Much has been written, relatively speaking, about the Whistleblower Protection Enhancement Act since the Senate voted it through last week. There is not much to add except to highlight those measures that will impact the Merit Systems Protection Board. As reported by Fierce Government,
Whistleblowers [will] no longer need “undeniable, uncontestable, or incontrovertible proof” before they are eligible for protection. The legislation also establishes the position of agency Whistleblower Protection Ombudsman “to educate agency employees about prohibitions on retaliation for protected disclosures.”
It also quashes a practice of the Merit Systems Protection Board that allowed it to make rulings in retaliation claim cases without hearing whistleblowers’ evidence. The MSPB must also report outcomes of all cases, from administrative judge hearings through final appeals, in its annual reports. [Emphasis added]
The way the process in bold worked is that the administrative judge would assume the whistleblower made protected disclosure(s) that contributed to a personnel action and proceed directly to hear the agency’s defense that it would have taken the personnel action anyway, without hearing the whistleblower’s case-in-chief. This is controversial because, as the Senate Homeland Security & Governmental Affairs Committee notes,
Board case law has created a disturbing trend of denying employees’ right to a due process hearing and a public record to resolve their WPA claims. The Board currently allows an agency to present its affirmative defense that the agency would have taken the same personnel action for lawful reasons, independent of any retaliation against the employee for protected whistleblowing, without first allowing the employee to present his or her case proving that the whistleblower retaliation occurred. The Federal Circuit has affirmed this process.
Taking away whistleblowers’ opportunity to present their cases undermines key purposes of the WPA. The Board is imposing a process that is the inverse of what most adjudicators use, where claimants are typically permitted to present their affirmative case before the defense gets its turn to put on evidence. This is concerning for several reasons. The order in which parties get to present their cases may influence the fact-finder’s perception of the merits and, therefore, potentially the outcome. Thus, employees may be disadvantaged under the MSPB practice by not being permitted the opportunity to affirmatively and fully present the evidence for their claims. Moreover, if employees cannot present their cases, they may also lose a key opportunity to develop a full record for appeal, which is an important check on agency decisionmaking. Finally, denying whistleblowers a hearing deprives them of a forum in which to air grievances, which may be legitimate and important even where the disputed personnel action does not violate the WPA.
Furthermore, allowing the agency to present its evidence first precludes the Board from exercising some of its most significant merit system oversight duties. These include creating a public record of both parties’ positions on alleged governmental misconduct that could threaten or harm citizens. Similarly, it precludes the Board from a significant merit system oversight function that Congress emphasized when it passed the 1994 amendments to the Act. As explained in the Joint Explanatory statement of the House-Senate conferees who negotiated the 1989 WPA amendments, “[w]histleblowing should never be a factor that contributes in any way to an adverse personnel action.” If reprisal for a protected disclosure is a contributing factor in a decision to take a personnel action, even if the agency ultimately prevails on its affirmative defense of independent justification, that is a significant merit system concern even if it is not an actionable legal claim. Under the current procedure, the Board does not exercise these oversight responsibilities as long as the agency has an acceptable overall affirmative defense, analyzed without the benefit of having first heard the employee’s evidence.
Section 114 of S. 743 resolves this problem by requiring that, before the agency may present its defense, the employee must have first had an opportunity to present his or her evidence and must have succeeded showing, by a preponderance of the evidence, that the protected disclosure was a contributing factor in the personnel action. If the employee fails to do that, the claim fails; if the employee succeeds, then the agency may present its defense.