Whistleblower Protection Act Amendments – H.R. 985 and S. 274
Why are Amendments to the Whistleblower Protection Act Necessary?
• In 1989, Congress unanimously passed the Whistleblower Protection Act (“WPA”) for the federal civil service as the strongest free speech law in history, on paper. Unfortunately, the law has been functionally overturned by a series of increasingly hostile case decisions from the U.S. Court of Appeals for the Federal Circuit, which holds a monopoly on judicial review of whistleblower cases. In practice it has become an efficient mechanism to rubber stamp retaliation – an enforcement weapon for secrecy, instead of a shield for freedom of speech.
• Although the law on paper protects “any” lawful disclosure an employee “reasonably believes evidence” significant misconduct, the Court now excludes the most common situations in which whistleblower disclosures are made, including if the whistleblower disclosure is made in the course of doing one’s job duties (like an auditor or safety inspector), or if someone else previously has pointed out the same misconduct. The court translated “reasonably believes evidences” into “irrefragable proof,” defined as “incapable of being overthrown, incontestable, undeniable, or incontrovertible.”
• The bottom line is that government whistleblowers virtually always lose hearings and appeals when they challenge retaliation, which means the law is hurting freedom of speech more than it is helping. Since Congress unanimously strengthened the law in 1994, whistleblowers are on the losing end of a 2-201 track record for decisions on the merits by the Federal Circuit of Appeals, which has a monopoly on appellate review.
• The attacks on September 11, 2001, resulted in a wave of whistleblowing by those on the frontlines protecting the United States from further acts of terrorism. Unfortunately, these employees are the most vulnerable to retaliation when they disclose government wrongdoing that is threatening U.S. national security. The first tactic used by managers fearing criticism and embarrassment if security failings are exposed is to silence security professionals by suspending or revoking their security clearance. There is currently no independent review of security clearance revocations, so this type of retaliation almost always results in the termination of the employee who spoke out.
• Jury trials for cases of whistleblower retaliation are necessary because they have long been recognized as a whistleblower’s only genuine opportunity for a fair day in court – with justice decided by the taxpayers who the employee purports to defend while risking professional termination. In 2002, Congress provided that right to corporate workers. In July 2005, it extended the right to Department of Energy and Nuclear Regulatory Commission whistleblowers. The current administrative hearing process is hopelessly politicized, with a 2-53 track record against whistleblowers since the current Bush Administration appointee, Neil McPhie, became Chairman of the Merit Systems Protection Board in 2003.
What would the amendments do?
§ The amendments codify the legislative history of “any” protected disclosure, restoring the scope of protection already approved by three unanimous votes, overturning a series of activist decision from the Federal Circuit that gutted the original scope of protection for employees.
§ The House bill grants jury trials to federal whistleblowers.
§ The House bill extends genuine rights to employees of the FBI and intelligence agencies and to all employees of government contractors.
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