OSC Files Amicus Curiae Brief Advocating Removal of Improper Barriers to Prove Whistleblower Retaliation

February 16, 2021

OSC has filed an amicus curiae brief with MSPB arguing for the removal of improper evidentiary barriers for federal employees who bring whistleblower retaliation claims.

The U.S. Office of Special Counsel (OSC) has filed an amicus curiae (friend of the court) brief with the Merit Systems Protection Board (Board), arguing for the removal of improper evidentiary barriers for federal employees who bring whistleblower retaliation claims.

In Salazar v. U.S. Department of Veterans Affairs, Anthony Salazar, a motor vehicle operator at the U.S. Department of Veterans Affairs (VA), sought relief for financial losses he suffered after he filed a complaint with OSC alleging whistleblower retaliation. OSC found reasonable grounds to conclude that Mr. Salazar’s removal from federal service was retaliatory and secured a temporary stay of that action. As part of the stay, the VA reinstated Mr. Salazar and coordinated with the Defense Finance Accounting Service (DFAS) to provide Mr. Salazar with back pay. However, due to errors by the VA and DFAS, Mr. Salazar did not receive his full compensation.

In analyzing the case, the Board administrative judge held that Mr. Salazar could not recover his lost wages because he failed to show that the DFAS officials had knowledge of his protected whistleblowing activity and therefore he could not prove a violation of the Whistleblower Protection Act (WPA). As a result, Mr. Salazar’s claim was dismissed without considering the clear timeline of events leading from his OSC complaint to his lost wages.

In its amicus curiae brief, OSC argues that the administrative judge erred by ignoring record evidence of causation and requiring proof of an agency official’s knowledge of a whistleblower’s protected activity. Under the WPA, a whistleblower meets the relatively modest standard of causation by showing that his protected activity played a role in the personnel action at issue. In such instances, the burden of proof shifts to the agency. This decision not only disregards the plain text and overarching purpose of the statute to provide broad relief to whistleblowers, but can also lead to unjust results. OSC urges  the Board to reverse the administrative judge’s decision so that federal employees—like Mr. Salazar—can feel confident that their properly pled claims of retaliation will not be prematurely dismissed.

OSC earlier filed an amicus curiae brief on Mr. Salazar’s behalf in 2016.  That case is still pending at the Board.