MERIT SYSTEMS PROTECTION BOARD

MARK ABERNA THY

DEPARTMENT OFARMY

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AM/CUS BRIEF

OF PETER BROIDA

Interest of the Amicus: Peter Broida is a private practitioner with an interest in

development of civil service law before the MSPB and its reviewing court.

The Facts: the MSPB request for amicus briefs does not recite facts. Reference

to the initial decision by AJ Hudson of January 23, 2015, briefly states that the

appellant filed a complaint with the agency OIG asserting, variously, breach of

federal contracting requirements or misallocation of contracting funds. At the

time of the disclosure, the Appellant was a federal contractor. Although the AJ

does not identify the contractor who employed Appellant, given her description

of the type of work he was doing and the knowledge reflected by his

disclosures, coupled with the types of positions he applied for, it appears a fair

inference that at the time the Appellant was working for the contractor, the

contractor was engaged by the Agency to which Appellant subsequently made

application for employmentemployment allegedly denied based on the prior

disclosures.

Question Presented: under what circumstances does a contractor employee

qualify for protection against whistleblower reprisal during and following that

individual's application for federal employment?

Answer to Question Presented: the issue has already been resolved by

precedential decisions.

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Greenup v. Dept. of Agric., 106 MSPR 202, 297 (2007), already decided the

issue. An individual who makes a covered disclosure, while neither an applicant

or employee, is protected against reprisal once she becomes an applicant or

employee and the past disclosure taints the later personnel action. The Board

recognizes the case in its Federal Register notice, but the Board suggests

nothing to undermine its essential holding:

The statute does not specify that the disclosure must have been made

when the individual seeking protection was either an employee or an

applicant for employment. In the case of applicants for employment who

were not Federal employees at any time prior to their application, such a

limitation would severely restrict any recourse they might otherwise have,

since the disclosure would necessarily have to be made while their

application was pending. We do not believe that Congress intended to

grant such .a limited right of review, when it determined to protect

applicants for employment. See, e.g., Fishbein v. Department of Health

& Human Services, 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).

Nothing has changed that would alter the analysis in Greenup. The WPEA did

not change the operative statute. The analysis has since been followed by

Board precedential decision. Weed v. SSA, 113 MSPR 221, 229-30 (2010).

Greenup has not been criticized, questioned, and certainly not overruled, by any

precedential or nonprecedential decision of the Federal (or other) Circuit. Nor

has the case been the subject of adverse commentary in congressional reports

leading to the WPEA, which addressed and corrected several misinterpretations

or misapplications of whistleblowing law by the Board and its reviewing court.

Congressional silence on the Greenup construction is worthy of attention. See

Chisom v. Roemer, 501 U.S. 380, 396 & n.23 (1991); Lorillard v. Pons, 434

U.S. 575, 581, 98 S. Ct. 866, 870, 55 L. Ed.2d 40 (1978) (When Congress

adopts a new law incorporating sections of a prior law, it normally can be

presumed to have knowledge of the judicial or administrative interpretation

given to the incorporated law); Isabella v. Dept. of State, 109 MSPR 453, 458

¶ 11, 2008 MSPB 146 (2008) (it is presumed that Congress will specifically

address statutory language that it wishes to change); Fitzgerald v. Department

of Defense, 80 M.S.P.R. 1, 14-15 (1998) (When Congress adopts a new law

incorporating a section of a prior law without change, Congress is presumed to

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have been aware of the administrative or judicial interpretation of the

incorporated sections and to have adopted that interpretation), aff'd, 230 F.3d

1373 (Fed. Cir. 1999) (Table).").

Why then is the Greenup result subject to re-examination now? The Federal

Register notice does not say. Absent compelling circumstances compelling

reevaluation and stated in the Federal Register notice, Board precedent should

be followed. Mr. Abernathy's case should be remanded for further factual

development and legal analysis.

Peter B. Broida

Suite 203

1840 Wilson Blvd

Arlington, VA 22201

703-841-1 112

703-841-1006 (facsimile)

Amicus

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