MSPB has jurisdiction over claims made by whistleblowers in two types of  appeals—an Individual Right of Action (IRA) appeal and an Otherwise  Appealable Action (OAA) appeal. In the first type of appeal—an  IRA—the individual is subject to a personnel action, such as a reassignment with no reduction in pay or grade, and claims that the action  was taken because of whistleblowing or other covered protected activity,  but the action need not be one that is directly appealable to MSPB. MSPB’s Data Show a Higher Annual Number of Whistleblower Appeals Post WPEA; but Weaknesses Exist in MSPB’s Recording and Reporting Processes

		MSPB Data Show a Higher Annual Number of Post-WPEA IRA Appeals, but a Lower Annual Number of OAA Appeals

MSPB data show the agency received a total of 1,213 IRA appeals for  whistleblower reprisal claims for fiscal years 2013 through 2015. While WPEA clarified the scope of protected  disclosures and expanded the individual right of action appeal for certain  other protected activities, the act did not alter MSPB’s jurisdiction over  OAAs. According to MSPB officials,  in some cases appeals were reported under more than one outcome due  to human error and limitations in the data coding that resulted in over  reporting of appeals closed. Summary judgment authority is a procedural  device used when there is no dispute as to  the material facts of the case, and a party is  entitled to judgment as a matter of law and the  responsibility of the court. They said that this would give whistleblowers  access to a jury trial similar to nonfederal employee whistleblowers. The Whistleblower Protection  Enhancement Act of 2012 was enacted to further ensure that employees  come forward and report violations of law, or certain agency  mismanagement or ethical violations, primarily by expanding protected  disclosures. Some of  these discrepancies may have been caused by the lack of updated data  entry user guides and the lack of a quality check in its data analysis and  reporting process. Recommendation for Executive Action

To help ensure the accuracy of MSPB’s reporting on whistleblower  appeals received and closed, the Chairman of MSPB should take the  following two actions:
Update MSPB’s data entry user guide to include additional guidance  and procedures to help improve the identification of appropriate  whistleblower appeal closing codes to use. Specifically, this report: (1) describes changes in the number of  whistleblower reprisal appeals filed with MSPB, as well as the outcome of  appeals, since WPEA’s effective date, including whether or not MSPB,  the United States Court of Appeals for the Federal Circuit, or any other  court determined the allegations to be frivolous or malicious; and  provides (2) subject matter specialists’ views on granting MSPB summary  judgment authority for whistleblower cases, and (3) subject matter  specialists’ views on granting jurisdiction for some subset of whistleblower  cases to be decided by a district court of the United States, and the  potential impact on MSPB and the federal court system. We also requested and reviewed MSPB whistleblower  reprisal appeals data for 2 fiscal years prior to WPEA’s effective date,  specifically for fiscal years 2011 and 2012, in order to have 5 years of  consecutive data to identify changes in the number of whistleblower  reprisal appeals filed after WPEA’s effective date. To address the second and third objectives, we conducted six focus  groups in July 2016 with subject matter specialists knowledgeable about  WPEA.
Why GAO Did This Study

Federal employee whistleblowers—individuals who report violations of law or certain agency mismanagement— may risk reprisals from their agencies. WPEA seeks to strengthen the rights of and protections for federal whistleblowers.
WPEA includes a provision for GAO to report on the law's implementation. This report (1) describes changes in the number of whistleblower reprisal appeals filed with MSPB, as well as the outcome of appeals, since WPEA's effective date; (2) provides subject matter specialists' views about granting MSPB summary judgment authority for whistleblower cases; and (3) provides subject matter specialists' views about granting jurisdiction for a subset of whistleblower appeals to be decided by a district court of the United States.
GAO obtained data from MSPB on whistleblower appeals received and closed from fiscal years 2011 through 2015. This period begins approximately 2 years prior to WPEA's effective date of December 27, 2012, and continues through the end of fiscal year 2015. GAO also conducted six focus groups with subject matter specialists that include whistleblower advocates and agency labor relations officials.

What GAO Found

Of the two types of whistleblower appeals—individual right of action (IRA) and otherwise appealable action (OAA)—Merit Systems Protection Board (MSPB) data show higher numbers of IRA appeals received by MSPB after enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA). In an IRA appeal, an individual has been subject to a personnel action, such as a reassignment, and claims the action was reprisal for whistleblowing. In contrast, the number of OAA appeals decreased after WPEA. In an OAA appeal, an individual has been subject to an action directly appealable to MSPB, such as a demotion, and claims that the action was taken because of whistleblowing. WPEA, among other things, clarified the scope of protected disclosures which may have contributed to a higher number of IRA appeals. WPEA did not alter MSPB's jurisdiction over OAAs.
MSPB has taken steps to collect and report whistleblower appeals data. GAO identified a number of weaknesses in MSPB's data collection. Some were due to shortcomings in data coding that resulted in over reporting appeals closed. Further, MSPB has not updated its data entry user guides to reflect new reporting requirements nor has it instituted checks to ensure data accuracy, which are inconsistent with internal control standards.
Subject matter specialists varied in their opinions about the benefits of granting summary judgment authority—a procedural device used when there is no dispute as to the material facts of the case—to MSPB. Benefits cited included a more efficient process; but negatives included the loss of a whistleblower's right to a hearing. Similarly, the specialists provided a mix of opinions about granting jurisdiction for cases to U.S. District Courts. A benefit cited was access to a jury trial, while a negative cited was the increased workload of the courts.

What GAO Recommends

GAO recommends that MSPB help ensure the accuracy of its reporting on whistleblower appeals received and closed by (1) updating its data entry user guide to include additional guidance and procedures, and (2) adding a quality check in its data analysis and reporting process to better identify discrepancies. MSPB agreed with these recommendations.