by Ben Vernia | November 15th, 2012
On November 14, the Senate passed the House version of S.743, the Whistleblower Protection Enhancement Act of 2012, which now goes to President Obama, who is expected to sign it into law. The Senate report can be read here.
According to the Government Accountability Project, the bill will change whistleblower law in several key ways:
What the Bill Does
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 irrefragable 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bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations.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)