Strategies For Representing Strategies For Representing Whistleblowers In The Federal Whistleblowers In The Federal GovernmentGovernment

MacLean v. DHSMacLean v. DHSVICTORY!VICTORY!

Overview of 2302(b)(8) Overview of 2302(b)(8) and (b)(9)and (b)(9) 2302(b)(8) protected conduct 2302(b)(8) protected conduct 2302(b)(9) protected conduct2302(b)(9) protected conduct WPEA expansion of protected WPEA expansion of protected

conduct conduct Uncapped compensatory Uncapped compensatory

damagesdamages

WPEA RetroactivityWPEA Retroactivity

Nasuti v. Dep’t of StateNasuti v. Dep’t of State, 2014 MSPB , 2014 MSPB 12 (2014)12 (2014)– Section 101 (defining the scope of Section 101 (defining the scope of

protected conduct) applies protected conduct) applies retroactivelyretroactively

King v. Dept. of the Air ForceKing v. Dept. of the Air Force, 2013 , 2013 MSPB 62MSPB 62– Compensatory damages provision not Compensatory damages provision not

retroactiveretroactive

Limitation on WPEA Limitation on WPEA Protected ConductProtected Conduct Webb v. Department of the Webb v. Department of the

InteriorInterior, 2015 MSPB 6 (2015), 2015 MSPB 6 (2015)– general policy disagreements with general policy disagreements with

agency decisions or actions do not agency decisions or actions do not constitute protected disclosures constitute protected disclosures unless disclosure evidences one of unless disclosure evidences one of the categories of WPEA-protected the categories of WPEA-protected wrongdoingwrongdoing

Key Procedural IssuesKey Procedural Issues

5 USC 7121 election of remedies5 USC 7121 election of remedies– Must be knowing and informed. Must be knowing and informed. Agoranos Agoranos

v. Dept. of Justicev. Dept. of Justice, 2013 MSPB 41 (2013), 2013 MSPB 41 (2013) IRA option for (b)(8) and some (b)(9) IRA option for (b)(8) and some (b)(9)

claimsclaims Burden of proof and Burden of proof and Whitmore v. DOL,Whitmore v. DOL,

680 F.3d 1353 (Fed. Cir. 2012).680 F.3d 1353 (Fed. Cir. 2012). Exhaustion of remediesExhaustion of remedies All-Circuit ReviewAll-Circuit Review

Filing a WhistleblowerFiling a WhistleblowerClaim at OSCClaim at OSC No statute of limitationsNo statute of limitations Mechanics of filingMechanics of filing Requesting a stayRequesting a stay Deferral to pending EEO Deferral to pending EEO

investigation or MSPB appeal investigation or MSPB appeal OSC process to determine whether OSC process to determine whether

to refer a case for further to refer a case for further investigationinvestigation

OSC Investigations OSC Investigations

OSC Investigatory ProcessOSC Investigatory Process Rebutting agency positionRebutting agency position Corrective Action Disciplinary Action Remedies at OSC Mediation at OSCMediation at OSC

Litigating IRA Appeals Litigating IRA Appeals at the MSPBat the MSPB

Establishing jurisdictionEstablishing jurisdiction Requesting a stay from the BoardRequesting a stay from the Board DiscoveryDiscovery HearingsHearings Practice TipsPractice Tips