Court Agrees With OSC on Key Issue in Whistleblower Case, Sends Case Back to MSPB for Review

February 28, 2018

The U.S. Court of Appeals for the Ninth Circuit has agreed  with  the argument OSC made in an amicus curiae brief against restricting whistleblower protections.

The U.S. Court of Appeals for the Ninth Circuit has agreed with the argument the Office of Special Counsel (OSC) made in an amicus curiae (“friend of the court”) brief against restricting whistleblower protections for federal workers. In an unpublished memorandum, the court overturned the Merit Systems Protection Board’s (Board) decision barring a whistleblower retaliation claim because the employee did not provide “precise” details of the claim to OSC.

Michael Johnen alleged in a complaint to OSC that the Army terminated him from civilian  employment in retaliation for his disclosures about nepotism to Army officials and the Inspector General. Johnen subsequently filed this claim with the Board. The Board, however, refused to consider his oral disclosures to Army officials, concluding that because Johnen had not informed OSC of the “precise” details of these disclosures, including dates and all recipients, he did not exhaust his administrative remedies for these disclosures. In its brief, OSC asked the Ninth Circuit to reverse the Board’s decision, which creates unwarranted procedural hurdles for federal employees alleging whistleblower retaliation.

The court agreed and held that Johnen’s OSC complaint encompassed his oral disclosures to Army officials and gave OSC “sufficiently detailed and clear notice” of the whistleblower retaliation claim to investigate. The court remanded the case to the Board for reconsideration of Johnen’s claim as it related to his oral disclosures to Army officials.

“This is a positive development for this whistleblower,” Special Counsel Henry J. Kerner  said. “Whistleblowers are looking for and deserve fair treatment of their claims without unnecessary  administrative hurdles.”

The brief is among three amicus curiae briefs filed by OSC last year regarding the Board’s  interpretation of the administrative exhaustion issue.