Federal Legal Corner

The House Committee on Oversight and Government Reform has advanced very significant whistleblower rights legislation which would expand protection for federal employees. The legislation, the "Whistleblower Protection Enhancement Act of 2007," is co-sponsored by Committee Chairman Henry Waxman (D-Calif.), Ranking Member Tom Davis (R-Va.), and Rep. Todd Platts (R-Pa.).

The goal of the legislation is to restore the mandate of the Whistleblower Protection Act (WPA) which, as written, allows federal employees to seek intervention by an outside independent agency, the Office of Special Counsel (OSC); access to an administrative legal proceeding at the Merit Systems Protection Board (MSPB); and, ultimately, access to a court to hear appeals of the case. Despite the rights the Act appears to provide, it has suffered from a series of crippling judicial rulings from United States Court of Appeals for the Federal Circuit, currently the only court that can hear an appeal from MSPB, that are inconsistent with congressional intent and the clear language of the Act. The Federal Circuit's rulings have rendered the Act useless, producing a dismal record of failure for whistleblowers and making the law "a black hole." Research by the Government Accountability Project shows that since 1994, only two whistleblowers have prevailed before the Federal Circuit while 177 have lost their cases.

The limited appeal rights under the WPA cases are inconsistent with the review afforded under other federal whistleblower protection statutes, such as the Sarbanes-Oxley law which covers employees at publicly-traded companies, and the normal appellate option available to employees alleging other forms of discrimination. The Whistleblower Protection Enhancement Act of 2007 will undo the crippling judicial decisions and provide for judicial review by all circuits, thus ending the Federal Circuit's monopoly and ensuring that vigorous judicial opinions are rendered from U.S. district courts nationwide. The legislation also significantly expands the scope of disclosures that federal employees can make. Specifically, the legislation would:

• Provide federal employees and federally-funded contractors access to jury trials in federal district court to challenge reprisals taken against them as a result of their protected activities.
• Extend rights to all national security whistleblowers, including those at the FBI and intelligence agencies. The Act will also bar the President from imposing ex post facto "intelligence employee" status to strip employees of their MSPB rights.
• Make clear that the WPA applies to all lawful communication of misconduct. This would restore "no loopholes" protection for federal employees and cancel the effect of the Supreme Court's decision in Garcetti v. Ceballos decision on federal workers. In Garcetti, 126 S.Ct. 1951 (2006), the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
• Restore the original "reasonable belief" standard for whistleblowers to qualify for protection and do away with the Federal Circuit's "nonfrivolous allegation" standard.
• Restore independent due process review of security clearance determinations for whistleblower reprisal, unavailable since a 1985 Supreme Court decision.
• Provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.
• Strengthen the Office of Special Counsel's authority to seek disciplinary sanctions against managers who retaliate.

This article also appears in FEDweek (www.fedweek.com), a weekly newsletter for federal employees.