In a recent decision, the Merit Systems Protection Board confirmed that people are covered by the Whistleblower Protection Act, even if they blew the whistle before applying for a federal job. The board disagreed with a federal court, but upheld the board’s own precedent. For the significance of this case, the Federal Drive with Tom Temin spoke to attorneys Christine Kumar and James Eisenmann of the Alden Law Group.

Interview transcript:

Tom Temin And this case, well, there’s a couple of cases that it revolved around, but what is the significance? In other words, if I blow the whistle in one case, someone from a contractor blew the whistle on the government and then applied to work for the government. And it turned out that that person was protected per the Merit Systems Protection Board. And so what does this all mean? How do you interpret this?

James Eisenmann Right. The significance of it? It’s important, but I think there are some qualifications to that importance. The Whistleblower Protection Act protects people who make what are called protected disclosures. And the question in this case was whether this person, this appellant, qualified in terms of making protected disclosure, because at the time they made that disclosure, which was about fraud, they were not either an employee of the government or an applicant to be an employee with the government. They were contractor. And when you look at the actual statutory language of the Whistleblower Protection Act, in terms of making protected disclosures, it does say someone should be an employee or applicant. But the board here agreed with its own prior press and disagreed with federal court’s non-presidential opinions, finding that that was not actually required. So, what it means is those people who are not employees are not applicants for jobs that the government can make protected disclosures. Now, how often that’s going to happen, I’m not quite sure. Because how often is someone who’s not an applicant, not an employee going to know enough to even blow the whistle? Here, this person’s a contractor working with federal and federal entities, so they’re going to know more.

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Tom Temin Right. The idea here was this person blew the whistle on the Army, from the contractor standpoint, and then applied for a job at the government was denied and saw that as a retaliatory type of whistleblower retaliation, basically. Well, Christine, what if someone, this is probably a hypothetical, but this would also apply if suppose that person blew the whistle on their own company as a contractor, then applied to the government, they would still be protected under this system?

Christine Kumar So I don’t know if they would be protected under the WPA, but I think they would have protections under the National Defense Authorization Act, the NDAA, which specifically protects employees of contractors from that very situation.

Tom Temin Right. So they could blow, their own company could commit retaliation, but then it wouldn’t really be the government’s matter in that case, at least in terms of the Merit Systems Protection Board.

Christine Kumar Correct.

Tom Temin Got it. And suppose, this is really stretching it, but suppose they blew the whistle on a company that was not a contractor, and then a year later applied to join the government and someone in the government said, well, you’re kind of a troublemaker when you work for Staples or, I’m just making up a company. We don’t think it fit here.

James Eisenmann The whistleblowing does have to deal with the government and the government’s good name. So blowing the whistle on a private entity, at least in terms of the Whistleblower Protection Act. So blowing the whistle on a private entity really wouldn’t implicate the government and wouldn’t really fall in that protection. And actually a decision in the last year from the MSPB on that very issue, I can’t recall the exact name of it right now, but there’s a decision saying that. So blowing the whistle, if I was a government employee and I said, yeah, Staples is committing fraud. I’m not going to be protected by the WPA.

Tom Temin Right. So there is some level of connection in these precedents between the government and the person applying and the company that they were blowing the whistle on, or from which they blew the whistle.

James Eisenmann Right.

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Tom Temin Got it. We’re speaking with Jim Eisenmann and Christine Kumar, attorneys with the Alden Law Group. And by the way, what is your observation of the pace of what’s been coming out of the MSPB now that we’re one year on from its having a quorum? They’re down by one again, but at least they still have the two.

James Eisenmann Right. Yeah, that’s interesting. It’s been it’s almost exactly a year from when the quorum was restored with at least two board members. Member Leavitt just left at and Limon. I think the pace is good, the board has said, they had, I think at the peak, as they referred to it, an inherited inventory of 3,800 petitions for review. They normally only deal with 600 in any given year. So they’ve been focusing on the 75% oldest or 75% of the cases that they’re going to issue will be the oldest cases. But I think the pace is good. They’ve issued about 55 precedential opinions in that time, and about, I think, 1,200, give or take, non-presidential opinions. But I think they’re moving along pretty quickly. I think the good thing, there wasn’t a good thing generally about having no quorum, but the good thing is that the office that writes drafts the opinions for the board members. They were continuing to work this whole time. There are lots of opinions in the wings waiting for the board members to review.

Tom Temin And Ms. Kumar, would you say that the fact that the bulk of cases, 90 plus percent of the backlog, that they’re dealing with is non-presidential?  And there’s about 55% that are, I think maybe, the number is up to 75 that are precedential. Those are almost like the blueberries buried in a big mass of oatmeal, that’s testimony to the basic quality that the administrative judge’s work does for MSPB?

Christine Kumar I think that’s correct. We learned today from Kathy Harris at our panel that to determine how a case is classified as precedential, it comes from their appeals counsel who drafts the briefs for them. And they look at what people are confused about and what people still need clarity on. And so, yeah, I think it speaks to the fact that administrative judges are doing a good job of clarifying legal precedent and the law such that they’re not having as many precedential decisions.

Tom Temin Plus the board in the greater sense than even the individual cases are starting to issue summaries and advisories. And I think they just came out with a new handbook, if you will, of prohibited personnel practices, which updates prior volumes. And there are some that are particularly popular, in terms of what people do to other people that’s wrong. And so, I guess that looks like they’re back in business, too, doesn’t it?

James Eisenmann Yeah, I think that. So they’ve issued, I think, two studies or reports, as they call them, since the quorum was restore. And this one you’re referring to, the one on prohibited personnel practices, PPP’s we just issued. And I think, in terms of the quality, the decisions, I know in administrative judge decisions, they certainly look at when you look at their annual reports, they have all the pie charts about the decisions, what side they were on, how many cases were settled. And when you look at, generally, those pie charts and the decisions that are made by the judges on the on the merits of the case. Typically, about 85% of those are sustaining what the agency did. And that hasn’t changed much over the years.

Tom Temin Yeah, and I’ve read quite a few of those reports over the years. And for legal readouts, if you will, they’re surprisingly readable to the untrained legal eye.

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James Eisenmann Well, they’ve been doing that. And certainly when I was there, I was focused on trying to make sure that was the case, too. But they’ve been doing that for years and they will continue to do that. I think it’s important to be able to understand it.

Tom Temin So getting back to the original question here on protection for pre-applicants, then anything else we need to know, Christine?

Christine Kumar Well, just that the relevant question, the MSPB confirms with this case is about the timing of the personnel action versus the disclosure. So it doesn’t matter when you make the disclosure, but rather what was your status when the retaliatory acts occurred. And I think that should bring a lot of relief for people who are worried about when they make their disclosures.

Tom Temin And regardless, it still takes nerve to make a disclosure, doesn’t it?

Christine Kumar Yeah, definitely.

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