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Court rules in favor of DHS whistleblower employees

On Behalf of | Jun 27, 2024 | Whistleblower Protection

A federal court has ruled that federal employees not promoted after reporting wrongdoing at their agency might be victims of retaliation, even if promotions were never explicitly promised. This landmark decision came from the U.S. Court of Appeals for the Fourth Circuit after a group of Homeland Security Department employees initially lost their case with the Merit Systems Protection Board (MSPB).

Background on the case

The three employees, Mark Jones, Michael Taylor, and Fred Wynn, were high-ranking officials in the Customs and Border Protection’s (CBP) Weapons of Mass Destruction (WMD) Division. They claimed that after they alerted the Department of Homeland Security (DHS) in 2018 about not complying with the DNA Fingerprints Act of 2005. Their responsibilities included disrupting the MS-13 gang and implementing the DNA Fingerprints Act. After raising their concerns, CBP transferred their division to the Operational Field Testing Division (OFTD) and essentially dismantled WMD.

CBP’s budget justification and employees’ rebuttal

In its 2022 budget, CBP stated that OFTD had taken over the WMD division due to “complementary mission sets.” Mark Jones contradicts this characterization, claiming leadership called him into a meeting because it was unhappy that his team flagged the DNA issue. Jones argues that CBP subsequently stripped his unit of duties and folded it into OFTD. WMD was effectively dismantled, and there was no raise after the CBP said it would promote them for their work disrupting the MS-13 gang.

Initial rulings go both ways

The employees first took their case to the Office of Special Counsel (OSC), which reported that CBP officials had promised promotions and higher pay for their work on the MS-13 initiative. After they blew the whistle, the three men claimed CBP dropped its promise. The OSC found the retaliation claims credible.

When the case went to the MSPB, an administrative judge ruled that the lack of a promotion was not a “personnel action” under the law. The judge saw the potential promotion as hypothetical, not a denial or retaliation.

Appeals Court overturns MSPB

The appeals court reversed this decision, stating the employees were recounting their real-life experiences and that their claims were neither frivolous nor implausible. The court did not decide on the case’s merits but directed the MSPB to reconsider the allegations. It also noted that moving the division could be seen as a change in duties or working conditions, potentially violating whistleblower laws. The case has now been returned to the MSPB for a new ruling.


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