Court rules for DHS employees alleging their division was disbanded in retaliation to their whistleblowing

Updated 6/12/24 at 4:25 p.m.

Federal employees who are not promoted after blowing the whistle on wrongdoing at their agency could be victims of reprisal, a federal court has ruled, even if the expectation of advancement was never explicitly guaranteed. 

A group of Homeland Security Department employees won an initial, precedent-setting ruling from the U.S. Court of Appeals for the Fourth Circuit last week after initially losing before the Merit Systems Protection Board. The three employees said they were stripped of certain duties and responsibilities, and even saw their division within Customs and Border Protection disbanded, after they sounded the alarm DHS was failing to comply with a 2005 law. 

Mark Jones, Michael Taylor and Fred Wynn were all high-ranking officials within CBP’s Weapons of Mass Destruction Division, who, as part of their duties, were tasked with disrupting the MS-13 gang and implementing the DNA Fingerprints Act. After they and another employee in 2018 raised their concerns to the DHS secretary’s office about a failure to comply with that law, the court said CBP removed or decreased their responsibilities, duties, access and pay. That included duties related to MS-13 and the DNA law, and CBP eventually moving the entire division to a different office—the Operational Field Testing Division—and later dismantling it altogether. 

In its fiscal 2022 budget, CBP said OFTD had subsumed the WMD division “due to complimentary mission sets.” 

But in the employees’ telling, which the court said at this stage of proceedings it must accept as fact, CBP “wasn’t pleased” with the DNA issue being flagged. Leadership called a meeting with Jones to discuss the whistleblowing and said because of it, it was removing responsibilities from the division and moving to OFTD. 

The employees initially brought their case to the Office of Special Counsel, which subsequently issued a report that found CBP officials had told the employees the agency was seeking to give them promotions and higher pay due their successful work on the MS-13 initiative. After they blew the whistle, however, those efforts were abandoned. OSC said the allegations of retaliation were therefore meritorious. 

The employees eventually took their case to MSPB, where an administrative judge found the lack of a promotion did not amount to a “personnel action” as defined in statute. Instead, the judge said, the potential promotion was theoretical and CBP failing to see it through did not amount to a denial or reprisal. 

In reversing that decision, the appeals court said the employees were “simply stating, based on personal knowledge, what happened to them in the real world.” The allegations were not frivolous or implausible, the court said. It did not rule on the merits of the case, saying instead that MSPB must consider the allegations. 

The court added the moving of the division could amount to a change of duties, responsibilities of working conditions, which would also amount to a violation of whistleblower law. The case now returns to the MSPB administrative judge for a new ruling. 

This story was updated to clarify the case went straight from an administrative judge at MSPB to the federal circuit.