The Wick Law Office recently received a precedential decision from the Merit Systems Protection Board (MSPB) on a Petition For Review (PFR) that has been pending for over five years. Our client, a management-level employee with the US Department of Homeland Security, Customs and Border Protection (CBP), was suspended for 30 days and subsequently demoted. We filed a direct appeal with the MSPB challenging the actions and raising numerous affirmative defenses, including whistleblower retaliation and EEO discrimination. Prior to our involvement, our client also discussed the adverse actions with the Office of Special Counsel (OSC) because she had an ongoing OSC complaint and sought OSC's assistance in staying the adverse actions. The MSPB Administrative Judge ruled that she had elected OSC as the forum in which to challenge the adverse actions and, therefore, the MSPB lacked jurisdiction over all issues other than whether the adverse actions occurred in retaliation for her protected whistleblowing activity. We filed a PFR challenging the Administrative Judge's ruling on jurisdiction.
In its recent decision, the Board vacated the Administrative Judge's decision and remanded the appeal back to the Administrative Judge. Consistent with a non-precedential decision of the Federal Circuit issued during the pendency of the PFR, the Board held that a supervisory or management level employee is not included in the definition of “employee” under 5 U.S.C. § 7103(a) such that supervisors and managers are exempt from the election of remedies provision under 5 U.S.C. § 7121. As a result, a supervisory/management employee can file both an OSC complaint and a direct adverse action appeal with the MSPB over the same matter; they are not limited to picking one forum or another.
We are very pleased with this decision, which has been a longtime coming for our client. We also had a pending PFR with the MSPB over the merits of the Individual Right of Appeal, as the Administrative Judge ruled in the Agency's favor in that appeal despite a strong body of evidence that their actions were retaliatory for engaging in whistleblowing activity. The Board issued a non-precedential decision in that appeal finding that the Administrative Judge abused his discretion in denying our Motion to Compel and remanding the appeal for further processing. Both decisions can be found at the links above.
If you have questions about these cases or your rights as a federal government employee, please contact us at ben@wick-law.com or 720-999-5390.