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However, Mount also argued that even if he did not actually provide whistleblower assistance, his superiors perceived that he had done so, evidenced by their investigation on that activity. The MSPB AJ dismissed Mount's perceived whistleblower claim because he did not exhaust that claim before the Office of Special Counsel ("OSC") prior to filing with the MSPB, as Mount never officially made a "perceived whistleblower claim" on his OSC charge. The First Circuit Court of Appeals called the MSPB AJ's application of the exhausting requirement "hyper-technical" and viewed it as an impediment to the overall purpose of the WPA and its legislative history. The Court reasoned that Mount's allegations as written in the OSC charge supported the core element of his perceived whistleblower claim: "that agency officials appeared to believe that [he] engaged… in whistleblowing activity." The Court cited numerous instances where Mount had made detailed contentions on his OSC charge supporting a perceived whistleblower claim.
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The opinion is groundbreaking in several respects. First, it levels the playing field for Federal employees who file whistleblower claims with the OSC, as nowhere on the OSC form does the term, "perceived whistleblower" appear. Hence, as Mr. Fischer argued, no Federal employee would have notice of a requirement to use the term, "perceived whistleblower." Second, the Court indirectly expanded the perceived whistleblower doctrine to federal employees who make whistleblower disclosures that may not necessarily comply with the strict and narrow definitions of illegality, fraud, waste, and abuse. At the oral argument, the U.S. Attorney argued that a perceived whistleblower claim should be limited to cases where agency officials mistakenly believed that the retaliated whistleblower made a disclosure, when in fact he didn't. The Court soundly rejected that argument.
The manner in which MSPB AJs rule on Federal Whistleblower claims will also be improved for the Federal employee. Whistleblower claims involve 3 elements: (1) the employee must prove by preponderance of evidence that he/she made a disclosure; (2) the employee must prove by preponderance of evidence that the disclosure was a contributing factor to the adverse action against him/her; and (3) the Federal Agency must prove by clear and convincing evidence that it would have taken the same action against the employee, even without his/her disclosure. Typically, MSPB Ajs rule against the Federal employee on the first element, due to the employee not meeting the strict definition of an actual whistleblower disclosure and/or the employee failing to exhaust his perceived whistleblower claim. As a result, the Ajs never do any analysis on the conduct of the Federal Agent who retaliated against the Federal employee. The Mount decision effectively curtails many dismissals on the perceived whistleblower theory.
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The Appeal was argued in Boston, Massachusetts by Morris E. Fischer, Esq. on April 1, 2019. Mr. Fischer has successfully handled several national, high-profile cases against ICE, including a sexual harassment claim by James T. Hayes, Jr., against Janet Napolitano's Chief of Staff which made national news and Taylor Johnson, who testified before the United States Senate Committee on Homeland Security and Government Oversight in reporting that the head of a wealthy investor group, Rory Reid, son of then-Senate Minority leader, Harry Reid, pressured Department of Homeland Security officials to unlawfully expedite EB-5 visa applications.
Morris E. Fischer, LLC
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