Some key features of litigating before the Merit Systems Protection Board (MSPB) are –
- There is a right to a hearing before an Administrative Judge but it must be requested;
- One can request a stay of the adverse personnel action prior to hearing , but it is rarely granted;
- MSPB has a mediation program;
- Discovery and pre-hearing submissions are front-loaded under tight deadlines, as Administrative Judges are graded by their ability to bring cases to hearing within 120 days of filing;
- There can be a motion to dismiss based on a failure to non-frivolously allege a prima facie case that a protected disclosure was made and was a contributing factor to the challenged action;
- If a prima facie case is made, the burden of proof shifts to the agency to prove by clear and convincing evidence that it would have taken the same action notwithstanding the whistleblowing. A 2012 ruling PEER won (Whitmore v. Department of Labor) put some additional teeth in this burden-shifting;
- Post-hearing briefs optional with the judge;
- Relief can include reinstatement, back pay, compensatory as well as consequential damages, attorneys’ fees and expenses and out-of-pocket expenses to the whistleblower;
- Appeals go to the three-person presidentially-appointed MSP Board. Appeals from Board decisions then to the Federal Circuit or Regional Circuit (per a new limited-term law) and ultimately could go to the Supreme Court.
Whistleblower claims historically have not had a high success rate at MSPB, but perseverance can pay off. For example, following more than a seven-year legal saga, Teresa Chambers won full restoration as Chief of the U.S. Park Police.
In addition to new favorable case law, the recent enactment of the Whistleblower Protection Enhancement Act closed several egregious judicially-created loopholes. Nonetheless, MSPB litigation can be a lengthy and daunting process.