Last month, and to much fanfare, the Office of Special Counsel successfully sought from the Merit Systems Protection Board “stay requests” putting a hold on adverse personnel action against two whistleblowers.

In one case, OSC sought a 45-day stay on the proposed indefinite suspension without pay of Franz Gayl, a civilian advisor to the Marines. In another case, OSC sought a stay for the termination of Paul T. Hardy, an FDA adjunct employee who objected to the improper approval of a medical device.

Legal Authority

The authority for such requests through OSC stems from 5 U.S.C. 1214(b)(1)(A)(i), which states that

The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 45 days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice. [Emphasis added.]

This is codified in MSPB practice regulations, specifically 5 C.F.R. 1201.134(a), which states that

Request to stay personnel action. Under 5 U.S.C. 1214(b)(1), the Special Counsel may seek to stay a personnel action if the Special Counsel determines that there are reasonable grounds to believe that the action was taken or will be taken as a result of a prohibited personnel practice [Emphasis added.]

However, due to budget constraints, OSC is not able to represent most federal whistleblowers who suffer retaliation. Because of this, whistleblowers are granted the right to pursue their own Individual Right of Action (IRA) — granting them the right to sue the retaliatory agency in the MSPB pro se or with a private attorney.

Whistleblowers on an IRA also have the right to request stays from MSPB, pursuant to 5 U.S.C. 1221(c):

(1) Any employee, former employee, or applicant for employment seeking corrective action under subsection (a) may request that the Board order a stay of the personnel action involved.

This too is codified in MSPB practice regulations, under 5 C.F.R 1209.9(a)(6)(iii)

(a) Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file a stay request. The request may be in any format, and must contain the following:

(6) Evidence and/or argument showing that:

(iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal; [Emphasis added.]

This difference in language is not insignificant; it raises the evidentiary bar for whistleblowers who are not represented by OSC. Moreover, MSPB’s “substantial likelihood” language may be contrary to Congress’ intent.

Legislative History

In 1988, when Congress was debating passing the Whistleblower Protection Act, the Senate Governmental Affairs Committee Report 100-413 stated the following:

S.508 would remove the monopoly the OSC has over many cases involving employees alleging reprisal for whistleblowing. The bill would provide that whistleblowers who are presently confined to using the OSC can individually petition the MSPB if the OSC terminates its investigation of the employee’s case or if the OSC fails to commit to pursuing the case within 90 days of receiving the complaint.

Whistleblowers filing with the Board through this individual right of action may also request the Board for a stay of the pending personnel action. It is expected the Board will be fairly liberal in granting these stays, since they would be only temporary and would not significantly affect the agency’s functioning.

That being said, what is the MSPB’s record in granting stay requests?

MSPB Statistics

In practice, MSPB only grants about 2 percent of the stay requests it receives, based on a FOIA request for FY 1994-FY 1998.* (A request for more recent data is in progress.) Compounding this problem, MSPB in its annual reports to Congress lists the number of stays requested but not those granted or denied. This is in contrast to every other category of decision it makes. See, e.g., Table 1 on page 25 ofMSPB’s FY 2010 Annual Report to Congress and compare with Table 2 on page 26. Compare with other Annual Reports here.

In addition, for the time period 1994-2000, MSPB denied IRA stay requests in 140 cases in which the requestor later got relief, but granted a stay in only one case where the requestor did not later get relief. This and the 2% statistic above support the contention that MSPB is not “fairly liberal” in granting stays, as imagined by Congress.

Why is this Important?

If federal whistleblowers received stays “liberally,” by newly enacted legislation such as the Whistleblower Protection Enhancement Act currently being debated in Congress, then agencies would be motivated to settle fairly instead of the whistleblower being forced into accepting unfair and one-sided settlements, as is the case when agencies approach the negotiating table. This is largely a function of an inability to retain an attorney and finance the tens of thousands of dollars required to achieve justice in this system.

Possible Remedies

Legislation such as H.R. 3289 and S. 743, the House and Senate versions of the Whistleblower Protection Enhancement Act, should direct MSPB to use “reasonable grounds to believe” as the evidentiary standard in whistleblower stay requests made as part of an IRA appeal.

Another remedy is for MSPB, upon request or sua sponte, to change rule 5 C.F.R 1209.9(a)(6)(iii) to provide parity between OSC petitioners and IRA petitioners.

*Many thanks to Joseph Carson for providing this information.

Cross-posted at MSPB Watch.