The Whistleblower Protection Enhancement Act (WPEA) may move through Congress in the coming days, or even hours, and contains many important reforms that will help federal employees. However, both the House (H.R. 3289) and Senate (S. 743) versions still have one provision that, if enacted into law, will significantly harm whistleblowers.
This destructive provision permits the Merit Systems Protection Board (MSPB) to dismiss whistleblower claims under a procedural rule known as “summary judgment.” This new rule permits the MSPB “judges” to summarily dismiss a whistleblower claim without ever conducting a hearing. It must be removed before the bill is passed.
One of the main purported benefits of the current MSPB process is streamlined procedures. Under the current law, employees are entitled to a hearing before the MSPB if they can establish jurisdiction. Employees avoid the considerable costs associated with defending a traditional summary judgment motion and instead may address those issues at the hearing on the merits of the case.
Why is this summary judgment procedure for MSPB whistleblower cases a bad development? Here is what will happen in practice. In almost every case the agency will file for summary judgment. In a motion for summary judgment the judge decides, without a full trial, that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If the judge grants the agency’s motion the whistleblower’s case will be dismissed.
If a new MSPB summary judgment provision becomes law in whistleblower cases it will force the employee to conduct expensive discovery simply to defeat the motion. Given the past substantive and procedural decisions issued by MSPB “judges,” the overwhelming majority of these summary judgment motions will be granted and the whistleblower cases will be dismissed without there ever being a hearing. Over 90 percent of the summary judgment decisions will be against the whistleblower. [Note: MSPB judges are not real judges. They are not subject to any judicial confirmation process and do not have to be attorneys. Their appointments are not reviewed or approved by the Senate Judiciary Committee.]
This proposed summary judgment rule is a major setback for whistleblowers. First, agencies will not settle cases until their summary judgment motions are filed. The pressure to settle a case shortly before a hearing will be eliminated because agencies will wait to see if the case is dismissed before a hearing is even set.
Second, given the 270-day rule for completing adjudications, employees will be forced to comply with short deadlines in responding to summary judgment motions. The agencies will be able to compile an evidentiary record against the employee in a short period of time that the employee will not have the time or ability to contradict.
The summary judgment provision tilts the procedures radically onto the side of the agencies.
In 1978, when Congress initially passed the Civil Service Reform Act and created the MSPB, executive agencies lobbied hard to give the newly created MSPB summary judgment authority. In the end, Congress decided that such authority to summarily dismiss a whistleblower’s case without a hearing was not appropriate for an administrative board designed to protect whistleblowers. Congress recognized that summary judgment could be abused to deny meritorious whistleblowers their day in court. Congress got it right in 1978.
Over the past 35 years, the MSPB’s track record of anti-whistleblower bias has vindicated the 1978 decision to not grant the Board summary judgment power. The whistleblower community cannot allow this significant victory to be lost. The proposed summary judgment provision for whistleblower cases is not an “enhancement” and must be removed from the WPEA. You can TAKE ACTION by sending a letter to Congress.