OSC Files Amicus Curiae Brief Opposing Additional Burden on Federal Employee Whistleblowers

June 06, 2017

OSC filed an amicus curiae brief in a whistleblower retaliation case on appeal before the Merit Systems Protection Board.

Today, the U.S. Office of Special Counsel (OSC) filed an amicus curiae brief ("friend of the court") in Chambers v. U.S. Department of Homeland Security, a whistleblower retaliation case on appeal before the Merit Systems Protection Board (MSPB). In this case, Dwyne Chambers alleged that his employer, the U.S. Coast Guard, retaliated against him for engaging in protected activity and making protected disclosures, including reporting coworkers who sent offensive, sexually explicit messages using their work email accounts.

The MSPB administrative judge concluded that Mr. Chambers had not exhausted his administrative remedies before OSC as required by the Whistleblower Protection Act (WPA) because he had not provided any comments in response to OSC’s preliminary determination letter. However, the plain language of the WPA states that providing comments in response to OSC’s preliminary determination is optional, not required. OSC also argues in its brief that requiring complainants to respond to OSC’s preliminary determination letters would impose additional burdens on complainants and diminish OSC’s administrative efficiency. For these reasons, OSC asks the MSPB to correct this legal error. (Note that currently, the Board lacks a quorum to consider this issue.)

Notably, this is the second amicus curiae brief filed by OSC this year regarding the MSPB’s interpretation of the administrative exhaustion issue. OSC’s earlier brief was filed in April 2017 in the Court of Appeals for the Ninth Circuit in Johnen v. Merit System Protection Board and Department of the Army. The decision in that case has not been issued yet.