OSC Files Amicus Curiae Brief Reaffirming Federal Employees’ Right to Engage in Protected Activities

August 11, 2020

OSC filed an amicus curiae (friend of the court) brief with the U.S. Court of Appeals for the Federal Circuit in support of protections for federal employees who engage in protected activities.

The U.S. Office of Special Counsel (OSC) today filed an amicus curiae (friend of the court) brief with the U.S. Court of Appeals for the Federal Circuit in support of protections for federal employees who engage in protected activities.

Since passing the Civil Service Reform Act (CSRA) in the late 1970s, Congress has sought to protect federal employees from retaliation for engaging in certain activities—specifically, exercising appeal, complaint, and grievance rights.  Over the years, Congress has strengthened those protections.  Federal employees, who first administratively exhaust their retaliation claims at OSC, may seek corrective action for such retaliation before the Merit Systems Protection Board (MSPB).

In Tao v. MSPB, the appellant, a pharmacist at the U.S. Department of Veterans Affairs (VA), alleged that the VA took personnel actions against her in retaliation for making protected disclosures and for engaging in certain protected activities, including disclosing information to OSC, filing a complaint with VA's Office of Accountability and Whistleblower Protection, filing a claim of an unfair labor practice with the Federal Labor Relations Authority, and testifying in coworkers' MSPB and Equal Employment Opportunity proceedings.  In the initial decision, the MSPB administrative judge dismissed Tao's appeal for failure to make protected disclosures without addressing her allegation that she was retaliated against for engaging in protected activities.  The parties appealed the initial decision to the U.S. Court of Appeals for the Federal Circuit.

In its amicus curiae brief, OSC argues that the plain language and legislative history of the CSRA and its subsequent amendments, indicate that the protection against retaliation for employees who make whistleblower disclosures is separate and distinct from the protection against retaliation for employees who engage in protected activities. By ignoring Tao's allegation of retaliation for engaging in protected activities, MSPB erred.  Perhaps more important, if not corrected, MSPB's approach here leaves federal employees uncertain about their rights under civil service laws and vulnerable to retaliation explicitly prohibited by the statute.