Q. What are consequential damages and when are they awarded to federal employees?
A. Consequential damages are primarily awarded to whistleblower retaliation victims who filed an individual right of action (IRA) appeal or whose cases were prosecuted by the Office of Special Counsel (OSC). Merit Systems Protection Board (MSPB) regulation states that consequential damages include "medical costs and travel expenses, and other costs as determined by the Board through case law."
According to a 1994 Senate report, Congress included consequential damages in the Whistleblower Protection Act "to order corrective action that will make, as nearly as possible, the individual whole," the Board noted in Joan L. Pastor v. Department of Veterans Affairs (2001). Further, consequential damages "are limited to out-of-pocket costs," the MSPB noted in Maryann Johnson v. Department of the Treasury (2005), which the Board heard during my tenure as chairman. In this case, the Board said an appellant with a prevailing whistleblower retaliation claim "must prove both that she incurred 'consequential damages' and that the damages were 'reasonable and foreseeable,' i.e., causally related to the agency's reprisal against her." The Board found the appellant in Johnson was entitled to $6,273 in consequential damages for medical expenses and various expenses.
In George Duggen v. Department of Defense (2012), the MSPB awarded the appellant, who represented himself, $3,893 in consequential damages. This amount covered the appellant's travel expenses, including those stemming from trips for research and a stay at a hotel during his case's hearing. The amount also covered mileage and meals and incidental expenses stemming from a witness who testified at the hearing. Other compensable out-of-pocket expenses included photocopying, office supply, research book and postage costs. However, a lunch with a case consultant and legal work conducted by someone not identified as a lawyer were not reimbursable, the MSPB judge said. The same was true for costs stemming from "prescription drugs for exhaustion from trial" because it was not established that "such expenses were sufficiently connected to his whistleblowing and the resulting retaliation and litigation."
Federal employees who believe they have been subjected to retaliation for their whistleblowing activities should consult with an experienced federal employment law attorney who can prepare for them an OSC complaint or an IRA appeal and pursue consequential damages, among other applicable types of damages, when the MSPB orders corrective action.