Hicks v. Merit Sys. Protection Bd., No. 16-1091 (Fed. Cir. 2016)
Annotate this CaseIn 1989, Hicks, a Secretary at Maxwell Air Force Base, was removed from her position for failure to request leave in accordance with proper procedures and being absent without official leave. Following an appeal, Hicks’ removal was mitigated to a 60-day suspension. In 1990, the Air Force effected a new removal action. A Merit Systems Protection Board (MSPB) ALJ affirmed. A year later, Hicks sought review with the full board. The Federal Circuit affirmed dismissal of her motion, explaining that Hicks had not shown how her depression prevented her from meeting filing requirements. In 2014, Hicks contacted the U.S. Office of Special Counsel, alleging that the Air Force had removed her in retaliation for making protected disclosures. After Special Counsel terminated its investigation. Hicks filed an Individual Right of Action (IRA) appeal with MSPB. An ALJ dismissed for lack of jurisdiction; in 1990, when Hicks was removed, filing an appeal was not a “protected disclosure” under the Whistleblower Protection Act, 103 Stat. 16. MSPB and the Federal Circuit affirmed. The Whistleblower Protection Enhancement Act of 2012, 126 Stat. 1465, expanded its jurisdiction to cover IRA appeals alleging that an agency engaged in the prohibited personnel practices described in 5 U.S.C. 2302(b)(9), including appeals alleging reprisal for filing a previous MSPB appeal, but it did not apply retroactively to Hicks.
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