respect to such authority3 
(8) take or fail to take, or threaten to take or fail to take, a personnel action with 

respect to any employee or applicant for employment because of-

(A) any disclosure of information by an employee or applicant which the 

employee or applicant reasonably believes evidences-

(i) any violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a 

substantial and specific danger to public health or safety. (emphasis added) 

In this case, the Board suggests that the presence of the phrase "employee or applicant" in 

section 2302(b )(8)(A) may create ambiguity about whether the timing of the disclosure is 

significant. Specifically, the MSPB questions whether "both the disclosure and the subject 

matter of the disclosure must have occurred after the individual who is seeking corrective action 

in an IRA appeal became an applicant or employee." Notice, 81 Fed. Reg. 2913 (Jan. 19, 2016). 

I. The MSPB Should Adhere to Its Established Precedent That the WPA Prohibits 

Retaliation Against Whistleblowers Who Were Not Yet Applicants or Employees at 

the Time They Made Disclosures. 

A. Under Board Precedent, Whistleblowers May Appeal Retaliatory Acts Taken 

Against Them as Applicants or Employees. 

The Board already has resolved this specific legal issue. The first case to do so, Greenup 

v. Department of Agriculture, 106 M.S.P.R. 202 (2007), involved a fact pattern very similar to 

this case. Though Greenup was a county employee at the time of her disclosures, the MSPB held 

that she could bring an IRA appeal challenging her subsequent non-selection for a federal job. 

See 106 M.S.P.R. at ~ 6. On the precise issue presented here, the Board concluded that the WPA 

"does not specify that a disclosure must have been made when the individual seeking protection 

was either an employee or an applicant for employment." ld. at~ 8. To hold otherwise would 

protect first-time federal applicants only when they make disclosures in the short time that the 

4 
application is pending. The Board concluded that Congress did not intend to grant such a limited 

right of review. I d. 

Three years later, the Board considered the same legal issue in Weed v. Social Security 

Administration, 113 M.S.P.R. 22 1 (20 1 0). In that case, it revisited and confirmed its analysis in 

Greenup, and offered an even more definitive ruling: "Further, contrary to the agency's 

argument, a whistleblower does not need to be an employee, an applicant for employment, or a 

former employee at the time he made his protected disclosures." 11 3 M.S.P.R. at 227. 

Finally, just last year, the Board considered a petition for review from a whistleblower 

who made a disclosure before he became a federal employee or applicant. In Cahill v. 

Department ofHealth & Human Services, 2015 WL 1477814 (M.S.P.B. 2015), the MSPB 

concluded that the petitioner could not prevail on his claim because he was a contract employee 

when the alleged retaliation occurred, and thus was not subjected to a "personnel action" under 

section 2302(a). Jd. at~ 6 (emphasis added). Notably, the Board did not express any doubt 

about whether the disclosure he made while he was a contract employee was protected under 

section 2302(b)(8). In fact, it conceded the petitioner's contention on that point, but noted that 

"this fact is immaterial" because the alleged personnel action-a reduction in pay-was taken by 

the contractor, not the agency, and occurred before the petitioner was a federal employee or 

applicant. Id. ~ 10. The Board thus continues to relate IRA jurisdiction with the timing of the 

alleged personnel action, rather than the timing or content of the whistleblower's disclosure.2 

2 Significantly, the Board's IRA appeal form itself asks appellants to identify their "Federal employment status at 

the time of the decision or action you are appealing" (emphasis added). This question correctly seeks to determine 

whether an appellant was a federal employee or applicant when the retaliation occurred, not when the disclosure was 

made. 

5 
Because the MSPB has already resolved this issue- and nothing in the relevant law or 

public policy has constricted the WPA's scope in the interim-the AJ here erred in refusing to 

follow the Board's well-established precedent. 3 

B. Non-Precedential Federal Circuit Cases Can Be Distinguished and Are Not 

Binding on the Board. 

In its January 2016 notice, the Board cited three non-precedential Federal Circuit 

decisions that contain language concerning the timing of a whistleblower's disclosure. See 

Nasuti v. Merit Sys. Prot. Bd., 376 F. App'x 29 (Fed: Cir. 2010); Guzman v. Office ofPers. 

Mgmt., 53 F. App'x 927 (Fed. Cir. 2002); Amarille v. Office ofPers. Mgmt., 28 F. App'x 93 1 

(Fed. Cir. 200 I). These rulings are all distinguishable. The court in each of these cases was 

primarily concerned with analyzing the scope of whistleblower protections for former 

employees. Section 2302(b)(8) does not explicitly list "former employees" among the categories 

of individuals protected from whistleblower retaliation. This caused the Federal Circuit to 

question whether and to what extent they are covered under the WPA.

4 

But section 2302(b)(8) does explicitly prohibit whistleblower retaliation against 

"applicants"- the appellant's status at the time of the retaliation in this case. The Federal Circuit 

decisions cited by the Board thus address an entirely different question. Further, these cases 

predate the WPEA, which (as discussed below) discouraged judicially-created obstacles to 

3 Indeed, Board law has long held that the WPA even protects non-whistleblowers-i.e., perceived whistleblowers 

and third parties associated with whistleblowers. See Special Counsel v. Dep't ofthe Navv, 46 M.S.P.R. 274 (1990); 

Duda v. Dep't of Veterans Affairs, 5 1 M.S.P.R. 444 ( 199 1 ). In each case, the Board found that a liberal construction 

of the statute ( I) strengthens and improves protection for federal employees or applicants; (2) prevents retaliation; 

and (3) helps to eliminate wrongdoing in the federal government. See Whistleblower Protection Act of 1989, Pub. 

L. I 01-1 2, Sec. 2. Surely, since the MSPB in Special Counsel v. Navy and Duda interpreted the WPA to protect 

even those who made no actual disclosures at all, it should read the statute to prohibit retaliation against actual 

applicants- like the appellant- who have made disclosures. 

4 OSC offers no opin ion here as to the circumstances under which the WPA might protect former employees from 

whistleblower retaliation that occurs after they leave the federal workforce. 

6 
whistleblower protection claims. Accordingly, the Federal Circuit rulings raised by the Board 

should have no bearing on the proper resolution of the appellant's case. 

II. The Text, Purpose, and Legislative History of the WPA Favor Protecting 

Whistleblowers Who Make Disclosures Before Applying for Federal Employment. 

Remedial statutes, like the WPA, should be interpreted broadly where such a reading is 

possible. See . Pasley v. Dep't ofTreasury, 109 M.S.P.R. 105, ~ 12 (2008); Fishbein v. Dep't 

of Health & Human Servs., 102 M.S.P.R. 4, ~ 8 (2006) (because the WPA is remedial legislation, 

the Board will construe its provisions liberally to embrace all cases fairly within its scope, so as 

to effectuate the purpose of the Act). A remedial statute riddled with exceptions and loopholes 

may chill current and potential whistleb1owers from coming forward because they worry that the 

law's unclear scope might leave them unprotected. Accordingly, the MSPB should read the WPA 

to prohibit personnel actions taken by federal agencies against whistleblowers, regardless of 

when the affected federal employee or applicant made the disclosures at issue. 

A. The WPA's Statutory Text Supports a Reading That an Applicant Need Not 

Hold That Status at the Time of His or Her Disclosure. 

Here, the plain language of section 2302(b)(8)(A) fully supports reading the WPA 

broadly to preclude retaliation against those who make disclosures before applying for federal 

employment. Specifically, the use of the phrase "employee or applicant" in section 

2302(b )(8)(A), when read in appropriate statutory context, does not link protection of a 

disclosure to an individual's status as an applicant or employee. See Robinson v. Shell Oil Co., 

519 U.S. 337,341 (1997) ("The plainness or ·ambiguity of statutory language is determined in 

reference to the language itself, the specific context in which that language is used, and the 

broader context of the statute as a whole."). Indeed, this same section also emphasizes that "any 

disclosure of information" evincing a reasonable belief of government wrongdoing is protected 

7 
under the WPA. 5 U.S.C. § 2302(b)(8)(A) (emphasis added). The deliberate use of the modifier 

"any" here strongly suggests Congress intended to protect a wide array of whistleblowing 

activity, regardless of when the disclosure occurred. "'Any,' after all, means any. " See Ford v. 

Mabus, 629 F. 3d 198, 206 (D.C. Cir. 201 0) (citing United States v. Gonzalez, 520 U.S. I , 5 

(1997) and explaining that "any" has "expansive meaning"). 

A more restrictive interpretation of section 2302(b )(8)(A), particularly as it relates to the 

"subject matter" of a disclosure, would also conflict with section 2302(t) of the WPA, which was 

added by the WPEA to reverse a series of court-mandated limitations on protecting disclosures. 

Section 2302(t)( I )(F) states that "the amount of time which has passed since the occurrence of 

the events described in the disclosure" is not cause for exclusion from section 2302(b)(8). Thus, 

the only statutory provision arguably related to the content of a disclosure suggests broad 

protection and that no particular significance should be attached to the timing of the subject 

matter of the disclosure. 

In sum, the WPA's plain language protects an employee or applicant from whistleblower 

retaliation based on "any" disclosure he has made. And "any" disclosure would cover those 

made before the whistleblower applied to work for the federal government. To the extent any 

ambiguity exists on this point, OSC urges the Board to interpret the WPA liberally because it is a 

remedial statute. This broad interpretation embraces, rather than rejects, whistleblowers fairly 

within the scope of the WPA and better "effectuate[s] the purpose of the Act." Fishbein, 102 

M.S.P.R. at ~ 8. 

8 
B. The WPA's Statutory Purpose and Legislative History Underscore the Need 

to Protect Whistleblowers-Particularly Contract Employees-Who Make 

Disclosures Before Applying for Federal Employment. 

1. A Narrow Reading of the Word "Applicant" in the WPA Would 

Contradict Congressional Intent and Lead to Absurd Results. 

The WPA specifically covers applicants because Congress sought to ensure that 

whistleblowers outside the federal workforce would not be prevented by retaliation from entering 

it. Requiring a whistleblower to be an applicant not just when the retaliatory personnel action 

occurred, but also at the time of the disclosure, would frustrate this purpose by severely 

restricting the number of applicants covered under the Act. It would be anomalous for Congress 

to explicitly grant protection to applicants, but then limit that protection to the small subset of 

individuals who make their disclosures in the (typically) short period between their application 

for employment and the alleged retaliatory personnel action. 

5 

· Further, this constricted reading may have unintended consequences in other provisions 

for whistle blower protection. For instance, section 122 1 (a) could be read similarly to indicate 

that the Board has IRA jurisdiction over applicants only while their applications for federal 

employment are pending. In relevant part, only "an employee, former employee, or applicant for 

employment may ... seek corrective action from the Merit Systems Protection Board." 5 U.S.C. 

§ 1221 (a). Under the AJ's reasoning, a whistleblower would lose standing once a selection is 

made. Congress could not have intended this absurd result. 

Such a cramped reading would also contravene congressional efforts to encourage timely 

reporting of government wrongdoing. See S. Rep. No. 112-155, at 1 ("[I]n a post-9/ 11 world, we 

5 Based on OPM's "Hiring Process Analysis Tool," this time period is often less than two months. See 

https://www.opm. gov/po I icy-data-overs i ghtlh uman-capita 1-management/hi rin g-reforrn/h iring-process-analysistool/create-and-post-a-job-opporiun iry-announcement-including-identify ing-career-patterns/. In the appellant's case, 

it appears to have been less than one month. 

9 
must do our utmost to ensure that those with knowledge of problems at our nation's airports, 

borders, law enforcement agencies, and nuclear facilities are able to reveal those problems 

without fear of retaliation or harassment."). The narrow interpretation adopted by the AJ in this 

case creates a perverse incentive for non-federal whistleblowers who may have important 

disclosures: They must wait until a particular job is announced and their application is received 

before raising an alarm. In effect, it forces whistleblowers to choose between securing statutory 

protections for themselves and promptly making crucial disclosures that help protect the public. 

Congress surely could not have meant to allow- and the Board should not now create- such a 

Hobson's choice. 

2. Since the Passage of the WPA, Congress Has Consistently 

Discouraged Limitations on the Scope of Whistleblower Protections. 

Congress has repeatedly disapproved of judicial attempts to place limits on the scope of 

whistleblower protections in the WPA. In a 1988 report on the WPA, it expressed frustration 

over actions and decisions that restricted whistleblowers' ability to obtain corrective action, 

emphasizing: 

The Committee intends that disclosures be encouraged. The OSC, the Board, and 

the courts should not erect barriers to disclosures which will limit the necessary 

flow of information from employees who have knowledge of government 

wrongdoing. For example, it is inappropriate for disclosures to be protected only 

if they are made for certain purposes or to certain employees or only if the 

employee is the first to raise the issue. 

S. Rep. No. 4 13, at 13 (1988) (emphasis added). Twenty-four years later, Congress 

remained critical of the Federal Circuit's and the Board's propensity to read the WPA 

narrowly: 

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 

10 
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. 

S. Rep. No. 112-155, at 4-5 (2012).6 The report also bolsters the belief-embraced by the MSPB 

in Greenup, Weed, and Cahill-that the focus in whistleblower retaliation claims should be on 

employment status at the time of the personnel action, rather than the timing of the disclosure. 

Specifically, the Committee noted that the Federal Circuit decisions overturned by the WPEA: 

are contrary to congressional intent for the WPA. The court wrongly focused on 

whether or not disclosures of wrongdoing were protected, instead of applying the very 

broad protection required by the plain language of the WPA. The merits of these cases, 

instead, should have turned on the factual question of whether personnel action at issue in 

the case occurred "because of' the protected disclosure. 

S. Rep. No. 112-155, at 5 (2012) (emphasis added). The message from Congress is clear: The 

WPA must be read to provide robust protection for whistleblowers. 

Accordingly, the Board should broadly construe section 2302(b)(8) to prohibit retaliation 

against applicants for federal employment who have made disclosures, regardless of when the 

disclosures occurred. 

3. Contract Employees Who Apply for Federal Jobs Are the Type of 

"Insider" the WPA Was Designed to Protect. 

The protections in section 2302 of the WPA were first enacted in the Civil Service 

Reform Act of 1978 (CSRA). Those measures were designed to protect "insiders" who were in a 

unique position to witness government wrongdoing and who should not "suffer if they help 

uncover and correct administrative abuses." S. Rep. 95-969, at 8 (1978). Of course, it is often 

difficult for applicants coming from outside the federal workforce to have significant insight into 

potential government wrongdoing. Nonetheless, by its plain terms, the statute protects applicants 

6 Although the Senate Report uses the term "employee" throughout, this is likely for the sake of simplicity, rather 

than to restrict their statements to employees only. It is reasonable to assume that Congress was well aware of the 

existing protections for applicants, and thus that its criticism of Federal Circuit and Board interpretations extends to 

cases narrowing protections for applicants as well. 

II 
from whistleblower retaliation even if they do not have access to " insider" knowledge about the 

workings of a government agency. 

Certainly then, where a contract employee- like the appellant-makes a disclosure, 

becomes an applicant, and then suffers retaliation, the statute should protect him. Contract 

employees applying for federal jobs comprise a substantial subset of applicants who truly are the 

type of individuals with inside government knowledge the WPA was designed to protect. 7 

Working alongside federal employees, often fully integrated into the agencies they serve, 

contract employees are ideally situated to observe and report the type of government wrongdoing 

outlined in section 2302(b)(8). In some instances, they may even be better able than federal 

employees to observe certain types of wrongdoing, such as contract or procurement fraud. In 

short, they are in the "unique position" to witness government misconduct that Congress 

envisioned when they enacted the CSRA. Id. 

III. When Read in Conjunction With the National Defense Authorization Act of 1987 

(NDAA), It Is Clear That the WPA Should Be Construed to Protect All Applicants 

from Whistleblower Retaliation. 

To uphold the AJ's decision in this case would create an odd gap in whistleblower 

protections. Under the WPA, federal employees and applicants are protected from retaliation by 

government agencies. Under the National Defense Authorization Act of 1987, as amended in 

2013, contract employees are protected from retaliation by contractors. See 10 U.S.C. § 2409, 

41 U.S.C. § 4712. But under the AJ's narrow interpretation of the term "applicant," contract 

employees applying for federal jobs would remain vulnerable to retaliation by the very agency 

7 "[T]he Congressional Budget Office determined that federal agencies spent over $500 billion for contracted 

products and services in 20 12. Between 2000 and 2012, such spending grew more quickly than inflation and also 

grew as a percentage of total federal spending. The category of spending that grew the most in dollar terms was 

contracts for professional, administrative, and management services .... " Congressional Budget Office, Federal 

Contracts and the Contracted Workforce (March 20 15), p. I. See https:l/www.cbo.gov/publication/49931. 

12 
they tried to improve through their disclosures- despite the specific coverage of "applicants" in 

the WPA. 

This is especially problematic because government agencies are (rightly) encouraging 

contract employees to come forward and disclose wrongdoing, emphasizing that they are 

protected under the NDAA. 8 At the same time, however, it seems highly unlikely that agencies 

or contractors are informing contract employees that, while they are indeed protected from 

discharge, demotion, and other personnel actions by their contractors, they are not protected from 

retaliation by agencies where they may be applying for federal jobs. It is fundamentally unfair to 

encourage disclosures, assure whistleblowers that they are protected, and then read the relevant 

statutes narrowly to exclude them. 

IV. Nothing in the Uniformed Services Employment and Reemployment Rights Act 

(USERRA) Suggests That the WPA Should Be Read to Limit Coverage of 

Employees or Applicants. 

In its January 2016 notice, the Board asked for a comparison between the "employee or 

applicant" language in the WPA and the broader "person" language in USERRA. The stated 

purpose for each statute, as well as their respective locations within the United States Code, offer 

some explanation for the difference. In cases arising under various federal anti-discrimination 

and retaliation statutes, the Supreme Court has advised that courts should take great care to look 

at the purpose, design, and structure of each statute as a whole. See Gross v. FBL Fin. Servs., 

Inc., 557 U.S. 167, 174-75 (2009); see also Univ. ofTexas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 

2517, 2527 (2013) (" []Court was careful to restrict its analysis to the statute before it and 

withhold judgment on the proper resolution of a case, such as this, which arose under Title VII 

rather than the ADEA."). 

8 See,~. https:l/oig.state.gov/HotlineVideo (a Department of State OIG script informing contractors that "[n]ow 

employees of federal contractors, subcontractors, and grantees are protected against reprisal ifthey are demoted, 

discharged, or discriminated against as a result of reporting wrongdoing."). 

13 
USERRA is located in Title 38, which addresses "Veterans Benefits." Title 38 provides a 

wide variety of protections and benefits to veterans and uniformed service members, as well as 

their spouses, children, covered dependents, and other designated beneficiaries. As a result, 

those who may invoke protections and benefits under Title 38 are defined not by their 

employment status, but rather by their veteran or military status (or association with such an 

individual). Thus, it would be cumbersome and impractical to describe them by their 

employment status; an easier and broader term is "person." 

Moreover, the primary "person" who Congress intended to protect from discrimination 

and retaliation under USERRA is one "who is a member of, applies to be a member of, 

performs, has performed, applies to perform, or has an obligation to perform service in a 

uniformed service .... " 38 U.S.C. § 43ll(a) (emphasis added). Thus, statutory coverage would 

extend to, among others, individuals who have an application for membership or service in the 

military. Given the statutory scheme intended to protect service members, as well as those who 

apply to join or perform military service, it would be confusing to use the term "applicant" in the 

statute as a reference to either one's employment or standing to "submit a complaint against a 

federal executive agency" under 38 U.S.C. § 4324(b). Again, the word "person" is appropriate 

given the purpose, design, and structure ofthat statute. 

Unlike USERRA, the WPA is located in Title 5, which addresses "Government 

Organization and Employees." It makes sense then, that the individuals who may invoke 

protections or benefits under Title 5 are described in terms of their relationship to the federal 

employment system-typically "employee or applicant." Additionally, the group that Congress 

intended to protect with the WPA-federal employees, applicants for employment, and former 

employees-is appropriate and consistent with that Act's statutory purpose, design, and structure. 

14 
While use of the term "person" may have been perfectly acceptable under the WPA, there should 

be no negative inference drawn from the terms actually selected by Congress in the WPA. See 

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008) (finding that when conducting 

statutory interpretation, one "must be careful not to apply rules applicable under one statute to a 

different statute without careful and critical examination"). Following the guidance of the 

Supreme Court, the Board should confine its analysis in this case to the WPA and find that it 

protects whistleblowers who make disclosures before applying for federal employment. 

CONCLUSION 

Based on the foregoing, the Special Counsel urges the Board to remand this case for 

consideration on the merits. 

15 

Respectfully submitted, 

Carolyn Lerner 

Special Counsel 

Louis Lopez 

~ Associate Special Counsel 

Emilee Collier 

Attorney 

U.S. Office of Special Counsel 

1730 M Street, N.W., Suite 300 

Washington, D.C. 20036 

Fax: (202)653-515 1 

ecollier@osc.gov