Tuesday, November 26, 2013

Exercise v. Assistance Clauses Under the WPEA



This Wednesday the Whistleblower Protection Enhancement Act will celebrate its first birthday. The law dramatically strengthened the protections for federal employees who blow the whistle.

However, the U.S. Merit Systems Protection Board’s ruling in Mudd v. U.S. Dep’t of VeteransAffairs, 2013 M.S.P.B. 90 (Nov. 19, 2013), this past week shows that the scope of the Enhancement Act is still very much at issue.

The Board is an administrative body charged with adjudicating various complaints from federal employees. One of the Board’s functions is to help resolve certain allegations of whistleblower retaliation. A successful whistleblower claim must show that an employee suffered reprisal for engaging in activity that is protected under the law.

The Enhancement Act provides that a federal employee can base a whistleblower action on retaliation for the “exercise” of any complaint, appeal, or grievance right regarding whistleblower reprisal. 5 U.S.C. § 1221(a) (providing whistleblower action for reprisal in violation of 5 U.S.C. § 2302(b)(9)(A)(i)). It also provides a whistleblower action for “assisting” any individual in the exercise of such a right, regardless of the topic of the complaint, appeal, or grievance. Id. (providing whistleblower action for reprisal in violation of 5 U.S.C. § 2302(b)(9)(B)).

Under the law’s plain language, a whistleblower enjoys very different protections under the “exercise” and “assistance” clauses. The former protects only employees who bring whistleblower allegations, while the latter protects employees who assist in any complaint or grievance process. 

In Mudd, the employee argued on review that she engaged in protected activity by alleging violations of law and regulation in her own union grievance. Mudd v. U.S. Dep’t of Veterans Affairs, 2013 M.S.P.B. 90 (Nov. 19, 2013).

The Board agreed with the initial decision’s rejection of this contention. Id. at 4. Analyzing the exercise clause, the Board held that because the grievance did not allege whistleblower reprisal, the employee had no claim that she suffered retaliation for filing the grievance. Id. However, the Board ignored the assistance clause.

What an employee must do to assist the exercise of a right, so that the protection extends to any grievance process, remains unclear. Reading the assistance clause literally would render meaningless the law’s limitation of the exercise clause to whistleblower complaints. However, literal application of the exercise clause would exclude a whistleblower aiding her own cause from the assistance clause’s broad protections. This result contradicts the statute’s plain language that extends to assisting “any individual,” presumably including oneself.

The legislative history is helpful in understanding the likely resolution of this conflict. A Senate committee report indicates that Congress agreed with the Board’s understanding of the exercise clause as articulated in Mudd. S. Report 122-155.

Further, the committee report shows that Congress understood the assistance clause to apply only when an employee helps “another individual,” notwithstanding the fact that the law states “any individual.” Id. In other words, assisting “any individual” does not include assisting oneself. 

Therefore, the law may reserve the assistance clause’s broader protection for an employee who helps others vindicate their rights. 

A year after the Enhancement Act’s passage, the scope of whistleblower protections remains unclear. However, at least one thing is certain: prosecuting a successful federal employee whistleblower action remains fraught with pitfalls. Federal employees who believe they have suffered unlawful reprisal will likely benefit from the advice of experienced whistleblower counsel, such as the attorneys at Kalijarvi, Chuzi, Newman & Fitch. Further, when possible, whistleblowers should engage in clearly protected activity and not rely on the assistance clause.

written by Dallas Hammer

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