The new Congress gives whistleblower advocates an opportunity to make
a new start on the Whistleblower Protection Enhancement Act ("WPEA").
The National Whistleblowers Center (NWC) today calls on legislators and
advocates to get it right this time. Legal protections for federal
employees should be enhanced without any provisions that would take away
presently existing rights. If any poison pills are included in new
legislation, federal employees will continue to suffer when they raise
concerns about waste, fraud and abuse in the federal government.
The obituaries over the defeat of the WPEA in the last Congress (S. 372), have taken on an air of nostalgia over how the forces of "good" were defeated by one lone anonymous Senate "hold," that somehow caused a major landmark whistleblower rights bill for federal employees to be defeated. It is a great political story -- if only it was half-true. In reality, the final, compromised version of S. 372 was the worst and weakest whistleblower protection law approved by the Senate or the House over the past 30 years. It was fatally flawed and divisive legislation.
A Roll Back of Important Rights
On May 14, 2009 over 290 public interest organizations, including all of the members of the Make if Safe Coalition, wrote an open letter to President Obama and Congress calling for the enactment of nine significant reforms in the Whistleblower Protection Enhancement Act. Unfortunately, S. 372 failed to include seven of these nine requirements. Worse, it contained two major cutbacks in current rights.
The May 14th letter stated:
It is crucial that Congress restore and modernize the Whistleblower Protection Act by passing all of the following reforms :
* Grant employees the right to a jury trial in federal court;
[Note: S. 372 only granted some employees this right, and the right
could be completely taken away by the Merit Systems Protection Board]
* Extend meaningful protections to FBI and intelligence agency whistleblowers; [Note: S. 372 completely violated this demand -- all protections for intelligence agency whistleblowers were stripped from the bill]
* Strengthen protections for federal contractors, as strong as those provided to DoD
contractors and grantees in last year's defense authorization legislation; [S. 372 completely violated this demand. No protections for federal contractors were included in the bill]
* Extend meaningful protections to Transportation Security Officers (screeners); [TSA employees were covered - this request was honored]
* Neutralize the government's use of the "state secrets" privilege; [No reform of the "state secrets" privilege was contained. This devastating "privilege" that permits the government to throw out valid whistleblower cases was not reformed or "neutralized"]
* Bar the MSPB from ruling for an agency before whistleblowers have the opportunity
to present evidence of retaliation; [S. 372 not only failed to fix this problem, but it increased the problem by giving the MSPB power to summarily dismiss whistleblower cases without the current right to a hearing on the merits]
* Provide whistleblowers the right to be made whole, including compensatory
damages; [S. 372 honored this demand]
* Grant comparable due process rights to employees who blow the whistle in the course
of a government investigation or who refuse to violate the law; [S. 372 did not include this reform]
* Remove the Federal Circuit's monopoly on precedent-setting cases. [S. 372 did not include this reform. The removal of the Federal Circuit's monopoly was limited to a five year time period, and even within that short scope of opportunity, the Office of Personnel Management could transfer cases filed in other circuits back to the Federal Circuit]
A Strong and Effective Bill Was Possible
A comparison with the modern whistleblower protections passed by Congress make it evident why groups like the National Whistleblowers Center, the Federal Ethics Center, the National Security Whistleblowers Coalition and the No-Fear Coalition were extremely troubled by S. 372.
The demands set forth in the May 14, 2009 letter signed by over 290 public interest groups were not "pie in the sky" utopian dreams. There were pragmatic demands that Congress has listened to and repeatedly enacted into law for other groups of whistleblowers. These are the types of rights that should have been included in the final version of S. 372. Below is a comparison of nine weak provisions contained in S. 372 with the strong versions of reform most recently enacted in the employee protection provisions of the Food Safety Act passed by Congress in December of 2010:
1. Right to Court Access and Jury Trial
Only federal employees who suffered severe retaliation were eligible for court access and a trial by jury, and S. 372 provided no court access whatsoever for FBI or intelligence agency employees. Additionally, S. 372 created this right as experimental for five years and the right would disappear after 5 years. No other whistleblower law contains these limitations.
Food Safety Act
Any employee who suffers an adverse action is entitled to a jury trial in court.
2. Exhaustion of Administrative Remedies
If Merit Systems Protection Board ("MSPB") issues final ruling in 270 days, right to jury trial could be lost forever.
Food Safety Act
Employees preserve all other rights they have by law to have a case heard in federal court by a jury regardless of administrative rulings. Whistleblowers will have a right to court access and a jury trial in all cases if they want.
3. Scope of Protected Activity
For the first time in any federal law, the law excluded "minor" violations of law from protection. The law created a "good faith" defense for managers that would be raised in almost every case alleging violations of law.
Food Safety Act
Employees have the right to blow the whistle on any and all violations of federal law, and there is no "good faith" exception for managers.
4. Preliminary Reinstatement
The Office of Special Counsel continues to lack the power to order an employee back into his or her job if the OSC finds retaliation. OSC must file a petition for a stay with the Merits Systems Board.
Food Safety Act
The administrative investigatory agency (Department of Labor) has the authority and is required to order an employee back into his or her job if, on the basis of the preliminary investigation, OSHA finds retaliation.
5. Cases Heard by Administrative Law Judges
A proposal to have real Administrative Law Judges (ALJs) assigned to hear the whistleblower cases was rejected. Thus, the current system of MSPB "Administrative Judges" (who are not subject to any judicial qualifications whatsoever, and do not even have to be attorneys) remains in place.
Food Safety Act
If a case is heard at the administrative level, the cases are assigned to statutory ALJs, i.e. Administrative Law Judges who are appointed under the ALJ Act, who must meet mandatory qualifications to be a judge and who are provided extraordinary job protections guaranteeing their judicial independence.
6. Burden of Proof
If a case is heard in court, the burden of proof for the agency is lowered from clear and convincing to preponderance of the evidence, and it becomes much harder for an employee to win. Specifically, the long-standing "contributing factor" test is repealed for cases that proceed to court. Thus, instead of employees only having to prove that retaliation was a "contributing factor" in the adverse action, employees would have to demonstrate that retaliation was the "motivating" factor. Moreover, employees would always bear the burden of proof that the employer's reason for terminating the employee was a pretext. Under the "contributing factor" test, that burden of proof would have shifted to the employer to demonstrate, by "clear and convincing evidence," that the employee should not have been fired. S. 372 is the first federal whistleblower law passed in over ten years to repeal the "contributing factor" test in whistleblower court cases.
Food Safety Act
Federal courts are required to apply the pro-whistleblower "contributing factor" test.
7. All-Circuit Review
S. 372 would have permitted all-circuit review of administrative decisions only if the federal government permitted such reviews. Under S. 372 the Office of Personnel Management was empowered to file a motion and have any appeal transferred to the Federal Circuit for review. There was no limitation placed on this power. Also, all-circuit review was considered "experimental" and after five years even the limited right would be extinguished.
Food Safety Act
Employees would have real all-circuit review. Employers did not have the power to have cases transferred to a pro-employer circuit. In fact, every real judicial circuit would have jurisdiction to hear cases, except the Federal Circuit, which is a special court designed to hear only limited cases. There was no sunset provision in the law.
8. Cut-Backs in Existing Rights
This law contained two drastic reductions in the rights currently enjoyed by federal employees. First, Administrative Judges within the MSPB were authorized to grant summary dismissals of cases solely on the basis of agency affidavits. Under current law in place since 1978 such summary dismissals by the MSPB have been barred. Second, the scope of protected disclosures was reduced (i.e. reporting "minor" violations of law would not longer be protected). Prior to S. 372 whistleblower advocates never approved reductions in current rights, but instead tried to strengthen existing laws.
Food Safety Act
The bill only added rights. It also contained a provision guaranteeing that rights currently existing under state laws were not impacted, and guaranteeing that no private contract could reduce rights.
9. National Security Exemption
With the full support of S.372-advocates, the House of Representatives cutout all of the limited protections for national security whistleblowers who work at intelligence agencies that were proposed. These employees remain without any coverage under the federal Whistleblower Protection Act. If this cut-back had been approved by the Senate, the possibility of passing a new whistleblower law just covering national security employees was viewed as hopeless, if not completely impossible.
No other federal whistleblower law exempts national security employees, or creates this dual structure of protection. For example, under the False Claims Act, federal contractors are all equally covered, regardless of whether the contractor is working on a top-secret national security project or a highway grant. There is equal protection for all employees covered under other laws.
S. 372 was a bad deal for whistleblowers. It failed to include seven of the nine "crucial" requirements deemed essential by over 290 public interest organizations. It actually contained two material "poison pills" or rollbacks from current employee rights, which would have actually harmed whistleblowers and set back reform.
It is time to stop lamenting over what happened with S. 372. It is time to stop pointing fingers and placing blame. It is time to stop obsessing over the past. It is time for the whistleblower advocacy community to look forward and work together. It is time to demand that President Obama fulfill his promise to whistleblowers, and that Congress do its job to fully protect all federal employees who report waste, fraud and abuse.