A statistic often cited by the Project on Government Oversight is : “In the past eight years, the [Merit Systems Protection] board [MSPB] has heard 55 cases; whistleblowers have won only two.”  Today, make that three.

After four and a half years, Matthew R. Drake has won his whistleblower case.  The decision can be found here.  MSPB provides detail on its website.  Mr. Drake has been through quite an ordeal.  His case was first dismissed by the Administrative Judge as lacking  jursidiction.  It was remanded by the full three-member MSPB board, but sent back yet again for another board decision.  Here’s more on the story: 

On remand, after a hearing, the same administrative judge (AJ) denied corrective action. This, despite finding that the appellant proved that his disclosure was a contributing factor in his reassignment and that the agency failed to prove by clear and convincing evidence that it would have reassigned the appellant absent his disclosure.

The case went back to the MSPB board.  Two members affirmed the AJ’s decision to NOT grant corrective relief.  Sapin dissented.  The case then went to the Court of Appeals for the Federal Circuit (CAFC). 

The [CAFC] court found that the administrative judge erred by finding that the appellant failed to show that his disclosure was protected, concluding instead that the appellant made a protected disclosure of information that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably believe evidenced a violation of law, rule, or regulation. Drake v. Agency for International Development, 543 F.3d 1377, 1381-82 (Fed. Cir. 2008).

Finally, four and half years later, the Board issued the following remedy:

We ORDER the agency to cancel the appellant’s reassignment and restore him to his Inspector position in Budapest, Hungary effective September 12, 2004.

We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits that may be due under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order.

And so that accountability will ring loud and clear, the agency to comply with this order is The Agency for International Development, “the principal U.S. agency to extend assistance to countries recovering from disaster, trying to escape poverty, and engaging in democratic reforms.”  And on the matter of accountability everyone else wants to know, the MSPB Administrative Judge whose decision was overturned was Elizabeth Bogle.

There is much to take away from this ordeal, including the length of time and risk taken in order to finally prevail.  Nearly five years, and  hundreds of thousands of dollars (both personal and taxpayer) were spent.  At the same time, productivity was lost because the agency felt that it was in a position to never have to act with diplomacy.  (A bit ironic for an agency whose mission includes both diplomacy and democratic reform, wouldn’t you say?)

Anyhow, bon voyage to Mr. Drake.  Congratulations on your success in being returned to your job.  I pray that our past is just that, our past, and that you will have a fresh start and be permitted to serve your country without fear of retaliation.  Your pursuit of justice was for more than just you.  The rest of us will benefit from the strength of someone willing to actively seek in practice the values we promote in theory.