OSC Urges MSPB to Protect Federal Employee Whistleblowers Who Disclose Non-Governmental Wrongdoing

May 16, 2019

OSC has filed an amicus curiae brief with the MSPB in support of broad protections for federal employee whistleblowers even when the disclosures involve wrongdoing by a non-governmental party.

The U.S. Office of Special Counsel (OSC) has filed an amicus curiae (friend of the court) brief with the Merit Systems Protection Board (MSPB) in support of broad protections for federal employee whistleblowers under the Whistleblower Protection Act (WPA) even when the disclosures involve wrongdoing by a non-governmental party.

In Considine v. U.S. Department of the Treasury, the appellant, a bank examiner, was terminated in retaliation for making whistleblower disclosures of improper private banking practices she reviewed as part of her job, as well as for reporting other wrongdoing by agency officials. In the initial decision, the MSPB administrative judge declined to consider certain disclosures about non-governmental wrongdoing as part of the appellant’s whistleblower retaliation claim. The parties appealed the initial decision to the MSPB.

In its amicus curiae brief, OSC argues the plain language and legislative history of the WPA, and its subsequent amendments, indicate that disclosures concerning wrongdoing by any entity—governmental or private—are protected equally. This standard would provide greater protection and more certainty for whistleblowers, particularly when they uncover wrongdoing as part of their federal employment. While OSC plays no role in policing private entities, the brief advocates for broad protections that prohibit federal agencies from retaliating against their employees tasked with the oversight of non-governmental actors.