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

Letter

Background

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.

MSPB’s Data Show a Higher Annual Number of Whistleblower Appeals Post WPEA; but Weaknesses Exist in MSPB’s Recording and Reporting Processes

MSPB Data Show a Higher Annual Number of Post-WPEA IRA Appeals, but a Lower Annual Number of OAA Appeals

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.

Several Aspects of WPEA May Account for Changes in the Number of Whistleblower Appeals

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.

Ten Agencies Accounted for More than One-Third of the Total Number of IRA and OAA Appeals Filed from Fiscal Years 2013 through 2015

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).

More Than Half of All Whistleblower Appeals in Fiscal Year 2013 through Fiscal Year 2015 Were Closed Without Adjudication on the Merits

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.

Number of IRA Appeals Granted Corrective Action by MSPB Increased from Fiscal Year 2013 through Fiscal Year 2015

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.

Neither MSPB nor Other Courts Specified Whether Whistleblower Reprisal Allegations Were Deemed Malicious or Frivolous

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.

MSPB Has a Process for Capturing Whistleblower Appeals Data; However, Recording and Reporting Errors Occurred

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.

Subject Matter Specialists Said Granting MSPB Summary Judgment Authority Could Create Efficiencies, but Could Also Deny Employee Whistleblowers’ Right to a Hearing

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.

Subject Matter Specialists Said Granting U.S. District Courts Jurisdiction Would Increase Overall Caseload, but Would Also Aid Employee Whistleblowers

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.

Focus Group Participants Identified Two Potential Scenarios and Eligible Appeal Types for U.S. District Court Review

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.

Conclusions

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.

Recommendation for Executive Action

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.

Agency Comments and Our Response

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: Organizations Represented in GAO’s Focus Groups on the Whistleblower Protection Enhancement Act of 2012

Appendix III: Comments from the Merit Systems Protection Board

Appendix IV: GAO Contacts and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.