Court Reverses Ruling Critics Said Left Feds Vulnerable to Retaliation, Citing 'Magnitude' of Errors

A federal court has overruled an administrative judge on a case with significant implications for federal employee protections, saying the judge's errors in his initial ruling were so severe he should be removed from the case entirely. 

The case, Tao v. Merit Systems Protection Board, positioned the Office of Special Counsel—the agency tasked with enforcing federal whistleblower protection laws—against the MSPB ruling, and eventually led the board to argue its own judge had erred. OSC had filed a brief before the U.S. Court of Appeals for the Federal Circuit saying the judge’s ruling risked leaving federal workers uncertain about their rights and “vulnerable to retaliation explicitly prohibited by the statute.” 

The case involved a pharmacist at the Veterans Affairs Department, Debra Tao, who alleged she was demoted as a result of having made whistleblower disclosures, testifying on behalf of a colleague and reporting labor violations to the Federal Labor Relations Authority. The MSPB judge rejected that Tao could have reasonably believed she was reporting wrongdoing as required by whistleblower protection law and said the board therefore had no jurisdiction to weigh in on the case. Because MSPB does not currently have a central board, the judge’s ruling became the agency’s final decision.

After Tao appealed to the federal circuit, OSC said in its brief the judge’s ruling was too narrow and ignored that she was involved in several protected activities, not just shedding a light on wrongdoing. Federal statute prohibits agencies from retaliating against workers for testifying in appeals, making disclosures to OSC or exercising grievance rights, among other activities.

In addition to reporting information to OSC, FRLA and Sen. Dianne Feinstein, D-Calif., Tao testified on behalf of her colleague and made a disclosure to VA’s Office of Accountability and Whistleblower Protection.  

While MSPB still does not have any Senate-confirmed members, the board conceded to the court that remand would be appropriate. It stated that its administrative judge ruled erroneously in several cases, essentially agreeing with OSC. The panel on the federal circuit ruled with Tao, OSC and the board, saying the VA employee’s activities were protected and did fall under MSPB’s jurisdiction. It reversed the judge’s ruling on several key issues in the case and remanded it back to him for further proceedings. 

The court also requested a new administrative judge take over the case. 

“On remand, given the magnitude of the AJ’s errors, reassignment is appropriate,” the court ruled. 

OSC had warned a failure to overturn the judge’s initial ruling would have overridden years of precedent, which set different bars for proving retaliation to whistleblower disclosures and other protected activities. While the board recognized its judge’s errors, it could not rule on the case as it does not have any members on its central panel. President Biden has nominated Cathy Harris, a federal sector employment attorney, to chair the board, but no nominees for the other slots. Harris’ nomination is unlikely to move forward in the Senate until Biden announces individuals to fill the two additional vacant slots. 

MSPB currently has a backlog of more than 3,000 cases pending before its central board. 

“While MSPB employees have been remarkably focused in continuing the agency’s work despite the challenges, there is no question we look forward to the arrival of new board members,” Tristan Leavitt, the agency’s executive director, wrote in January in MSPB’s annual report. “In order to fully perform its mission and successfully face new challenges that lie ahead, MSPB needs a board quorum.”