When you experience, witness, or hear about a practice at work that you believe violates the public trust, you may feel a sort of fight or flight response: Do I tell someone with power about this in the hope of changing it, or do I look the other way?
In today’s “see something, say something” world, the hope of society is that you speak up—but repeated federal surveys have shown that one of the main reasons federal employees say they might not blow the whistle is fear of retaliation.
Up until this point, this guide has laid out options for getting the truth out while keeping your role as a whistleblower secret from your management in order to avoid the potentially devastating professional consequences you could face. But what if such anonymity is impossible because your disclosures are easily tied to you or your identity is exposed some other way? What kind of protections exist if you face retaliation? And what does a retaliation investigation look for? This chapter is an introductory menu for answers to these questions.
Changes Made by the Whistleblower Protection Enhancement Act
The Whistleblower Protection Enhancement Act of 2012 helped to finally close major loopholes that plagued federal whistleblowers for decades. As a result, the law now protects whistleblowers:
- For disclosures made internally to a supervisor
- For disclosures that were already made by someone else
- For disclosures regardless of the motive of the whistleblower
- For disclosures not made in writing
- For disclosures made off duty
- For disclosures made before the whistleblower applied to their position or was appointed
- Regardless of how much time has passed between the disclosure and the retaliation
First the good news: In the almost 20 years since the last edition of this book, Congress and the executive branch have strengthened whistleblower rights and protections for federal employees and contractors, as well as for corporate workers. In 2012, Congress closed loopholes in the Whistleblower Protection Act that had left many federal civilian whistleblowers unprotected if they disclosed concerns to supervisors in the course of carrying out their job duties or if they weren’t the first person to make the disclosure, among countless other judicially created loopholes. Employees of government contractors, intelligence agencies, and the FBI, and uniformed members of the military have all seen improvements in their legal protections, and there has been a legal revolution in corporate free-speech rights.
But, despite these and other major victories advancing whistleblower protections, there are still critical flaws in existing laws. In addition, barriers like bureaucratic red tape, partisan squabbles in Congress, resource limitations, and timid officials who are unwilling to make waves can and do hold up access to justice, sometimes well within their discretionary authority under the law.
And the sobering truth is that even where the strongest possible protections exist, there will always be people who violate them and get away with it. Whistleblowers themselves regularly become the subject of retaliatory actions or criminal investigations, even though most of them were merely trying to right a wrong.
This chapter focuses mainly on the laws that protect most career federal civil-service employees working in the executive branch. These are employees who are protected under the Whistleblower Protection Act (WPA), as amended.
The chapter will also outline protections for federal contractors, intelligence community employees and contractors, FBI employees, and members of the armed services. All have distinct protections and processes for blowing the whistle separate from the WPA.
Note that some federal employees lack whistleblower protections entirely and so aren’t discussed in this chapter. They include political appointees and employees in the legislative and judicial branches of government. They also include executive branch employees still in their probationary period, who have curtailed employment appeal rights under the WPA.
If you are a covered employee and file a retaliation complaint, an investigation into your complaint will focus on four key questions regardless of whether you are a federal civilian, FBI or intelligence community, or contractor employee, or a uniformed member of the armed services. Those five key questions are:
- Did you make a disclosure protected under any law or regulation?
- Did you face an adverse employment action?
- Did the managers who took the action or played a part in it know about your protected disclosure, and if so, was there a connection between your disclosure and the subsequent personnel action you wish to challenge?
- Did your management have a legitimate, non-whistleblowing reason to take that action?
This chapter will walk you through what the answers to these questions must be in order to win a retaliation claim. It will also discuss how the different laws and regulations covering other types of federal-sector employees affect these questions. For instance, to defend itself against a retaliation claim, the military can produce weaker evidence to show it had a legitimate, non-whistleblowing reason to discipline a uniformed military whistleblower than civilian or intelligence agencies, the FBI, or contractors have to show to defend themselves.
The scope of what qualifies as a protected disclosure varies to some degree, too: for example, unclassified disclosures by most civilian federal employees to the press can receive protection, whereas unclassified disclosures by FBI and intelligence employees or uniformed members of the armed forces to the press do not. Nobody is protected for disclosing classified information to the press or public, period.
When deciding whether to blow the whistle, your best bet is to remain realistic in your expectations, know your rights, and speak with a knowledgeable whistleblower-law attorney before pressing forward. Your situation will likely have many nuances. And the law is not always as straightforward as it sometimes seems. For instance, case law—binding decisions by judges—makes legal analysis even more complex. This guide is just a starting point.
Federal Civilians: What’s a Protected Disclosure?
Many employees communicate concerns without thinking of their communications as whistleblowing or of themselves as whistleblowers. So it’s important for every employee to understand what types of communications are protected by law.
Under the Whistleblower Protection Act, a protected disclosure is a formal or informal communication or transmission of information that a covered employee, former employee, or applicant reasonably believes evidences:
- A violation of a law, rule, or regulation
- Gross mismanagement
- A gross waste of funds
- Abuse of authority
- A substantial and specific danger to public health or safety
When making a disclosure, you must have a “reasonable belief” that the information is evidence to demonstrate one of these prohibited activities. This means that you must have believed that the information evidenced a prohibited activity, and your belief must be objectively reasonable, meaning it would be reasonable for someone in your position to draw the same conclusion that you did.
There are, however, explicit exceptions. If your disclosure includes classified information, you are protected by the law only if you disclose that information to a relevant Office of Inspector General, the Office of Special Counsel (OSC), or other authorized channel that can legally receive classified material (the role of inspectors general and OSC in accepting disclosures is discussed in Chapter 4).
There are no protections for disclosing classified information to the press, the public, or to any other parties not listed in the channels for making a protected disclosure. Such disclosures are grounds for discipline up to and including termination, and possibly for criminal prosecution. The same goes for other information that statutory law restricts from public dissemination, such as private medical information and confidential tax and financial records. You will not receive protection if you disclose that information to the public or the press.
Case Study: Extra Risks for Government-Attorney Whistleblowers
In 2004, Thomas Tamm was a Justice Department attorney serving in its Office of Intelligence Policy and Review. Tamm was concerned about the George W. Bush Administration’s warrantless wiretapping program, so he brought it to the attention of a Senate staffer, who, according to Newsweek, was “wary of discussing what sounded like government secrets [and] shut down their conversation.”
Weeks later, Tamm went to a pay phone and called the The New York Times. After the Times published a story based on his disclosures and corroborating accounts, Tamm faced an FBI investigation for leaking classified information—during which his house was raided by federal agents seeking evidence—and the threat of an Espionage Act prosecution. The Justice Department ultimately declined to pursue that prosecution.
Even as the threat of criminal prosecutions for revealing secrets receded, however, Tamm still faced discipline as an attorney for revealing information shared with him by his client, the Justice Department. The Office of Disciplinary Counsel for the D.C. Bar, of which he was then a member, pursued a case against him that dragged on for years.
In order to settle the charges against him, more than a decade after his disclosure, he accepted censure by the D.C. Bar in 2016, but was allowed to keep his law license. The D.C. Bar’s Office of Disciplinary Counsel agreed that Tamm was “motivated solely by his grave concern that the program was unlawful,” that “he was careful not to disclose any methods, sources, or specific intercepts about ‘the program’ to the reporter,” and that he believed going to the attorney general with his concerns would have been “futile.”
Tamm’s case illustrates the professional conflict presented when a government attorney feels a moral obligation to expose wrongdoing but in doing so would reveal information disclosed to them in confidence by their government-agency client. It also raises a profound question: for a government attorney, who is the client? The government agency they work for, the executive branch, the government as a whole, or the public?
The answer is not straightforward. Landing on the wrong side of this thorny issue can lead to professional repercussions.
Likewise, you generally will not receive protections for disclosing your disagreement with an agency policy decision unless you have a reasonable belief that the policy’s consequences are among the protected categories of disclosures (such as a violation of law, or a substantial and specific danger to public health or safety).
In addition to the protected disclosures mentioned above, the law also protects employees who take certain actions from employer retaliation. The law makes it unlawful to retaliate against a covered employee for:
- Exercising any appeal, complaint, or grievance right granted by law, rule, or regulation, or testifying on behalf of or helping someone who is exercising one of those rights
- Cooperating with or disclosing information to an Inspector General or the Office of Special Counsel
- Refusing to obey an order that would require the employee to violate a law, rule, or regulation
For example, these rights protect against retaliation resulting from a covered employee filing discrimination complaints with the Equal Employment Opportunity Commission (EEOC). Note that OSC typically refers these retaliation complaints to the EEOC to investigate, but the act of filing a disclosure is protected as a complaint right.
Choosing Your Audience
After you and your attorney, if you have one, determine that your disclosure falls into one of the protected categories, your next decision is to choose the recipient of your disclosure. Most federal civilian employees protected under the WPA have a wide array of people and offices they can make protected disclosures to.
For instance, you can choose to make disclosures internally to a supervisor or to someone else in your agency. However, the law does not require that you do this,
and internal disclosures are not always safe or effective. After all, your supervisors could very well be the subject of your disclosure or become messengers to warn the wrongdoer.
You can also choose to make your disclosure externally to an Inspector General, the Office of Special Counsel, Congress, advocacy groups, or the press. As noted above, if your disclosure involves classified information or other information prohibited by statute from public dissemination, you are not protected for those disclosures made to the press, the public, or anyone else not legally authorized to receive that material.
Most other types of federal workers who are excluded from the WPA—such as those in the intelligence community, the military, and the FBI—do not have the same array of outlets they can disclose to and still receive protection.
For more on filing an initial disclosure, see Chapter 4, which details the main official oversight bodies you can bring your disclosure to: Offices of Inspectors General, the Office of Special Counsel, and Congress. Chapter 2 discusses non-governmental organizations as potential recipients for disclosures, and Chapter 5 discusses working with the press.
Federal Civilians: What’s a Personnel Action?
The Whistleblower Protection Act, as amended, makes it illegal for anyone with authority to take, direct others to take, threaten to take, recommend, or approve any “personnel action” relating to a covered employee in retaliation for blowing the whistle. This doesn’t just mean terminations or poor performance evaluations—it also includes actions not taken, such as promotions or appointments that weren’t granted.
A personnel action means a decision by someone with authority related to:
- An appointment
- A promotion
- Disciplinary or corrective action, also known as adverse action
- A detail, transfer, or reassignment
- A reinstatement
- A restoration
- A reemployment
- A performance evaluation
- A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action
- A decision to order psychiatric testing or examination
- The implementation or enforcement of any nondisclosure policy, form, or agreement
- Any other significant change in duties, responsibilities, or working conditions
While this is a fairly comprehensive list of employment-related actions, it’s important to note what the list doesn’t include.
An unfortunate reality is that whistleblowers often become subjects of retaliatory civil and criminal investigations.
It’s an awful tactic that diverts attention away from the whistleblower’s disclosure by refocusing attention on the whistleblower. After opening such an investigation, the agency then offers the whistleblower a choice of facing criminal prosecution, or resigning and dropping the retaliation claim.
Many agencies are getting away with this, because opening a retaliatory investigation isn’t a prohibited personnel practice under the Whistleblower Protection Act. The employee is powerless until the investigation leads to a subsequent personnel action.
But criminal referrals for prosecutions are not listed personnel actions, either, so the employee is left defenseless against retaliatory prosecutions.
Going to jail is far worse retaliation than getting fired. The Office of Special Counsel can informally ask an agency to cease a retaliatory investigation as a part of OSC’s larger investigation into the retaliation but unfortunately has very limited resources and can only investigate a few of these cases at a time.
If you have an attorney, speak with them before blowing the whistle. Be candid—it’s important for them to be able to weigh any potential fuel that your employer may try to use against you and for you to understand the kinds of claims agencies make in an attempt to discredit whistleblowers.
Federal Civilians: What’s Management Knowledge and How Is It Proven?
After considering whether you made a protected disclosure and faced a retaliatory action under the law, investigators will look at management knowledge of your disclosure. In order for agency officials to have taken retaliatory action against you, they first must have known about your disclosure—otherwise the action wouldn’t have been retaliatory. Note that it is not necessary that the proposing or deciding official on the personnel action have knowledge if some management official who influenced the decision had such knowledge.
To determine managers’ knowledge of your disclosure, investigators can look at direct and circumstantial evidence. Direct evidence can be things like emails, confessions, testimony or documents that tie the personnel action taken against you to your disclosure. While this evidence is obviously preferred, it’s not always easy to come by unless agency officials are careless.
Circumstantial evidence can also be used either instead of or in addition to direct evidence to prove that management knew about your disclosure and retaliated. Circumstantial evidence looks at the circumstances around your disclosure and the personnel action, such as coincidental timing (you made a disclosure on Friday and were fired on Monday) or disparate treatment where all of your co-workers get some work-related reward except you, to draw logical conclusions connecting the two.
Also note that the adverse personnel action doesn’t have to stem from actual knowledge of your disclosure, but can be the result of what management should have known or of “constructive knowledge,” where the retaliating manager was influenced by someone else with actual knowledge.
This prevents a manager from developing plausible deniability by deliberately avoiding the truth. Further, “mistaken knowledge” triggers your rights. Even if you haven’t made a disclosure, if agency officials retaliate against you based on a mere belief that you made or intended to make a protected disclosure, that would be unlawful retaliation under the WPA.
Federal Civilians: When Can an Agency Claim that the Personnel Action was Legitimate?
In retaliation cases, the burden of proof is on you to demonstrate that you made a protected disclosure, faced an adverse employment action, and that there is evidence the action was taken when management knew, should have known, or suspected you blew the whistle.
To meet that burden, you must satisfy the “preponderance of the evidence” standard, meaning there is more than a 50 percent likelihood that your claim is true, which is a fairly low bar. If you meet that burden, the agency is then put on the defensive. Did it have a legitimate, non-whistleblowing-related reason to take action against you?
In order to prevail, the agency must demonstrate that they had a legitimate reason to take the action, and must satisfy the “clear and convincing” standard—one of the highest burdens in civil law—to overcome the presumption that it retaliated.
Basically, the agency has to show that it would have taken the same personnel action even if there had not been whistleblowing. Agencies can do this by showing that their treatment of you was the same as that of other employees, that they had no motive to retaliate, that their action was put in motion before the whistleblowing, that your purported poor performance or misconduct was real, or similar valid justifications.
Whistleblowers Should Always Tell the Truth
Telling the truth is paramount when it comes to whistleblowing. Lying to any federal official is a felony and can result in criminal liability. But beyond that, telling the truth is important to preserve a whistleblower’s credibility and integrity, particularly with congressional offices, members of the press, and advocacy organizations, who are aligning their own name and credibility with a whistleblower by repeating and acting on what that whistleblower told them.
Even a small exaggeration can prevent those who sincerely want to help from feeling like they can trust anything a whistleblower says. If you stretch the truth a little bit, it will give wrongdoers ammunition to discredit your entire claim. Further, it will distract from their underlying wrongdoing.
For that reason, you should always be honest with investigators, law enforcement, your attorneys, and anyone else involved in your disclosure or retaliation claim. While you may be tempted to exaggerate out of a fear that you’re not adequately conveying the facts, trained investigators won’t need embellishment to understand the implication of the facts of your claim, and will likely have a stronger understanding of the law.
Also consider that once a whistleblower is caught in a lie, no matter how small, the case against their retaliation claim is strengthened. This is doubly true in the intelligence community where clearances can be revoked when clearance holders demonstrate traits that may present national security risks, such as dishonesty.
Even if the truth is painful or embarrassing at first, you should always be honest. Once your credibility is lost it will be difficult—if not impossible—to regain.
For this reason, you should always remember that you need to be cautious about maintaining quality performance at work. Even if you are being retaliated against, you should always try to perform your job to the best of your ability and with professionalism.
Whistleblowers who face retaliation at work and a newly and unreasonably difficult work environment may feel tempted to start using all of their sick leave or otherwise refuse to perform their job function. But underperforming would only provide ammunition to employers who will be looking for anything legitimate to use against you to defend against your claim of retaliation. While it may be frustrating, you should strive to still provide your best work and be as professional as possible.
Don’t Misuse Government Resources, Facilities, or Time
Agencies have explicit rules limiting unofficial or personal use of government resources, facilities, and time. So, at all costs, avoid using agency resources including equipment, materials, or facilities for your disclosure, and don’t work on your disclosure or gather information while at work or otherwise on the government’s time. A whistleblower caught with private correspondence to a civil society group or faxing or emailing documents to a reporter will often be disciplined for misuse of the equipment or misappropriation of government resources.
You should assume that any information on your work computer(s) or devices is open to management review. This includes work and personal email, documents saved, programs accessed or downloaded, and messages sent.
You should also forgo whistleblowing telephone conversations conducted over workplace telephone lines or on government-issued cellphones. That can not only lead to termination, but some agencies (such as certain law enforcement agencies) have regulations that allow them to monitor conversations or record all telephone calls. Furthermore, most government agencies keep a computer log of all incoming and outgoing telephone numbers dialed to or from agency telephones. These logs are frequently reviewed to find out who employees are talking with.
Similarly, agency fax machines, copiers, and scanners keep logs of all sent and received documents and may have the capacity to keep electronic copies of documents. These logs may be used to prove that an employee improperly used government equipment.
Finally, avoid using government facilities for personal purposes. For example, don’t mail corroborating documents to the press from your agency’s mailroom or fax machine.
Federal Civilians: Where Can You File Whistleblower Retaliation Claims?
Above, we’ve outlined the legal requirements to win a claim that your whistleblower rights were violated. But who do you file your claim with?
If you are a federal civilian employee seeking relief from the retaliation you’ve suffered for blowing the whistle, there are three offices you should become familiar with: the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and your agency’s Office of Inspector General (IG). (The roles of IGs and OSC in receiving whistleblower disclosures are discussed at length in Chapter 4. This chapter focuses on their roles in investigating retaliation claims.)
The Long Road to Justice
In August 2003, the Interior Department’s inspector general warned of inadequate security at national monuments under the jurisdiction of the United States Park Police, a law enforcement agency within the National Park Service.
That December, Teresa Chambers, then-chief of the Park Police, seemingly confirmed these findings, when she said in an interview published in The Washington Post that her agency was stretched thin and underfunded.
Within days, the National Park Service made Chambers surrender her badge, forbade her from speaking to the media, and placed her on administrative leave. According to Chambers, her comments to the Post upset Interior Department political leaders. Those political leaders threatened her with discipline unless she agreed to speak at a press conference and rescind her statements to the Post.
“After reflection, I concluded that these conditions required me to lie and prevented me from doing the job I was hired to do. I refused to agree to what was, essentially, an effort to blackmail me into misleading Congress and the public,” she later testified to Congress.
Following her refusal, the Department accused her of giving “law enforcement sensitive information” to the press and of several other trumped-up charges, such as not quickly returning a phone call from a Department attorney.
Chambers appealed the charges by filing a complaint with the Office of Special Counsel (OSC), and ended up taking her case to the Merit Systems Protection Board (MSPB) after the OSC failed to act for five months.
During the review of her case, an MSPB administrative judge warned her against pressing for a formal hearing of the case. The administrative judge said Chambers would “embarrass” herself and that she should resign, Chambers recalled in her testimony before Congress. Chambers persisted in seeking the hearing.
During the hearing, Chambers said the judge “seemed in a hurry, limiting the number of witnesses who could be questioned and refusing to order the Department of the Interior to produce requested and relevant documents.” In an October 2004 decision, the judge upheld four of the Department’s charges against Chambers and her termination partly because she “expressed no remorse.”
Chambers appealed to the full MSPB, which ruled against her in 2006, finding “this case presents a classic policy disagreement over which reasonable minds might differ, and that as a result, the appellant’s interview with the reporter was not protected whistleblowing.”
Chambers, represented by Public Employees for Environmental Responsibility (PEER), appealed to the Federal Circuit Court of Appeals, which ruled in her favor in 2010 finding that the Board made legal mistakes. Her case went back to the MSPB again. In 2011, with a new set of judges because so much time had passed, MSPB found she was retaliated against, and she was reinstated.
In total, Chambers’ fight lasted over seven years.
“Without their help,” she said of PEER in an interview with The Washington Post in 2013, “I’m sure I would have had to give up the battle long ago.”
Remember that if you are an intelligence community employee, you have unique protections that will be described in detail later in this chapter.
The Office of Special Counsel is specifically authorized by Congress to, among other things, investigate claims of retaliation. All federal civilian employees who have whistleblower protections can file claims of retaliation directly with OSC. If OSC believes there is sufficient evidence showing retaliation, it can negotiate with your agency to make you “whole” or propose other corrective actions.
While OSC itself can’t compel agencies to take remedial action, it can go to the Merit Systems Protection Board, an administrative court that hears executive-branch employment disputes, to seek enforcement of OSC’s corrective action recommendations. MSPB is essentially OSC’s court. OSC can also seek to temporarily block an agency’s negative action through negotiation or by asking MSPB to order a “stay,” blocking the retaliation while the case in pending, if the agency doesn’t voluntarily comply with OSC’s request. It often obtains “informal” stays from agencies while investigating the reprisal complaint. If resolution is not possible, OSC either takes the case before the MSPB or dismisses the claim, which then gives the employee the right to file directly with the MSPB on their own.
Federal civilian employees can file whistleblower retaliation claims directly with the MSPB only if they involve unpaid suspensions of more than 14 days, terminations, or other serious employment actions.
For other actions, as well as action by probationary employees who cannot otherwise bring a case to MSPB, federal civilian employees must go to OSC first. If OSC closes their case, or 120 days pass after the claim was filed with OSC without hearing about a corrective action, an employee can then proceed to MSPB. Individuals bringing their own case to the MSPB are exercising an “Individual Right of Action” (IRA). Note that employees can only raise issues in their MSPB that they’ve already raised with OSC.
Offices of Inspectors General (IGs) are internal federal agency watchdogs. Under the WPA, IGs can receive claims of whistleblower retaliation, and the Inspector General Act, as amended, dictates IG staff training and the creation of best practices for whistleblower intake and investigations.
Each IG office must have a whistleblower coordinator who makes sure that the office is trained in whistleblower law, and to assist the IG with investigations.
IG’s also have a general counsel that can, among other things, advise the IG on whistleblower law.
IGs are limited to investigating and making recommendations to the agency head on the whistleblower’s retaliation claim. They cannot negotiate relief for a whistleblower or pursue enforcement, even if they find retaliation occurred. Always remember, too, that an IG’s general counsel and whistleblower coordinator are not your legal representatives. They work for the IG. Further, whistleblower coordinators do not investigate retaliation cases.
Some federal employees can also use a union process to adjudicate their claims of prohibited whistleblower retaliation.
You and your attorney, if you have one, should choose your outlet for relief based on your needs. But be cautious in doing so, as exercising one right could permanently eliminate the other options. For example, if an employee goes to MSPB first with a claim that they were fired in retaliation and they lose that case, they cannot later go to OSC with that claim.
Employees who are a part of a union may have the option of participating in arbitration with the agency. This can be a good option to settle disputes quickly, and with the support and resources of the employee’s union. However, it is no longer the whistleblower’s case at that point. The union is the party in an arbitration, not the employee. Before arbitration hearings begin, unions can and frequently do drop cases that the whistleblower wants to pursue. Further, someone who elects arbitration can no longer seek relief through the Office of Special Counsel or Merit Systems Protection Board.
For most federal employees, the OSC and MSPB adjudication processes are the only way to seek legal relief when facing retaliation for blowing the whistle without losing control over their rights. These processes are outlined in greater detail below.
The Office of Special Counsel
The first step for most federal employees when they are subjected to whistleblower retaliation will be filing a claim with the OSC.
If you go this route, here is what to expect.
After receiving your retaliation claim, OSC must acknowledge receipt and assign the claim to an OSC contact within 15 days.
From there, the OSC must decide whether to terminate or pursue an investigation based on the information you provided.
OSC may terminate the investigation at the outset if the whistleblower is filing a repeat claim with the same facts—in other words, OSC won’t investigate the same claim filed by the same person twice, or if the whistleblower has already filed their claim with the MSPB. OSC may also terminate the investigation if it doesn’t have jurisdiction over the claim (for example, if your position isn’t covered by whistleblower retaliation protection law), or if the retaliation happened more than three years prior to being filed with OSC.
If OSC decides to terminate the investigation immediately, it must notify you within 30 days of termination.
If it doesn’t terminate immediately, they will proceed with an investigation.
OSC investigations aim to determine if there are “reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.”
Investigators are required to notify you within 90 days of the complaint’s filing if OSC is proceeding with the investigation and must update you on the status of the case every 60 days.
OSC then has 240 days to conduct its investigation.
If, in the course of the investigation, OSC determines that reasonable grounds of a prohibited personnel practice do not exist, it must notify you 10 days before terminating the case.
That window gives you an opportunity to provide more information or comments related to their claim.
If OSC still decides to terminate the investigation, you have 65 days to take their case directly to the MSPB to seek relief on their own.
If OSC ultimately finds that retaliation has occurred, it will send notice to the relevant parties, with recommendations to the agency on how to correct the retaliation. If the OSC and you believe the agency has sufficiently followed the OSC’s recommendations, the case can end there and the OSC files a final report.
However, if the agency fails to correct the identified problems within “a reasonable period of time,” OSC can then petition the MSPB to compel the agency to act. If the petition is not resolved, it triggers a formal hearing process at the MSPB.
Because Congress did not empower OSC to force agency action itself, it must rely on MSPB to order the agency to take action to fix the prohibited practices.
Know that the OSC has extremely limited resources compared to the number of claims it receives, and for that reason is slow to act and is only able to bring a small percentage of cases in front of the MSPB. As a result, the cases it does bring are typically high-stakes or legally significant. If the OSC doesn’t tell you whether it will investigate the case within 120 days of filing, you can skip the investigative process and can take the case directly to the MSPB on your own.
It’s up to you and your attorney, if you have one, to decide whether to file first with OSC or the MSPB (if you qualify to do so). While filing first with MSPB will cut out a significant portion of time by eliminating an OSC investigation, it also prevents you from seeking OSC relief if things don’t work out at MSPB.
Filing first with OSC gives you two bites at the apple and also gives you an option of formal mediation through its alternative dispute resolution program, which has been highly effective (this program is discussed in more detail below).
Merit Systems Protection Board
The Merit Systems Protection Board is a quasi-judicial entity in the executive branch made up of administrative judges (AJs) and a three-member bipartisan Board, whose members are appointed by the president with the advice and consent of the Senate. The AJs make initial decisions in retaliation cases, and the Board can review AJ decisions.
Unlike OSC, MSPB is empowered by Congress to compel agencies to correct illegal behavior. Because of that power, the MSPB can also issue “stays” at the request of the OSC or at the request of an employee in an Individual Right of Action, preventing the agency from taking further action against a whistleblower or forcing them to rescind an action that was already taken, while an OSC investigation or MSPB case is pending.
The MSPB applies basically the same standards in evaluating a whistleblower case that OSC does, described above. In order to get a favorable ruling at the MSPB, you must demonstrate that your whistleblowing was a “contributing factor” in the retaliation you suffered. That is a low bar: it covers any factor which, alone or in combination with other factors, tends to affect the outcome in any way.
However, the agency has an ace in the hole: If it can prove by clear and convincing evidence that it would have taken the personnel action regardless of your disclosure, the MSPB cannot order corrective action.
The process of review can be multi-tiered, depending on any appeals filed by you or the agency.
First, usually after an evidentiary hearing, administrative judges make initial decisions on allegations of prohibited personnel practices.
After an AJ’s initial decision, agencies have one option for appeal and whistleblowers have two. The losing side can appeal the case to the three-member Board. If neither you nor the agency appeals the AJ’s initial decision to the Board within 35 days, the AJ decision becomes a “final decision” of the MSPB.
However, whistleblowers have the additional option of appealing the case to a federal appeals court. This option is available to whistleblowers because they have the right to appeal a “final decision” of the MSPB to federal court.
Agencies do not have this option in the absence of exceptional circumstances.
Choosing to appeal an unfavorable “initial decision” to the three-member Board may be the less-expensive route to take. It also gives you another chance to prevail, in that you can appeal the three-member Board’s final decision, if you want, to federal court.
But there are downsides to this process. Once you appeal to the three-person board, the case can’t proceed to federal court until the Board releases its final decision on the appeal. (This is true, too, if the agency appeals the case to the board. By filing a petition for review, the agency keeps an AJ’s decision in favor of a whistleblower from becoming “final.” However, the relief ordered by the AJ, including reinstatement but not back pay or attorneys’ fees, goes into force while the appeal to the Board is pending.)
While AJs have only 120 days to complete their review of a case, the Board can take as long as it wants.
Delays of one to two years are not uncommon.
Appeals to the Board are particularly a problem at the time this book went to press. In order to make decisions on cases, the Board needs at least two active members, but, as of March 2019, it has lacked the necessary quorum for over two years, largely due to politics, since the president must nominate and the Senate must confirm the members.
In fact, at the time of this book’s publication there are no Board members. As a result, there are over 2,000 whistleblower cases stuck in limbo, waiting on the Board to make a final decision of whether to uphold the administrative judge’s initial decision.
You can alternatively choose to allow the AJ’s initial decision to become final, thereby triggering the right to take their case directly to federal court. Although it is highly unlikely that a whistleblower will win at that level, this bypasses the perhaps years-long wait for a final decision from the Board.
However, going straight to federal court is not without its pitfalls. It will be much more expensive, because you would certainly want to hire an experienced attorney if you hadn’t already. Further, attorneys are likely to make whistleblowers pay as they go, because current law does not provide attorney’s fees for lawyers’ work in appellate courts, even if they win.
By cutting out the three-member Board and instead going to federal court, you may save time but will run up your bill and give up an additional bite at the appeals apple. Further, the appellate court could remand your case back to the MSPB, placing you back where you started.
If you first file a petition for review with the Board but later want to try your case at the federal court instead, you have the option to request a withdrawal of their petition. With no Board, this decision to approve the withdraw request is now made by the clerk of the Board. However, any objection by the agency would kill the request to withdraw because there is no Board to review it.
Note that if an AJ’s initial decision is in your favor, the relief is granted immediately, even if the agency appeals.
This applies to pay, benefits, and other terms of employment, but does not include back pay or attorney’s fees. However, it is up to the agency to decide whether to allow an employee to physically return to work, pending the agency’s appeal to the Board.
If an AJ’s initial decision is in favor of the agency, on the other hand, the agency’s action against the whistleblower remains in place, pending the whistleblower’s appeal. So, if the agency fired you, you are still fired while your appeal is heard.
Alternative Dispute Resolution
Another option for employees making claims of retaliation is OSC’s alternative dispute resolution program (ADR). This relatively new program sidesteps the investigative and adjudication process, which can be lengthy and expensive, and replaces it with mediation between you and the agency.
The ADR unit is largely successful, and obtaining relief through agreement rather than “victory” can lessen the chances for renewed retaliation.
If you and the agency fail to settle, you can then seek relief through the investigative process described above.
Given the large backlog of cases due to OSC’s limited resources, mediation can be a good option. As always, however, we strongly advise that you speak with an experienced attorney before moving forward.
The MSPB also has a mediation program, as well as a settlement judge program.
A Note on Relief and the Courts
Federal civil-service-employee whistleblowers are now the only major sector of the workforce who are not able to enforce their legal rights before a jury in federal court.
Although whistleblowers can eventually appeal MSPB decisions to a federal appeals court, those appeals are not fact-finding proceedings tried in front of a jury, but arguments about the law’s interpretation and the adequacy of MSPB proceedings heard by appellate judges appointed by the president with advice and consent of the Senate. As a result, federal-employee whistleblower-retaliation cases lack the extra layer of insulation from politics that typical jury trials would.
Recent Major Federal Whistleblower Laws
All Circuit Review Act (July 2018): Allowed whistleblowers to appeal Merit Systems Protection Board decisions to a U.S. court of appeals of jurisdiction rather than just to the federal circuit court of appeals in Washington, D.C., which has an abysmal track record for whistleblowers.
Whistleblower Protection Coordination Act
Created the position of whistleblower coordinator within each federal inspector general office, and requires the Council of the Inspectors General on Integrity and Efficiency (CIGIE)
to issue best practices on how IGs should communicate and work with whistleblowers.
Follow the Rules Act (June 2017): Extended retaliation protections to employees who refuse to comply with an order that would violate a law, rule, or regulation.
Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (October 2017):
Prohibited employers from accessing an employee’s medical records for the purpose of retaliating against the employee; required an agency head to propose disciplinary measures when an agency supervisor is found through an initial OSC or inspector general investigative ruling, or an AJ’s initial decision, to have committed a prohibited personnel practice; required the agency head to report whenever an employee dies by suicide after making a disclosure and having a prohibited personnel action taken against them; and required the head of an agency to ensure that new employees are trained on their whistleblower rights, the roles of the Office of Special Counsel and the Merit Systems Protection Board, and the process for making a lawful disclosure.
FBI Whistleblower Protection Enhancement Act of 2016(December 2016): Expanded the list of officials to whom FBI employees may make a protected disclosure, to include their supervisors or someone within their managerial chain of command.
Act to Enhance Whistleblower Protection for Contractor and Grantee Employees (December 2016): Permanently extended retaliation protections to personal service contractors, grantees, and sub-grantees.
Whistleblower Protection Enhancement Act of 2012 (November 2012):
Extended whistleblower protections for non-intelligence community civil-service employees by protecting disclosures made to supervisors regardless of whether the information had been previously disclosed, despite the employee’s motives for making the disclosure, whether or not the disclosure was in writing, and regardless of the amount of time that passed between the event and the disclosure. It also included provisions allowing government employees to blow the whistle on censorship or suppression of their peer-reviewed research, codified protections against Nondisclosure Agreements and other gag orders or policies; and began the whistleblower-coordinator and appellate-review pilot programs that were later made permanent in the All Circuits Review Act and Whistleblower Protection Coordination Act.
Protections for Contractors and Other Federal Employees
The Whistleblower Protection Act excludes a large cross section of the federal workforce, including employees of private companies that contract with the federal government, employees of intelligence agencies, and members of the military.
Even if you are not a “covered” employee under the Whistleblower Protection Act, though, there are unique whistleblower laws for contractors, intelligence community employees and members of the military that could protect you from retaliation. There is a collection of statutory and regulatory rules and protections that dictate the whistleblowing options for those sectors.
Federal Contractors and Grantees
Many federal agencies utilize contract workers—individuals who are employed by companies that contract with the federal government to perform certain jobs. Contractors and recipients of federal grants are covered under a separate law that aims to encourage employees who work for contractors or grantees that are defrauding the federal government to blow the whistle.
If you are an employee of a government contractor, subcontractor, grantee, or subgrantee, the laws protecting you from retaliation dictate that your employer can’t retaliate against you if you blow the whistle on:
- Gross mismanagement of a federal grant or contract
- Gross waste of federal funds
- An abuse of authority relating to a general contract or grant
- A substantial and specific danger to public health or safety
- A violation of law, rule, or regulation related to a federal contract or grant
A Note on Federal Inspectors General
Be cautious if the statute granting you whistleblower protections relies heavily on a federal inspector general to substantiate your claim of retaliation. While that can be immensely helpful in certain cases, you shouldn’t blow the whistle with the assumption that the truth will come out just because your case will eventually require investigation by the IG.
Even if an IG substantiates your claim, IGs are investigative offices that make recommendations—they don’t order agency action.
You should also know that IG investigations can lack transparency and the offices generally aren’t as effective at keeping a whistleblower informed about the progress of their case as the Office of Special Counsel. Further, IGs vary in their track record of maintaining a whistleblower’s confidentiality.
Further, whistleblower retaliation seldom is a priority for IGs. Their primary mission is investigating fraud, waste, and abuse.
Finally, remember that IGs are a part of the underlying agency. While in an ideal world IGs would be totally independent from the agency, some are more beholden to the agency head than others, or share resources like IT systems with the agency. And, IG investigative reports on whistleblower claims normally are sent to the agency head to make a final determination in the case.
If you make a protected disclosure under these laws and experience retaliation, you can file a claim with the inspector general overseeing the agency administering your organization’s grant or contract. You must file that claim within three years of the date of the retaliation. After filing, the inspector general must investigate and submit a report of the findings to you, your employer, and the head of the agency. The head of the agency must then decide if there is sufficient basis to find retaliation.
After reviewing the IG’s report, if the agency head finds that your employer retaliated against you, the agency head must then order your employer to take specific corrective action. If the agency head finds that retaliation didn’t occur, or if they fail make a finding one way or the other within 210 days, you can take your case to federal court with the option of a jury trial, and can use the IG’s investigative findings as evidence.
Interestingly, this law gives contractor and grantee employees stronger protections than federal civil service employees, who don’t have the option of requesting a jury trial.
Note that this law does not protect federal contractors working in the intelligence community. Their protections are discussed below.
The False Claims Act
The False Claims Act aims to curb fraud against the government by allowing individuals to sue on behalf of the federal government in what are known as qui tam lawsuits and to keep a portion of the recovery (see Chapter 4 for more information on the False Claims Act).
In recent years, this has resulted in massive settlements that have recovered billions of dollars from entities that were found to have defrauded the government.
The law has strong whistleblower protection provisions but imposes a statute of limitations of three years on retaliation claims. It prohibits retaliation against whistleblowers filing suit under the Act, and allows whistleblowers to challenge retaliation in federal court with the possibility of recovering double back-pay.
The courts have ruled that if they have raised the issue with your supervisors and agency and they have failed to act, federal employees can bring suits challenging fraud under the Act.
However, the Act’s retaliation provisions don’t apply to federal employees because Congress did not waive its sovereign immunity in the statutory language.
If you are a federal or contractor employee working in one of the 17 “elements” of the Intelligence Community (IC), you are excluded from protection under the Whistleblower Protection Act. However, depending on your position within the IC and what, exactly, you’re disclosing, you can claim protection from retaliation under a patchwork of laws and directives.
Importantly, IC whistleblower protections under this patchwork only apply to disclosures made to very specific audiences. So, unlike non-IC federal whistleblowers, IC whistleblowers can’t make disclosures to the press or advocacy groups and claim retaliation protection under the law.
Moreover, while many of the laws covering the IC create rights against retaliation, enforcement of those rights is usually left to the IC’s opaque internal review processes rather than to an independent adjudicator like the MSPB. As a result, while you might have rights on paper that protect you from retaliation, those rights are only enforced sporadically in practice—and implementation of the enforcement mechanisms vary widely across the IC.
Congress has passed several laws over the years making it illegal to retaliate against IC whistleblowers. Specifically, the Intelligence Authorization Acts of Fiscal Year 2010 and 2014 were significant leaps forward, creating an inspector general for the intelligence community and making it unlawful to retaliate against IC employees for making protected whistleblowing disclosures, respectively.
Under the overarching law prohibiting whistleblower retaliation, it is illegal to retaliate against a covered IC employee by taking or failing to take certain personnel actions against the employee as reprisal for their lawful whistleblowing disclosures.
Covered disclosures under law are those made to:
- The Director of National Intelligence
- The Inspector General of the Intelligence Community
- The head of the employing agency
- The inspector general of the employing agency
- A Congressional intelligence committee, or a Member of a Congressional intelligence committee
The employee must make their disclosure with a reasonable belief that the information they’re providing evidences a violation of any federal law, rule, or regulation; mismanagement;
a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.
Unfortunately, the law doesn’t provide actual mechanisms to enforce these rights. This means that until Congress modifies that law to provide for enforcement within the statute, IC whistleblowers must rely on agency policies and presidential directives for enforcement of their rights.
When the Legal Process Lacks Teeth
In 2016, George Ellard, the inspector general for the National Security Agency (NSA), was found to have retaliated against one of his own employees for blowing the whistle, according to a decision by a group of other inspectors general called the External Review Panel. The Panel was created by Presidential Policy Directive 19 (PPD-19), a set of whistleblower protections for Intelligence Community employees. Following the Panel’s finding, the NSA’s director proposed Ellard’s termination.
But decisions by the External Review Panel in Intelligence Community retaliation cases are not binding on agencies, unlike decisions by the Merit Systems Protection Board or by courts. Ellard appealed to a higher authority: the NSA’s parent agency, the Department of Defense. On appeal, the Office of the Assistant Secretary of Defense overruled the External Review Panel and the director of the NSA, and Ellard was allowed to stay employed with the federal government. No details have been reported on what happened to the whistleblower or what they blew the whistle on.
The main mechanism for enforcing your rights as an IC whistleblower is Presidential Policy Directive-19 (PPD-19). Created by President Obama in 2012, PPD-19 lays out general enforcement mechanisms protecting IC employees from retaliation for making protected disclosures and requires each IC element to create a more specific process within their own agency.
PPD-19 is broken into several sections. Section A prohibits retaliation against covered employees for making protected disclosures and provides a method of enforcement through review by an inspector General. Section B outlines protections for retaliatory clearance revocation, and Section C creates a three-inspector-general panel to hear appeals from those covered under Sections A and B.
Part A of PPD-19 prohibits retaliation against whistleblowing disclosures and establishes a review process but excludes certain IC employees. It won’t protect you if you are an FBI employee, and it does not mention protections for you if you are a contractor employee or a member of the armed services working for an IC element.
The review process created in section A requires your corresponding agency inspector general to investigate and to make a recommendation of corrective action to your agency head, who can choose whether or not to follow the inspector general’s recommendation. The Intelligence Community Inspector General can also conduct the initial investigation, but typically delegates that authority to the corresponding agency’s IG.
If you don’t agree with the decision reached by the inspector general’s initial review, PPD-19 section C allows you to file a request for review with the Intelligence Community Inspector General. The Intelligence Community Inspector General can choose to set up an external review panel made up of the Intelligence Community Inspector General and two other federal inspectors general to review the agency head’s decision.
The review panel must complete their review within 180 days. Once the review panel reaches a decision and recommends corrective action, it sends its recommendation back to the agency head. Implementation of the panel’s recommendation is never guaranteed, however, and is left to the agency head’s discretion.
It isn’t clear how well the PPD-19 program is working for IC whistleblowers. It’s possible that section C’s secondary review by the panel of three federal IGs could effectively put more pressure on an agency head to take the retaliation claim seriously.
Nevertheless, the absence of a more independent review process renders it deficient.
Importantly, because PPD-19 and the agency policies created under its mandate are not laws passed by Congress, they could be revoked by any sitting president at any time without approval by Congress.
Also, Section A of PPD-19 does not expressly protect IC contractor, subcontractor, grantee, subgrantee, or personal services contractor employees, although the Obama Administration interpreted Section B to cover retaliatory security clearance actions against them (security clearance protections will be discussed later in the chapter).
This means that if you are a covered IC contractor employee who blows the whistle, while you are technically protected from retaliation under the law, you are not explicitly entitled to enforcement under PPD-19 as of this writing. The effect of this, we fear, is that IC contractor whistleblowers may feel empowered to come forward but won’t get a fair review of their claim if they are retaliated against. Be wary of this and other “Trojan horse” whistleblower protection laws that outlaw retaliation but offer no process for recourse.
Of course, it’s possible that individual agencies could choose to extend IC whistleblower protections to contractors under their own policies. But unless PPD-19 is amended to explicitly include contractors, there is no IC-wide mechanism to enforce your statutory protection against retaliation.
The takeaway as an intelligence community whistleblower should be that while there are protections you can point to in law, the main enforcement mechanism, PPD-19 Section A, only covers certain employees and isn’t a law created by Congress.
Proceed with great caution, and consult with your attorney, if you have one, at every step.
For further reading, the Intelligence Community Inspector General maintains a helpful guide on IC whistleblowing on its website.
FBI whistleblowers have protections, but despite recent improvements, they are still much weaker than the protections for most of the rest of the federal civilian workforce.
When Congress passed the Civil Service Reform Act of 1978, the FBI convinced Members to omit statutory rights in favor of requiring the Bureau to issue regulations creating equivalent protections for its employees.
But the FBI failed to issue any until 1998.
In December 2016, Congress passed into law improvements to FBI whistleblower protections.
The law expanded the number of protected channels FBI employees can make their disclosures to after the Government Accountability Office found that nearly a third of retaliation complaints it examined were dismissed because FBI employees made disclosures to someone in their chain of command not designated to receive the disclosure.
The protected audiences now include supervisors in an employee’s “direct chain of command” up to the FBI director and the attorney general, Congress, the Justice Department’s Office Inspector General and Office of Professional Responsibility, the FBI’s Office of Professional Responsibility, the FBI Inspection Division, the Office of Special Counsel, and anyone designated by the above offices and persons to receive disclosures.
If you face retaliation, the first step in the FBI process is to file a claim in writing to either the Justice Department’s Office of Inspector General or the Department’s Office of Professional Responsibility.
The burdens of proof considered in an FBI whistleblower retaliation case are similar to those in federal civilian cases. If, by a preponderance of evidence standard, you prove that your disclosure “was a contributing factor in the FBI’s decision to take or fail to take, or threaten to take or fail to take, a personnel action” against you, then the FBI must show—under the higher clear and convincing standard—that it would have taken that action absent your disclosure.
If the Justice Department’s Inspector General or Office of Professional Responsibility closes your case or 120 days have passed since you filed a claim with those offices, you can file a request for correction action with the Department’s Office of Attorney Recruitment and Management.
You can request a stay—or temporary block—of a pending adverse personnel action, and the director of the Office must rule on that request within 10 business days. The Office can also hold a hearing on the evidence in your case.
However, this process is not as independent for the one for most other federal civilians. It is presided over by an office within the department, ruling on that department’s actions. This is in contrast to Merit Systems Protection Board, where most federal civilians can have their retaliation claims heard. The MSPB is independent of the agencies whose actions it is reviewing.
Furthermore, Office of Attorney Recruitment and Management does not publish its decisions, unlike the MSPB.
This means you cannot review how other cases, possibly with similar facts as yours, fared before Office.
A Note on Security Clearances
As far as the government is concerned, security clearances are a privilege, not a right. Taken at face value, this is reasonable—we want intelligence agencies to be able to quickly revoke someone’s access to classified or sensitive information if they present a genuine threat to our national security. However, limiting your access to classified materials can also be threatened or used in retaliation for your whistleblowing as a clearance holder.
This kind of retaliation against federal employees and contractors is prohibited by law. Your security clearance cannot be threatened or revoked in retaliation for your lawful whistleblower disclosures to the Director of National Intelligence, the head of your agency, the agency IG, or Congress. Lawful disclosures in connection with an appeal, complaint, or other grievance right are also protected.
Unfortunately, the MSPB and the OSC cannot investigate or act against a retaliatory clearance revocation.
Instead, there is an administrative process to appeal wrongful revocation through your agency. If you believe your security clearance is being unlawfully threatened, suspended for more than a year, or revoked, you can file a claim with your agency within 90 days.
If your agency determines that you were wrongfully retaliated against, it must take corrective action to make you whole. In addition to clearance restoration, you may recover back pay and benefits, expenses, and damages up to $300,000. As with claims of retaliation under PPD-19 Section A, employees who are dissatisfied with the outcome of their security clearance retaliation claim can ask the Intelligence Community Inspector General to establish a three-inspector-general panel to review it. Again, the Intelligence Community Inspector General only has authority to recommend remedies, not enforce your rights.
In order for your agency to find a violation, there must be a finding that your whistleblowing disclosure was a “contributing factor” in the decision to threaten, suspend, or revoke your clearance or access to classified information. However, those who threatened, suspended, or revoked the clearance can get around this by demonstrating by a “preponderance of the evidence” that they would have taken the same action, regardless of the whistleblowing. Congress makes a point to state in the law that the agency should give “utmost deference” to its own assessment of national security interests.
You have the option to appeal an adverse decision but the final choice of whether to restore your clearance or access is left to the agency head rather than an independent body.
Military Whistleblower Protections
The Military Whistleblower Protection Act makes it illegal to restrict a service member from making lawful communications to Congress or an inspector general.
More specifically, it protects you, as a service member, when you make or prepare to make whistleblowing disclosures to a Member of Congress; an Inspector General; a member of a Defense Department audit, investigation, or law enforcement organization; or a person in your chain of command.
Protected disclosures communicate information concerning:
- A violation of law or regulation, including a law or regulation prohibiting rape, sexual assault, or other sexual misconduct in violation of the Uniform Code of Military Justice, sexual harassment or unlawful discrimination
- Gross mismanagement
- A gross waste of funds
- Abuse of authority
- A substantial and specific danger to public health or safety
- Certain threats by another member of the armed forces or employee of the federal government
Once you’ve made a protected disclosure, it’s unlawful for anyone with authority to:
- Threaten to take any unfavorable action
- Withhold or threaten to withhold any favorable action
- Make or threaten to make a significant change to your duties or responsibilities that would not be commensurate with your rank
- Fail to respond, as a superior, to any claim of retaliatory action or harassment (where the superior had knowledge of the claim)
- Conduct a retaliatory investigation against a service member
The burden of proof is placed differently in military whistleblower retaliation cases than it is in civilian cases. Military whistleblowers must prove that they were illegally retaliated against, whereas in civilian cases the agency must prove that they did not retaliate.
Lt. Col. Jason Amerine
To better understand the overlap of protections and unique fact patterns in an individual whistleblower’s case, consider the experience of Lt. Col. Jason Amerine, a highly-decorated war hero who had his clearance suspended in retaliation for making disclosures to Congress and, in our opinion, embarrassing the Army in the process.
Amerine, a Green Beret officer, earned a Bronze Star with a “V” device and a Purple Heart for his service fighting the Taliban in Afghanistan shortly after the September 11 attacks. Amerine observed fatal flaws in the Army’s hostage-recovery system after witnessing several avoidable deaths of Americans held hostage overseas and unnecessary interagency fighting over the hostage-recovery process.
Amerine began working with Congress to improve hostage recovery as a result of his experiences. Although the law explicitly prohibits anyone from restricting service members from speaking with Congress or an inspector general, the Army opened a retaliatory criminal investigation against Amerine for his whistleblowing, claiming that he improperly disclosed classified information.
As a result of the retaliatory investigation, Amerine lost his security clearance, was stripped of his duties, temporarily had his pay suspended, and was treated as a criminal by the Army.
To make matters worse, the Defense Department Inspector General did not substantiate Amerine’s retaliation claim, allegedly to avoid political controversy.
Fortunately, the Army eventually dropped the investigation, likely due to the high-profile nature of Amerine’s career and significant intervention by Congress and civil society groups like the Project On Government Oversight.
Amerine’s experiences show the lengths to which those in power will go in their attempts to silence and shame whistleblowers into submission. In the end, Amerine was awarded the Legion of Merit for his service in a private ceremony. Had he not been such a high-profile whistleblower, it is likely that the Army would have succeeded in silencing him.
Retaliation claims under this law must be filed with the Defense Department Inspector General (or, for the Coast Guard, the Inspector General for the Department of Homeland Security), or the inspector general for the relevant branch of the military. Once the claim is received, the IG must investigate it “expeditiously” under law.
Importantly, there is a statute of limitations for retaliation claims: the IG is only required to investigate a claim of retaliation if you file that claim within one year of when you first learned about the prohibited retaliation.
In the course of investigating the retaliation claim, the IG must also investigate your underlying disclosure of misconduct if an investigation isn’t already taking place, or if the investigation is inadequate.
Within 180 days, the IG must report the status of your retaliation claim to you, to the secretary of defense, and the secretary of the relevant military branch. The IG must continue to send updates every 180 days until the investigation is complete.
As the IG begins to investigate your retaliation claim, it can choose to make a “preliminary finding” in order to stall an adverse action against you pending the full investigation. If the IG makes a preliminary finding that it is more likely than not that prohibited retaliation occurred and will result in an immediate hardship to you, the IG must immediately notify the head of the military branch concerned. At that time, the secretary of that branch can choose to “stay”—temporarily suspend—the personnel action, pending the final results of the IG investigation.
After investigating your retaliation claim and, where applicable, your underlying disclosure, the inspector general must send a detailed report outlining its findings to the secretary of defense, the secretary of the relevant branch of the military, and to you.
Within 30 days of receiving the IG’s report, the secretary of the relevant military branch must determine whether or not to take corrective or disciplinary action. If the secretary decides to move forward with corrective or disciplinary action, it’s up to the individual secretary to carry that out and to work with the board that corrects military records to ensure that your service record reflects the secretary’s decision.
If the IG’s report concluded that you were retaliated against, the deciding secretary must report back to the IG on whether they will take disciplinary or corrective action.
If the secretary decides that your claim doesn’t warrant corrective or disciplinary action, they must report that decision to the secretary of defense.
In addition to this review process on retaliation, there may be a secondary investigation by a statutory board that corrects military records through which a service member can request a formal correction to their record. That board reviews the IG’s report, can ask for further evidence, and can hold a full evidentiary hearing on the matter. Unfortunately, this due process option is discretionary, and in practice has been dormant.
If you are unsatisfied with the final decision of the branch secretary, you can take your case to the secretary of defense, who must decide whether to overturn or uphold the military branch secretary’s decision within 90 days of receiving the whistleblower’s case.
Note that substantiation rates for military whistleblowers are abysmally low, approximately three percent in any given year,
and the DoD IG has yet to exercise its stay authority, according to a spokesperson for that office.
What About the First Amendment?
Other Whistleblower Laws
There are many other federal whistleblower protection laws and regulations that are not covered in detail in this guide but are relevant to federal employees or federal contractor employees. For state employees, note that all states have unique whistleblower laws offering varied coverage. Public Employees for Environmental Responsibility (PEER) tracks and analyzes these laws on their website.
While we can’t include all of these laws here, some of the major federal laws not covered in detail in this chapter include:
- The Occupational Safety and Health Act protects certain whistleblowers in the federal government and private sector when they make disclosures about health and safety concerns in their workplace.
- The seven major federal environmental laws—the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Toxic Substances Control Act, Solid Waste Disposal Act, Energy Reorganization Act, and Comprehensive Environmental Response, Compensation and Liability Act (also known as Superfund)—protect disclosures made by public and private employees, and are all enforced by the Department of Labor. The coverage is in some ways broader than under the WPA, as an activity in furtherance of the environmental law in question is protected. Also, the process involves a hearing before an Administrative Law Judge, not just an Administrative Judge like at the MSPB. These judges have more independence and are generally of higher quality than MSPB AJs. For environmental whistleblowers, this can be a preferable route. There is also nothing preventing taking both routes.
- Sarbanes Oxley Act of 2002 protects whistleblowers who report securities fraud to the federal government.
- The FDA Food Safety Modernization Act protects employees in the food industry from retaliation when they make covered disclosures on food safety violations of their employer.
- The Consumer Product Safety Improvement Act protects employees in the manufacturing and distribution industries from retaliation when they make disclosures on consumer safety concerns.
In an ideal world, whistleblowers would never need to make use of the laws protecting them from retaliation. But it’s better to be prepared when going up against agency cultural norms of covering up wrongdoing and punishing anyone who pushes back.
The constitutional freedom of speech is often considered the bedrock of our democracy, protecting diverse ideas and ideologies. For that reason, the First Amendment may be the first protection many whistleblowers want to rely on when facing undue retaliation. But it’s more complicated than that.
What we think of as freedom of speech comes from a clause in the First Amendment: “Congress shall make no law…abridging freedom of speech.” The Supreme Court has considered whistleblower rights in the context of the First Amendment a handful of times.
In the 1968 landmark case of Pickering v. Board of Education, Marvin Pickering, a teacher, had written a letter to a local newspaper criticizing the Township Board of Education in Will County, Illinois, for what he felt was an improper use of funds. The board fired Pickering in response, claiming that the letter was detrimental to their ability to efficiently operate the school system. Pickering appealed, claiming that the board violated his First Amendment rights.
The Court ruled in favor of Pickering and established a legal precedent that public employees are protected from retaliatory termination when exposing matters of public concern. Those rights are highly difficult to enforce. The public employee first must demonstrate that the speech was on a matter of public concern, and if so that the public benefits outweigh the disruption to agency operations. Then, the employee must prove that retaliation was a “predominant motivating factor” in the action, after which the employer still can win by proving only through a preponderance of the evidence that it would have taken the same action for independent reasons.
Following the Supreme Court’s decision in Bivens v. Six Unknown Agents,
whistleblowers could sue for damages in federal court, and request a jury trial.
In Bush v. Lucas, however, the Court removed that option for federal employees. It held that since the Civil Service Reform Act established a comprehensive system for remedying retaliation, federal employees must use that system instead of making a constitutional claim. Federal employees now can only challenge constitutional violations through that law’s administrative remedies as a prohibited personnel practice.
Finally, in the 2006 case Garcetti v. Ceballos, the Court ruled that for a government employee’s speech to be protected by the First Amendment, the employee must be speaking as a private citizen, and not as a part of the employee’s official duties.
None of these court decisions are provided here to say that it’s impossible to get judicial relief as a whistleblower experiencing retaliation, just that it’s more difficult than most might think to make a First Amendment free-speech claim as a whistleblower facing retaliation.
The Saga of Jeffrey van Ee
Jeffrey van Ee, an Environmental Protection Agency employee based in Nevada, waged a ten-year legal battle to guarantee his right to speak out on environmental issues. The fight began in 1990 when van Ee, on his own time, spoke on behalf of the Sierra Club at a Bureau of Land Management (BLM) forum concerning the treatment of endangered desert tortoises.
In an attempt to silence van Ee, the EPA reprimanded van Ee for his participation and ginned up grounds for criminal charges under a part of the criminal code that forbids federal employees from serving as “an agent or attorney” in any case or claim against the United States. After a U.S. attorney declined to prosecute van Ee, the EPA threatened van Ee with disciplinary action or termination if he continued to act as an “agent” of the Sierra Club.
The underlying issue concerning his freedom of speech remained unaddressed until the U.S. Court of Appeals in Washington, DC, ruled in 2000 that federal employees are free to speak on behalf of nonprofit citizen groups when addressing federal agencies.
The Court said the law van Ee was charged with violating, 18 U.S.C. Section 205, is not intended to “act as a general gag order on federal employees.” The decision reversed previous rulings by both a lower court and the federal Office of Government Ethics that this type of speech by federal workers was a crime.
“I never believed it would be considered a crime to try to make a difference in my community,” van Ee, who was legally represented by the Government Accountability Project and later Public Employees for Environmental Responsibility, reflected after the ruling. “I hope no other federal employee has go to through what I’ve been through in the past ten years.”
Because of the precedent that the Supreme Court established through these cases, rather than seeking relief through the First Amendment, attorneys representing federal employee whistleblowers typically must look first to statutory whistleblower protections when they are fighting agency retaliation. State and local employees still can seek jury trials and compensatory damages through the Civil Rights Act of 1871.
Courtroom Drama: Lawsuits Filed Against Agencies
It is not uncommon for citizen groups to sue an agency on the very issue over which some of the agency’s own internal specialists are blowing the whistle. These situations can be extremely delicate for the internal specialists at the agency, particularly if the citizen group suing the agency is doing so largely based upon a specialist’s internal dissent.
If you are called as an agency employee witness in litigation to testify about your area of expertise, work product, or knowledge of agency-related matters, you must either be subpoenaed or given permission to testify by agency supervisors. Unless disclosing information protected by whistleblower statutes, you can be fired for testifying about internal matters unless you have the agency’s permission or are acting pursuant to a subpoena.
Lawyers employed within an agency are among the first to be involved in a disputed matter. They enter the scene while the issue is still at the agency level and has not yet gone into litigation. Usually, they also know the agency’s weak points and internal analysis of the problem. They have immediate access to most types of agency information.
The agency lawyer does not represent agency whistleblowers and anything told to them can be relayed up the chain of command. The agency’s managers closely direct the lawyers’ work and greatly influence how agency lawyers handle matters. Ultimately, agency management has control over a government lawyer’s continued employment. This can be a difficult situation for an agency lawyer who favors a whistleblower’s position.
Once a lawsuit reaches federal court through an appeal, however, the agency is usually compelled to turn the matter over to lawyers in the Department of Justice (DOJ). The DOJ lawyers do not report to the agency management, but handle the case on the agency’s behalf generally with assistance from agency counsel. They have their own separate chain of command and handle many separate agency matters.
Their client is the United States government, and they do not have loyalty to a particular agency’s political agendas, governing regulations, financial concerns, or mission. Their continued employment with the government usually is not dependent on pleasing a specific agency’s managers. These DOJ lawyers usually want to win the litigation or settle it quietly. Further, they want to conduct the process in such a fashion that they do not embarrass themselves in court or anger the judge. This is especially true in a court where the lawyer appears often. They do not want their names associated with scandal, big losses, or publicly disclosed government misconduct.
Even if the DOJ lawyer is friendly to your cause, there are ethical rules that control any interaction between you and a government lawyer. If the lawyer has been directly involved in representing the agency on the matter, the whistleblower should not expect the lawyer to meet with them privately, give them confidential agency documents, breach attorney-client privilege, or sabotage the agency’s defense in any overt fashion. Their ethical duty requires them to vigorously represent their client’s position and place it above their personal feelings.
Any government lawyer who violates the ethics rules governing their representation of the agency is subject to being fired and disbarred from the practice of law. If you find a friendly government lawyer, you must be especially careful not to put them into a conflicted position or take advantage of their private position on a case.
Not every government lawyer involved in the litigation process is equal, but all are working to represent the agency. Likewise, attorneys representing the citizen group suing the agency also have a unique agenda and are representing their clients, not the whistleblower whose disclosures their case is based on.
For this reason (among many others) you should always work with your own attorney whose only agenda is protecting and upholding your rights as a whistleblower.