New whistleblower law will significantly strengthen federal employee protections

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On November 13 the Senate passed the Whistleblower Protection Enhancement Act, sending the bill to the White House for the President’s signature. The legislation provides millions of federal workers with the rights they need to safely report government corruption and wrongdoing. "After a 13 year rollercoaster campaign, Congress unanimously has given whistleblowers who defend the public a fighting chance to defend themselves," said Government Accountability Project Legal Director Tom Devine. Among its numerous provisions, the bill creates specific legal protection for scientific freedom, providing whistleblower rights to employees who challenge censorship, and makes it an abuse of authority to punish disclosures about scientific censorship. (Sec. 110)

From the Government Accountability Project press release:

GAP Commends Senate Passage of WPEA

November 13, 2012

After 13 Year Campaign, S. 743 Sent to President's Desk

(Washington, DC) – The Government Accountability Project (GAP) hailed today's Senate passage of S. 743, the Whistleblower Protection Enhancement Act (WPEA), by unanimous consent. The legislation would provide millions of federal workers with the rights they need to safely report government corruption and wrongdoing. The bill reflects an unequivocal bipartisan consensus, having received the vote of every member in the 112th Congress. The House of Representatives unanimously approved S. 743 in September, and the Senate immediately followed suit during the lame duck session. The text of the bill can be read here.

GAP Legal Director Tom Devine commented: "After a 13 year roller coaster campaign, Congress unanimously has given whistleblowers who defend the public a fighting chance to defend themselves. This is a major victory for taxpayers and public servants, but a major defeat for special interests and bureaucrats. Free speech rights for government employees never have been stronger.

"It would be dishonest to say our work is done, however, or to deny that government whistleblower rights are still second class compared to those in the private sector. House Republicans blocked two cornerstones of the legislation: jury trials to enforce newly-enacted protections, and extension of free speech rights to national security workers making disclosures within agency channels."

Devine singled out retiring Senator Daniel Akaka (D-Hawaii) as the pioneer in the thirteen year legislative campaign to pass the WPEA, stating "Senator Akaka has run and won a marathon victory for whistleblowers and taxpayers." …

Over the past 13 years, GAP has spearheaded efforts to pass the WPEA, heading a coalition of hundreds of groups demanding these protections. Intensive dialogue between the Make It Safe Coalition (MISC), which GAP coordinates, the Obama administration, and both chambers of Congress has paved the way for this development.

Devine noted that after the House removed the national security whistleblower provision from the bill, last month the Obama administration made good on its promise to take executive action on those rights, if Congress didn't: "In a Presidential Policy Directive, President Obama kept his word and restored the lion's share of national security rights that the House removed. It is only fair to give credit where due. This is the first time in history that a President unilaterally has made it easier for his employees to challenge his own administration's actions. The White House also had led the drive for whistleblower jury trial rights later removed by House leaders."

What the Bill Does

The most significant benefits in the WPEA are listed below:

1.) Expanded Protection for Disclosures of Government Wrongdoing

            Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)

            Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)

            Cancels the 1999 precedent that translates "reasonable belief" to require irrefragable proof ("undeniable, uncontestable, or incontrovertible proof") before they are eligible for protection. (Sec. 103)

            Protects government scientists who challenge censorship. (Sec. 110)

            Codifies and provides a remedy for the "Anti-Gag" Statute – a rider in the Appropriations bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations. (Sec. 104(a), (b) and 115)

            Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)

2.) Expanded Coverage and Fair Processes

            Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)

            Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)

            Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers' presenting their evidence of retaliation. (Sec. 114)

            Requires that the President's exercise of his discretionary power to impose national security exemptions that deprive employees of Title 5 whistleblower rights must be done prior to the challenged personnel action. (Sec. 105)

            Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).

3.) Administrative Authorities

            Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)

            Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).

            Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights. (Sec. 117)

            Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports. (Sec. 116(b))

            Requires the Government Accountability Office (GAO) to study the impact and feasibility of changes in the number and outcome of cases before the MSPB, the Federal Circuit, or any other court; and to provide recommendations to Congress regarding whether the MSPB should be granted summary judgment authority and whether district courts should have jurisdiction over some WPA cases. (Sec. 116) 

Government Accountability Project
 The Government Accountability Project is the nation's leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP's mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.

Climate Science Watch is a program of the Government Accountability Project. We salute GAP's extraordinary leadership, commitment, and perseverance over the years in working to bring about this major upgrade in whistleblower protection law, which since the passage of the Whistleblower Protection Act in the 1980s has been steadily eroded, even gutted, by a series of court and administrative rulings.

See also:

Washington Post: Congress approves stronger whistleblower protections

Federal Times: Whistleblower protection bill goes to the White House

Angela Canterbury, director of public policy at the Project on Government Oversight, praised the bipartisan legislation as the first significant strengthening of whistleblower safeguards for federal workers since 1994. To the disappointment of POGO and other advocacy groups, the final bill does not cover employees at the CIA and other intelligence agencies.

In a directive last month, however, Obama barred agencies from firing or otherwise punishing security clearance holders throughout the government who report waste, fraud or abuse.

Government Executive: Whistleblower protection act heads to president’s desk

Society of Environmental Journalists: Congress Sends Bill Strengthening Whistleblower Protection to Obama's Desk

Over the years, court decisions had eliminated many of the enforcement teeth in the Whistleblower Protection Act, originally passed in 1989.

While the original law was focused on protecting those who disclosed violations of law, the just-passed revision specifically includes disclosure of "a substantial and specific danger to public health or safety."

Make It Safe Campaign: Advocates Applaud Senate Passage of S. 743

For far too long managers in the federal workplace have faced little or no accountability when they retaliate against federal workers who blow the whistle on fraud, waste and wrongdoing on the job,” said Beth Moten, Legislative Director for American Federation of Government Employees. “The Whistleblower Protection Enhancement Act marks the beginning of a new day of free speech and due process rights for federal workers such as Transportation Security Officers who protect our nation’s airports, food safety inspectors, government scientists, and others when they speak up on behalf of the public.”

National President Colleen M. Kelley of the National Treasury Employees Union commented: “This is a vital piece of legislation that expands protections for federal employees who disclose fraud, waste, abuse or illegal activity on behalf of taxpayers and in the best interests of our nation. Notably, it includes specific protection for the scientists who work for our nation, are committed to valid research and who should not be swayed or penalized for their work.

“We hope that this law will begin a process to change the culture of federal agencies when it comes to whistleblowers,” said Celia Wexler, Senior Washington Representative, Union of Concerned Scientists Center for Science and Democracy. “People who protect the public from unsafe drugs, tainted food, defective products, and environmental hazards should not fear for their jobs when they speak up for safety and scientific integrity.”

Full text of the bill

"Presidential Policy Directive PPD-19," White House, October 10, 2012.

Earlier CSW posts: Whistleblowers archive

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