Background of the Case: Reese v. Navy

The Merit System Protection Board (MSPB), the federal adjudicatory agency tasked with enforcing federal civil service laws, is currently reviewing the definition of a “federal whistle-blower.” This potential revision comes in light of a case that could have far-reaching implications for federal employees who report misconduct. The MSPB has taken the unusual step of seeking input from external entities for the first time in nearly a decade.

The Details of Mary Reese’s Case

The case in question, Reese v. Navy, centers on Mary Reese, a civilian employee of the Navy who was terminated three days after reporting concerns about the handling of sexual harassment allegations to the Defense Department’s Office of the Inspector General. Reese had initially raised these issues with her supervisors before escalating her concerns. An administrative judge previously ruled that Reese’s initial disclosures were not protected under current whistle-blower laws and determined that the Navy would have dismissed her regardless of her report to the Inspector General.

Appeal and Invitation for External Input

Reese appealed the administrative judge’s decision to the full MSPB, which then issued a “notice of opportunity” for outside parties to provide their perspectives on the case. This invitation for external input is focused on three critical issues:

  1. Whether an informal complaint about sexual harassment is protected under whistle-blower law.
  2. If concerns related to violations of anti-discrimination laws are protected.
  3. Whether a complaint to an outside body, such as the Inspector General or the Office of Special Counsel, needs to be formal or if an informal disclosure qualifies as a “protected disclosure.”

Limited Precedent and Legislative Background

The MSPB has acknowledged the limited precedent regarding the specific statute in question, which was updated by Congress in 2017. This statute prohibits federal agencies from taking negative personnel actions against employees for cooperating with or disclosing information to the Inspector General, Office of Special Counsel, or other internal investigatory bodies.

Positions of the Office of Special Counsel and Federal Employee Attorneys

The Office of Special Counsel, which enforces whistle-blower laws, has submitted a brief advocating for an “expansive reading” of the law. They argue that this approach is necessary to maximize employee protections and ensure the Office of Special Counsel can secure credible testimony. They warn that excluding initial and informal steps from being recognized as part of the “protected activity process” could have a chilling effect on potential whistle-blowers.

Attorneys representing federal employees share this view, pointing out that the legislative history of the Whistle-blower Protection Act and its revisions support a broad interpretation of the statute. They assert that employees like Reese, who make informal complaints about a toxic work environment, should be protected under the 2017 statutory update. This update includes provisions for employees making disclosures to “any other component” responsible for internal investigation or review.

Potential Implications for Federal Employees

The outcome of this case could significantly impact the protections available to federal employees who report misconduct. By potentially broadening the definition of a “protected disclosure,” the MSPB’s decision could encourage more employees to come forward with their concerns without fear of retaliation.

Seeking Legal Guidance

For federal employees facing similar issues or seeking guidance on whistle-blower protections, consulting an experienced employment attorney can provide crucial support and advocacy. If you have any questions or need assistance, please feel free to contact us at (954) 527-0570, Mark Berkowitz, your dedicated employment attorney in Fort Lauderdale, FL.