During the waning days of the 111th Congress (December 2010), the Senate passed the Whistleblower Protection Enhancement Act (S. 372) with unanimous support. However, a red herring national security concern about WikiLeaks delayed passage of this legislation in the House of Representatives. A bipartisan House agreement was brokered in the 11th hour, and legislation that would only extend coverage to non-intelligence employees for unclassified whistleblowing disclosures passed in the House by unanimous consent. With mere hours left in the lame duck session, S. 372 was sent back to the Senate for a final vote, but this time died at the behest of one anonymous, secret hold.
This was of tremendous disappointment to us. For twelve years, GAP and an expanding coalition of 400 citizen organizations and companies with some 80 million combined members, of all ideologies, have been fighting to restore credible whistleblower rights for federal government employees and contractors. During the past decade, this was by far the closest that real federal whistleblower protections came to passage. GAP has provided expert testimony, and proposed and coached whistleblower witnesses, to help build a record for the WPEA.
S. 372 would have given federal whistleblowers long overdue and necessary rights, lapping those created by the Whistleblower Protection Act of 1989 -- which have proven to be ineffective. S. 372’s cornerstones to keep the government accountable included --
- Cancelling all the hostile administrative and Federal Circuit court rulings of the last 17 years that account for the 3-210 track record against whistleblowers;
- Expanding the scope of rights (i.e., scientific free speech, and anti-gag statutes) as well as those employees covered by them (i.e., 40,000 TSA baggage screeners);
- Enacting structural "due process" reforms we’ve been seeking since the 1980’s to enforce free speech rights, with five year experiments for jury trials of major disciplinary actions and all circuits appellate court review
More specifics of what this legislation would have accomplished is summarized below:
I. EXPANDED FREE SPEECH RIGHTS
- Closes judicially-created loopholes to protection, such as canceling a requirement that the Whistleblower Protect Act (WPA) only protects “the first” person who discloses given misconduct, and overriding a Supreme Court decision, Garcetti v. Ceballo, which limits federal workers’ free speech rights while carrying out job duties.
- Cancels the 1999 precedent that translates “reasonable belief” to require irrefragable proof.
- Creates specific legal protection for scientific freedom, providing WPA rights to employees who challenge censorship, and make it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.
- Codifies and provides a remedy for the anti-gag statute – a rider in the Treasury Postal Appropriations bill for the past 22 years – that bans enforcement of agency gag orders that seek to override statutory rights to communicate with Congress or WPA rights to make unclassified public disclosures.
- Bars Critical Infrastructure Information, a hybrid secrecy category created by the Patriot Act, from overriding WPA free speech rights.
- Expands upon constitutional protection by providing government contractors the right to make classified whistleblowing disclosures to Congress, and requires agencies to advise government employees on how to make classified disclosures to Congress without incurring liability.
II. EXPANDED COVERAGE AND DUE PROCESS RIGHTS
- Provides Title 5 workers access to federal district court jury trials to challenge major disciplinary actions.
- Ends 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 3-210 record against whistleblowers for decisions on the merits since October 1994), restoring all-Circuit review for a five year experiment as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.
- Extends whistleblower rights to some 40,000 airport baggage screeners.
- Provides normal due process administrative and jury trial whistleblower appeal rights to those who refuse to violate the law.
- Guarantees that when whistleblowers receive an administrative hearing or day in court, they can make their case of government misconduct and corresponding harassment, before their retaliation complaint can be dismissed on independent grounds.
- Bars the President from exercising discretionary power to impose national security exemptions that deprive employees of Title 5 WPEA rights, after the employee files a reprisal complaint.
III. EXPANDED RESOURCES
- Provides compensatory damages reimbursement for expert witness fees to prevailing whistleblowers WPA cases that prevail after an administrative hearing, including retaliatory investigations, and the same remedies with a $300,000 damages cap for court actions.
IV. RESOURCES
- Provides the Office of Special Counsel (OSC) with authority to file friend of the court briefs in court to support employees appealing MSPB rulings.
- Makes it easier for the Special Counsel to discipline those responsible for illegal retaliation by modifying the burdens of proof, and by ending OSC liability for attorney fees of government managers, if the Special Counsel does not prevail in a disciplinary action.
- Requires the Merit Systems Protection Board (MSPB) to file annual reports providing for data starting for 2009 on the outcomes of whistleblower cases, from administrative judge through Board appeal.
