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Federal Employee Has Second Bite at Whistleblowing Reprisal Claim, Thanks to WPEA
Practical Law Legal Update w-001-3427 (Approx. 5 pages)
Federal Employee Has Second Bite at Whistleblowing Reprisal Claim, Thanks to WPEA
by Practical Law Labor & Employment
| Published on 22 Jan 2016 • USA (National/Federal) |
In McCarthy v. MSPB, the US Court of Appeals for the Federal Circuit held that it has jurisdiction to review a decision by the Merit Systems Protection Board (MSPB) on a motion to reopen that is based on a change in law.
On January 14, 2016, in McCarthy v. MSPB, the US Court of Appeals for the Federal Circuit held that it has jurisdiction to review a Merit Systems Protection Board (MSPB) decision on a motion to reopen that is based on a change in law. The court found that the Whistleblower Protection Enhancement Act (WPEA) applied retroactively to a federal employee's pending whistleblower appeal. Although the MSPB did not err when it denied the motion to reopen, the court held that the employee could refile his whistleblower complaint with the Office of Special Counsel (OSC). ( (Fed. Cir. Jan. 14, 2016).)
Background
Robert McCarthy worked as a supervisory attorney for the US International Boundary and Water Commission (Commission). The following events occurred:
- In June and July 2009, McCarthy prepared legal memoranda claiming activities at the Commission were gross mismanagement contrary to existing law.
- In July 2009, McCarthy submitted a report to the State Department Office of Inspector General (OIG) regarding the challenged activities and referencing some of the memoranda.
- In July 2009, the Commission terminated McCarthy's employment.
- In August 2009, McCarthy filed a whistleblower retaliation complaint with the OSC identifying his report to OIG but not the legal memoranda because existing law did not consider internal disclosures to be protected.
- In October 2012, the Federal Circuit Court of Appeals affirmed an MSPB decision finding that McCarthy had not been retaliated against.
- In November 2012, McCarthy petitioned for rehearing.
- While the petition was pending, Congress passed the WPEA under which McCarthy's legal memoranda could be protected disclosures.
- In February 2013, the Federal Circuit denied McCarthy's petition for rehearing.
- McCarthy filed a motion to reopen his appeal based on the enactment of the WPEA.
- McCarthy petitioned the Federal Circuit for a writ of mandamus directing the MSPB to issue a decision on the motion to reopen.
- The MSPB notified McCarthy it would not reopen his appeal.
- The Federal Circuit addressed McCarthy's petition for a writ of mandamus as a timely petition for review.
Outcome
The Federal Circuit:
- Held that it has jurisdiction to review the MSPB's decision not to reopen McCarthy's appeal because the MSPB issued a decision on a motion to reopen premised on a change of law.
- Applied the Administrative Procedure Act's (APA) "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard in reviewing the MSPB's decision denying the motion to reopen (5 U.S.C. § 706(2)(A)).
The Federal Circuit noted that:
- The MSPB previously held that:
- reopening a case may be appropriate where there has been a change in the controlling law between the original MSPB decision and the date the motion to reopen was filed (Olsen v. Department of Agriculture, (M.S.P.B. June 3, 2002)); and
- the WPEA applies retroactively to cases that were pending when the statute was enacted (Day v. Department of Homeland Security, (M.S.P.B. June 26, 2013)).
- There is a strong presumption favoring judicial review of an administrative agency's actions, except in rare instances in which agencies have full discretion to act by law (Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015); 5 U.S.C. § 701(a)(2)).
The Federal Circuit found that:
- The MSPB has an established practice of entertaining motions to reopen appeals, which is governed by regulations and settled case law.
- Although there are no statutory provisions outlining how the MSPB should go about reopening cases, that did not mean it was an action committed entirely to the MSPB's discretion and not reviewable under the APA.
- The strong presumption favoring judicial review of administrative action applied to the MSPB's denial of McCarthy's motion to reopen, particularly since the WPEA was enacted after the MSPB issued its original decision finding that the Commission had not retaliated against McCarthy, but while McCarthy's petition for rehearing was pending.
- The MSPB did not err in denying McCarthy's motion to reopen, but McCarthy could refile his whistleblower complaint because:
- McCarthy did not exhaust his administrative remedies before the OSC on aspects of his whistleblower claim (specifically, the legal memoranda that McCarthy prepared in 2009 challenging the Commission's actions) that were not cognizable prior to the WPEA's enactment in 2012; and
- there is no statute of limitations for filing an OSC complaint.
Practical Implications
Agency decisions are subject to judicial review under the APA's "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard, even without specific statutory provision that authorizes judicial review. In this case, the MSPB's decision on a federal employee's motion to reopen was reviewable, even though it was issued in the form of a letter from the MSPB Clerk's Office, rather than as a formal Board order. Finally, this decision reminds agencies that there is no statute of limitations for federal employee complaints to the OSC.