President Obama signed the Whistleblower Protection Enhancement Act (WPEA) this week. The legislation closes loopholes in existing whistleblower protection law and expands coverage of current protections.
Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee and sponsor of the House bill said the “the Act represents years of bipartisan, bicameral work. The bill signed into law today will help Congress stand behind those federal employees who help us protect the American people and their hard-earned tax dollars. While the new law will offer additional protections to those looking to stop waste, fraud, and mismanagement in government, we must remain vigilant in preventing retaliation against whistleblowers.”
Issa pushed through the legislation as a result of the retaliation whistleblowers experienced in the failed gun running scandal known as Fast and Furious.
Chairman Issa introduced the House version of the WPEA one year ago, along with Oversight Committee Ranking Member Elijah Cummings, D-Md., and Rep. Todd Platts, R-Pa. The Oversight Committee approved the legislation unanimously. The House of Representatives approved an amended version of the Senate counterpart on September 28th of this year.
The Senate approved the House amended version earlier this month.
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 irrefutable 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bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations.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)