Senate Passes Landmark Whistleblower Legislation

Yesterday the Senate approved by unanimous consent S. 274, Federal Employee Protection of Disclosures Act (FEPDA). The FEPDA would significantly improve both substantive and procedural protections for federal employee whistleblowers and would close the many loopholes that the Federal Circuit and the Merit Systems Protection Board have read into the Whistleblower Protection Act of 1989. In particular, the FEPDA would:

  • Remove the Federal Circuit’s monopoly on whistleblower appeals;

  • Reverse the judge-made requirements of “irrefragable proof,” of the whistleblower being the original source of the report of a violation, and of immediate reporting of the violation;

  • Protect reports made as part of job duties (thus clarifying that the Garcetti duty speech doctrine does not apply to federal employees); and

  • Recognize denial of a security clearance as an adverse employment action.

 

Under the FEPDA, protected conduct includes “any disclosure that-`(i) is made by an employee or applicant of information required by law or Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs that the employee or applicant reasonably believes is direct and specific evidence of–`(I) any violation of any law, rule, or regulation; (II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or(III) a false statement to Congress on an issue of material fact.”

 

The companion bill in the House (HR 985), which was passed in March 2007, is stronger than S274 in that it enables a whistleblower to remove a WPA claim to federal court for a jury trial if there is no final MSPB decision within 180 days after the date on which a request for corrective action has been duly submitted, and it applies the protections of the WPA to employees of national security agencies. As summarized by the Government Accountability Project, HR 985 would:

  • Codify the legislative history for any protected disclosure, meaning the WPA applies to all lawful communication of misconduct. This restores loopholes’ protection and cancels the effect of the Supreme Court’s Garcetti v. Ceballos decision limiting federal workers’ First Amendment rights.

  • Provide those covered by the WPA access to jury trials in federal district court to challenge reprisals.

  • End the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act (The Court has single-handedly gutted the WPA, leading to a 2-178 record against whistleblowers for decisions on the merits from October 1994 through February 12, 2007), restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. This provision was approved today by a voice vote amendment.

  • Extend rights to all national security whistleblowers, including those at the FBI and intelligence agencies.

  • Extend rights to federally-funded contractors.

  • Extend WPA rights to some 40,000 airport baggage screeners.

  • Provide normal whistleblower rights to those who disclose misconduct in litigation testimony, or who refuse to violate the law.

  • Restore independent due process review of security clearance determinations for whistleblower reprisal, unavailable since a 1985 Supreme Court decision.

  • Create specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.

  • Restore the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.

  • Define the “clear and convincing evidence” legal burden of proof for an employer’s affirmative defense of independent justification, after an initial reprisal case is established.

  • Make permanent and provide a remedy for the anti-gag statute (a rider in the Treasury Postal Appropriations bill for the past 17 years) that bans illegal agency gag orders. The anti-gag statute neutralizes hybrid secrecy categories like classifiable, sensitive but unclassified,sensitive security information and other new labels that lock in prior restraint secrecy status, enforced by threat of criminal prosecution for unclassified whistleblowing disclosures by national security whistleblowers.

  • Codify protection against retaliatory investigations, giving whistleblowers a chance to end reprisals by challenging preliminary fact-finding charades.

  • Provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.

  • Provide compensatory damages and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws. This was another strengthening amendment added today.

  • Modify the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.

  • Provide the Special Counsel with authority to file friend of the court briefs in support of whistleblower rights cases appealed from the administrative level.