A Look at Mark Abernathy v. Department of the Army

Merit Systems Protection Board Appeals | Melville Johnson | MSPBAttorneys.com

Abernathy v. Department of the Army

The Abernathy case looks like it could be a game changer. This recent case raises an interesting question on the status of a whistleblower that comes from outside of Federal employment. Seeing as contractors often work side by side with Federal employees, this question is sure to arise again. Does the whistleblower have to be a Federal employee at the time of his or her blowing the whistle in order to benefit from the Whistleblower Protection Act?


Mark Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-1


Claimant Mark Abernathy was an employee of a federal contractor. He made disclosures about government waste which he alleged fell within the Whistleblower Protection Act of 1989 and its subsequent 2012 sequel Act. When later he was not referred for consideration for a Federal civil service position, he alleged that this non-referral was in retaliation against his whistleblower disclosures. Therefore, he sought the aid of the Merit Systems Protection Board.

Merit Systems Protection Board Appeals | Mark Abernathy v. Dept of the Army | Melville Johnson | MSPBAttorneys.com
Merit Systems Protection Board Appeals have a strict timetable.

The individual administrative law judge dismissed Mr. Abernathy’s appeal. This was on the jurisdictional grounds that a contractor is not considered to be an employee within the Act. It was also that the disclosure was not timely enough in order to count Abernathy as an applicant. The Merit Systems Protection Board then granted his petition for review, and the Board sought amicus curie briefs from interested third parties in order to comment on the relevant statutory framework.


Do you have to be an actual Federal employee in order to be protected by the whistleblowing statute? If a non-Federal employee reports on gross mismanagement and then is later denied Federal employment, can there be a whistleblower reprisal claim?

Special Considerations

The 1989 Act does address this situation in part, although the reference is less than clear. The Act states, in part:

Sec. 1212. Powers and functions of the Office of Special Counsel
(a) The Office of Special Counsel shall–
(1) in accordance with section 1214(a) and other applicable provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices;…

The 1989 Act further states:

Sec. 1221. Individual right of action in certain reprisal cases
(a) Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8), seek corrective action from the Merit Systems Protection Board….

Emphasis mine. However, the Board or the courts could certainly construe the language as only applying to formal applicants for employment at the time of blowing the whistle.

An Example

Hence, for instance, let’s say a person is interviewing for a government position and is being led down the hallway of the appropriate building in order to get to the correct interview room. While walking there with an escort, the applicant spots a current Federal employee dumping perfectly good equipment, or maybe the applicant sees a wasteful amount of spending on a document on the interviewer’s desk. Either way, the 1989 Act seems to cover the applicant whistleblowing about that.

So, does it really matter if the applicant was in the midst of interviews or consideration for a position, or a few days before that? Or a few months? Years?

However, the 2012 sequel Act doesn’t make things any clearer. Again, it just refers to applicants for employment.

Merit Systems Protection Board | Abernathy case | Melville Johnson | MSPBAttorneys.com
A question in the Abernathy case: when does a formal application for federal employment start?

Therefore, even if a formal application is necessary, when does a formal application for employment begin? Is it when an individual fills out a form? When an applicant searches for employment on a Federal jobs site? Is it when they send a resume? When an applicant goes through a telephone screening? Or is it when they sit down for an in-person interview? Getting a job can be a somewhat fluid process, and neither Act parses it to its constituent elements.

The United States Office of Special Counsel

The US Office of Special Counsel (OSC) submitted an amicus brief. This brief said, in part:

The WPA [Whistleblower Protection Act of 1989] specifically covers applicants because Congress sought to ensure that whistleblowers outside the federal workforce would not be prevented by retaliation from entering it. Requiring a whistleblower to be an applicant not just when the retaliatory personnel action occurred, but also at the time of the disclosure, would frustrate this purpose by severely restricting the number of applicants covered under the Act. It would be anomalous for Congress to explicitly grant protection to applicants, but then limit that protection to the small subset of individuals who make their disclosures in the (typically) short period between their application for employment and the alleged retaliatory personnel action.

Again, emphasis mine. The brief goes on to note that it would be absurd to only protect a whistleblower while their application for employment was pending. Hence if two people are in line for a particular Federal job, and only one of those people is the whistleblower, an agency could effectively retaliate by simply hiring the other applicant.

The OSC also pointed out that such a narrow reading of the Act would impact timely reporting of waste, fraud, etc., as it would require a person to be a Federal job applicant in order to enjoy the protections of the Act.

Federal whistleblowers enjoy several protections, including protection from retaliation such as harassment. Tying these protections to a formal employment process seems overly restrictive. But then again, if there are no lines drawn, anyone could conceivably claim to be an applicant for Federal employment.

As of the time of the writing of this post, the matter had not yet been resolved.