Whistleblower Protection: Additional Actions Would Improve Recording and Reporting of Appeals Data
Published: 2016-11-28T00:00:00

Fast Facts:
How can we better protect federal whistleblowers?
The Whistleblower Protection Enhancement Act of 2012 seeks to strengthen the rights of and protections for federal whistleblowers.
We found that the Merit Systems Protection Board—which rules on whistleblower appeals—received more of these appeals after the act was enacted. We also found weaknesses in their recording and reporting of these appeals.
We recommended that MSPB update its data entry user guides and add a quality check to ensure accurate reporting of whistleblower appeals.

Highlights:
section_title: Why GAO Did This Study
paragraphs: Federal employee whistleblowers—individuals who report violations of law or certain agency mismanagement— may risk reprisals from their agencies. WPEA seeks to strengthen the rights of and protections for federal whistleblowers.
WPEA includes a provision for GAO to report on the law's implementation. This report (1) describes changes in the number of whistleblower reprisal appeals filed with MSPB, as well as the outcome of appeals, since WPEA's effective date; (2) provides subject matter specialists' views about granting MSPB summary judgment authority for whistleblower cases; and (3) provides subject matter specialists' views about granting jurisdiction for a subset of whistleblower appeals to be decided by a district court of the United States.
GAO obtained data from MSPB on whistleblower appeals received and closed from fiscal years 2011 through 2015. This period begins approximately 2 years prior to WPEA's effective date of December 27, 2012, and continues through the end of fiscal year 2015. GAO also conducted six focus groups with subject matter specialists that include whistleblower advocates and agency labor relations officials.
section_title: What GAO Found
paragraphs: Of the two types of whistleblower appeals—individual right of action (IRA) and otherwise appealable action (OAA)—Merit Systems Protection Board (MSPB) data show higher numbers of IRA appeals received by MSPB after enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA). In an IRA appeal, an individual has been subject to a personnel action, such as a reassignment, and claims the action was reprisal for whistleblowing. In contrast, the number of OAA appeals decreased after WPEA. In an OAA appeal, an individual has been subject to an action directly appealable to MSPB, such as a demotion, and claims that the action was taken because of whistleblowing. WPEA, among other things, clarified the scope of protected disclosures which may have contributed to a higher number of IRA appeals. WPEA did not alter MSPB's jurisdiction over OAAs.
MSPB has taken steps to collect and report whistleblower appeals data. GAO identified a number of weaknesses in MSPB's data collection. Some were due to shortcomings in data coding that resulted in over reporting appeals closed. Further, MSPB has not updated its data entry user guides to reflect new reporting requirements nor has it instituted checks to ensure data accuracy, which are inconsistent with internal control standards.
Subject matter specialists varied in their opinions about the benefits of granting summary judgment authority—a procedural device used when there is no dispute as to the material facts of the case—to MSPB. Benefits cited included a more efficient process; but negatives included the loss of a whistleblower's right to a hearing. Similarly, the specialists provided a mix of opinions about granting jurisdiction for cases to U.S. District Courts. A benefit cited was access to a jury trial, while a negative cited was the increased workload of the courts.
section_title: What GAO Recommends
paragraphs: GAO recommends that MSPB help ensure the accuracy of its reporting on whistleblower appeals received and closed by (1) updating its data entry user guide to include additional guidance and procedures, and (2) adding a quality check in its data analysis and reporting process to better identify discrepancies. MSPB agreed with these recommendations.

section_title: Letter
paragraphs: Federal employee whistleblowers—individuals who report violations of  law, or certain agency mismanagement or ethical violations—potentially  help to safeguard the federal government against waste, fraud, and  abuse, and their willingness to come forward may contribute to  improvements in government operations. However, these whistleblowers  also may risk reprisals from their agencies for their disclosures and may  sometimes be demoted, reassigned, or fired as a result. Federal laws are  in place to help protect federal employees from workplace reprisal for  whistleblowing. Over the years, the courts have narrowly interpreted  these laws as to the type and recipient of the disclosure that qualifies for  whistleblower protection.
The Whistleblower Protection Enhancement Act of 2012 (WPEA) amends  federal personnel law to, among other things, clarify the breadth of  disclosures that are afforded protection, expand the right to bring reprisal  claims for certain protected activities, and enhance the remedies  available to federal whistleblowers who have suffered retaliation. WPEA  also required, for the first time, the Merit Systems Protection Board  (MSPB), an independent, quasi-judicial agency that serves as the  guardian of federal merit systems, to track and report information in its  annual performance reports about the number of whistleblower reprisal  appeals filed, as well as the outcome of such appeals. In addition, WPEA  requires us to report on the implementation of the law.
Our objectives were to (1) describe changes in the number of  whistleblower reprisal appeals filed with MSPB, as well as the outcome of  appeals, since WPEA’s effective date, including whether or not MSPB,  the United States Court of Appeals for the Federal Circuit, or any other  court determined the appeal allegations to be malicious or frivolous; (2)  provide subject matter specialists’ views about granting MSPB summary  judgment authority for whistleblower cases; and (3) provide subject matter  specialists’ views about granting jurisdiction for some subset of  whistleblower appeals, to be decided by a district court of the United  States, and its potential impact on MSPB and the federal court system.
To address the first objective, we requested and obtained data from  MSPB on all whistleblower reprisal appeals filed and all whistleblower  reprisal appeals closed in fiscal years 2013 through 2015. This period  includes the effective date of WPEA and continues through the end of  fiscal year 2015. We also requested and obtained data from MSPB on  whistleblower reprisal appeals filed during fiscal years 2011 and 2012 to  identify changes, if any, in the number of whistleblower reprisal appeals  filed before and after WPEA. We reviewed the data provided by MSPB  and relevant MSPB documents, including data entry guidelines and  annual reports, to help us further understand the data. We did a keyword  search using Lexis Nexis to determine if the U.S. Court of Appeals for the  Federal Circuit or any other appeals court had concluded that a  whistleblower reprisal appeal from MSPB was “malicious” or “frivolous.”  To supplement the documentary evidence obtained, we interviewed  MSPB officials regarding whistleblower reprisal appeals and the potential  impact of WPEA. Although MSPB has jurisdiction for other appeals, we  evaluated only information related to the whistleblower reprisal appeal  process.
To assess the reliability of the data on whistleblower reprisal appeals  MSPB provided to us, we compared it to the whistleblower data MSPB  reported in its annual performance reports. We identified various  discrepancies which we discussed with MSPB staff and discuss in this  report. We also reviewed related documentation and interviewed MSPB  officials. We corrected the data for these discrepancies based on our  discussions with MSPB staff before conducting our analysis. After making  these adjustments, the whistleblower appeals data from MSPB were  sufficiently reliable to provide a general indication of a change in the  numbers of appeals received and closed post WPEA.
To address the second and third objectives, in July 2016 we conducted  six focus groups made up of whistleblower protection subject matter  specialists that included advocates from whistleblower advocacy  organizations; representatives of federal agency labor relations, human  capital, and legal offices; a national labor union representative; and  private sector attorneys to obtain their views for and against granting  MSPB summary judgment and for and against granting jurisdiction to U.S.  District Courts for whistleblower cases. We then analyzed and  summarized responses from focus group participants. To identify and  select subject matter specialists, we relied on our own research, as well  as suggestions from MSPB, the Office of Special Counsel (OSC), and the  Equal Employment Opportunity Commission (EEOC). Additionally, we  solicited input from MSPB and the Administrative Office of the U.S.  Courts to obtain their opinions on how they might be impacted if  Congress granted jurisdiction to the U.S. District Court for whistleblower  cases.
We conducted this performance audit from January 2016 to November  2016 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: The Civil Service Reform Act of 1978 (CSRA) provided the first  whistleblower protections for disclosures of, among other things,  violations of laws, mismanagement, or gross waste of funds for federal  employees, former employees, and applicants for employment. The act  established both MSPB and OSC and placed OSC within MSPB. OSC  was tasked with investigating allegations of prohibited personnel practices  (PPP), obtaining corrective actions for employees subjected to PPPs, and  initiating disciplinary action against civilian government officials who  commit PPPs, among other things.
Thereafter, Congress passed the Whistleblower Protection Act of 1989 to  strengthen protections for those who claim whistleblower retaliation. This  act separated OSC from MSPB, making OSC an independent agency.  The Whistleblower Protection Act also created the individual right of  action (IRA), allowing whistleblowers to bring their appeals to MSPB after exhausting remedies at OSC. Congress further expanded whistleblower  protections in 1994 when it made additional personnel actions subject to  coverage and extending whistleblower protections to employees of  government corporations and to employees in the Veterans Health  Administration (VHA).
On November 27, 2012, the President signed WPEA into law. WPEA  clarified the scope of protected whistleblowing under the  Whistleblower Protection Act; expanded the ability to bring IRA appeals for certain protected activity; provided the authority to award compensatory damages; afforded whistleblower protections to all Transportation Security  Administration (TSA) employees; and mandated broader outreach to inform federal employees of their  whistleblower rights.
OSC and MSPB are the two primary agencies in the executive branch to  which federal employees, former employees, or applicants for  employment in the federal government go with whistleblower reprisal  claims. OSC investigates PPP complaints with respect to a broad range  of personnel actions, including appointments, promotions, details,  transfers, reassignments, and decisions concerning pay, benefits,  awards, and certain decisions concerning education or training. MSPB is  an independent, quasi-judicial agency that serves the interests of prompt,  procedurally simple dispute resolution. MSPB carries out its statutory  responsibilities and authorities primarily by adjudicating individual  employee appeals and by conducting merit systems studies.
MSPB has jurisdiction over claims made by whistleblowers in two types of  appeals—an Individual Right of Action (IRA) appeal and an Otherwise  Appealable Action (OAA) appeal. A significant difference between the  two types is in how they reach MSPB. In the first type of appeal—an  IRA—the individual is subject to a personnel action, such as a reassignment with no reduction in pay or grade, and claims that the action  was taken because of whistleblowing or other covered protected activity,  but the action need not be one that is directly appealable to MSPB.  Examples of the personnel actions that can be raised in an IRA appeal  include an appointment, a reassignment, and a performance appraisal. In  this kind of case, the individual can appeal to MSPB only if he or she files  a complaint with OSC first and OSC does not seek corrective action on  the individual’s behalf. In the second kind of case—an OAA—the  individual is subject to a personnel action that is directly appealable to  MSPB, such as a removal, demotion, or suspension of more than 14  days, and the individual claims that the action was taken because of  whistleblowing. In this kind of case, the individual may file an appeal  directly with MSPB after the action has been taken. In such an appeal, if  the employee proves that MSPB has jurisdiction over the appeal, then  both the appealable matter and the claim of reprisal for whistleblowing will  be reviewed.
IRAs and OAAs must be filed with one of MSPB’s regional or field  offices. Once MSPB receives an appeal, it is then docketed in MSPB’s  Case Management System and assigned to an administrative judge who  issues an acknowledgment that the appeal has been received, orders the  agency to file a response to the appeal, and determines whether or not  MSPB has jurisdiction over the appeal. If the administrative judge  determines that MSPB has jurisdiction, the administrative judge will then  conduct a hearing (if requested by the employee), consider the evidence,  and issue an initial decision. That decision may be appealed to the three- Member Board of MSPB on a petition for review. According to MSPB, the  Board members review initial decisions in much the same way that  appellate courts review the decisions of trial courts. Thus, petition for  review outcomes are the decisions of the Board and it may issue a  decision that affirms, reverses, modifies, or vacates, in whole or in part,  the initial decision. The Board may also send back the appeal to the  administrative judge for further review. An employee also may appeal  either the initial decision (which becomes the final decision if neither party  files a timely petition for review), or the petition for review decision, to a  U.S. Court of Appeals.
section_title: MSPB’s Data Show a Higher Annual Number of Whistleblower Appeals Post WPEA; but Weaknesses Exist in MSPB’s Recording and Reporting Processes
subsections: section_title: MSPB Data Show a Higher Annual Number of Post-WPEA IRA Appeals, but a Lower Annual Number of OAA Appeals
paragraphs: MSPB data show the agency received a total of 1,213 IRA appeals for  whistleblower reprisal claims for fiscal years 2013 through 2015. As  shown in figure 1, our analysis of MSPB data shows the agency received  a higher number of IRA appeals in the 3 fiscal years after WPEA was  enacted than in the 2 years prior to WPEA. MSPB data show that it  received 461 IRA appeals in fiscal year 2013, 360 in fiscal year 2014, and  392 in fiscal year 2015. MSPB data show that it received 261 IRA  appeals in fiscal year 2011 and 268 IRA appeals in fiscal year 2012. As  discussed earlier, IRA cases often involve personnel actions that are not  directly appealable to MSPB, thus employee whistleblowers can only  bring an IRA appeal to MSPB if they first filed a complaint with OSC and  OSC did not seek corrective action on their behalf.
Conversely, MSPB’s data show that it received lower annual numbers of  OAA appeals with whistleblower reprisal claims post WPEA. MSPB data  show the agency received a total of 629 OAA appeals for fiscal years  2013 through 2015. While WPEA clarified the scope of protected  disclosures and expanded the individual right of action appeal for certain  other protected activities, the act did not alter MSPB’s jurisdiction over  OAAs. As described earlier, for an OAA, the employee alleges  whistleblowing as an affirmative defense to the adverse agency action,  but the action was one that could be appealed to MSPB even without  whistleblowing. Therefore, WPEA may not have necessarily impacted the  number of OAAs filed with MSPB. MSPB’s data show it received 266  OAA appeals in fiscal year 2013, 173 in fiscal year 2014, and 190 in fiscal  year 2015, compared to 292 in fiscal year 2011 and 294 in fiscal year  2012.
section_title: Several Aspects of WPEA May Account for Changes in the Number of Whistleblower Appeals
paragraphs: As previously described, WPEA, among other things, clarified the scope  of protected disclosures, afforded whistleblower protections to all  Transportation Security Administration (TSA) employees, expanded IRA  appeals rights, and mandated broader outreach to inform federal  employees of their whistleblower rights. Each of these may have  contributed to a higher number of appeals filed. For example, earlier court  decisions had determined that the following disclosures were not  protected: disclosures made to the alleged wrongdoer, disclosures made  as part of an employee’s normal job duties, and disclosures of information  already known. WPEA clarified that each of these disclosures does not  lose whistleblower protection due to the nature of the disclosure. In  addition, WPEA extended whistleblower protections to the approximately  60,000 TSA employees who were not previously afforded whistleblower  protection. WPEA also expanded the IRA for reprisals for certain other  protected activities, including filing a whistleblower appeal, cooperating  with an inspector general or OSC investigation, or refusing to obey an  order that would require the employee to violate a law. Another possible  factor for the higher number of appeals may be that employees are more  knowledgeable post WPEA about the whistleblower protection process  because of the requirement under WPEA for each agency to designate a  whistleblower protection ombudsman to educate agency employees  about prohibitions on retaliation, and rights and remedies against  retaliation, for protected disclosures.
According to MSPB officials, MSPB is not in a position to know why the  number of OAAs filed with MSPB decreased post WPEA; however they  provided a number of factors that could have contributed to the lower  numbers.  They told us that agencies that furloughed large numbers of  employees as a consequence of government sequestration in fiscal year  2013 were likely devoting significant resources to defending furlough  appeals before MSPB during fiscal year 2014. MSPB officials explained  that some agencies may have taken fewer adverse actions during fiscal  year 2014 in light of the resources devoted to furlough appeals. MSPB  officials indicated that the government-wide shutdown in October 2013,  and the resulting disruption to agencies’ operations, may have also  caused some agencies to take fewer adverse actions during fiscal year  2014. The officials said that another possible explanation for the reduction  in OAAs is that employees with MSPB appeal rights might have elected to  challenge appealable actions in other ways, such as by filing a grievance  or an equal employment opportunity or OSC complaint.  According to  MSPB officials, such matters could still eventually come before MSPB.  For example, if the employee files a complaint with OSC, the employee  may file with MSPB once OSC has terminated its investigation or 120  days after the complaint was filed with OSC if OSC has not notified the  employee that it will seek corrective action.
section_title: Ten Agencies Accounted for More than One-Third of the Total Number of IRA and OAA Appeals Filed from Fiscal Years 2013 through 2015
paragraphs: Employees from 10 agencies accounted for more than one-third of the  IRA and OAA appeals filed with MSPB during fiscal years 2013 through  2015. As shown in table 1, employees from these 10 agencies filed 636 of  the total 1,842 IRA and OAA appeals received by MSPB during this  period. Employees in the Department of Veterans Affairs’ (VA) Veterans  Health Administration (VHA) filed the most whistleblower appeals with  MSPB, a total of 290 OAA and IRA appeals combined, followed by  employees at: VA (excluding VHA) (54 appeals); the Department of the  Army’s Army Medical Command (50 appeals); DHS’s Bureau of  Immigration and Customs Enforcement (40 appeals); DHS’s TSA (38  appeals); and the Social Security Administration (38 appeals).
section_title: More Than Half of All Whistleblower Appeals in Fiscal Year 2013 through Fiscal Year 2015 Were Closed Without Adjudication on the Merits
paragraphs: MSPB data show that the majority of IRA appeals closed from fiscal years  2013 through 2015 were dismissed, settled, or withdrawn and not  adjudicated on the merits (see sidebars). As shown in figure 2, nearly half  of these appeals—41 percent overall—were dismissed because MSPB  determined either the appeal was untimely or the action alleged by the  employee whistleblower was outside MSPB’s jurisdiction. For example,  an administrative judge would dismiss the appeal if the employee  whistleblower alleges reprisal because of a disclosure of a violation of  agency policy, as this is not a protected disclosure under section 2302.  Only a small percentage of IRA appeals—15 percent of the total appeals  closed during the 3 fiscal years—advanced further in the appeals process  where the cases were adjudicated on the merits, meaning the employee  had the opportunity to present his or her case to the administrative judge.
Of the 221 IRA appeals closed during fiscal year 2013, a total of 137  appeals (or 62 percent) were dismissed. Of the remaining 84 appeals,  26 (or 12 percent) were withdrawn by the employee, and 38 appeals (or  17 percent) were settled between the employee and the agency. The  remaining 20 appeals (or 9 percent) were adjudicated by MSPB on the  merits of the appeal.
Settled  According to MSPB officials, the agency  encourages employees filing appeals to settle  with their respective agencies before the case  goes to a hearing. Parties may settle for many  different reasons. Generally, officials cannot  assess why certain appeals settle and others  do not.   MSPB officials also say that the agency has  trained and certified mediators as part of its  free Mediation Appeals Program (MAP). MAP  facilitates a discussion between the employee  and his or her respective agency to help  identify issues to resolve disputes. Such steps  may help settle the appeal quickly,  economically, and to the benefit of both  parties. However, both parties must agree to  its use before the appeal will be accepted for  MAP. Also, both must agree on its resolution  before any settlement is concluded. Unlike the  traditional appeal process, the parties control  the result of the case under the guidance of  the mediator. The mediator plays no role in  deciding the appeal should an accord not be  reached.
More than half of all OAA appeals received by MSPB during fiscal years  2013 through 2015 were dismissed (see figure 3). According to MSPB  officials, OAA appeals are dismissed without addressing the merits of the  whistleblower claim for a variety of reasons including the appeal falling  outside of MSPB’s jurisdiction, timeliness, or because the individual made  a binding election to proceed with his or her claim in another manner,  such as filing a grievance under a negotiated grievance procedure.
section_title: Number of IRA Appeals Granted Corrective Action by MSPB Increased from Fiscal Year 2013 through Fiscal Year 2015
paragraphs: MSPB data show that the number of IRA appeals increased that were  timely, were within MSPB’s jurisdiction, and were neither withdrawn nor  settled by the employee, and were therefore adjudicated on the merits. In  fiscal year 2013, 20 IRA appeals were adjudicated on the merits (see  figure 4). This number increased to 50 IRA appeals in fiscal year 2014  and 56 IRA appeals in fiscal year 2015. MSPB officials stated that, post  WPEA, it is now more likely that an IRA appeal would be adjudicated on  the merits because WPEA expanded through clarification the universe of  disclosures that were considered protected. Additionally, according to  MSPB officials, under the Board’s decision in Day v. DHS, 2013 M.S.P.B.  49, appeals pending on the effective date of the act that would have been  dismissed prior to WPEA were ruled to be within MSPB’s jurisdiction.
Corrective action was granted in 1 IRA appeal in fiscal year 2013. This  number increased to 5 IRA appeals in fiscal year 2014, and 14 IRA  appeals in fiscal year 2015. MSPB’s data do not identify what specific  corrective action was granted for each appeal. Corrective action is  ordered in any appeal if the employee has demonstrated that (1) he or  she made a protected disclosure; (2) the agency has taken or threatened  to take a personnel action against him or her; and (3) his or her protected  disclosure was a contributing factor in the personnel action. All three  elements must be present for MSPB to find for corrective action. MSPB  will not order corrective action if, after a finding that a protected disclosure  was a contributing factor, the agency demonstrated by clear and  convincing evidence that it would have taken the same personnel action  in the absence of such disclosure. Corrective action for a PPP violation  may include reinstatement, back pay (lost wages), medical costs,  compensatory damages, any other reasonable and foreseeable  consequential damages, and attorneys’ fees and costs.
MSPB granted corrective action to few OAA appeals that were  adjudicated on the merits during fiscal years 2013 through 2015 (see  figure 5). In approximately one-third of all OAA appeals that were  adjudicated on the merits, MSPB determined that the agency would have  taken the same action.
section_title: Neither MSPB nor Other Courts Specified Whether Whistleblower Reprisal Allegations Were Deemed Malicious or Frivolous
paragraphs: We did not identify any cases where MSPB or any courts determined the  allegations of reprisal in the appeals to be malicious or frivolous.  Generally, MSPB, the Federal Circuit, and other courts do not make  determinations on the intent, or the reason for, an employee filing a  whistleblower claim. MSPB officials told us that because administrative  judges do not use the term “malicious,” it would be unlikely that we would  find the term used in appeals’ files or outcomes.
Generally, to establish jurisdiction over an IRA appeal regarding  whistleblowing, an employee whistleblower must prove that he or she  exhausted his or her administrative remedies before OSC and make  nonfrivolous allegations that (1) he or she engaged in whistleblowing  activity by making a protected disclosure and (2) the disclosure was a  contributing factor in the agency’s decision to take or fail to take a  personnel action. If a whistleblower appeal were to be dismissed for lack  of jurisdiction, one of the potential reasons for dismissal could be because  the individual was unable to make a nonfrivolous allegation that he or she  made a protected disclosure or that the disclosure was a contributing  factor in a personnel action. However, MSPB officials stated that  dismissing an appeal on this basis cannot be interpreted as an affirmative  finding that the claim was determined frivolous. Moreover, according to  MSPB officials, MSPB does not track or maintain such information on  potentially frivolous appeals.
section_title: MSPB Has a Process for Capturing Whistleblower Appeals Data; However, Recording and Reporting Errors Occurred
paragraphs: As previously stated, WPEA required MSPB for the first time to include  whistleblower appeals data in its annual performance reports. According  to the act, each report should include, among other things, the number of  appeals received in the regional and field offices and the outcomes  decided. According to MSPB officials, the agency implemented a number  of changes in reporting in response to WPEA. For example, MSPB  created a standard form for appeals that could be used for data collection  throughout its eight regional and field offices. Further, MSPB began  collecting more specific information about the outcomes of whistleblower  appeals post WPEA. Prior to WPEA, for example, MSPB’s Case  Management System only captured that a whistleblower reprisal claim  was not found in an IRA appeal. So, the appeal was adjudicated on the  merits, but without any specific information related to the analysis of the  reprisal issue. Post WPEA, MSPB changed its Case Management  System and began capturing additional information about why corrective  action was not granted in an IRA appeal adjudicated on the merits. This  includes “no protected disclosure found,” “no contributing factor,” or  “agency would have taken same action.”
We found differences between the reported data in MSPB’s annual  performance reports and the whistleblower data MSPB provided to us. In  some cases, the differences between the two sets of data numbered a  few appeals. However, other differences in the numbers were as much as  43 for IRAs received in fiscal year 2013 (MSPB reported 418 in its annual  performance reports, compared to 461 in the data it provided to us) and  64 for IRAs dismissed for timeliness/res judicata/lack of jurisdiction in  fiscal year 2013 (MSPB reported 161 in its annual performance reports,  compared to 97 in the data it reported to us). According to MSPB officials,  in some cases appeals were reported under more than one outcome due  to human error and limitations in the data coding that resulted in over  reporting of appeals closed. In addition, MSPB officials told us the agency  did not save its original queries or datasets used to identify appeals data  received and closed for fiscal year 2013. MSPB recreated these queries  upon our request.
MSPB officials stated that changes to its Case Management System and  new data entry procedures are communicated routinely to appropriate  staff, typically through e-mail and in-person and virtual meetings. MSPB  officials told us that administrative judges were provided additional  guidance on issue coding post WPEA; however, as of September 2016,  MSPB had not updated its Case Management System data entry user  guide in response to WPEA’s reporting requirements and changes in the  required elements of data reporting that may affect data entry. The user  guide, which outlines how appeals should be added and updated, was  last issued in May 2004. Internal controls dictate that if there is a  significant change in an entity’s process, management should review this  process in a timely manner after the change to determine that the control  activities are designed and implemented appropriately. Internal control  standards also dictate that management should periodically review  policies, procedures, and related control activities for continued relevance  and effectiveness in achieving the entity’s objectives or addressing  related risks. By reviewing and updating its data entry user guide for  whistleblower appeals, MSPB may be able to more quickly identify  potential coding errors and provide appropriate guidance.
In reviewing the data provided by MSPB, we identified 156 separate  whistleblower appeals that were reported under more than one outcome.  After reviewing the duplicate entries identified by us, MSPB was able to  identify the single correct outcome for 145 of the 156 cases, and those  145 cases were therefore included in the numbers we analyzed. MSPB  officials indicated that the remaining duplicate entries were the result of  either incorrect coding or unusual outcomes that did not fit comfortably  within any of the enumerated categories. MSPB officials therefore  recommended that those cases not be used for reporting purposes. We  also identified a total of 364 cases that MSPB reported as closed but that  were not included in any of the reported datasets for cases received.  MSPB reviewed each of these cases and found that many of them were  not reported as received because they had been received prior to fiscal  year 2011, the first year for which we requested data. However, MSPB  also found approximately 90 initial appeals that had not been reported.  Those cases have now been added to the appropriate dataset. Internal  controls state that management should process data into information and  then evaluate the processed information so that it is quality information.  By developing a process to identify data discrepancies or other anomalies  in its data queries and the resulting datasets, MSPB may be able to  quickly identify weaknesses overall in its data entry process allowing the  agency to more accurately report the required appeals information.
Congress relies on MSPB’s annual reports on the number of appeals  received and the outcome of appeals alleging violations of whistleblower  protection laws to help examine WPEA’s effectiveness and to identify  unintended consequences of the legislation. MSPB, with improved  reporting processes, has an opportunity to better assist Congress.
section_title: Subject Matter Specialists Said Granting MSPB Summary Judgment Authority Could Create Efficiencies, but Could Also Deny Employee Whistleblowers’ Right to a Hearing
paragraphs: Generally, the subject matter specialists who participated in our focus  groups had mixed views as to whether MSPB’s authority should be  expanded. Some strongly supported expanding MSPB’s authority, while  others strongly opposed it. Focus group participants said that granting  MSPB summary judgment may be advantageous for involved agencies  and MSPB because greater efficiencies may be gained (see sidebar).  However, in doing so, employee whistleblowers could lose their right to a  hearing, which some participants said represents a disadvantage to  employee whistleblowers.
What is summary judgment?   Summary judgment authority is a procedural  device used when there is no dispute as to  the material facts of the case, and a party is  entitled to judgment as a matter of law and the  responsibility of the court.   Who has summary judgment authority?  Other federal adjudicatory bodies, such as the  Equal Employment Opportunity Commission  (EEOC) and the Federal Labor Relations  Authority, have summary judgment authority.  According to EEOC officials we met with,  summary judgment is frequently used at  EEOC as a vetting process to determine  whether or not a hearing will be held after the  record has been developed. They also stated  that summary judgment is used as a case  management tool and its advantages include  eliminating the need for a hearing.
Focus group participants in favor of summary judgment for MSPB stated  that it would be advantageous for involved agencies and MSPB because  it would create greater efficiencies. They said that involved agencies  would not have to engage in an exhaustive, extensive process when the  facts do not warrant it if MSPB had summary judgment authority. One  participant stated that having summary judgment would separate valid  complaints from meritless complaints that may not have any facts in  dispute, such as employees who are shielding themselves from  misconduct they actually committed. Another participant said that  involved agencies would delay making settlement decisions until  summary judgment rulings were made instead of currently settling cases  agencies deemed meritless to save agency resources.
Participants also told us that MSPB could gain greater efficiencies from  summary judgment because it could potentially decrease the number of  appeals for which administrative judges would conduct hearings, thus  allowing administrative judges to issue decisions on additional appeals,  reducing potential backlogs, and resolving cases sooner. As a result,  MSPB could conserve time and resources in the long term. One  participant proposed a 5-year pilot to determine and measure the  efficiency of summary judgment on affected parties.
On the other hand, focus group participants opposing summary judgment  for MSPB said that a motion for summary judgment may not resolve  whistleblower cases any faster because it would require more discovery,  depositions, and documents to establish the disputed facts thereby  creating more prehearing litigation work. In addition, they said that while  MSPB’s current caseload may decrease in the short term, MSPB may  spend more time dealing with appeals of unfavorable summary judgment  decisions. They explained that this could lead to prolonged litigation,  thereby eliminating any potential efficiency gained by MSPB. Participants  also discussed MSPB’s ability to dismiss cases under its jurisdictional  test, noting that this process is like a summary judgment review.  However, one participant distinguished MSPB’s current jurisdictional test  from summary judgment because the jurisdictional test only involves the  whistleblower, not the agency, and only reviews whether the  whistleblower has exhausted his or her administrative remedies and can  establish the jurisdictional requirements for MSPB review. Three  participants pointed out the small number of appeals that are currently  adjudicated on the merits as an example of MSPB’s current efficiency in  using its jurisdictional test. Adding summary judgment authority to MSPB,  according to another participant, would not only be duplicative but would  also create two barriers for a whistleblower’s case to move forward.
Focus group participants not in favor of granting summary judgment to  MSPB also stated that doing so could unfairly erode employee  whistleblowers’ right to a hearing. They explained that the procedural  nature of responding to a summary judgment motion may include legal  technicalities that employee whistleblowers, who choose to represent  themselves without legal counsel, may not understand. Specifically, they  stated that summary judgment may be too complicated a legal tactic to  master for the average employee whistleblower, who may be confused  about the burden needed to overcome a summary judgment motion. For  example, employee whistleblowers may lack legal expertise to properly  complete required paperwork to address the motion for summary  judgment. Conversely, agency attorneys who represent the involved  agencies’ position in whistleblower appeals may be better positioned to  draft sophisticated briefs and well-prepared affidavits to which employee  whistleblowers would be unable to respond—a scenario that focus group  participants believe favors involved agencies.
One participant said that involved agencies already win a majority of the  appeals at MSPB, and if summary judgment were granted, the odds of  employee whistleblowers prevailing against an agency’s motion would be nonexistent. The participant stated that the current process is already an  uneven playing field. Another participant explained that proving retaliatory  intent by the agency for whistleblowing may be too difficult to achieve  where the employee whistleblower must rely on submitting a brief and  documents to support the employee’s allegations rather than a hearing. In  addition, focus group participants cited the additional costs of conducting  discovery as another potential disadvantage for employee whistleblowers.  Conducting discovery includes gathering documentation and conducting  depositions to establish disputed facts in order to draft motions required  for summary judgment.
section_title: Subject Matter Specialists Said Granting U.S. District Courts Jurisdiction Would Increase Overall Caseload, but Would Also Aid Employee Whistleblowers
paragraphs: Focus group participants generally agreed that it would be beneficial for  employee whistleblowers if U.S. District Courts were granted jurisdiction  for whistleblower cases. They said that this would give whistleblowers  access to a jury trial similar to nonfederal employee whistleblowers. One  participant pointed out that a double standard already exists because  corporate whistleblowers can go to district court while federal employee  whistleblowers are unable to do so. Another participant stated that it  would be a good idea to get federal employee whistleblower cases into  district court because the only option typically available to get into federal  court is on appeal to the U.S. Court of Appeals for the Federal Circuit,  which this participant said overwhelmingly upholds the Board’s  decisions. This participant also said that it would be more feasible for  federal employees to go to district court for a full review of their claims  rather than to appeal to the U.S. Court of Appeals for the Federal Circuit,  which has a limited scope of review. Another participant explained that  adding additional procedural options for employee whistleblowers, such  as district court, could help strengthen the law.
While it may be advantageous for employee whistleblowers, participants  also pointed out that allowing U.S. District Courts this jurisdiction could be  a disadvantage to those courts because of the increased overall workload  that would result from having jurisdiction for whistleblower cases.  However, views on the extent to which the court’s workload might  increase were mixed. Participants in favor of district court jurisdiction  stated that there would be a negligible impact because not all employee  whistleblowers would exercise their right to court for a number of reasons.  For instance, they said the relatively high cost of filing and any kick out  provisions that may require employee whistleblowers to wait before filing  in district court may keep the burden on courts low. Two participants  said that the district court would most likely only be used for high-profile  or complex, in-depth proceedings involving scientific questions or  technical cases, and not for all types of whistleblower reprisals. Another  participant said that while district court is slower in resolving cases,  employee whistleblowers could get injunctive relief. Participants against  district court jurisdiction generally concurred that the current MSPB  process is sufficient and efficient and provides employee whistleblowers  with an opportunity for a hearing. They stated that adding the district court  as an option would undermine efficiency because it would create more  backlogs for an already overburdened court system.
Another potential disadvantage cited by focus group participants against  granting jurisdiction to U.S. District Courts was that involved agencies  would have to relinquish control over their cases. Participants told us that  the responsibility for appeals cases would shift from the involved  agencies to the Department of Justice. As a result, the Assistant U.S.  Attorney would be responsible for litigating all whistleblower reprisal  appeals that went to district court while agency counsel would assist. This  could be a potential advantage or disadvantage because involved  agencies would no longer have responsibility for litigating such cases.  One participant said that Assistant U.S. Attorneys would push to settle  whistleblower cases because many of them are already overburdened.  Another participant echoed that Assistant U.S. Attorneys are so busy that  they may be unwilling to devote appropriate attention to whistleblower  cases, in contrast to counsel for involved agencies.
subsections: section_title: Focus Group Participants Identified Two Potential Scenarios and Eligible Appeal Types for U.S. District Court Review
paragraphs: While focus group participants generally agreed that the U.S. District  Courts should be granted jurisdiction for some whistleblower appeals,  they stated that not all cases should be eligible for U.S. District Courts.  However, they differed on which whistleblower appeal cases should be  eligible and at what stage of the process. For instance, participants were  divided on whether all or a subset of whistleblower appeals, such as only  terminations or demotions, should be eligible to be heard in U.S. District  Court.
We asked focus group participants for their input on how the process  could work and what types of appeals should be considered if employee  whistleblowers had the right to file their whistleblower case at the U.S.  District Court. The current process requires employee whistleblowers to  file a claim with either OSC or MSPB, depending on the type of agency  action alleged. If whistleblowers are dissatisfied with the initial decision at  MSPB, they can appeal it to the U.S. Court of Appeals or to MSPB’s  Board through a petition for review. In fiscal year 2015, employee  whistleblowers filed a total of 582 whistleblower reprisal appeals with  MSPB and 95 petitions for review with the Board.
For scope of jurisdiction, the focus group participants primarily proposed  two options as shown in figures 6 and 7.
As shown in figure 6, the first option proposed by focus group participants  would require employee whistleblowers to exhaust all administrative  remedies before permitting them to proceed to district court. In discussing  this option, participants also discussed whether to allow employee  whistleblowers to go to district court after a specified amount of time if no  action is taken by MSPB. One participant highlighted whistleblower  statutes that applied to his agency which included employees’ right of  action to go to district court if a decision was not rendered after a certain  period. However, participants expressed concern that this process would  allow too many “bites of the apple,” or opportunities to appeal, resulting in  inefficiencies because employee whistleblowers could prolong the entire  process by filing claims at district court for a full, de novo review after  receiving adverse MSPB decisions. Using discrimination complaints as  an example, participants explained that complainants can go to district  court at many different points in the process if they choose to do so.
Specifically, complainants have a right to file a civil action in district court  after final agency action or after 180 days of filing a complaint if the  agency has not taken final action, or, after the complainant appeals to  EEOC, after a final EEOC decision or after 180 days from the date of  filing an appeal with EEOC if no final decision has been issued. In  response to the EEOC example, one participant found that there was a  negligible increase of between 0.01 and 0.015 percent of EEOC cases  that went to district courts based on a study conducted by his  organization. Another participant stated that the option for employee  whistleblowers to elect to go to district court was previously proposed in  prior legislation, but with a specified time limit if no action was taken by  MSPB.
As shown in figure 7, the second option proposed by focus group  participants would allow employee whistleblowers to have “one bite of the  apple”—in other words, selecting either MSPB or district court to have  their appeal heard. Participants generally agreed that this would be the  preferred method if employee whistleblowers were permitted to go to  district court. Two participants proposed that the employee whistleblower  should choose between MSPB and district court following OSC’s initial  review. Participants also said that the election of remedies may be more  suitable because employee whistleblowers may choose to go to MSPB  because it does not charge a filing fee and therefore is more affordable  than the court route. Meanwhile, attorney-represented employee  whistleblowers or those with high-profile and complex cases may choose  to bypass MSPB and go to district court.
Finally, participants discussed what types of whistleblower retaliation  should be eligible for district court review. The two proposals discussed  were (1) all whistleblower reprisal appeals, including minor and major  offenses; and (2) only a subset of whistleblower reprisal appeals, such as  the more serious adverse actions. However, participants disagreed on  which whistleblower appeal types should be eligible. One participant  stated that it should not be limited to a subset and that all whistleblower  reprisal appeals should go to district court. On the other hand, those in  favor of having a subset of whistleblower reprisal appeals eligible for court  review stated that only the more severe adverse actions, such as  terminations or demotions, should be allowed. If whistleblower appeals  could go to district court, the statute would need to clearly define what is  eligible for court review. One participant pointed out that none of the  corporate whistleblower statutes have a breakdown of which serious  adverse actions can go to district court versus administrative adjudication.
We solicited input from MSPB and the Administrative Office of the U.S.  Courts to obtain their opinions on how their respective organizations  might be impacted if Congress granted U.S. District Court jurisdiction for  whistleblower cases. MSPB officials declined to comment.  Officials at the  Administrative Office of the U.S. Courts told us that forecasting specific  impacts would be speculative. They also said that legislation that imposes  new workload requirements on the federal judiciary may necessitate  additional resources. They added that, should specific legislation be  proposed by Congress, the Judicial Conference and its committee(s) and  staff would then carefully review the legislation, and consider its effect to  determine if a Judicial Conference position on the legislation was  warranted.
section_title: Conclusions
paragraphs: Lawmakers have recognized that whistleblowers are crucial in helping to  expose waste, fraud, abuse, mismanagement, and threats to public  health and safety across the federal government; however, those who  come forward may face reprisal from their employers. Courts, over the  years, have narrowly interpreted the type and recipient of the disclosure  that qualifies for whistleblower protection. The Whistleblower Protection  Enhancement Act of 2012 was enacted to further ensure that employees  come forward and report violations of law, or certain agency  mismanagement or ethical violations, primarily by expanding protected  disclosures.
As required by WPEA, MSPB has collected and reported information on  the number of whistleblower appeals filed and on the outcomes of cases  decided by MSPB. However, we found discrepancies between the data  MSPB publicly reported and the data MSPB provided to us. Some of  these discrepancies may have been caused by the lack of updated data  entry user guides and the lack of a quality check in its data analysis and  reporting process.
section_title: Recommendation for Executive Action
paragraphs: To help ensure the accuracy of MSPB’s reporting on whistleblower  appeals received and closed, the Chairman of MSPB should take the  following two actions:
Update MSPB’s data entry user guide to include additional guidance  and procedures to help improve the identification of appropriate  whistleblower appeal closing codes to use.
Add a quality check in MSPB’s data analysis and reporting process to  better identify discrepancies or other anomalies in data queries and  the resulting datasets.
section_title: Agency Comments and Our Response
paragraphs: We provided a draft of this report to the Chairman of MSPB for review  and comment. In its written comments, reproduced in appendix III, MSPB  agreed with our recommendations and stated that it is currently  incorporating them. MSPB pointed out that it already provides an  “impartial adjudication” of all appeals filed there, and takes no policy  position on the issue of providing appellants the option for a jury trial in a  U.S. District Court. As stated in our report, the documented views for and  against granting jurisdiction to U.S. District Courts for whistleblower cases  were obtained from focus groups consisting of whistleblower protection  subject matter specialists.
MSPB also provided technical comments on the draft report, which we  incorporated in the report as appropriate.
We are sending copies of this report to the Chairman of the Merit  Systems Protection Board, as well as to the appropriate congressional  committees and other interested parties. In addition, the report is  available at no charge on the GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-2717 or jonesy@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last   page of this report. GAO staff who made key contributions to this report  are listed in appendix IV.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: The objectives of this engagement were to describe the Merit Systems  Protection Board’s (MSPB) implementation of the Whistleblower  Protection Enhancement Act of 2012 (WPEA).
Specifically, this report: (1) describes changes in the number of  whistleblower reprisal appeals filed with MSPB, as well as the outcome of  appeals, since WPEA’s effective date, including whether or not MSPB,  the United States Court of Appeals for the Federal Circuit, or any other  court determined the allegations to be frivolous or malicious; and  provides (2) subject matter specialists’ views on granting MSPB summary  judgment authority for whistleblower cases, and (3) subject matter  specialists’ views on granting jurisdiction for some subset of whistleblower  cases to be decided by a district court of the United States, and the  potential impact on MSPB and the federal court system.
To address the first objective, we reviewed the whistleblower reprisal  appeal data published by MSPB for fiscal years 2013 through 2015. We  requested and obtained from MSPB data on all whistleblower reprisal  appeals filed in fiscal years 2013 through 2015, after WPEA’s effective  date, as well as all whistleblower reprisal appeals closed during the same  time frame. We also requested and reviewed MSPB whistleblower  reprisal appeals data for 2 fiscal years prior to WPEA’s effective date,  specifically for fiscal years 2011 and 2012, in order to have 5 years of  consecutive data to identify changes in the number of whistleblower  reprisal appeals filed after WPEA’s effective date. We reviewed relevant  MSPB documents, including data entry guidelines and annual  performance reports. To supplement the documentary evidence obtained,  we interviewed MSPB officials on whistleblower reprisal appeals and  WPEA’s enactment.
To assess the reliability of the data, we compared data on whistleblower  reprisal appeals reported in MSPB’s annual performance reports with  data that MSPB provided us and we identified discrepancies. We  provided MSPB with the results of our data analysis and coding language.  We discussed the discrepancies with MSPB staff as discussed in the  report. Based on our analysis and our review of related documentation  and interviews with MSPB officials, we corrected the data and the  resulting data set that we used for analysis was sufficiently reliable to  provide a general indication of a change in the numbers of appeals  received and closed post WPEA. Although MSPB has jurisdiction for  other appeals, we evaluated only information related to the whistleblower  reprisal appeal process. We did a keyword search using Lexis Nexis to  determine if the U.S. Court of Appeals for the Federal Circuit or any other  appeals court had concluded that a whistleblower reprisal appeal from  MSPB was “malicious” or “frivolous” post WPEA.
To address the second and third objectives, we conducted six focus  groups in July 2016 with subject matter specialists knowledgeable about  WPEA. Of the six focus groups, four included a mix of whistleblower  advocacy and agency representatives (the mixed sessions) while the  remaining two were conducted with agency representatives from the  Chief Human Capital Officers Council. To select the 28 participants for  the six focus groups, we solicited suggestions from MSPB and the Office  of Special Counsel based on their direct knowledge of whistleblower  cases, as well as the Equal Employment Opportunity Commission, that  has summary judgment authority. We also conducted our own research to  identify additional participants in the whistleblower community and  reached out to the federal inspector general and Chief Human Capital  Officers communities. Although these focus group discussions provided  rich information, they are nongeneralizable and do not reflect opinions of  all in the whistleblower community. The selected participants represent  nonprofit organizations, a national union, private law firms, and federal  agencies. For a list of organizations represented by the focus group  participants, see appendix II.
We asked each focus group to discuss the following issues: (1) WPEA’s  impact on various entities, such as the alleged employee whistleblower  and the involved agency; (2) reasons for or against granting MSPB  summary judgment authority for whistleblower cases; and (3) reasons for  or against granting U.S. District Court jurisdiction for whistleblower cases.  All six focus groups were recorded and transcribed. We analyzed the  results to identify common themes and patterns among the mixed and  Chief Human Capital Officers Council focus groups.
Additionally, we solicited input from MSPB and the Administrative Office  of the U.S. Courts to obtain their opinions on how they might be impacted  if Congress granted U.S. District Court jurisdiction for whistleblower  cases.
We conducted this performance audit from January 2016 to November  2016, in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
section_title: Appendix II: Organizations Represented in GAO’s Focus Groups on the Whistleblower Protection Enhancement Act of 2012
section_title: Appendix III: Comments from the Merit Systems Protection Board
section_title: Appendix IV: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Clifton G. Douglas Jr., Assistant  Director; Dewi Djunaidy, Analyst-in-Charge; Amy Bowser; Sara Daleski;  Karin Fangman; Joshua Garties; Susan Sato; and Cynthia Saunders  made major contributions to this report. Also contributing to this report  were Ellen Grady; Robert Robinson; Mark Ryan; and Stewart Small.