RULE 29

Federal Employees Are Special

Army Corps Whistleblower Toni Savage

Introduction

The Whistleblower Protection Act (WPA) allows federal employees to disclose information about White House scandals and election interference while being protected from retaliation. The WPA was first passed as part of the Civil Service Reform Act of 1978 and has been amended several times. Despite being imperfect, the WPA enables protected and confidential disclosures to specific receiving offices, such as the Office of Special Counsel or an Inspector General.

If there is retaliation, employees may bring their case to the Office of Special Counsel or the Merit Systems Protection Board. However, specific guidelines are in place for workers who want to take their claims to the media or outside entities. To learn how government employees can start and succeed in their case, refer to this rule.

Practice Tips

The major laws governing federal employees are the Whistleblower Protection Act, at 5 U.S.C. § 2302 (general law), 1214–15 (OSC procedures), and 1221; the Protection of Intelligence Community Whistleblowers Act, 50 U.S.C. § 3234; and the FBI Whistleblower Protection Act, 28 C.F.R. Part 27.
Under 50 U.S.C. § 3341(b)(7), whistleblowers have a limited right to challenge denial of a security clearance.
The Merit Systems Protection Board website (www.mspb.gov) has special Q&As on the Whistleblower Protection Act and links to the regulations that govern discovery, hearings, filing requirements, and how to participate in MSPB proceedings.
The website for the U.S. Office of Special Counsel (www.osc.gov) has detailed information on filing a whistleblower complaint and how to make a confidential whistleblower disclosure about government abuse.
The Equal Employment Opportunity Commission (EEOC) has a comprehensive website that fully explains the rules governing federal employee discrimination or retaliation cases. See https://www.eeoc.gov.

Resources

The major law covering federal employee whistleblowers is the:

Civil Service Reform Act, 5 U.S.C. § 2302, and the Whistleblower Protection Act of 1989, as amended, 5 U.S.C. §§ 1211–15, 1218–19, and 1221–22

Cases

Marano v. DOJ, 2 F.3d 1137, 1140 (Fed. Cir. 1993) and Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (Standard of Proof).
Chambers v. Department of Interior, 602 F.3d 1370 (Fed. Cir. 2010) (application of “Carr” factors to mitigate level of punishment in whistleblower cases).

Whistleblower Protection Act

The U.S. Merit Systems Protection Board published a case-law guide for the Whistleblower Protection Act. The guidebook was published before the law was amended in 2012 and is out of date on various issues, see:

An excellent decision outlining the proof employees need to prevail in a WPA action is:

Chambers v. Department of Interior, 2011, MSPB 7 (Jan. 11, 2011) (ordering the chief of U.S. Park Police reinstated to her position)

This decision was issued before the 2012 amendments that significantly strengthened the WPA.

The WPA: Enhanced

On November 27, 2012, President Obama signed the Whistleblower Protection Enhancement Act (Public Law 112-199) into law. The act improved the legal protections afforded federal workers under the WPA. The legislative history of the Enhancement Act is contained in:

Senate Report 112-155, published by the U.S. Senate Committee on Homeland Security and Government Affairs, “Whistleblower Protection Enhancement Act of 2012”) (Apr. 19, 2012)

The Whistleblower Protection Enhancement Act of 2012 prohibited government agencies from using restrictive nondisclosure forms that would prohibit an employee’s ability to file complaints with various government agencies, including the Office of Special Counsel, or to communicate with Congress:

Public Law 112-199 § 115(a)

Additionally, Congress uses the Appropriations Act process to prohibit the use of any government funds to pay the salary of any government employee who is responsible for having employees execute nondisclosure forms that restrict an employee’s ability to file complaints or blow the whistle to Congress:

Consolidated Appropriations Act of 2016, Public Law 114-113 § 713

Executive Order 12731, § 101(k) (Oct. 17, 1990), mandates that all federal employees “shall disclose waste, fraud, abuse, and corruption to appropriate authorities.” The Office of Government Ethics interpreted this mandate broadly and intended that the executive order encourage the “over reporting” of potential abuses:

Office of Government Ethics, “Standards of Ethical Conduct for Employees of the Executive Branch, Final Rule,” 57 Federal Register 35006 (Aug. 7, 1992).

Federal employees have a right to report violations or disclose information to Congress. In January 2019 the House of Representatives, by a Rule, created the Office of the Whistleblower Ombuds:

See H. Res. 6, Sec 104(e). House Rules Package, 116 Congress (January 9, 2019)

The Office of the Whistleblower Ombuds websites provides extensive information on whistleblowing in general, and communications with Congress in particular. Because the Office was created by a House Rule, the Office’s existence is subject to continued support for this Rule in each Congress.

Mixed Cases

If an employee alleges retaliation based on both discrimination (i.e., a sex or race discrimination claim) and whistleblowing, the two cases can be joined and litigated in U.S. District Court:

5 U.S.C. § 7702
Ikossi v. Navy, 516 F.3d 1037 (D.C. Cir. 2008)
Bonds v. Leavitt, 629 F.3d 369 (4th Cir. 2011)

Federal employees are also protected under some specific federal laws that govern limited areas of the government. For example, a number of the environmental whistleblower laws also cover federal employees, in:

Erickson v. U.S. EPA, 1999-CAA-2 (consolidated case; ARB, May 31, 2006)

Department of Labor, after briefings from the Solicitor of Labor, held that federal employees were protected under:

Clean Air Act, 42 U.S.C. § 7622
Solid Waste Disposal Act, 42 U.S.C. § 6971

The Solicitor of Labor argued that federal employees were also covered under:

Comprehensive Environmental Response (Superfund), 42 U.S.C. § 9610
Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)

The DOL indicated that it would follow that guidance, but did not formally decide the issue.

The case law under the federal environmental whistleblower statutes, which provide protection for federal employees.

Employees of the Federal Reserve, the Federal Housing Finance Board, the Comptroller of the Currency, and the Office of Thrift Supervision are covered under:

Depository Institution Employee Protection law, 12 U.S.C. § 1831j
Credit Union Act, 12 U.S.C. § 1790b

Federal employees of the National Credit Union Administration have whistleblower protections independent of the weaker WPA.

The Privacy Act is codified at:

5 U.S.C. § 552a

This law covers all persons, including federal employees.

Federal employees who suffer adverse employment actions based on an unconstitutional law cannot challenge that law directly in federal court. They must first exhaust their administrative remedies before the MSPB before being able to raise a challenge in federal court.

Moreover, that challenge may have to be raised as part of the appeal of a final decision of the MSPB, which presumably (as a federal administrative agency) will have to uphold the constitutionality of the challenged statute (Elgin v. Department of Treasury, 132 S.Ct. 2126 [2012]).

However, pre-enforcement challenges to rules, policies, or practices of federal agencies that violate the First Amendment may be directly challenged in federal court (Weaver v. USIA, 87 F.3d 1429 [D.C. Cir. 1996]).

The administrative processes open to federal employees under the Whistleblower Protection Act, and the exclusion of federal employees who perform work for intelligence agencies from protection under the law, have been severely criticized:

Senate Committee on Homeland Security and Government Affairs, “The Federal Employee Protection of Disclosures Act: Amendment to the Whistleblower Protection Act,” hearing (Nov. 12, 2003)
House Committee on Oversight and Government Reform, “Protecting the Public from Waste, Fraud, and Abuse: H.R. 1507, The Whistleblower Enhancement Act,” hearing (May 14, 2009)

“In the vast federal bureaucracy it is not difficult to conceal wrongdoing provided that no one summons the courage to disclose the truth.”

Senate Report, Whistleblower Protection Enhancement Act (2012)

Quick Links

Statutes, Regulations And Legislative History

Whistleblower Protection Act, 5 U.S.C. § 2302(a)(2)(D), (b)(8) and (9), and (f)
Prohibited Personnel Practices in the Intelligence Community, 50 U.S.C. § 3234
The Dr. Chris Kirkpatrick Whistleblower Protection Act, P.L. 115-73 – This law makes the unlawful access of an employee’s medical records an adverse action; creates procedures to discipline managers who retaliate, and provides for training and the dissemination of information about whistleblower rights.
Whistleblower Protections for Federal Employees
Whistleblower Protections for Members of the Intelligence Community
Title VII of Public Law 105-272
5 USC. App. 8H
First Amendment of the US Constitution
FBI Whistleblower Protection Act

Key Cases

Day v. Department of Homeland Security, 2013 MSPB 49 (June 26, 2013)
Eglin v. Department of Treasury et al.No. 11-45 (June 11, 2012)
Bush v. Lucas, 462 U.S. 367 (1983)
Webster v. Doe, 486 U.S. 592 (1988)
United States v. Treasury Employees, 513 U. S. 454 (1995) (applying Pickering to federal employees)
Department of Homeland Security v. MacLean, 135 S.Ct. 913 (2015) (permitted disclosures to the press)
Sanjour v. Environmental Protection Agency, 56 F.3d 85 (1995) (en banc) (viewpoint based restrictions on employee speech made on their own time is unconstitutional)
Marano v. DOJ, 2 F.3d 1137, 1140 (Fed. Cir. 1993) and Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (Standard of Proof)
Chambers v. Department of Interior, 602 F.3d 1370 (Fed. Cir. 2010) (application of “Carr” factors to mitigate level of punishment in whistleblower cases)
U.S. v. Fausto, No. 86-595 (Jan. 25, 1988)

Updates and Blogs

GAO-19-432, Whistleblowers- Key Practices for Congress to Consider When Receiving and Referring Information
Highlight of GAO-19-432
National Defense Authorization Act for Fiscal Year 2018 – Office of Special Counsel Reauthorization, H.R. 115-404
Consolidated Appropriations Act 2017, H.R. 244, P.L. 115-31 (Sections 743 and 744 prohibit non-disclosure agreements covering employees working under federal contracts and federal employees)
MSPB Rules Creation of Hostile Work Environment Violates WPA
Court Ruling Major Setback For National Security Employees
Federal Employee Whistleblowers Win Rare Victory
Happy Birthday! Lloyd-La Follette Act
U.S. Special Counsel Warns Agencies Not to Spy on Whistleblowers
Presidential Policy Directive on Whistleblowers Draws Criticism

Federal Employee – Jury Trial Advocacy

The Whistleblower Protection Act covering federal employees does not authorize federal court proceedings. Numerous attempts have been made to permit federal court access, including:

House of Representatives supporting jury trials by a non-partisan vote of 331-94 on March 14, 2008: HR 985
- The House Report on HR 985 Part 1
- The House Report on HR 985 Part 11

In 2009 the House held hearings on federal employee protections, and the testimony presented strongly supported jury trials: HR 1507, The Whistleblower Protection Enhancement Act of 2009

As part of that hearing, 292 public interest groups endorsed jury trials as a key reform. The letter filed by these groups is on pages 202-27. In addition, the testimony by witnesses supporting jury trials is on pages 99, 181, 195, 244 and 269.

In 2012 the Senate Committee with responsibility over federal employees also endorsed jury trials for federal employees in Senate Report 112-155.

Government Links

Additional Materials

Frequently Asked Questions

Related Rules

RULE 32
Your Disclosures Must be Protected Under Law
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RULE 31
Winning a Case
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