Federal appeals board could soon reshape what it means to be a whistleblower

The definition of a federal whistleblower could be reshaped in the coming months as the agency charged with enforcing civil service laws is set to rule on a case that it has already flagged as carrying unusual weight. 

The case—Reese v. Navy—could be so significant that the Merit Systems Protection Board has asked outside entities to offer their perspectives on it, an entreaty it has not made in nearly a decade. An MSPB official did so because it involves a question of statute on which the board has never ruled, opening the opportunity to set a new precedent on what constitutes whistleblowing within federal agencies. 

In 2020, Mary Reese, a Navy civilian employee, was fired three days after she brought concerns about the handling sexual harassment allegations by her colleagues to the Defense Department’s inspector general. She had previously raised concerns internally to her supervisors. She subsequently appealed her dismissal to MSPB, where an administrative judge found her initial disclosures were not protected under whistleblower law and the Navy would have fired even if she had not made her report to the IG. 

Reese appealed that decision to MSPB’s central board, which earlier this year issued a “notice of opportunity” for outside parties to weigh in on the case. They asked interested groups to address three issues: whether an informal complaint about sexual harassment is protected under whistleblower law, if concerns related to antidiscrimination law violations are protected and whether a complaint to an oversight body—such as an IG or Office of Special Counsel—can be informal or must be involve formal interview to constitute a protected disclosure. 

The board said there is currently limited precedent on that section of whistleblower statute, which Congress updated in 2017.

“Because the Reese appeal may present an opportunity to do so, the board is seeking input from interested parties about the proper interpretation and application of the provision,” MSPB said in its solicitation. 

An MSPB official added the matter was something the board has never ruled on and it was the first time the panel will decide on the statute since it was updated. The relevant provision of law forbids agencies from taking any negative action toward an employee for cooperating with or disclosing information to an IG, OSC or other internal investigatory bodies. 

OSC, the agency that enforces whistleblower law, issued a brief on the case, calling for an “expansive reading” of the law to “maximize protections for employees and preserve OSC’s ability to obtain credible testimony.” While the board and federal courts have ruled discrimination cases involving gross mismanagement must go through the EEO process, the agency said that does not apply to the IG and OSC disclosure provision. The law does not carve out any restrictions based on the content of such a disclosure, OSC said. 

“OSC and other oversight entities need federal employees to have broad protections to obtain complete, candid participation in their investigations, especially because cooperation is required, and witnesses may be reluctant,” the agency said. It added that failing to include initial, informal steps in that process would create a “chilling effect” on potential whistleblowers. 

Attorneys who represent federal employees reached a similar conclusion, arguing the legislation history of the Whistleblower Protection Act and its many revisions supports a “broad reading of the statute.” Employees making informal complaints about a toxic work environment, as did Reese, are entitled to protections under a 2017 legislative update that expanded the law to include staff making disclosures to “any other component” that is “responsible for internal investigation or review,” the Metropolitan Washington Employment Lawyers Association said in its brief on the case. An employee’s supervisor would amount to such a component in that case, the group said. 

The American Federation of Government Employees also called for a broad interpretation, noting Congress created the statute explicitly to “protect federal employees.” 

“Any interpretation should, consequently, be in favor of expanding employee protection and not restricting it,” AFGE said. 

MSPB is now back to a fully functioning, quasi-judicial agency after it regained its quorum following five years without one. The agency now has all three Senate-confirmed positions on its central board filled after the chamber unanimously approved Henry Kerner, the former head of OSC, earlier this month. 

The window for outside briefs has now closed and Reese’s case is now pending before the board for a final decision.