The recent ruling by a federal court, which states that federal employees who blow the whistle on agency wrongdoing and are subsequently denied promotion could be victims of reprisal, is a significant development. This ruling holds, even if the expectation of advancement was never explicitly guaranteed, highlighting the court’s stance on whistleblower protection.
A group of dedicated Homeland Security Department (DHS) employees who initially lost before the Merit Systems Protection Board emerged victorious with an initial, precedent-setting ruling from the U.S. Court of Appeals for the Fourth Circuit last week. These three employees, who were stripped of certain duties and responsibilities and even saw their division within Customs and Border Protection (CBP) disbanded, had the courage to sound the alarm when they noticed the Department of Homeland Security (DHS) was failing to comply with a 2005 law.
Mark Jones, Michael Taylor and Fred Wynn, all high-ranking officials within CBP’s Weapons of Mass Destruction Division (WMD), were tasked with disrupting the MS-13 gang and implementing the DNA Fingerprints Act. When they and another employee raised concerns to the Department of Homeland Security (DHS) secretary’s office about a failure to comply with that law, Customs and Border Protection (CBP) responded by removing or decreasing their responsibilities, duties, access and pay. This included duties related to MS-13 and the DNA law, and CBP eventually moved the entire division to a different office—the Operational Field Testing Division—and later dismantled it altogether.
In its fiscal 2022 budget, Customs and Border Protection (CBP) said the Operational Field Testing Division (OFTD) had subsumed the Weapons of Mass Destruction Division (WMD) division “due to complimentary mission sets.”
But in the employees’ telling, which the court said at this stage of proceedings it must accept as fact, Customs and Border Protection (CBP) “wasn’t pleased” with the DNA issue being flagged. Leadership called a meeting with Jones to discuss the whistleblowing and said because of it, it was removing responsibilities from the division and moving to the Operational Field Testing Division (OFTD).
The employees initially brought their case to the Office of Special Counsel, which subsequently issued a report that found Customs and Border Protection (CBP) officials had told the employees the agency sought promotions and higher pay due to their successful work on the MS-13 initiative. After they blew the whistle, however, those efforts were abandoned. Office of Special Counsel said the allegations of retaliation were, therefore, worthy.
The employees eventually took their case to the Merit System Protection Board (MSPB), where an administrative judge found—and the agency’s central board later affirmed—the lack of a promotion did not amount to a “personnel action” as defined in the statute. Instead, the judge and board said that the potential promotion was theoretical and that Customs and Border Protection (CBP) ‘s failure to see it through did not amount to a denial or reprisal.
In reversing that decision, the appeals court said the employees were “simply stating, based on personal knowledge, what happened to them in the real world.” The court said the allegations were not frivolous or implausible. It did not rule on the case’s merits, saying that the Merit System Protection Board (MSPB) must consider the allegations.
The court added that moving the division could amount to a change of duties and responsibilities of working conditions, which would also amount to a violation of whistleblower law. The case now returns to the Merit System Protection Board (MSPB) administrative judge for a new ruling.
