Improving whistle-blower protection

For years, advocates have argued that federal-sector whistle-blowers lack meaningful protection. This is primarily because of decisions from the U.S. Court of Appeals for the Federal Circuit — the court that reviews Merit Systems Protection Board decisions — limiting the definition of what it means to be a whistle-blower.

For example, under current law, you are not a whistle-blower if you merely point out wrongdoing to your misbehaving supervisor. Also, if your job requires you to report wrongdoing and you just do your job, you are not a whistle-blower. Thus, in both of these examples, an employee who reports wrongdoing and then is subjected to retaliation because of that disclosure is not covered by whistle-blower protection laws.

Another key court decision is a holding that if a manager is prosecuted for whistle-blower reprisal by the Office of Special Counsel — the office whose job it is to protect whistle-blowers — and OSC loses the prosecution, OSC is liable for the manager’s attorneys’ fees. Since OSC is a small office, a large award of attorneys’ fees can significantly affect its budget. This seems to have driven many OSC cases to corrective action rather than prosecution.

In recent years, MSPB has shown a greater likelihood of ruling for a whistle-blower in a reprisal case and has found ways to distinguish some of the Federal Circuit precedent. One celebrated case is the firing of Park Police Chief Teresa Chambers after she spoke publicly about underfunding at the agency. Chambers fought her case and was reinstated based primarily on adjustments to the interpretation of the law on whether she was a whistle-blower.

The basic rules on being a whistle-blower and receiving protection from reprisal are that the whistle-blower must disclose a violation of law, rule or regulation, gross mismanagement, gross financial irregularity, abuse of authority or a specific threat to health or safety. If the whistle-blower makes a disclosure and a negative action occurs shortly thereafter, whistle-blower reprisal is presumed and the whistle-blower will be protected unless the agency can prove by clear and convincing evidence that the negative action would have occurred despite the protected whistle-blower activity.

Determining whether someone is a protected whistle-blower is always fact-specific, with the agency usually claiming that the whistle-blower is a problem employee and the whistle-blower saying he or she was perceived as a problem only after the disclosure.

Whistle-blower litigation at MSPB can be complicated, and OSC investigations often are time-consuming. A recent OSC success story is the Dover Air Force Base, Del., case where whistle-blowers who reported the improper handling of human remains had been disciplined. OSC obtained corrective action, and the Air Force agreed to discipline those responsible.

While the recent trend seems to favor more whistle-blower actions and protections, Congress has just acted to make a real difference. The House on Sept. 28 passed an amended version of S 743, the 2012 Whistleblower Enhancement Act. This bill, which most observers believe will pass the Senate, makes important changes to whistle-blower law. First, any disclosure among the types discussed above is protected regardless of whether it is made to a wrongdoing supervisor, whether it was disclosed as a part of your job or whether it was a disclosure of already-disclosed wrongdoing or of old information. This is an important change because most whistle-blowers over the past decade or so have been denied protection on these technicalities.

If it becomes law, the bill would also change the rules on attorney fee reimbursement for managers who successfully defend an OSC retaliation prosecution. The fees under the new law will be paid by the employing agency, not OSC. This will undoubtedly increase the number of prosecutions against supervisors suspected of retaliating against whistle-blowers.

There are other important provisions in the bill. Those discussed above are the key provisions in the evolving landscape from little to no whistle-blower protection to one where meaningful protections may become a reality.