We recently discussed the end of the five-year hiatus of the Merit Systems Protection Board (MSPB) with U.S. Senate approval of two board members President Biden had nominated. Two members present of the normally three-person board are enough to constitute a quorum that can legally act for the MSPB.
As of March 4, they turned to the business of reducing the 3,000-plus backlog of petitions for review. As we explained in a prior post, the MSPB’s unavailability for five years was difficult for many federal employees who needed resolution on their claims against their federal employers. Today we discuss one of the first precedential decisions the MSPB has issued since reopening.
Retaliation for public remarks embarrassing to the Department of Defense
On April 13, 2022 in Smith v. Department of the Army, the board upheld an Administrative Judge’s (AJ’s) 2017 finding that the Department of Defense (DoD) had unlawfully retaliated against Smith, a Navy employee, when it declined to hire her for an Army position in an office where she previously worked.
When the Army did not choose her for the executive assistant position, Smith filed a whistleblower complaint with the Office of Special Counsel (OSC), alleging unlawful retaliation against her because she had publicized the military’s shocking handling and disposal of her husband’s remains in a landfill.
The facts of Smith’s case are extreme and difficult to fathom. Her U.S. Army sergeant husband died in service in Iraq, but she did not learn of the location of his cremated remains for five years. According to The Atlantic, Dover Air Force Base officials admitted to its military mortuary disposing of at least 274 soldiers’ cremated remains in the Virginia dump.
She told her story to a member of Congress and to the press. Articles subsequently identified her as a key person in “uncovering the scandal,” to quote the MSPB opinion. While Smith awaited the Army’s decision on the job opening, two articles came out identifying her activism surrounding this issue. She was rejected for the vacancy shortly afterwards as well as for another position after that.
Stay tuned for part 2
In part 2 of this post, we will explain the MPSB’s reasoning in the case, including important concepts in federal whistleblower protection law like protected disclosures, contributing factors, the knowledge/timing test, the Carr factors and corrective action.