An Individual Right of Action (IRA) appeal is in essence a whistleblower retaliation complaint. To be permitted to file an IRA appeal at the MSPB, a federal employee or former federal employee must first file a prohibited personnel practice (PPP) complaint with the U.S. Office of Special Counsel (OSC). If OSC has not sought corrective action after 120 days, the employee becomes eligible to file an individual right of action appeal with the MSPB. In some cases, it may make sense to allow OSC more time to conduct its investigation instead of filing an appeal at the MSPB. The attorneys at The Federal Practice Group can discuss the best option for your particular circumstance.
If you file an IRA appeal, you can expect that the Administrative Judge assigned to your case will issue an Order to Show Cause to establish jurisdiction. You are typically only permitted 10 days to respond, and you must put forth evidence showing why you believe you have been subjected to whistleblower retaliation.
In a whistleblower appeal, the employee has the burden of proving by a preponderance of the evidence that whistleblowing was what is called a “contributing factor” in the personnel action threatened, taken, or not taken against you. You may demonstrate that whistleblowing was a contributing factor by showing that the official taking the action knew about the whistleblowing and that the action occurred within a time period such that a reasonable person would conclude that the whistleblowing was a contributing factor in the personnel action. This is the most common argument, but there are other ways to meet this burden. You must also prove that you exhausted your remedy before the Office of Special Counsel.
If you establish by preponderant evidence that whistleblowing was a contributing factor, the MSPB will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have taken the same action in the absence of the whistleblowing. The clear and convincing standard of proof is a higher standard than the preponderance of the evidence.
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