The 4th Federal Circuit Court of Appeals just trashed an MSPB decision that upheld the right of Trump’s appointees in DHS/CBP to punish whistleblowers. It seems that some employees in the CBP Weapons of Mass Destruction Division (WMDD) noticed that the operation was collecting DNA information on travelers in violation of the law. When they raised this with the Chief Advisor to the Secretary of DHS in 2017, things suddenly changed for the worse for the entire WMDD program. So, they filed a whistleblower complaint with MSPB once they found a D.C. law firm that would take the case.

MSPB had found that prior to bringing the violation of law to the attention of the political leadership of DHS, the WMDD operations was regularly complimented on its achievements and word had filtered down that awards and promotions were coming to thank them.  But once the CBP employees notified Trump’s DHS leadership team that they were violating law, those rewards never materialized, at least 22 acts of reprisal ensued, and the entire division was busted on the organization chart from a division to a branch. However, MSPB decided they were not whistleblowers because the employees could not prove they were entitled to the promotions.

To its credit, the Court of Appeals overturned MSPB holding that it was a violation for DHS leadership merely to have “[c]eased contemplating permanent promotions for [the petitioner]s….” It also overturned MSPBs conclusion that it was frivolous for the employees to complain about the reorganization of the WMDD.  The court said ” The allegations are nonfrivolous because, if true, they could establish that the agency significantly changed the petitioners’ duties, responsibilities, or working conditions.”

The court ordered the Board to reopen the case and consider remedies for the impacted employees.  Obviously, this could mean years of retroactive promotion back pay.  You can read the Court’s decision by clicking here. And our compliments to these employees and their law firm for pursuing this.  The precedent might be a vital one should we ever have a White House that favors revenge and retaliation.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Prohibited Personnel Practice, Whistleblowing and tagged . Bookmark the permalink.

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