In its first month in operation after being reconstituted, the MSPB board has signaled its priorities by addressing several cases of alleged whistleblower retaliation as well as other disciplinary matters.
The rulings are setting precedent that likely will be used as the basis for tackling other cases involving similar legal issues among the 3,600-case backlog of appeals of hearing officer decisions that had built up during the five years the board was unable to issue decisions because it lacked a quorum. With new legal precedents established, the board will be able to decide those cases more quickly.
The board is operating with only two of the three seats filled, making the decisions essentially bipartisan; a nomination for the third, a Democrat for the chairmanship, remains pending in the Senate.
Among the early decisions were two involving alleged retaliation against whistleblowers. In one, the board took a narrow reading of what types of activities qualify for those protections as an “exercise of any appeal, complaint, or grievance right” but also that even for reemployed annuitants—who have more limited job rights—an agency must prove that it would have taken the same action regardless of the whistleblowing.
In another, the MSPB found that a DoD employee who had made a protected disclosure regarding the military’s handling of the remains of deceased service members had suffered retaliation when she was not selected for another job she applied for. That was true even...
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