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Home
	  Prohibited Personnel Practices
      Frequently Asked Questions
      1- Non-Discrimination
         2 - Proper Considerations
         3 - Coercing  Political Activity
               4 -  Obstructing the Right to Compete for Employment
               5 - Influencing  Withdrawal from Competition
               6 - Granting  Any Preference or Advantage Not Authorized by Law
               7 - Nepotism
                   8 - Whistleblower Protection
                   9 - Protection Against Retaliation
                   10 - Conduct Not Adversely Affecting Performance
                   11 - Violating Veterans' Preference
                   12 - Violating Merit System Principles
                   13 - Nondisclosure Forms, Policies & Agreements
					14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 8: Whistleblower Protection
	
	
  Prohibited Personnel Practice of the Month

  Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
  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—
  any disclosure of information by an employee or applicant which the employee or applicant reasonably believes 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 or safety,               if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; orany disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes 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 or safety.***Where  can I find this provision?***
    This  month’s prohibited personnel practice is part of the Civil Service Reform Act  of 1978, Pub. L. No. 95-454, 92 Stat. 1111.   It is codified at 5  U.S.C. § 2302(b)(8), with the other prohibited personnel practices (PPP).
  ***What  is the eighth prohibited personnel practice?***
    Under the law, any employee who has authority to take,  direct others to take, recommend, or approve any personnel action, shall not,  with respect to such authority— 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—
  any disclosure of information by an employee or applicant  which the employee or applicant reasonably believes 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 or safety, if such  disclosure is not specifically prohibited by law and if such information is not  specifically required by Executive order to be kept secret in the interest of  national defense or the conduct of foreign affairs.In addition, even  disclosures that are prohibited by law or required to be kept secret are  protected if they are made to the Special Counsel or to an agency’s Inspector General.
  ***What  is the purpose of the eighth prohibited personnel practice?***
    Simply  put, this PPP protects Federal employees and applicants from retaliation if they  make a disclosure as defined by 2302(b)(8)(A)(i) and/or (ii), and also serves  to eliminate Government wrongdoing by mandating that employees or applicants  should not suffer adverse consequences for making such disclosures.  *Schmittling  v. Department of Army*, 92  M.S.P.R. 572, ¶¶ 16 and 17 (2002).  “Adverse  consequences” includes a personnel action that is taken as well as a personnel  action that is not taken and even one that is threatened as a result of such a disclosure.   A “disclosure” under this section is  also referred to as a “whistleblower disclosure” or a “protected disclosure.”
  ***What is the difference between section 2302(b)(8) and  section 2302(b)(9)?***
    Allegations  of reprisal “based upon exercising one’s right to complain” are protected under 5 U.S.C. § 2302(b)(9),  while those that are “based on disclosure of information,” are protected under 5 U.S.C. § 2302(b)(8).   *Serrao v. Merit Systems**Protection Board*, 95  F.3d 1569, 1574-75 (Fed. Cir. 1996); *Luecht v. Department of Navy*, 87  M.S.P.R. 297, ¶ 9 (2000).    For example, allegations of reprisal based upon Equal Employment  Opportunity (EEO) or grievance disclosures are not considered whistleblowing  within the meaning of the Whistleblower Protection Act and, therefore, are  outside the Merit Systems Protection Board’s (MSPB or the Board) individual  right of action appeal jurisdiction.  *Mason v. Department of Homeland Security*, 116  M.S.P.R. 135, 145 n.6 (2011).
  ***How  can I raise an alleged violation of section 2302(b)(8) with MSPB?***
    There  are two avenues by which an individual may pursue an alleged violation of  section 2302(b)(8) with MSPB.  Specifically,  an appellant may raise a whistleblower claim in the context of an **otherwise appealable action** or in an **Individual Right of Action** appeal  pursuant to the Whistleblower Protection Act.  5 U.S.C. § 1221(a).
  ***How  do I raise a section 2302(b)(8) claim in the context of an “otherwise  appealable” action?***
    When  MSPB has jurisdiction over a claim filed by an appellant, the appellant may,  with some exceptions, also raise an “affirmative defense” by claiming that the agency’s  personnel action was the product of retaliation for his or her whistleblowing  activity.  An affirmative defense is an  assertion by the employee that, if proven, constitutes a defense to the charged  action even when the charged action is proven.
  5  C.F.R. § 1201.56(b).  Thus, if  an agency removes, suspends or demotes a tenured employee as defined by 5 U.S.C. § 7511(a)  and the employee files an MSPB appeal from this action under 5 U.S.C. § 7513,  the employee may also raise a claim (affirmative defense) that the agency took  the action at issue in retaliation for his or her protected whistleblowing  activity.  *See* www.mspb.gov/appeals/whistleblower.htm.
  ***How  do I prove the agency violated section 2302(b)(8) in the context of an “otherwise  appealable” action?***
    In  order to establish a *prima facie* case of retaliation in the context of  an otherwise appealable action, the appellant must show by preponderant  evidence that he or she made a protected disclosure and that the disclosure was  a contributing factor in a personnel action against him or her.
  5 U.S.C. § 1221(e)(1); *Ryan v. Department of the Air Force*, 117  M.S.P.R. 362, ¶ 12 (2012).  *Prima facie* means that a party produces evidence that – unless  rebutted – is sufficient to prove a particular proposition or fact.  *Preponderant  evidence* means that degree of relevant evidence that a reasonable  person, considering the record as a whole, would accept as sufficient to find  that a contested fact is more likely to be true than untrue.
  5  C.F.R. § 1201.56(c)(2).  The  term *protected disclosure* means a  disclosure of information an employee reasonably believes 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.
  5 U.S.C. § 2302(b)(8).  Significantly, however, vague or conclusory  allegations of wrongdoing are generally not protected disclosures.  *Davis  v. Department of Defense*, 106  M.S.P.R. 560, ¶ 13 (2007).  *Contributing  factor* means any disclosure that affects an  agency’s decision to threaten, propose, take, or not take a personnel action  with respect to the individual making the disclosure.
  5 C.F.R.  § 1209.4(c). A *personnel action* means: (1) an appointment; (2) a promotion; (3) an adverse action as defined by  section 7512 or other disciplinary or corrective action; (4) a detail,  transfer, or reassignment; (5) a reinstatement; (6) a restoration; (7) a reemployment;  (8) a performance evaluation; (9) a decision concerning pay, benefits, or  awards, or concerning education or training if the education or training may  reasonably be expected to lead to an appointment, promotion, performance  evaluation, or other personnel action; (10) an order for psychiatric testing or  examination; and (11) any other significant change in duties, responsibilities,  or working conditions.  5 U.S.C. §  2302(a)(2)(A); 5 C.F.R. § 1209.4(a).  *See also* www.mspb.gov/appeals/whistleblower.htm.
  ***If  I establish a prima facie case of retaliation under section 2302(b)(8) in an  otherwise appealable action, will I prevail?*** 
    No,  not necessarily.  Once the appellant  establishes a *prima facie* case, the agency is given an opportunity to  prove, by clear and convincing evidence, that it would have taken the same  personnel action in the absence of the protected disclosure.
  5 U.S.C. § 1221(e)(2); *Fellhoelter      v. Department of Agriculture*, 568  F.3d 965, 970-71 (Fed. Cir. 2009); *Schnell  v. Department of the Army*, 114  M.S.P.R. 83, ¶ 18 (2010).  *Clear and convincing evidence* is that  measure or degree of proof that produces in the mind of the trier of fact a  firm belief as to the allegations sought to be established; it is a higher  standard than preponderant evidence.
  5  C.F.R. § 1209.4(d).  If the  agency fails to demonstrate that it would have taken this action in the absence  of the disclosure, then the employee prevails.  *See also* www.mspb.gov/appeals/whistleblower.htm.
  ***How  do I raise a section 2302(b)(8) claim in the context of an Individual Right of  Action (IRA) appeal?***
    The  Board has jurisdiction over an IRA appeal when an *employee*, *former employee*,  or *applicant* for Federal employment  demonstrates that he or she has exhausted administrative remedies before the Office of Special Counsel (OSC)  and makes nonfrivolous allegations that:  (1) he or she engaged in whistleblowing  activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8);  and (2) the disclosure was a contributing factor in the agency’s decision to  take or fail to take, or threaten to take or fail to take, a personnel action  covered by section 2302.  *Yunus v. Department of Veterans Affairs*, 242 F.3d  1367, 1371 (Fed. Cir. 2001).  *See also* www.mspb.gov/appeals/whistleblower.htm.
  ***How  do I exhaust my administrative remedies before OSC?*** 
    To  meet the exhaustion requirement, the appellant must prove by preponderant  evidence that he or she filed a complaint with OSC and provided OSC with a  sufficient basis to pursue an investigation which might have led to corrective  action.  The MSPB’s jurisdiction in an  IRA appeal is limited to issues the appellant raised before OSC.  *Briley  v. National Archives & Records Administration*, 236  F.3d 1373, 1377 (Fed. Cir. 2001); *Ellison  v. Merit Systems Protection Board*, 7  F.3d 1031, 1036 (Fed. Cir. 1993).  The  Board will only consider the actual claims the appellant made to OSC in the  complaint and not the individual’s later characterization of those statements  before the Board.  *Covarrubias v. Social Security Administration*, 113  M.S.P.R. 583, ¶ 13 (2010).  *See also* www.mspb.gov/appeals/whistleblower.htm.
  ***Are  there any time limits for filing a section 2302(b)(8) claim with MSPB?*** 
    Yes.  When the appellant raises a whistleblower  retaliation claim (affirmative defense) in the context of an *otherwise appealable action*, he or she  must file an MSPB appeal no later than 30 days after the effective date of the  agency’s action, or 30 days after the date of the appellant’s receipt of the  agency’s decision from the action, whichever is later.
  5  C.F.R. § 1201.22(b).  In  contrast, when the appellant raises a whistleblower claim in the context of an *IRA appeal*, the appeal must be filed  within 65 days after the date OSC notifies the appellant in writing that it is  terminating its investigation into the appellant’s allegations or, if no action  is taken by OSC within 120 days of the date the individual filed their  complaint with OSC, at any time after 120 days have passed.  5 U.S.C. § 1214(a)(3);  5 C.F.R. § 1209.5(a).  *See also* www.mspb.gov/appeals/whistleblower.htm.
  ***If  I establish that MSPB has jurisdiction over my section 2302(b)(8) claim as an  IRA, how do I prevail?***
    Once  an employee, former employee or applicant for Federal employment demonstrates that  the Board has jurisdiction over his or her IRA appeal, the appellant will  prevail if:  (1) he or she proves by  preponderant evidence that he or she made a protected disclosure that was a  contributing factor in a personnel action at issue; and (2) the agency  fails to prove, by clear and convincing evidence, that it would have taken the  same personnel action in the absence of the protected disclosure.
  An  appellant is not required to prove the merits of their protected  disclosure.  Rather, the appellant must  establish only that he or she had a reasonable belief that he or she was  disclosing gross mismanagement, a gross waste of funds, an abuse of authority, a  violation of law, rule, or regulation, or a substantial and specific danger to  public health or safety.   The proper test for determining  whether an employee had a “reasonable belief” that his disclosures revealed  misconduct so as to be protected under the WPA is whether a disinterested  observer with knowledge of the essential facts known to and readily  ascertainable by the employee could reasonably conclude that the actions of the  government evidence wrongdoing as defined by the WPA.  *See Downing  v. Department of Labor*, 98  M.S.P.R. 64, 69-70 (2004).  *See also* www.mspb.gov/appeals/whistleblower.htm.
  ***If  I prevail on a claim that an agency violated section 2302(b)(8), what type of  corrective action may MSPB order?***
    If  an appellant prevails on a 2302(b)(8) whistleblower  claim, MSPB may, depending on the circumstances, order:  (1) that the agency place the individual in  the position the individual would have been in had the prohibited personnel  practice not occurred; (2) back pay and related benefits; (3) medical costs  incurred; (4) travel expenses; (5) any other reasonable and foreseeable  consequential damages; and (6) attorney fees and costs.  5 U.S.C. § 1221(g).
  ***Are  there any recent decisions of note by the courts or MSPB that address this PPP?***
    There are too many to discuss  in this brief article, but here are two examples.
    Although the Board’s case law  states that disclosure of information that is publicly known is not a  disclosure under the WPA, the Board qualified this requirement when it held  that if an employee’s disclosure adds “additional information necessary to  recognize” the nature or seriousness of a publicly known problem, and this is  information the public would not have otherwise had, then the disclosure is  protected under the WPA.  *Wadhwa  v. Department of Veterans Affairs*, 110  M.S.P.R. 615, ¶ 9 (2009).
  For many years, the Board and  the courts found the WPA did not protect disclosures regarding policy disputes  where “reasonable people” might disagree over the merits of a given  policy.  *See, e.g.,  White v. Department of the Air Force*, 391  F.3d 1377, 1382 (Fed. Cir. 2004).  In effect, a policy disagreement  can serve as the basis for a protected disclosure only if the legitimacy of a  particular policy is not debatable among reasonable people.  Nevertheless,  the U.S. Court of Appeals for the Federal Circuit has refined and clarified  this legal principle to the effect that the WPA’s protection now covers  disclosures about policy, even where reasonable people might disagree on the  merits of that policy, when the policy concerns a substantial and specific  danger to public health or safety.  *Chambers  v. Department of the Interior*, 515  F.3d 1362, 1368-1370 (Fed. Cir. 2008); *see  also Chambers v. Department of the Interior*, 116  M.S.P.R. 17, ¶¶ 16-24 (2011)
  ***Has  MSPB studied this practice?***
    Yes, MSPB most  recently studied this prohibited personnel practice in its November, 2011  report, *Blowing  the Whistle:  Barriers to Federal  Employees Making Disclosures*. This report discusses results from MSPB’s  2010 Merit Principles Survey regarding perceptions related to whistleblowing  and provides a comparison to the results of a similar survey MSPB conducted in  1992.
  Data from these  surveys indicate that since 1992, the percentage of employees who perceive any  wrongdoing has decreased.  However,  perceptions of retaliation against those who blow the whistle remain a serious  concern.  In both 1992 and 2010,  approximately one-third of the individuals who felt they had been identified as  a source of a report of wrongdoing also perceived either threats or acts of  reprisal, or both.
  Our survey data  indicate that the most important factor for employees when deciding whether to  report wrongdoing is not about the personal consequences employees may  experience.  Saving lives was more  important to survey respondents than whether they would experience punishment  or a reward.  In addition, whether the  agency would act on a report of wrongdoing mattered more than any fear of an  unpleasant consequence for the employee making the report.  This means that agencies have the power to  influence employees’ decisions about reporting wrongdoing.  The most important step that agencies can take  to prevent wrongdoing may be the creation of a culture that supports  whistleblowing.
  *Other MSPB reports that discuss this*prohibited personnel  practice include *Whistleblower  Protections for Federal Employees*(2010) and *Prohibited  Personnel Practices: Employee Perceptions* (2011).  *All MSPB study reports can be  found at www.mspb.gov/studies.*


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