OSC Opposes Narrowing Whistleblower Protections

February 10, 2016

prohibited personnel practices

The U.S. Office of Special Counsel (OSC) argues against narrowing the scope of whistleblower protections in an amicus curiae (“friend of the court”) brief filed with the Merit Systems Protection Board (MSPB) yesterday. The MSPB invited briefs in Mark Abernathy v. Department of the Army, while it considers Mr. Abernathy’s appeal of an administrative judge’s decision. The issue is whether a whistleblower must be an employee or applicant for federal employment at the time they made a disclosure to be protected under the Whistleblower Protection Act (WPA), as amended.

Mr. Abernathy was a federal contract employee for the Army when he disclosed that the Army was impermissibly using specially-funded equipment for reasons other than its intended purpose. Weeks later, he applied for a federal civilian position with the Army and was not selected. Mr. Abernathy alleges he was not selected in retaliation for his disclosure.

OSC argues that a plain reading of the WPA, its legislative history and statutory purpose, as well as earlier MSPB decisions, make it clear that the WPA protects whistleblowers who make disclosures before applying for a federal job.

“The WPA specifically covers applicants because Congress sought to ensure that whistleblowers outside the federal workforce would not be prevented by retaliation from entering it,” OSC’s brief states. “Requiring a whistleblower to be an applicant not just when the retaliatory personnel action occurred, but also at the time of the disclosure, would frustrate this purpose by severely restricting the number of applicants covered under the Act.”

Finally, public policy dictates that the WPA should be interpreted broadly. According to OSC’s brief, “A remedial statute riddled with exceptions and loopholes may chill current and potential whistleblowers from coming forward because they worry that the law's unclear scope might leave them unprotected.”