The third case being considered next week that attracted an amicus brief is Tao v. Merit Systems Protection Board. In this case, Tao presents several arguments challenging the Merit Systems Protection Board’s dismissal of her individual right of action (“IRA”) appeal, which alleged violations of the Whistleblower Protection Enhancement Act of 2012. Notably, the U.S. Office of Special Counsel filed an amicus brief in support of Tao. Moreover, following the amicus brief, the Merit Systems Protection Board filed its own brief agreeing that the underlying judgment should be vacated and the case should be remanded for further adjudication, and this case is not scheduled for oral argument. Nevertheless, here we summarize the arguments made in the briefs in anticipation of the court’s upcoming decision in this case.
In her opening brief, Tao argues that the Merit Systems Protection Board wrongly concluded that it did not have jurisdiction over her appeal.
First, she argues that the Board wrongly focused “solely on 5 U.S.C. § 2302(b)(8) as a basis for jurisdiction,” and that the Administrative Judge incorrectly “rejected jurisdiction for certain claims that were presented as evidence of protected activity under section 2302(b)(9)(A)(i), (B), (C), or (D) by analyzing such activity in the context of a (b)(8) activity.” She similarly contends that the relevant “Agency similarly makes arguments that certain alleged activity should be discounted because it pertains to section 2302(b)(9) rather than (b)(8).” According to Tao, “[t]his approach predates that Whistleblower Protection Enhancement Act of 2012, which changed the Board’s jurisdiction over Individual Right of Action appeals to include reprisal for protected activity under section 2302(b)(9)(A)(i), (B), (C), and (D).”
Second, Tao maintains that “the Administrative Judge fails to consider protected (b)(8) and (b)(9) activity that was raised in the Petitioner’s submission on jurisdiction.”
Third, she contends “the Administrative Judge fail[ed] to consider certain disclosures as violations of law, rule, or regulation where there is a clear violation of a statute and/or Agency policy.”
As mentioned, the U.S. Office of Special Counsel filed an amicus brief in support of Tao. As explained in its brief, the “U.S. Office of Special Counsel (OSC) is an independent federal agency charged with safeguarding the merit system by protecting federal employees, former federal employees, and applicants for federal employment from ‘prohibited personnel practices,’ as defined by 5 U.S.C. § 2302(b) of the Civil Service Reform Act of 1978 (CSRA), as amended by both the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA).” The brief goes on to explain that “OSC is responsible for investigating and seeking corrective action for federal employee whistleblowers and for those who experience retaliation for engaging in protected activities.”
On the merits, OSC contends that the “MSPB committed reversible error in this case.” In particular, OSC argues that “[t]he Board’s legal analysis contradicts the plain text of federal whistleblower statutes and neglects Congress’s purpose and intent to provide broad IRA appeal rights against retaliation both for making whistleblower disclosures as well as for engaging in activities related to whistleblowing.” OSC contends that “MSPB’s analysis . . . departs from well-established precedent that allegations of retaliation for engaging in protected activities are correctly analyzed under section 2302(b)(9).”
In its response, the Merit Systems Protection Board admits that “[t]he AJ erred in his decision by using the standard applicable to a protected disclosure claim under section 2302(b)(8) to evaluate protected activity claims under section 2302(b)(9)(A)(i), (B), (C) or (D)” and that ” [t]he Board’s case law is clear that the section 2302(b)(8) requirement does not apply in evaluating section 2302(b)(9) protected activities.” The MSPB goes on to admit that “[t]he petitioner has nonfrivolously alleged that she engaged in protected activities under 2302(b)(9)(B) – testifying and assisting other employees in exercising their appeal rights – and under 2302(b)(9)(C) – disclosing information to the OSC Disclosure Unit.”
As a result, the MSPB concedes “the case should be remanded for the AJ to further adjudicate these protected activity claims, including, as well, a related claim based on providing information to an agency investigating component to which section 2302(b)(9)(A)(i) may apply.” Moreover, the MSPB agrees it “would also be appropriate to remand for further consideration the petitioner’s nonfrivolous protected disclosure under section 2302(b)(8) alleging the violation of agency rules by her supervisor’s detail to a position for which he was not qualified.”
Tao did not file a reply brief.
As mentioned, this case is not scheduled for oral argument. In her opening brief, Tao noted that “oral argument is no[t] necessary as the facts and legal arguments will be adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Nevertheless, this appeal is assigned to the panel scheduled to hold its hearing and related conference on Wednesday, May 5. We will report on developments related to this case.