Last September, nearly a year after the passage of the Whistleblower Protection Enhancement Act, the U.S. Merit Systems Protection Board issued a decision in O’Donnell v. USDA, 2013 MSPB 69 (Sept. 10, 2013), which resurrected a whistleblower-hostile ruling from 2000: that disclosures of wrongdoing made in the adjudicative context could not be protected because an appeals mechanism already exists to correct legal improprieties.
This judicial ruling was issued via a minor holding by the U.S. Court of Appeals for the Federal Circuit in Meuwissen v. Department of Interior, 234 F.3d 9 (Fed. Cir. 2000).
When O’Donnell came down, I took issue with the Board’s analysis in several postings, focusing primarily on the Board resurrecting Meuwissen despite the passage of the WPEA:
- Gross Mismanagement (Sept. 11, 2013)
- More Problems with O’Donnell v. USDA (Sept. 13, 2013)
- O’Donnell v. USDA: Who Originated the Idea for Resurrecting Meuwissen? (Oct. 3, 2013)
- MSPB Upholds Rejection of Adjudication-Related Disclosures on Meuwissen Grounds (Nov. 6, 2013)
So minor was this particular ruling, in fact, that in the 13 years that followed, it was mentioned, in passing, only twice (once by the Federal Circuit in 2002 and once by the full Board in 2009 – not including non-publicly available AJ initial decisions), and applied only twice: once via the case in which it was resurrected (O’Donnell), and once in a subsequent case which relied on O’Donnell (Daniels v. SSA).
Here’s my attempt, via an amicus curiae brief in O’Donnell:
There’s no guarantee the brief will be accepted by the court. It was rejected once before for a technicality, but I resubmitted it. The Department of Justice had until January 16 to oppose or respond, but they did neither, so we’ll see.