MSPB Agrees with OSC on Key Issue in Whistleblower Retaliation Case, Upholding Protections for Federal Workers

April 10, 2024

OSC is highlighting the impact of OSC’s amicus curiae brief in a recent MSPB decision.

Today, the U.S. Office of Special Counsel (OSC) is highlighting the impact of OSC's amicus curiae (“friend of the court") brief in a recent Merit Systems Protection Board (MSPB) decision. In Morales v. Dep't of Veterans Affairs, the MSPB affirmed strong whistleblower protections for federal workers who participate in oversight investigations.

Marcos Morales, an Imaging Supervisor with the U.S. Department of Veterans Affairs (VA), alleged retaliation for engaging in protected activities under 5 U.S.C. § 2302(b)(9)(C), including cooperating with three agency investigations. Investigators questioned Morales about a high-level employee's alleged misconduct, and Morales informed them that he was not aware of any wrongdoing.

In the initial decision, the Administrative Judge (AJ) found that because Morales was required to participate in the investigations and his statements to investigators were not disclosures, his activity was not protected. OSC's brief in the subsequent appeal countered that participation in an agency investigation is protected under section 2302(b)(9)(C) regardless of its nature or substance, and the AJ's holding to the contrary would leave numerous witnesses, including those in OSC-led investigations, vulnerable to retaliation.

OSC's brief argued that such a narrow interpretation of protected activity would impede OSC's mission: “The success of OSC investigations depends largely on our ability to obtain credible witness testimony…Without assured protection from retaliation, witnesses will be disinclined to cooperate with OSC, which will, in turn, significantly hinder OSC's investigative efforts."

The MSPB's decision cited to OSC's brief, agreeing that the AJ erred in finding that Morales's cooperation with VA investigators could not constitute protected activity.

“Federal employees should not have to wonder whether cooperation with OSC or a comparable investigative entity will jeopardize their careers. The MSPB's reiteration that such cooperation is broadly protected provides welcome reassurance for investigators and witnesses alike," said Amicus Working Group co-lead Emilee Collier.

Special Counsel Hampton Dellinger extended particular appreciation to the brief's author, attorney Rachel Davakis.