A New Opportunity to Protect Federal Employee Whistleblowers

On May 14, 2009 over 290 public
interest organizations, including all of the members of the Make if Safe
Coalition, wrote an open letter to President Obama and Congress calling
for the enactment of nine significant reforms in the Whistleblower
Protection Enhancement Act.  Unfortunately, S. 372 failed to include
seven of these nine requirements.  Worse, it contained two major
cutbacks in current rights.

The May 14th letter stated:

It is crucial that Congress restore and modernize the Whistleblower Protection Act by passing all of the following reforms:

* Grant employees the right to a jury trial in federal court; [Note:  S. 372 only granted some employees this right,
and the right could be completely taken away by the Merit Systems Protection Board]

* Extend meaningful protections to FBI and intelligence agency whistleblowers;
[Note:  S. 372 completely violated this demand -- all protections for
intelligence agency whistleblowers were stripped from the bill]

* Strengthen protections for federal contractors, as strong as those provided to DoD
contractors and grantees in last year's defense authorization legislation; [S. 372 completely violated this demand.  No protections for federal contractors were included in the bill]

* Extend meaningful protections to Transportation Security Officers (screeners); [TSA employees were covered - this request was honored]

* Neutralize the
government's use of the "state secrets" privilege; [No reform of the "state secrets" privilege was contained.  This devastating "privilege" that permits the government to throw
out valid whistleblower cases was not reformed or "neutralized"]

* Bar the MSPB from ruling for an agency before whistleblowers have the opportunity
to present evidence of retaliation;
[S. 372 not only failed to fix this problem, but it increased the
problem by giving the MSPB power to summarily dismiss whistleblower
cases without the current right to a hearing on the merits]

* Provide whistleblowers the right to be made whole, including compensatory
damages; [S. 372 honored this demand]

* Grant comparable due process rights to employees who blow the whistle in the course
of a government investigation or who refuse to violate the law; [S. 372 did not include this reform]

* Remove the
Federal Circuit's monopoly on precedent-setting cases. [S. 372 did
not include this reform. The removal of the Federal Circuit's monopoly
was limited to a five year time period, and
even within that short scope of opportunity, the Office of Personnel
Management could transfer cases filed in other circuits back to the
Federal Circuit]

A comparison with the modern
whistleblower protections passed by Congress make it evident why groups
like the National Whistleblowers Center, the Federal Ethics Center, the
National Security Whistleblowers Coalition and the No-Fear Coalition
were extremely troubled by S. 372.

The demands set forth in the
May 14, 2009 letter signed by over 290 public interest groups were not
"pie in the sky" utopian dreams. There were pragmatic demands that
Congress has listened to and repeatedly enacted into law for other
groups of whistleblowers. These are the types of rights that should have
been included in the final version of S. 372.  Below is a comparison of
nine weak provisions contained in S. 372 with the strong versions of
reform most recently
enacted in the employee protection provisions of the Food Safety Act
passed by Congress in December of 2010: 

1.  Right to Court Access
and Jury Trial

S.372

Only federal
employees who suffered severe retaliation were eligible for court access
and a trial by jury, and S. 372 provided no court access whatsoever for
FBI or intelligence agency employees.  Additionally, S. 372 created
this right as experimental for five years and the right would disappear
after 5 years.  No other whistleblower law contains these limitations. 

Food Safety Act

Any employee who suffers an adverse action is entitled to a jury trial in court.

2.  Exhaustion of Administrative Remedies

S. 372

If Merit Systems Protection Board ("MSPB") issues final ruling in 270 days, right to jury trial could be
lost forever. 

Food Safety Act

Employees
preserve all other rights they have by law to have a case heard in
federal court by a jury regardless of administrative
rulings.  Whistleblowers will have a right to court access and a jury
trial in all cases if they want.

3.  Scope of Protected Activity

S. 372

For
the first time in any federal law, the law excluded "minor" violations
of law from protection.  The law created a "good faith" defense for
managers that would be raised in almost every case alleging violations
of law.

Food Safety Act

Employees have the right
to blow the whistle on any and all violations of federal law, and there
is no "good faith" exception for managers. 

4.  Preliminary Reinstatement

S. 372

The
Office of Special Counsel
continues to lack the power to order an employee back into his or her
job if the OSC finds retaliation.  OSC must file a petition for a stay
with the Merits Systems Board.

Food
Safety Act

The administrative investigatory agency
(Department of Labor) has the authority and is required to order an
employee back into his or her job if, on the basis of the preliminary
investigation, OSHA finds retaliation.

5.  Cases Heard by Administrative Law Judges

S. 372

A
proposal to have real Administrative Law Judges (ALJs) assigned to hear
the whistleblower cases was rejected.  Thus, the current system of MSPB
"Administrative Judges" (who are not subject to any judicial
qualifications whatsoever, and do not even have to be attorneys) remains
in place. 

Food Safety Act

If a case is heard
at the administrative level, the cases are assigned to
statutory ALJs, i.e. Administrative Law Judges who are appointed under
the ALJ Act, who must meet mandatory qualifications to be a judge and
who are provided extraordinary job protections
guaranteeing their judicial independence.

6.  Burden of Proof

S. 372

If
a case is heard in court, the burden of proof for the agency is lowered
from clear and convincing to preponderance of the evidence, and it
becomes much harder for an employee to win.  Specifically, the
long-standing "contributing factor" test is repealed for cases that
proceed to court.  Thus, instead of employees only having to prove that
retaliation was a "contributing factor" in the adverse action, employees
would have to demonstrate that retaliation was the "motivating"
factor.  Moreover, employees would always bear the burden of proof that
the employer's reason for terminating the employee was a pretext. 
Under the "contributing factor" test, that burden of proof would have
shifted to the employer to demonstrate, by "clear and convincing
evidence," that the employee should not have been
fired.  S. 372 is the first federal whistleblower law passed in over ten
years to repeal the "contributing factor" test in whistleblower court
cases.

Food Safety Act

Federal courts are required to apply the pro-whistleblower "contributing factor" test.

7.  All-Circuit Review

S. 372

S. 372 would have permitted all-circuit review of administrative decisions only if
the federal government permitted such reviews.  Under S. 372 the Office
of Personnel Management was empowered to file a motion and have any
appeal transferred to the Federal Circuit for review.  There was no
limitation placed on this power.  Also, all-circuit review was
considered
"experimental" and after five years even the limited right would be
extinguished.

Food Safety Act

Employees would
have real all-circuit review.  Employers did not have the
power to have cases transferred to a pro-employer circuit. In fact,
every real judicial circuit would have jurisdiction to hear cases, except the Federal Circuit, which is a special court designed to hear only limited cases. There was no sunset provision in the law.

8.  Cut-Backs in Existing Rights

S. 372

This
law contained two drastic reductions in the rights currently enjoyed by
federal employees. First, Administrative Judges within the MSPB were
authorized to grant summary dismissals of cases solely on the basis of
agency affidavits.  Under current law in place since 1978 such summary
dismissals by the MSPB have been barred.  Second, the scope of protected
disclosures was reduced
(i.e. reporting "minor" violations of law would not longer be
protected). Prior to S. 372 whistleblower advocates never approved reductions in current rights, but instead tried to
strengthen existing laws.

Food Safety Act

The
bill only added rights.  It also contained a provision guaranteeing that
rights currently existing under state laws were not impacted, and
guaranteeing that no private contract could reduce rights.

9.  National Security Exemption

S. 372

With
the full support of S.372-advocates, the House of Representatives
cutout all of the limited protections for national security
whistleblowers who work at intelligence agencies that were proposed. 
These employees remain without any coverage under the federal
Whistleblower Protection Act. If this cut-back had been approved by the
Senate, the possibility of passing a new whistleblower law
just covering national security employees was viewed as hopeless, if not
completely impossible.

Other laws

No other
federal whistleblower law exempts national security
employees, or creates this dual structure of protection.   For example,
under the False Claims Act, federal contractors are all equally covered,
regardless of whether the contractor is working on a top-secret
national security project or a highway grant.  There is equal protection
for all employees covered under other laws. 

S. 372 was a bad deal for
whistleblowers.  It failed to include seven of the nine "crucial"
requirements deemed essential by over 290 public interest organizations.
It actually contained two material "poison pills" or rollbacks from
current employee rights, which would have actually harmed whistleblowers
and set back reform.

It is time to stop lamenting over what
happened with S. 372.  It is time to stop pointing fingers and placing
blame.  It is time to stop obsessing over the past.  It is time for the
whistleblower advocacy community to look forward and work together.  It
is time to demand that President Obama fulfill his promise to
whistleblowers, and that Congress do its job to fully protect all
federal employees who
report waste, fraud and abuse.

Links:

NWC Statement "Whistleblower Protection for
Federal Employees -- Lets Get it Right"
May 14, 2009 Letter from Public Interest Groups
Whistleblower Protection Enhancement Act (S. 372) passed by Senate on December 10, 2010
Whistleblower Protection Enhancement Act (S. 372) passed by House on December 22, 2010
Petition for a National Whistleblower Protection Act