A federal employee or applicant for employment engages in whistleblowing when the individual discloses to the Special Counsel or an Inspector General or comparable agency official (or to others, except when disclosure is barred by law, or by Executive Order to avoid harm to the national defense or foreign affairs) information which the individual reasonably believes evidences the following types of wrongdoing:

• a violation of law, rule, or regulation; or
• gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

What are “prohibited personnel practices?”

Twelve prohibited personnel practices, including reprisal for whistleblowing, are defined by law at § 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:

1. discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
2. solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
3. coerce the political activity of any person;
4. deceive or willfully obstruct anyone from competing for employment;
5. influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
6. give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
7. engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
8. engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs – if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official);
9. take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
10. discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
11. take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; and
12. take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.

Who can be protected by the OSC from prohibited personnel practices?

General.

OSC has jurisdiction over prohibited personnel practices committed against most employees or applicants for employment in Executive Branch agencies and the Government Printing Office.

Limited Jurisdiction; whistleblower protection.

OSC has jurisdiction over allegations of whistleblower retaliation for employees of:

• the government corporations listed at 31 U.S.C. § 9101;
• the Federal Aviation Administration; and
• the Transportation Security Administration (TSA). (Please see section below for more information.)

Limited Jurisdiction; U.S. Postal Service (USPS) nepotism allegations.

Under a Memorandum of Understanding between OSC and the USPS, OSC refers allegations of the anti-nepotism statute (5 U.S.C. § 3110) to the USPS for investigation.  Once the USPS completes its investigation, it reports its findings and an proposed action to the OSC.

Can Transportation Security Administration employees, including security screeners, file complaints with OSC?

Yes. Transportation Security Administration (TSA) employees, including screeners, may file complaints with the OSC, although the processing of complaints may vary for screeners and non-screeners. Non-screeners may file complaints for retaliations for protected whistleblowing under 5 U.S.C. § 2302(b)(8). OSC will process these complaints under its regular procedures, including filing petitions with the Merit Systems Protection Board, if warranted. TSA screeners may file complaints alleging retaliation for protected whistleblowing under 5 U.S.C. § 2302(b)(8), pursuant to a Memorandum of Understanding (MOU) between OSC and TSA executed on May 28, 2002. The MOU and TSA Directive HRM Letter No. 1800-01 provide the authority under which OSC may investigate whistleblower retaliation complaints and recommend that TSA take corrective and/or disciplinary action when warranted. Additional information on OSC procedures for reviewing security screener whistleblower complaints under the MOU is available at http://www.osc.gov/tsa-info.htm

Who is not protected by OSC from prohibited personnel practices?

OSC has no jurisdiction over prohibited personnel practices committed against employees of the:

• Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, and certain other intelligence agencies excluded by the President;
• General Accounting Office;
• Federal Bureau of Investigation;
• U.S. Postal Service; and
• Postal Rate Commission.

How does the OSC handle prohibited personnel practice complaints?

Complaints Examining Unit (CEU).

The CEU receives complaints filed with the OSC.  The CEU initially analyzes all allegations of prohibited personnel practices (as well as allegations of other activities prohibited by civil service law, rule or regulation).  When necessary, the CEU contacts the person requesting OSC action to ensure that CEU clearly understands the nature of and basis for each allegation. It conducts further inquiry to the extent necessary to determine whether the allegation warrants additional investigation.  Persons who have submitted allegations to the CEU will receive one or more of the following responses:

• a letter acknowledging receipt of their complaint and identifying the staff member assigned to handle it, with an information sheet (Form OSC-53) enclosed explaining how the complaint will be processed by the CEU;
• a status report after 90 days, and every 60 days thereafter while the matter is active;
• a letter advising that the matter has been referred to an OSC Investigation and Prosecution Division for further inquiry, with an information sheet (Form OSC-54) about the investigation and legal review process, (or, as noted below, a letter inviting the complainant to participate in mediation as an alternative to investigation);
• a preliminary determination letter, with a final opportunity for input when the CEU proposes to close a matter without remedial action or referral to an Investigation and Prosecution Division; or
• a letter advising that the OSC will take no further action because it lacks jurisdiction over the matter.

The OSC asks everyone who seeks an investigation of a possible prohibited personnel practice to select one of three consent statements (Form OSC-49) explaining necessary communications between OSC and the agency involved.

Investigation and Prosecution Division (IPD).

After a thorough initial examination, the CEU refers matters indicating a potentially valid claim (under the laws enforced by the OSC) to one of three IPD units (I, II, or III). Each unit conducts investigations to review pertinent records, and to interview complainants and witnesses with knowledge of the matters alleged. Matters not resolved during the investigative phase will undergo legal review and analysis to determine whether the IPD inquiry has established a violation of law, rule or regulation, and whether the matter warrants corrective action, disciplinary action, or both. Complainants will continue to receive 60-day status notices while matters are pending in the applicable division.

Alternative Dispute Resolution (ADR) Unit.

After CEU has completed its examination, OSC offers mediation, as an alternative to investigation, in selected PPP cases. Participation in the OSC mediation program is completely voluntary for both the complainant and the employing agency. If both parties agree to mediate their dispute, the OSC assigns a neutral third party – a mediator – to facilitate a discussion between the parties to reach a mutually agreeable resolution to the complaint. For more information on mediation at the OSC, click on the Alternative Dispute Resolution link.

Can the OSC delay a personnel action pending investigation of the matter?

An individual may request that the Special Counsel seek to delay, or “stay,” an adverse personnel action pending an OSC investigation. If the Special Counsel has reasonable grounds to believe that the proposed action is the result of a prohibited personnel practice, the OSC may ask the agency involved to delay the personnel action. If the agency does not agree to a delay, the OSC may then ask the U.S. Merit Systems Protection Board (MSPB) to stay the action. (The OSC cannot stay a personnel action on its own authority.)

How can the OSC remedy a prohibited personnel practice?

General.

Current and former federal employees and applicants for federal employment may report suspected prohibited personnel practices to the OSC. The matter will be investigated, and if there is sufficient evidence to prove a violation, the OSC can seek corrective action, disciplinary action, or both. Alternatively, parties in selected cases may agree to mediate their dispute in order to reach a mutually agreeable resolution of the PPP complaint.

Corrective action.

The OSC may enter into discussions with an agency at any stage of a pending matter in pursuit of a resolution acceptable to all parties. The OSC follows a policy of early and firm negotiation to obtain appropriate corrective action (and/or disciplinary action) for apparent violations. If an agency fails to remedy a prohibited personnel practice upon request by the OSC, corrective action may also be obtained through litigation before the MSPB. Such litigation begins with the filing of a petition by the OSC, alleging that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to occur. Corrective actions that can be ordered by the MSPB include job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney’s fees, back pay, medical and other costs and damages.  See 5 U.S.C. § 1214

Note:

Pursuant to 5 U.S.C. § 1221, current or former federal employees and applicants who allege that they were subjected to any personnel action because of whistleblowing may seek corrective action in an appeal to the MSPB. Such an appeal is known as an “individual right of action” (IRA). By law, the employee or applicant must seek corrective action from the OSC before filing an IRA. The IRA may be file:

• after the OSC closes a matter in which reprisal for whistleblowing has been alleged; or
• if the OSC has not notified the complainant within 120 days of receiving an allegation of whistleblower reprisal that it will seek corrective action.

Procedures for filing an IRA are set forth in MSPB regulations at 5 C.F.R. Part 1209. (In considering an IRA, it should be noted that the MSPB may refuse to take jurisdiction over any matters not specifically raised before the OSC.)  The MSPS’s website has more information about IRAs: http://www.mspb.gov/appeals/whistleblower.htm

Disciplinary action.

The OSC may seek disciplinary action against any employee believed to be responsible for committing a prohibited personnel practice. The OSC begins a disciplinary action case by filing a complaint with the MSPB, charging an employee with the commission of a prohibited personnel practice, and seeking disciplinary action against that person. Rights of employees against whom the OSC seeks disciplinary action in these cases are set forth in MSPB regulations, at 5 C.F.R. Part 1201, Subpart D. Individuals found by the MSPB to have committed a prohibited personnel practice are subject to removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or fine of up to $1,000. In the alternative, at any time during its investigation of a matter, the OSC may authorize the agency involved to take disciplinary action against an employee believed to be responsible for committing a prohibited personnel practice. Pursuant to 5 U.S.C. § 1214(f) , during any OSC investigation under title 5, an agency may not take disciplinary action against any employee for any alleged prohibited activity under investigation, or for any related activity, without approval from the OSC. Ref: 5 U.S.C. § 1215

Intervention.

The Special Counsel may intervene as a matter of right, or otherwise participate in most proceedings before the MSPB. The Special Counsel may not intervene in certain proceedings (individual rights of action brought under 5 U.S.C. §1221, or matters otherwise appealable to the MSPB under 5 U.S.C. § 7701) without the consent of the person initiating the proceeding. Ref: 5 U.S.C. § 1212(c)

How can a person file a complaint of prohibited personnel practices or other prohibited employment activity with the OSC?

To initiate a complaint the individual must file a Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity, Form OSC-11.  Filers may file electronically at https://www.osc.gov/oscefile/ or by hard copy, using Form OSC-11 http://www.osc.gov/ComplaintsForm.htm It is important to identify with specificity allegations of prohibited personnel practices or other prohibited employment activity in the complaint. The OSC will not process a complaint not properly submitted.  Form OSC-11 does not have to be used for a complaint alleging only a Hatch Act violation.  If a person uses the incorrect format to file a complaint, the material received will be returned to the filer.  The complaint will be considered to be filed on the date on which the OSC receives the properly completed Form OSC-11.

Complaints of prohibited personnel practices or other prohibited employment activities within the investigative authority of the OSC should be sent to the U.S. Office of Special Counsel, Complaints Examining Unit, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.

See 5 C.F.R. § 1800.1

Can employees seek relief from the OSC for a prohibited personnel practice if they are covered by a collective bargaining agreement?

Pursuant to 5 U.S.C. § 7121(g), employees covered by a collective bargaining agreement must choose one of three avenues: an OSC complaint, an MSPB appeal, or a grievance under the collective bargaining agreement.

What is the OSC’s policy about allegations of discrimination?

Race, color, religion, sex, national origin, age, handicapping condition.

The OSC is statutorily authorized to investigate allegations of discrimination based on race, color, religion, sex, national origin, age, or handicapping condition (see (1), under “Prohibited Personnel Practices,” above). However, procedures for investigating such complaints have already been established in federal agencies and the Equal Employment Opportunity Commission (EEOC). Therefore, to avoid duplicating those investigative processes, the OSC follows a general policy of deferring complaints involving discrimination to those agencies’ procedures.

Sexual orientation, marital status, political affiliation.

Allegations of discrimination based on sexual orientation, marital status, and political affiliation are not within the jurisdiction of the EEOC. Such allegations, however, may be prohibited personnel practices or other violations of law subject to investigation by the OSC. Ref: 5 C.F.R. § 1810.1

What other violations does the OSC have jurisdiction to investigate?

The OSC is authorized by law to investigate and seek appropriate corrective and disciplinary action for— activities prohibited by any civil service law, rule, or regulation (including any activity relating to political intrusion in personnel decision making); arbitrary or capricious withholding of information under the Freedom of Information Act; and involvement by any employee in any prohibited discrimination found by a court or administrative authority to have occurred in the course of any personnel action. The OSC also has authority to investigate and litigate cases referred by the Department of Labor, involving the reemployment rights of veterans and reservists returning to the federal workplace after active duty. Ref: 5 U.S.C. § 1216; 38 U.S.C. § 4324.

What do I do if I believe my veterans preference rights were violated?

You should file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service. The Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3330 et seq., created a new avenue of administrative redress specifically for a preference eligible who alleges that a federal agency violated such individual’s rights under any statute or regulation relating to a veteran’s preference eligible. Under the VEOA, in order to seek corrective action, a preference eligible is to file a written complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS), within 60 days of the alleged violation. VEOA requires the Secretary of Labor, through VETS, to investigate the complaint and, upon determining that a violation occurred, to attempt to resolve the complaint by making reasonable efforts to ensure that the agency complies with the statute or regulation relating to veteran’s’ preference. If the Secretary is unable to resolve a complaint within 60 days, the Secretary is to provide notification of an unsuccessful effort to resolve the complaint to the complainant. In light of the VEOA, OSC does not investigate allegations of violations of veterans’ preference rights for corrective action purposes. (We still investigate such allegations for possible disciplinary action, however.) Thus, you should file a complaint alleging a violation of a veterans’ preference right with VETS, not OSC. Additional Information about VETS can be found at http://www.dol.gov/vets/

Are federal employees required to cooperate with OSC investigations?

Title 5 of the U.S. Code authorizes the OSC to issue subpoenas for documents or the attendance and testimony of witnesses. During an investigation, the OSC may require employees and others to testify under oath, sign written statements, or respond formally to written questions. Federal employees are also required to provide to the OSC any information, testimony, documents, and material, the disclosure of which is not otherwise prohibited by law or regulation, in investigations of matters under civil service law, rule, or regulation. The same rule requires federal agencies to make employees available to testify, on official time, and to provide pertinent records to the OSC. See 5 U.S.C. § 1212(b); Civil Service Rule 5.4

What legal responsibilities do federal agencies have to prevent prohibited personnel practices?

Section 2302(c) of title 5 requires federal agency heads, and officials with delegated authority for any aspect of personnel management, to: prevent prohibited personnel practices, including reprisal for whistleblowing; comply with and enforce civil service laws, rules and regulations; and ensure (in consultation with the OSC) that federal employees are informed of their rights and remedies. The OSC has developed a training guide for use by agencies in carrying out the duty of informing employees of their rights and remedies under title 5. On request, the OSC may also make speakersavailable to assist in conducting such training.

Contact Whistleblower Attorney Gregory A. Hall at: http://awhistleblowerlawyer.com

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584

WHAT IS A WHISTLEBLOWER

A whistleblower discloses information concerning a violation of any law, rule or regulation, or concerning gross mismanagement, a gross waste of funds, fraud, an abuse of authority, or a substantial and specific danger to public health or safety.  However, this disclosure alone is not enough to obtain protection under the law.  The individual must also: avoid using normal channels if the disclousre is in the course is in the course of the employee’s duites; make the report to someone other than the wrongdoer; and suffer a personnel action, the agency’s failure to take a personnel action, or the threat to take or not take a personnel action.  Finally, the employee must seek redress through the proper channels before filing an appeal with the MSPB.  The failure to meet all these criteria will deprive the MSPB of jurisdiction.

WHISTLEBLOWER PROTECTION ACT

On July 9, 1989, the Whistleblower Protection Act of 1989 (Public Law 101-12) became effective. Congress enacted this law to strengthen protections for Federal employees, former employees, and applicants for employment who claim that they have been subject to personnel actions because of whistleblowing activities. The 103rd Congress further expanded whistleblower protections by enacting Public Law 103-424, which became effective October 29, 1994, making additional personnel actions subject to coverage and extending whistleblower protections to employees of Government corporations and to employees in the Veterans Health Administration.

The Merit System Protection Board has jurisdiction over some whistleblower claims made by federal employees or applicants for employment with federal agencies; e.g., different rules and procedures apply to FAA employees. Regulations governing the BOARD appeals process are contained in Title 5 of the Code of Federal Regulations (CFR), Chapter II, Part 1201. In addition to Part 1201, whistleblower appeals are governed by regulations found at 5 CFR 1209.

WHISTLEBLOWER APPEALS BEFORE THE BOARD

It is a prohibited personnel practice for an agency to subject you to a personnel action if the action is threatened, proposed, taken, or not taken because of whistleblowing activities. You are protected if you make such a disclosure to the Special Counsel, the Inspector General of an agency, or another employee designated by an agency head to receive such disclosures. You are also protected if you make such a disclosure to any other individual or organization (e.g., a congressional committee or the media), provided that the disclosure is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs.

The Office of Special Counsel has jurisdiction over prohibited personnel practice complaints with respect to a broad range of personnel actions, including appointments, promotions, details, transfers, reassignments, and decisions concerning pay, benefits, awards, education, or training. A whistleblower may file a complaint with the Special Counsel with respect to most personnel actions allegedly based on whistleblowing. Prior to the Whistleblower Protection Act, if a whistleblower filed a complaint with the Special Counsel and the Special Counsel did not seek corrective action from the Board, no further recourse was available, unless the action was directly appealable to the Board.

Under the Whistleblower Protection Act, a whistleblower may appeal directly to the Board if he first complains to the Special Counsel and the Special Counsel does not seek corrective action on his behalf. This right exists with respect to any personnel action that can be the subject of a prohibited personnel practice complaint to the Special Counsel, even though the action may not be directly appealable to the Board.

A whistleblower has the right to appeal directly to the Board if he is subject to a personnel action that is appealable to the Board. The Whistleblower Protection Act does not change that. Actions that are directly appealable to the Board include adverse actions, performance-based removals or reductions in grade, denials of within-grade salary increases, reduction-in-force actions, and denials of restoration or reemployment rights.

TWO KINDS OF WHISTLEBLOWER APPEALS

There are two kinds of whistleblower appeals. The principal difference between the two is in the way they reach the Board.

1. Otherwise Appealable Action

In the first kind of case, the individual is subject to a personnel action that is directly appealable to the Board, and the individual claims that the action was taken because of whistleblowing. This kind of case is referred to by the Board as an “otherwise appealable action,” and the individual may file an appeal directly with the Board after the action has been taken.

2. Individual Right of Action

The second kind of case was created by the Whistleblower Protection Act and is referred to as an “Individual Right of Action.” In this kind of case, the individual is subject to a personnel action and claims that the action was taken because of whistleblowing, but the action is not one that is directly appealable to the Board. In this kind of case, the individual can appeal to the Board only if he files a complaint with the Special Counsel first and the Special Counsel does not seek corrective action on the individual’s behalf.

An individual who is subject to a personnel action that is directly appealable to the Board, and who claims that the action was taken because of whistleblowing, may choose to file a complaint with the Special Counsel rather than appeal to the Board. If the Special Counsel does not seek corrective action on his behalf, the individual may then appeal to the Board. While this is considered an “otherwise appealable action,” the time limits for filing are the same as for an “individual right of action.”

Questions and Answers

1. Who may file whistleblower appeals with the Board?

The right to file an individual right of action appeal with the Board is determined by the employee’s eligibility under the “Prohibited Personnel Practices” statute (Title 5 of the United States Code, section 2302) to file a complaint with the Special Counsel alleging that a personnel action was taken because of whistleblowing. Covered employees include:

* Competitive service employees;
* Most excepted service employees in Executive agencies;
* Employees of Government corporations who allege whistleblower reprisal;
* Employees of the Government Printing Office; and
* Former employees of and applicants for employment with covered agencies.

Employees specifically excluded from coverage are those in the General Accounting Office, the FBI, and various intelligence agencies. A covered employee who files a whistleblower complaint with the Special Counsel becomes eligible to file an individual right of action appeal with the Board only if the Special Counsel does not seek corrective action on his or her behalf.

In the case of an otherwise appealable action, any employee eligible to appeal the particular action can appeal directly to the Board. The regulations applying to the particular action being appealed govern who may appeal that action. In general, competitive service and preference-eligible employees (e.g., veterans) have Board appeal rights with respect to most appealable actions. Most excepted service employees may appeal adverse actions and performance-based actions. Former employees and applicants for employment can appeal some actions.

If there is any question as to whether you come under the jurisdiction of the Special Counsel with respect to complaints of personnel actions allegedly based on whistleblowing, or under the Board’s jurisdiction with respect to actions that may be appealed directly to the Board, you should file your complaint or appeal with the Board in order to preserve your appeal rights.

2. How do I file a whistleblower appeal with the Board?

You must file your timely appeal in writing with the Board’s regional or field office serving the area where your duty station was located when the action was taken. This requirement applies to all whistleblower appeals, both otherwise appealable actions and individual right of action appeals. Appeals may be filed online via the MSPB eAppeal system or via paper form. See the Filing an Appeal section of this web site for links to eAppeal and the appeal form.

Your appeal must contain the following:

• All of the information required by the Board’s regulations at Title 5 of the Code of Federal Regulations, Part 1201, for other types of appeals, including the signature of the appellant or the appellant’s representative and a certificate of service stating how and when a copy of the appeal was served on the agency.

• A description of the whistleblowing disclosure and a chronology of facts concerning the personnel action–including the name and position of the person(s) taking the action.

• An explanation as to why you believe the personnel action is in reprisal for whistleblowing and any supporting evidence you have.

• In the case of a threatened action not yet taken, the specific indications giving rise to your apprehensions.

• If you have sought corrective action from the Special Counsel first, evidence that your appeal is being filed within the required time limits.

• Appeals may be filed by mail, by facsimile, by commercial overnight delivery, or by personal delivery. The date of filing by mail is considered to be the postmark date. The date of filing by facsimile is the date of the facsimile. The date of filing by commercial overnight delivery is the date you deliver the appeal to the commercial overnight delivery service.

3. What are the required time limits for filing a whistleblower appeal?

The time limits are different for an otherwise appealable action and for an individual right of action appeal.

Otherwise Appealable Action: You must file within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later. (If the filing deadline falls on a Saturday, Sunday, or Federal holiday, the filing deadline is extended to the next working day.) However, if you have been subjected to an otherwise appealable action and you choose to seek corrective action from the Special Counsel first, the time limits for appealing to the Board are the same as for an individual right of action appeal.

Individual Right of Action

The time limits for filing an individual right of action appeal depend on what the Special Counsel does with your complaint:

• If the Special Counsel notifies you that the office is terminating its investigation of your complaint, you have 65 days from the date of the Special Counsel’s written notice, or 60 days from your receipt of the notice, whichever is later, to file an individual right of action appeal with the Board.

• If 120 days pass after you file a complaint with the Special Counsel and that office has not notified you that it will seek corrective action on your behalf, you may file an individual right of action appeal with the Board anytime thereafter.

4. What is a “stay” and how does it apply to whistleblower appeals?

A stay orders the agency to suspend the personnel action being appealed. You may file a stay request with the Board in connection with either kind of whistleblower appeal–an otherwise appealable action or an individual right of action appeal. You may file a stay request at any time after you become eligible to file your appeal, but no later than the time limit the judge sets for close of discovery in the appeal. You may file a stay request before, at the same time as, or after you file your appeal. If you file the stay request first, you must file your appeal within 30 days after the judge rules on the stay request.

5. How do I file a stay request with the Board?

You file a stay request in writing with the same Board regional or field office where you file your appeal. You may file the request by personal delivery, by facsimile, by commercial overnight delivery, or by mail.

Your stay request must contain the following information:

• Your name and the names and addresses of the agency and your representative, if you have one.
• A chronology of the facts, including a description of the whistleblowing disclosure and the personnel action that the agency has threatened, taken or failed to take.
• An explanation as to why you believe the personnel action is based on whistleblowing. You should support your explanation with documentary proof because a stay will be granted only if you show a “substantial likelihood” that your appeal will succeed.
• An explanation as to how long the stay should remain in effect and whether the stay will cause a hardship on the agency.
• If you first sought corrective action from the Special Counsel, evidence that the request is timely filed.

6. How does the Board decide on a stay request?

After you have filed your stay request, the Administrative Judge will allow the agency an opportunity to comment and submit evidence. After considering all the arguments and evidence, the administrative judge will either grant or deny your request.

If your stay request is granted, the administrative judge will specify the time period during which the agency must suspend the personnel action. A typical stay order will suspend the personnel action indefinitely, until it is later modified or vacated by another Board order.

If your stay request is not granted, you may file a written request with the administrative judge asking that he refer your request and his decision denying your request to the Board members in Washington, D.C. for their review. This is called “petitioning” the administrative judge to “certify” his decision as an “interlocutory appeal.” The Board’s regulations regarding interlocutory appeals are found at Title 5 of the Code of Federal Regulations, Part 1201.

7. What are the burden of proof and degree of proof in whistleblower appeals?

In whistleblower appeals, you have the burden of proving by a preponderance of the evidence that whistleblowing was a contributing factor in the personnel action threatened, taken, or not taken against you. The Board will order the agency to correct the action if you demonstrate that the whistleblowing was a contributing factor in the personnel action. You may demonstrate that the whistleblowing was a contributing factor by showing that the official taking the action knew about the whistleblowing and that the action occurred within a time period such that a reasonable person would conclude that the whistleblowing was a contributing factor in the personnel action.

The Board will not order corrective action, however, if the agency demonstrates by clear and convincing evidence that it would have taken the same action in the absence of the whistleblowing. The clear and convincing standard of proof is a higher standard than the preponderance of the evidence standard that you must meet.

8. If I file a whistleblower appeal with the Board after the Special Counsel has terminated an investigation of my complaint, will that termination influence the Board’s decision?

No. Under the Whistleblower Protection Act, when the Board considers your appeal, it may not take into account the Special Counsel’s decision to terminate an investigation of your complaint. Moreover, if you file your appeal because 120 days have passed without your being notified that the Special Counsel will seek corrective action on your behalf, the Special Counsel may not proceed to seek corrective action without your permission. Furthermore, the Special Counsel may not intervene in your appeal before the Board without your permission.

9. What can I do if I am not satisfied with the administrative judge’s decision on my whistleblower appeal?

As is the case with other decisions on appeals to the Board, you have the right to ask the 3-member Board in Washington to review the initial decision of the administrative judge. You do this by filing a petition for review in accordance with the Board’s regulations at Title 5 of the Code of Federal Regulations, Part 1201. If no party files a petition for review, the initial decision of the administrative judge becomes final 35 days after it is issued. If a petition for review is filed, the decision issued by the Board becomes the final decision.

You may request judicial review of a final Board decision on your whistleblower appeal–either an initial decision of an administrative judge that has become final or the Board’s decision on a petition for review–by the U.S. Court of Appeals for the Federal Circuit. The court must receive your request for review within 60 days of your receipt of the Board’s final decision. The court normally will not waive this time limit and filings that do not meet the deadline will be dismissed.

See the MSPS’s website for more information: http://www.mspb.gov/appeals/whistleblower.htm

To talk to a lawyer about your whistleblower claim contact Whistleblower Attorney Gregory A. Hall at: http://awhistleblowerlawyer.com/

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584

Special rules govern whistleblower complaints for FAA employees.  The information contained herein is not exhaustive, nor does it constitute legal advice, but is intended to provide an overview of whistleblower protections.  Whistleblowers should consult with a whistleblower lawyer to obtain legal advice.

A complaint must be filed with the Department of Labor and/or the FAA within 90 days of the date of the discrimination or retaliation for the whistle blowing. The Secretary of Labor has delegated the authority to receive and process discrimination complaints to the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor. A personal remedy for discrimination is available to you only by filing a complaint with the U. S. Department of Labor, Occupational Safety and Health Administration (OSHA). You must file your complaint with the nearest  OSHA Regional Office within 90 days of the date of the discriminatory conduct.  To find the closet office: http://www.osha.gov/html/RAmap.html

Anonymous complaints cannot be processed under the Whistleblower Protection Program. If you would like to make an anonymous safety-only complaint, please use the FAA Safety Hotline.

Your complaint must include the following:

1. Your name, address, and telephone number;
2. The specific order, regulation, or standard of the FAA, or the specific provision of Federal law in question (if known);
3. The name of the person(s) who discharged or otherwise discriminated against you;
4. You must make one or more of the following allegations:

• I provided, caused to be provided, or was about to provide, to my employer information about a violation of an order, regulation, or standard of the FAA or another provision of Federal law relating to air carrier safety.
• I provided, caused to be provided, or was about to provide, to the Federal Government information about a violation of an order, regulation, or standard of the FAA or another provision of Federal law relating to air carrier safety.
• I filed, caused to be filed, or was about to file or cause to be filed, a proceeding relating to a violation of an order, regulation, or standard of the FAA or another provision of Federal law relating to air carrier safety.
• I testified or was about to testify in a proceeding relating to a violation of an order, regulation, or standard of the FAA or another provision of Federal law relating to air carrier safety.
• I assisted or participated in, or was about to assist or participate in, a proceeding relating to a violation of an order, regulation, or standard of the FAA or another provision of Federal law relating to air carrier safety.

5. Any other facts, data, and applicable circumstances.

For legal counsel contact Whistleblower Attorney Gregory A. Hall at: WWW.AWHISTLEBLOWERLAWYER.COM

Gregory A. Hall
A Colorado Personal Injury Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email:  gregory@federallaw.com

If you only send your complaint to FAA you will not be eligible to receive any damages. To file your complaint with the FAA, you may use the Electronic Complaint Form found on the FAA’s website, or mail your complaint to:

Federal Aviation Administration
Whistleblower Protection Program
800 Independence Avenue, SW
Room 831
Washington, DC 20591
For more information:
>http://www.faa.gov/safety/programs_initiatives/aircraft_aviation/whistleblower/complaint/

To bring a claim, you must have some way to independently verify the fraud, in other words, you must have hard evidence showing that fraud occurred: A claim cannot be based on mere suspicions. The more documentation you have establishing fraud, the more likely a private attorney and the Federal government will be interested in your case. FCA cases often involve frauds not apparent to the untrained eye, which is why they may remain undetected by the government. If you discovered the fraud, then your participation in the qui tam law suit is critical to the prosecution. Billing records, for example, may scream “fraud!” to someone with specialized knowledge, but look perfectly legitimate to others. A whistleblower should be prepared to show how the fraud works, and explain how the evidence reveals a pattern of fraud against the federal government (or any one of the 13 states with their own False Claims Act laws). Your claim will be barred if you learned about the fraud from the media or from other public documents or if the fraud occurred more than six years ago. Moreover, the FCA does not cover tax fraud.

If you have a potential False Claims Act case contact Whistleblower Attorney Gregory A. Hall at: www.awhistleblowerlawyer.com

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206-3434
Phone: 303-320-0584
Email: gregory@federallaw.com

• They provided information related to a violation of, or any act or omission they reasonably believe to be a violation of any provision of the Act or any other law enforced by the Consumer Product Safety Commission;
• They testified or were about to testify in a proceeding concerning such a violation;
• They assisted or participated in, or were about to assist or participate in, such a proceeding; or
• They objected to, or refused to participate in, any activity, policy, practice or assigned task that they (or other such persons) reasonably believed to be a violation of any provision of the Act or any other law enforced by the Commission, or any order, rule, regulation, standard, or ban under such laws.

An employee (whistleblower) who been discharged or otherwise discriminated against in violation of the CPS Act may want to consult with an attorney experienced with whistleblower claims.   The whistleblower may file a complaint with the Secretary of Labor of the Department of Labor, who has authority to investigate, determine whether there is any reasonable cause to believe a violation has occurred, conduct a hearing, and order relief. If the Secretary concludes a violation has occurred, the Secretary may order relief to the complainant in the form of abatement of the violation, job reinstatement, compensatory damages, and costs and expenses (including attorneys’ and expert witness fees).  If the Secretary concludes the complaint was frivolous or has been brought in bad faith, the Secretary may award the prevailing employer a reasonable attorneys’ fee, not to exceed $1,000, to be paid by the complainant. The Secretary may file a civil action for noncompliance with one of its orders. The complainant may bring an action in federal court if the Secretary has not issued a final decision within a prescribed time. The court may grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including reinstatement, back pay with interest, and litigation costs, expert witness fees, and reasonable attorney’s fees.

Section 219. Whistleblower Protections

Section 219 establishes new whistleblower protections for employees of manufacturers, private labelers, distributors, or retailers of consumer products. Covered employees are protected from discharge or any other form of retaliation resulting from the employee’s provision to the employer, the Federal Government, or a State attorney general of information relating to any violation of statutes or regulations enforced by the CPSC. The whistleblower protections in new Section 40 of the Consumer Product Safety Act do not extend to government employees. An employee of a manufacturer, private labeler, distributor, or retailer of consumer products who believes he or she has suffered an adverse employment action as a result of the employee’s provision of information relating to a violation of statutes or regulations enforced by the CPSC may file a complaint with the Secretary of Labor seeking redress. A complaint setting forth the facts and identifying the responsible party must be filed with the Secretary of Labor no later than 180 days after the date on which the violation occurs.

Effective Date: This provision became effective upon enactment, August 14, 2008. For more information on the CPSIA contact the Consumer Product Safety Commission at: http://www.cpsc.gov/

For legal counsel contact Whistleblower Attorney Gregory A. Hall at: http://www.awhistleblowerlawyer.com

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584