The WPEA is a significant breakthrough to provide genuine anti-retaliation rights to federal employees and contractors. Since the consensus on Title 5 free speech rights was reached in 2006, however, several developments have created new technical obstacles/loopholes to protection that were not necessary to address at the time. Unless they are now, however, the legislation will be unable to work as intended. The solution does not require any changes in the scope of intended protection, and only requires technical clarification through definitions in two instances summarized below.

Another technical change also needs to occur, if the bill is to be relevant for the hundreds of whistleblowers working years for its passage. The savings provision inadvertently could exclude them from using their restored rights against any prior retaliation, even if they have not filed suit while waiting for the WPEA. The barrier easily can be erased by reverting to the savings provision language of the Civil Service Reform Act of 1978 to correct this inadvertent error.

1. Supremacy of statute over agency secrecy regulations: In a 2009 ruling modified and affirmed by the Board in July 2011, MacLean v. Department of Homeland Security, the Merit Systems Protection Board (MSPB), 112 MSPR 4 (2009) and SF-0752-06 overruled what has been a premise since passage of the Civil Service Reform Act of 1978: that statutory free speech rights are controlling and supersede any conflicting agency secrecy rules or regulations. This was the fundamental issue in 1978 when statutory whistleblower rights were first established, with the Carter administration proposing that agency regulations would be controlling. Congress unequivocally decided that the statutory rights it was creating would prevail in any conflict with agency restrictions. That choice was affirmed in the House report, the Senate report, and the Conference report. This was the law for 31 years, only considered once and unanimously affirmed by the MSPB during the Reagan administration. Kent v. General Services Administration, 56 MSPR 536, 542 (1993)

Congress structured the final language protecting public disclosures in 5 USC 2302(b)(8) in a manner that highlighted the choice. The law was written to protect public disclosures evidencing violations of “law, rule or regulation,” unless the information’s release is “specifically prohibited by law.” The distinct language was no coincidence. As each legislative history commentary explained, “law” means “statutory authority.” In order to be a “specific” prohibition, it either must identify particular criteria for and categories of restricted information directly or in boundaries established by the courts in judicial review. Otherwise there were no exceptions.

The MacLean case disqualified Whistleblower Protection Act (WPA) coverage for a disclosure the Transportation Security Administration designated ex post facto as Sensitive Security Information (SSI). The basis was congressional instructions in the Aviation Transportation and Security Act (ATSA) that DHS issue regulations prohibiting disclosure of information that the Under Secretary decides would “be detrimental to the security of transportation.” 49 USC 114(s)(1)(C). But that statutory language is open-ended rather than specific, and there is no hint either in CSRA language or legislative history that derivative statutory authority suffices to cancel out the whistleblower rights in section 2302 (b)(8). Only Congress has that authority.

Solution: This is very simple. Unequivocal language in the 1978 conference report, which is consistent with House and Senate committee reports, needs to be codified: “Prohibited by law refers to statutory law and court interpretations of those statutes, not to agency rules and regulations.”  HR Conf. Rep. No 95-717, 95th Cong., 2d Sess. 130, reprinted in 1978 USCCAN 2860, 2864.

2. New Executive Order with disclosure restrictions: Executive Order (EO) 13556 on Controlled Unclassified Information is an outstanding EO that creates an information-sharing system for disclosure without penalty of some 100, often open-ended pseudo-classification system categories unless there is independent liability through a statute or regulation.

Unfortunately, without statutory modification the cornerstone provision of the Civil Service Reform Act of 1978 and Whistleblower Protection Act, 5 USC 2302(b)(8), could be reasonably interpreted to create that liability. To illustrate, SSI is one of the umbrella secrecy categories, and the Board’s decision in MacLean created and enforced liability. 5 USC 2302(b)(8)(A) removes protection for public disclosures if  the information is “specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.”

It is arguable that the EO per se does not create any secrecy categories. However, some of the forms of Controlled Unclassified Information that do, such as SSI, are rooted in regulations that explicitly provide for national security secrecy and now have been upgraded to EO status. When drafted, there were no pseudo-classification categories like CUI, SSI or similar generalized, open-ended prohibitions on speech without prior approval. But literally the new EO for unclassified CUI mirrors the old statutory language for classified restriction. The Obama administration has explained that was not its intent. But that is the language, and unless the statute is updated to deal with this new EO it will create a larger free speech loophole than all the Federal Circuit loopholes combined.

Solution: Again, it is neat and simple. Merely conform section 2302(b)(8)(A) with the language used three times in HR 3289 and S 743 that is identical with one exception for the same passage: the clarifying term “classified” is used in the operative language to establish a clear boundary for limits on public freedom of expression. Amend section 2302(b)(8)(A) to read: “specifically required by law or Executive order to be kept secret classified in the interest of national defense or the conduct of foreign affairs.”

3. Savings provision: During the initial years of the Whistleblower Protection Act, the Office of Special Counsel (OSC) successfully interpreted the new rights as available for those who filed claims after its enactment, even if the protected speech or personnel action occurred previously. The 1991 OSC Annual Report has examples of Special Counsel support and favorable Merit Systems Protection Board (MSPB) rulings (at 9, 11).

A 1994 Supreme Court ruling, Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 1505 (1994), reversed that premise, however. Now when a case implicates a federal statute enacted after a lawsuit’s operative facts, a tribunal must first determine whether Congress clearly intended its retroactive application. If the tribunal finds that Congress has not done so, it must determine whether the statute should have retroactive effect based on a determination of whether that would “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.”  Id. The Court noted that only future applicability is presumed absent clear congressional intent to the contrary.  See id. at 1501, 1505.

Since Landsgraf, that doctrine has limited application of rights created by the WPA’s 1994 amendments. Suits filed before or after their enactment could not benefit from the new law, because Congress did not supply the intent as the Supreme Court now requires. See, e.g., Caddell v. Dep’t Justice, 96 F.3d 1367, 1370-72 (Fed. Cir. 1996) (allegedly retaliatory fitness for duty examination, a new personnel action created by 1994 amendments, cannot be challenged); Roman v. Dep’t Army, 72 MSPR 409, slip op at 3-4 (consequential damages not available as a new remedy from 1994 amendments); Aguzie v. OPM, 2011 MSPB 10, slip op. at 8-9; and Upshaw v. CPSB, 2009 MSPB 74, slip op. at 6-7 (merit system regulations cannot be applied retroactively).

In short, if Congress remains passive on this issue, nearly all the whistleblowers who have worked for the WPEA will remain in the cold.

Solution: Probably the most subtle solution is to add a phrase at the end of the savings provisions in S. 743 and HR 3289 as follows: “Except as otherwise provided in this Act, this Act shall take effect 30 days after the date of enactment of this Act and shall govern all proceedings filed by an employee or applicant after that date.” (underlined text new)

In Caddell, supra at 1371, the Federal Circuit suggested the following equivalent language: “[T]he Act shall control any administrative proceeding pending at the time such provision takes effect.” This solution would have far broader applicability, i.e., providing a real chance of justice for whistleblowers who couldn’t wait for the six year cycle of secret holds to stop blocking the otherwise overwhelming legislative consensus since 2006.