The Decades-Long Fight for Court Access for Federal Employee Whistleblowers

This article features our Legal Director Tom Devine and was originally published here.

Federal employee whistleblowers are essential safeguards to misconduct which threatens democracy, public health, the environment, taxpayer funds, and civil rights. Federal employees are in the unique position to expose abuses of authority and violations of law at the highest levels of government. Yet, overall, federal employees are not offered the same levels of whistleblower protections as employees in the corporate sphere.

Congress enacted the first federal whistleblower protections in 1978 in recognition of the essential role whistleblowers play in good governance. Over the years, problems with the system for enforcing these protections have repeatedly been discovered and the Whistleblower Protection Act (WPA), the main law offering whistleblower protections to federal employees, has been amended multiple times to address these problems. However, none of the amendments have granted federal employees a right that whistleblower advocates argue is essential to truly protect whistleblowers: access to jury trials in federal court.

Under the WPA, federal employees cannot be retaliated against for blowing the whistle on potential misconduct within their agency. If a federal employee does face retaliation for making a protected disclosure, they may file a claim with the Merit Systems Protection Board (MSPB), an independent, quasi-judicial agency which rules on different personnel disputes for civil servants, including whistleblower retaliation cases. Under current statutes, the administrative system of the MSPB is the sole avenue available for federal whistleblowers seeking relief. Unlike corporate whistleblowers, federal employees may not have their case removed to federal court.

For decades, whistleblower advocates have argued that the MSPB is insufficient for dealing with whistleblower cases and, furthermore, has proven to be hostile towards whistleblowers. Recent research by the Government Accountability Project (GAP) found that MSPB judges have ruled against whistleblowers in fifty of the past fifty-one retaliation cases.

Issues with the MSPB have only increased in recent years due to a lack of quorum at the Board since 2017. Without a quorum of at least two Board members, the MSPB is unable to issue final decisions on whistleblower retaliation cases. The Board has thus not issued a final ruling in almost four and half years, resulting in a massive backlog of over 3,000 cases. Whistleblower advocates claim this is further proof that court access for federal whistleblowers is necessary.

“Without court access, federal employee whistleblower rights are non-existent,” says whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto. “The MSPB administrative process, even before the current crisis brought on by the lack of quorum, was criticized by every major whistleblower advocacy group in the nation. Now with the lack of quorum and year-long backlog, the broken system is simply not fixable. Federal employee whistleblowers need what other whistleblower laws provide, access to federal court and independent judges.”

Tom Devine, the legal director of GAP, agrees with Kohn. He says: “Federal employees are the only major labor group of whistleblowers in the country who don’t have access to a jury trial to challenge retaliation against their free speech rights. It is ironic and indefensible that federal employees, whose whistleblower disclosures are the highest stakes for our country, have the weakest due process rights to defend themselves. Instead of being able to seek justice from a jury of the citizens who they are reporting to defend when they risk their careers, their day in court is limited to administrative judges who rule against whistleblowers in 96% of cases and are extremely vulnerable to political pressure.”

On May 4, a bipartisan group of U.S. Representatives reintroduced the Whistleblower Protection Improvement Act of 2021 (WPIA). The WPIA was approved by the House Oversight and Reform Committee on June 29 and will now proceed to the House floor for a vote. According to Kohn, who also serves as the Chairman of the Board of Directors of the National Whistleblower Center, “the most important part of the bill targets the failure of Congress to permit federal employees to have their day in court. The bill would permit most federal employees to remove their cases to federal district court for a real trial, if the MSPB does not issue a ruling on their whistleblower retaliation claims within 180 days.”
To better understand the broader historical context behind the WPIA, WNN spoke with Devine and Kohn about the history of whistleblower rights for federal employees and the decades-long effort to get them court access.

The Civil Service Reform Act of 1978 and Bush v. Lucas

The first whistleblower protection law for federal employees was passed in 1978 as part of the Civil Service Reform Act (CSRA), which drastically overhauled the United State’s civil service system. According to Devine, the CSRA “was in response to President Nixon’s patronage scandal in which he attempted to purge Democrats during Watergate, bypassing all the principles and incomplete safeguards in the civil service system, which hadn’t had a comprehensive overhaul since it was created in the 1880s.”

“Creating best-practice employment rights for whistleblowers was not one of the primary objectives of the legislation,” Devine continues. “The issue only really got in at all due to stakeholder pressure, in part from the whistleblower community. Basically, court access and employment rights were not in the vision for that legislation, it was about cleaning up and overhauling the administrative law system that was in place.”

Due to stakeholder pressure and whistleblower advocacy, the whistleblower protection provisions were included in the CSRA. These provisions broadly prohibit federal agencies from retaliating against employees who make a disclosure of possible misconduct, gross mismanagement, abuse of authority, or violation of law. The CSRA additionally established the administrative system for handling federal employee whistleblower retaliation claims that is still in place today. The legislation created both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB) and tasked these bodies with the oversight of retaliation cases. The law did not contain any provision for federal employee whistleblowers to have their case removed to federal court.

However, as Devine explains, “at that time federal employees had access to federal court through filing constitutional tort suits under Bivens v. Lucas if there was a first amendment violation of their rights. The CSRA was additive to preexisting court access rather than being intended as a substitute for it.”

According to Kohn, one of the most important whistleblowers at the time, Ernie Fitzgerald, warned that the new federal law could backfire. “Fitzgerld was on Nixon’s enemy list, and won his whistleblower case because he could raise his claims before a U.S. district court judge. Fitzgerald was perhaps the only voice at the time warning of the potential backfire,” Kohn explains.

Fitzgerald’s worst nightmare came true in 1983 when the U.S. Supreme Court, in the case of Bush v. Lucas ruled that the CSRA fully replaced federal employees’ pre-existing right to court access. The case involved a federally employed aerospace engineer, Bush, who was demoted after making comments critical of the space flight center at which he was employed. Bush brought suit against his superior, Lucas, in Alabama state court, seeking to recover damages for violation of his First Amendment rights. The case eventually reached the U.S. Supreme Court, which unanimously ruled that the administrative system established by the CSRA was the sole avenue of relief available to federal employee whistleblowers and that they did not have the right to seek relief for retaliation in federal court.

According to Devine, in passing the CSRA, Congress “did not intend to remove the preexisting court access.” He explains that “all the leading sponsors of the Civil Service Reform Act filed an amicus curiae brief with the Supreme Court before Bush v. Lucas was decided and emphasized ‘we did not intend this law to cancel existing constitutional tort rights for civil service workers.’”

Devine states that the impact of the Bush v. Lucas decision was devastating for federal whistleblowers. “Due process enforcement of whistleblower rights would be limited to a new administrative remedy, that was highly and immediately vulnerable to political pressure, and has proved dysfunctional over the long term.”

Kohn is more blunt: “Be careful what you wish for. Court’s narrowly construe all laws related to federal employee rights, and statutes must be clearly drafted in order to avoid the disastrous result that occurred with the passage of the CSRA. What was viewed as a reform turned into a nightmare that federal employees still suffer under.”

Whistleblower Protection Act of 1989

In the immediate aftermath of the CSRA’s passage, whistleblower advocates began fighting for improvements to whistleblower protections for federal employees. “The Bush v. Lucas decision was in 1983, we realized that the Civil Service Reform Act model was deeply flawed due to political vulnerability long before that,” Devine explains.

Devine recounts that President Reagan’s first appointee to head the OSC, Alex Kozinski, was openly hostile to whistleblowers and actively trained federal agency heads on how to fire whistleblowers without getting caught by OSC investigators. Kozinski was eventually forced to resign due to public pressure but was replaced by another head with a similar hostility towards whistleblowers.

“So the watchdog role of the Civil Service Reform Act was not working,” Devine states. “Meanwhile, the Merit Systems Protection Board was ruling against whistleblowers in every case. No whistleblower won a decision for the first three years of the MSPB. And in the end of the first decade of the Board’s existence they only ruled in favor of whistleblowers four times out of two thousand cases. They were rubber stamping whistleblower retaliation.”

For years, whistleblower advocates spoke up about the failed system created by the CRSA. However, it was the public controversy surrounding the confirmation hearing of former Special Counsel Kozinski which led to a Congressional push to reform whistleblower protections for federal employees. In 1985, President Reagan nominated Kozinski to the United States Court of Appeals for the Ninth Circuit. Kozinksi’s confirmation hearing featured complaints and allegations about his mistreatment of whistleblowers during his tenure at the OSC. Beyond allegations against Kozinksi personally, his nomination served as a sort of referendum on the federal employee whistleblower protection system as a whole.

“The Kozinski nomination became a media phenomenon, and it got a spotlight on whistleblower rights,” Devine explains. “In the aftermath of that nomination challenge, Senators [Carl] Levin and [Chuck] Grassley began working with whistleblower advocates to develop what became the Whistleblower Protection Act of 1989 (WPA).”

According to Devine, “there were three main aspects to the Whistleblower Protection Act.” First, it eliminated the OSC’s discretion to abuse or turn against whistleblowers who came in for help by making the Office liable to violations of whistleblowers’ rights and curtailing the Office’s authority. Second, the WPA overturned all the hostile decisions against whistleblowers to date, restoring the legal landscape of rights Congress had enacted in 1978. Lastly, it established new burdens of proof more favorable to whistleblowers, which have become the basis of almost all modern whistleblower laws.

One change not included in the WPA, however, was access to federal court jury trials for whistleblowers. Devine recounts whistleblower advocates calling for the inclusion of court access in the legislation but facing push-back from members of Congress. According to Devine, the general response from Congress to whistleblower advocates calls was “‘we just created this Merit Systems Protection Board, a speciality body, let’s give it a chance, let’s try to fix it and reform it and see if it works, before we let people go to court with their whistleblower reprisal cases.’” Devine recalls telling members of Congress that if they did not make the change, then they would have to continue to reform the WPA in the future. He also notes that the idea of court access for federal whistleblowers faced “absolute rampant opposition from the Justice Department.”

Devine says that despite the urgings of whistleblower advocates to include court access, “the Democrats who wanted to have a bipartisan unanimous mandate said ‘well we’re going to do this, we’re just going to restore the rights and eliminate the discretion to abuse and change the rules of the game in the burden of proof. Let’s see how that works.’ And that’s where the dust settled in 1989.”

According to Kohn, the 1989 reforms were indicative of the dilemma that federal employee whistleblower advocates have faced for years. “Do you try to fix a broken system, or do you focus on court access. Congress has been willing to poke around and reform some of the worst aspects of the CSRA, but the time has come to stop beating around the Bush,” Kohn says.

Whistleblower Protection Enhancement Act of 2012

According to Devine, the next big push for court access for federal whistleblowers came in 2008 as the culmination of a thirteen-year effort to enact what he refers to as the “fourth-generation” of federal whistleblower rights. The first generation was the CSRA, the second was the WPA, and the third was amendments to the WPA passed in 1994. Despite the tireless efforts of whistleblower advocates, as well as a large amount of support among Congress, the fourth-generation faced a number of roadblocks to enactment.

“Commencing in 2008 there was strong support for federal court access. The House of Representatives overwhelmingly supported amending the CSRA/WPA to U.S. district court jury trials for federal employees. Thereafter, in the Obama-supported stimulus bill the House tacked on an amendment permitting court access,” Kohn explains. “But opponents in the Senate blocked the House bill, and the reform effort died,” Kohn adds.

Eventually, the Whistleblower Protection Enhancement Act (WPEA) was passed in 2012. However, in the end it did not include access to jury trials.

Devine recalls the extensive efforts to try to get court access for federal employees. Following a series of court decisions which weakened the protections of the WPA, whistleblower advocates “started in trying to convince the prior champions [of the WPA], Senators Grassley and Levin, to go for a fourth-generation for federal whistleblower rights. Right from the beginning we were fighting to get district court jury trial access.”

During this period, a number of Congress members worked in tandem with whistleblower advocates to fight for court access for federal whistleblowers. In fact, beginning in 2004, the House of Representatives passed versions of the WPEA which included court access provisions. These versions of the bill never became law, however.

According to Devine, year after year there was widespread support for court access provisions in both chambers of Congress and in both political parties. In fact, he recalls one year in which whistleblower advocates were so sure the bill would pass during the close of the Congressional session that they ordered boxes of champagne. However, session after session individual Senators imposed secret holds at the last minute and killed the bill. Devine states that Senator Jeff Sessions and Senator John Kyl both respectively put last-minute holds on the bill multiple times.

Devine recalls that in 2012 there was a final negotiation meeting for the WPEA with the Congressional staffs from all the Committees relevant to the bill. He says that Senator Sessions was adamantly opposed to including jury access and was threatening to once again put a hold on the bill. Devine states he was arguing with Sessions’ staff saying they were undercutting the bill when “the staff of Senator [Susan] Collins, who was in an all out fight to get this bill passed on the Republican side, interrupted me and said ‘Tom, do you want a bill or not?’”

“At that point we can’t cancel it all,” recalls Devine. “The bill overturned every hostile federal circuit decision, restored more realistic disciplinary prosecutions by the Special Counsel, and incorporated protections against gag orders that we’d been fighting for since the 1980s. It was a landmark piece of legislation and you had to say ‘well we’re not going to kill the whole bill over this issue.’”

Whistleblower Protection Improvement Act of 2021

The fifth generation of federal employee whistleblower rights could be established with the passage of the recently introduced Whistleblower Protection Improvement Act (WPIA) which, according to Devine, “completes the unfinished business of the WPEA and acts on lessons learned since 2012.”
The bill grants federal employee access to federal jury trials if the MSPB does not issue a ruling within 180 days. Devine states that the jury access provisions are “consistent with corporate whistleblower laws.”

The Congressional supporters in the House are again beating the drum to fix the CSRA/WPA: “Protections for whistleblowers need to be strengthened to preserve the crucial role these brave federal employees play in holding the government accountable,” said Representative Carolyn Maloney (D-NY) in a statement announcing the reintroduction of the WPIA. Representatives Nancy Mace (R-SC), Gerry Connolly (D-VA), Jackie Speier (D-CA), Eddie Bernice Johnson (D-TX), and Kathleen Rice (D-NY) introduced the bill alongside Maloney.

Whistleblower advocates are working hard alongside Congress members to ensure the passage of the WPIA. “Federal employee whistleblowers need court access,” says Siri Nelson, Executive Director of the National Whistleblower Center (NWC). “Passing legislation which grants federal employees the right should be a priority in Congress,” she adds.

Federal employee whistleblower rights will be a central theme at NWC’s National Whistleblower Day celebration, a virtual event being held on July 30. The event features panels and speeches by whistleblowers, whistleblower advocates, government officials, and Congress members on a variety of whistleblower topics, including the WPIA. “We are very excited to have experts like Tom Devine and Stephen Kohn speaking about federal whistleblower rights and the current efforts to get court access for federal employee whistleblowers,” says Nelson.

“We’re optimistic that we’re going to be able to finish in 2021 or 2022 what Congress started in 1978,” Devine says.

Kohn agrees: “We need to be focused only on getting federal employees U.S. District Court access. If we have learned anything since 1978, until federal employees can have their cases heard by real judges and obtain real due process, tinkering with the CSRA/WPA is a doomed strategy. Federal employees need the same access to U.S. courts as corporate employees, government contractors, truck drivers, food service workers, state and local government employees, Dodd-Frank Act whistleblowers, False Claims Act whistleblowers, whistleblowers who file state common law claims, and the vast majority of all other whistleblowers.”

“There should be one demand and only one demand: U.S. district court access for all federal employee whistleblowers. No other reform will work,” Kohn says.