NELA Advocates For Broad Protection Against Whistleblower Retaliation In Amicus Brief Filed With The Merit Systems Protection Board

By Matthew Koski posted 02-10-2016 01:00 PM


The NELA HQ Blog is pleased to publish the following post drafted by NELA member Andrew J. Perlmutter from Passman & Kaplan in Washington, D.C.

On February 8, 2016, NELA filed an amicus brief in Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-1, pending before the Merit Systems Protection Board (MSPB).  NELA’s amicus brief was filed in response to the MSPB’s invitation for public amicus participation, published in the Federal Register at 81 Fed. Reg. 2,913-2,914 (January 19, 2016).   

The appellant was a government contractor who blew the whistle in 2012 on violations of law, rule or regulation to the Office of Inspector General while serving as a government contractor.  The appellant later applied for federal employment, but was nonselected under circumstances indicating possible whistleblower reprisal in violation of the Whistleblower Protection Act (WPA).  The MSPB Administrative Judge dismissed appellant’s claim, finding no protected whistleblowing disclosures under the WPA, because the appellant was not a federal employee, applicant, or former employee at the time of the disclosure (even though appellant was clearly an applicant at the time of the nonselection).  The Administrative Judge instead held that the appellant’s whistleblowing as a contractor (about one month prior to his application for a federal position where he earned “applicant” status) did not protect him under the WPA. 

In its Federal Register notice, the MSPB requested public input concerning whether both the protected activity and the reprisal had to occur while the victim was an employee or applicant for WPA coverage to apply.  The MSPB also sought comments comparing the WPA’s coverage to coverage under USERRA, and whether or not WPA coverage of federal contractors would negatively impact coverage under certain other federal contractor whistleblower protection statutes.

In its amicus brief, NELA argued that the decision below was inconsistent with prior MSPB caselaw which held that the WPA prohibited retaliation against applicants for federal employment even if the victim had not yet applied for federal service at the time of their protected conduct, a line of cases consistent with Congressional intent in construing whistleblower protections broadly in favor of coverage.  The amicus brief noted that the decision below contradicted MSPB precedent protecting individuals perceived by management to be whistleblowers from retaliation based on that belief, whether or not the individual had actually engaged in protected conduct. NELA argued that the various federal whistleblower statutes frequently overlapped (at times deliberately), and so the MSPB would not impair any of those other statutes by giving expansive reading to the WPA.  Finally, NELA noted that specific statutory provisions of USERRA require that its coverage be interpreted independently of the WPA, although the MSPB did not need to reach the USERRA issue to decide the case as no USERRA claim was raised below. 

The amicus briefs filed in Abernathy are available on the MSPB’s website, at  A copy of NELA's brief may also be downloaded from the Amicus Library on The NELA Exchange.

The amicus brief was drafted by Alan R. Kabat of Bernabei & Kabat (Washington, DC); Andrew J. Perlmutter of Passman & Kaplan (Washington, D.C.); Kathryn S. Piscitelli of Kathryn S. Piscitelli, Attorney at Law (Orlando, FL) and Richard R. Renner of Kalijarvi, Chuzi, Newman & Fitch (Washington, D.C.).  NELA Program Director Matt Koski provided a detailed review of the draft amicus brief, which was also reviewed by Susan E. Jewell of The Law Office of Susan E. Jewell (Portland, OR) and Joseph V. Kaplan of Passman & Kaplan (Washington, D.C.).