McCarthy v. Merit Sys. Protection Bd., No. 15-3072 (Fed. Cir. 2016)
Annotate this CaseInternational Boundary and Water Commissioner Ruth hired McCarthy as an attorney in 2009. Within months, McCarthy had prepared four legal memoranda challenging Commission activities as “gross mismanagement,” contrary to existing law, and characterizing certain officers as lacking “core competencies.” McCarthy submitted a report: “Disclosures of Alleged Fraud, Waste and Abuse” to the Office of Inspector General (OIG), and other federal agencies and informed Ruth of his reports. Ruth terminated McCarthy’s employment, citing McCarthy’s failure to support the executive staff in a constructive manner. McCarthy filed a complaint with the Office of Special Counsel (OSC), alleging whistleblower retaliation, citing his report to OIG, but not the legal memoranda, as protected activity. Existing precedent held that reports made in the course of an employee’s normal duties and reports made to a supervisor about a supervisor’s conduct were not protected under the Whistleblower Protection Act, 103 Stat. 16. The administrative judge found no retaliation. The Merit Systems Protection Board and Federal Circuit affirmed in 2012. While McCarthy’s petition was pending, Congress enacted the Whistleblower Protection Enhancement Act of 2012, 126 Stat. 1465-76, under which McCarthy’s legal memoranda could be protected disclosures. The Act can be applied retroactively to pending cases. McCarthy did not raise the change in law while his petition for rehearing was pending. The Federal Circuit affirmed MSPB’s refusal to reopen his case. McCarthy has not exhausted OSC remedies with respect to the memoranda, rendering the MSPB without jurisdiction.
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