Special Counsel Goes to Bat for Two Defense Whistleblowers

Friend of the court briefs try to overturn rulings against retaliation claims.

The Office of Special Counsel on Tuesday announced it had filed two amicus curiae briefs challenging judges’ rulings that “restrict whistleblower protections for federal workers.”

In the appeals case Johnen v. Merit Systems Protection Board and Department of the Army, OSC took up the cause of Michael Johnen, who had complained to the independent agency that the Army had fired him from his civilian job in retaliation for his having disclosed alleged nepotism among Army officials to the service’s inspector general.

After Johnen refiled his complaint at the MSPB, according to an OSC statement, that board concluded that because Johnen had not informed OSC of the “precise” details of these disclosures, including exact dates and all recipients, he did not exhaust his administrative remedies.

The Special Counsel asked the Ninth Circuit Court to stake new ground and reverse the MSPB, saying the ruling “creates unwarranted procedural hurdles for federal employees alleging whistleblower retaliation” in a way not intended by Congress.

 In the second case — Ryan v. Department of Defense — Pentagon employee James Ryan alleged that the department retaliated against him for complaints about alleged personal misconduct by colleagues. An administrative judge concluded that some of Ryan’s disclosures were not protected because he was motivated to make them by “interpersonal squabbling,” not a genuine desire to report government wrongdoing, OSC said.

The brief argued that the 2012 Whistleblower Protection Enhancement Act states that disclosures are not to be excluded from protection based on a whistleblower’s motive. OSC asked the board, even though it currently lacks a quorum, to “correct this legal error.” 

Separately, Sen. Chuck Grassley, R-Iowa, the Judiciary Committee chairman and founder of the Senate Whistleblower Protection Caucus, on April 14 called on the FBI to update its internal guidance for whistleblowing to “bring the FBI in line with other federal agencies.”

His Federal Bureau of Investigation Whistleblower Protection Enhancement Act became law in December. “Multiple internal communications to employees containing inaccurate and outdated information about whistleblowers’ rights under the law have occurred despite enactment of the new law,” Grassley said in a statement. “Additionally, the Office of Inspector General provided an updated version of employee training on FBI whistleblower protections months ago.  That updated training has not yet been implemented.”

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