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U.S. Merit Systems Protection Board
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    Merit System Principles
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    Search & Site Index Merit System Principle 9:   Whistleblower Protection
	"Employees should be protected against reprisal for  the lawful disclosure of information which the employees reasonably believe  evidences— 
    (A) a violation of any law, rule, or regulation, or (B) mismanagement, a gross  waste of funds, an abuse of authority, or a substantial and specific danger to  public health or safety."

	**What  is the intent behind the ninth Merit System Principle?**
The intent of this principle is to protect whistleblowers against  reprisal when they disclose wrongful conduct in an attempt to create a more  effective civil service.  Whistleblowers  help to create an effective civil service because they often are in the best  position to witness agency wrongdoing.  Without  their disclosures, wrongdoing might go unchecked.  One of the first pieces of legislation to  recognize the value of whistleblowers was the False Claims Act of 1863, which sought  to protect the U.S. Government against rampant fraud from unscrupulous  suppliers during the Civil War by offering a percentage of the recovered  damages to people who disclosed such fraud.   Nevertheless, nothing in the False Claims Act specifically protected  Federal employees from whistleblower reprisal.
    In 1912, Congress enacted the Lloyd-LaFollette  Act, which gave Federal employees certain statutorily defined minimum rights in  the event that their employing agencies sought to remove them from the civil  service.  This legislation can now be  seen as a forerunner to laws that Congress later passed because it was the  first to protect whistleblowers.  During  a Congressional debate regarding this legislation, Senator LaFollette noted an  example of the type of abuse the law sought to correct:  the Government had removed a Federal employee  from the civil service after he had disclosed to the press the unsanitary and “simply  horrible” conditions at the Chicago Post Office.
    In its next significant legislation  affecting Federal whistleblowers, Congress passed the Civil Service Reform Act  of 1978, which, among other things, attempted to protect Federal whistleblowers  by giving them an appeal right to the Merit Systems Protection Board (MSPB) when  they suffered reprisal for disclosing specific types of wrongdoing.  This was the first time that Congress  expressly recognized the need of Federal employees to be protected against reprisal  for disclosing the wrongdoing of their employers.  Nevertheless,  various studies showed that Federal employees were still reluctant to bring  their employer’s wrongdoing to light due to fear of reprisal.For example, findings from one of these studies  showed that 45% of all surveyed Federal employees knew of at least one incident  of illegal or wasteful activity within the past 12 months, that 70% of them  chose not to report it, and that about one-fifth of that number cited fear of  reprisal as their reason for remaining silent.
    Congress thereafter revisited the issue and passed the Whistleblower  Protection Act of 1989 (WPA), which – unlike the broader Civil Service Reform Act  – was specifically tailored to help Federal employees who jeopardized their careers  by making whistleblower disclosures in the public interest.   The purpose of the WPA is to:  [S]trengthen and improve protections for the rights  of federal employees, to prevent reprisals, and to help eliminate wrongdoing  within the government by (1) mandating that employees should not suffer adverse  consequences as a result of prohibited personnel practices; and (2)  establishing  that while disciplining those who commit prohibited  personnel practices may be used as a means by which to help accomplish that  goal, the protection of individuals who are the subject of prohibited personnel  practices remains the paramount consideration.
    **Whistleblower Protection Act § 2(b).**
    Congress found that protecting  employees in this way would be a “major step” toward a more effective civil  service and would serve the public interest by assisting in the elimination of  fraud, waste, abuse, corruption, illegality, and unnecessary Government  expenditures.  Whistleblower Protection  Act § 2(a).  Together with the provisions  of the Civil Service Reform Act, the WPA makes it possible for MSPB to hear and  take corrective action over a broad range of whistleblower appeals.
    **What  is whistleblowing?**
      Whistleblowing  occurs when an employee makes a specific and detailed allegation of instances  of wrongdoing.  Under the WPA, employees  are protected when they make allegations of wrongdoing by disclosing a  violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of  authority, or a “substantial and specific danger” to public health or  safety.  Merit principle 9 refers to  “mismanagement” rather than “gross mismanagement” and to “an absence of  authority” rather than to an “abuse of authority.”  The cases do not focus on these small  differences, however.
    **How does MSPB protect whistleblowers?**
      Unlike many of the Merit  System Principles, for which there is no specific law or regulation that allows  an affected employee to appeal a violation, MSPB can order an agency to take corrective  action for whistleblower retaliation.   This would require an agency to place the whistleblower, as nearly as  possible, in the position the individual would have been in had the prohibited  personnel practice not occurred.  The MSPB  can even award the whistleblower back pay and certain reasonable and  foreseeable consequential damages such as medical costs and travel expenses.  In some cases, it may also award attorney  fees. More recently, with the enactment of  the Whistleblower Protection Enhancement Act of 2012 (WPEA), the Board was also  authorized to award compensatory damages.
    However, only  whistleblowers who legally fall within MSPB’s jurisdiction may seek such  relief.  The WPA allows a whistleblower  who has suffered reprisal to appeal a personnel action that is not normally  appealable if he or she first files a complaint with the Office of Special Counsel (OSC) and exhausts his  or her administrative remedy with OSC.  An individual who is challenging an action  that is already directly appealable to MSPB (e.g., a removal or suspension for  more than 14 days) may raise his or her whistleblowing activity as an  affirmative defense to that action.
    **Are there any decisions of note by the courts or MSPB  that address the ninth Merit System Principle?**
      The Board and  the Federal Circuit have issued many decisions under the whistleblower  law.  The WPEA has superseded some of these  decisions that addressed certain requirements of the WPA such as the limits of  a “protected disclosure.” Nonetheless, the decisions establishing the basic  requirements for bringing a whistleblower appeal of a matter that could not be  appealed to the Board on its own, *Yunus  v. Department of Veterans Affairs*, 242 F.3d 1367 (Fed. Cir. 2001), and *Rusin v. Department of the Treasury*, 92  M.S.P.R. 298 (2002), remain good law, applicable to every such case, known as  an individual right of action (IRA) appeal.   Going beyond such requirements to the merits issues, one example of a  decision finding whistleblower retaliation and awarding corrective action is *Chambers v. Department of the Interior*,  116 M.S.P.R. 17 (2011).  New  whistleblower decisions are being issued every day in the Board’s regional and  field offices, which issued  400 of them in  FY 2015 alone.  During that same period, the Board members  decided 88 on  petition for review.
    **Has the MSPB studied issues related to whistleblower protections?**
The MSPB has published several studies tracing the effectiveness, challenges, and successes of whistleblowers in the Federal service. A 2011 report, Blowing the Whistle: Barriers to Federal Employees Making Disclosures, examined trends in employee perceptions of wrongdoing and reprisal focused on the challenges that a whistleblower must face in order to prevail on his or her claim. Whistleblower Protections for Federal Employees (2010) cautioned that it is critical for a whistleblower to know precisely what must be proven in order to prevail on his or her claim, as any criteria found lacking will strip the MSPB of jurisdiction over the appeal.  The report describes these criteria as they were in 2010 and explains what constitutes wrongdoing, how disclosures must be reported, what qualifies as reprisal or retaliation, and what other important issues must be considered in a whistleblower claim.
    **Where can I go to learn more about whistleblowing  and the MSPB?**
      In addition to the MSPB studies, we  have other helpful information, such as “**Questions and Answers About Whistleblower Appeals,”**available online at https://www.mspb.gov/appeals/whistleblower.htm.  It describes the appeal process for  whistleblowing cases in an easy-to-follow format.


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