The Whistleblower Protection Act of 1989, Pub.L. 101-12 as amended, is a
United States federal law that protects federal whistleblowers who work for the
government and report agency misconduct. A federal agency violates the
Whistleblower Protection Act if agency authorities take retaliatory personnel
action against any employee or applicant because of disclosure of information by
that employee or applicant. Whistleblowers may file complaints that
they believe reasonably evidences a violation of a law, rule or regulation;
gross mismanagement; gross waste of funds; an abuse of authority; or a
substantial and specific danger to public health or safety.
Authorized Federal Agencies The Office of Special Counsel
investigates federal whistleblower complaints. In October 2008,
then-special counsel Scott Bloch resigned amid an FBI investigation into
whether he obstructed justice by illegally deleting computer files
following complaints that he himself had retaliated against employees who
disagreed with his policies. Then-Senator Barack Obama made a
campaign vow to appoint a special counsel committed to whistleblower
rights. It was not until April 2011 that President Obama's appointee Carolyn
Lerner was confirmed by the Senate. The Merit Systems Protection Board, a
quasi-judicial agency that adjudicates whistleblower complaints, uses appointed
administrative law judges who often back the government. Since 2000, the board
has ruled for whistleblowers just three times in 56 cases decided on their
merits, according to a Government Accountability Project analysis. Obama
appointed a new chairperson and vice chairperson with backgrounds as federal
worker advocates, but Tom Devine of GAP says, "It's likely to take years for
them to turn things around." The Court of Appeals for the Federal
Circuit, only court empowered to hear appeals of whistleblower cases decided
by the merit board, has been criticized by Senator Grassley and others in
Congress for misinterpreting whistleblower laws and setting precedent
that is hostile to claimants. Between 1994 and 2010, the court had ruled for
whistleblowers in only three of 203 cases decided on their merits, GAP's
analysis found. Legal Cases
The U.S. Supreme Court, in the case of Garcetti v. Ceballos, 04-473, ruled in
2006 that government employees do not have protection from retaliation by
their employers under the First Amendment of the Constitution when they
speak pursuant to their official job duties. The U.S. Merit Systems
Protection Board uses agency lawyers in the place of "administrative law judges”
to decide federal employees’ whistleblower appeals. These lawyers,
dubbed “attorney examiners,” deny 98% of whistleblower appeals; the Board and the
Federal Circuit Court of Appeals give great deference to their initial
decisions, resulting in affirmance rates of 97% and 98%, respectively.
Whistleblower Protection Enhancement Act and Presidential Policy Directive 19
The Whistleblower Protection Enhancement Act of 2012, Pub.L. 112-199, made many
revisions to the Whistleblower Protection Act. According to the
legislative history for S. 743, which ultimately became Pub.L. 112-199,
"federal whistleblowers have seen their protections diminish in recent years,
largely as a result of a series of decisions by the United States Court of
Appeals for the Federal Circuit, which has exclusive jurisdiction over many
cases brought under the Whistleblower Protection Act. Specifically, the
Federal Circuit has wrongly accorded a narrow definition to the type of
disclosure that qualifies for whistleblower protection. Additionally,
the lack of remedies under current law for most whistleblowers in the
intelligence community and for whistleblowers who face retaliation in
the form of withdrawal of the employee’s security clearance leaves unprotected
those who are in a position to disclose wrongdoing that directly affects our
national security." Additional whistleblower protections for
intelligence agency employees were ordered by President Barack Obama in
Presidential Policy Directive 19 in October 2012.
Related legislation On July 14, 2014, the United States
House of Representatives voted to pass the All Circuit Review Extension Act, a
bill that would extend from two to five years after the effective date of the
Whistleblower Protection Enhancement Act of 2012, the period allowed for: filing
a petition for judicial review of Merit Systems Protection Board decisions in
whistleblower cases, and any review of such a decision by the Director of the
Office of Personnel Management. See also
References External links
"Whistleblower Protection Act Information." U.S. Securities and
Exchange Commission. January 30, 2004. Retrieved May 3, 2007
OSC Form 11 for filing a whistleblower retaliation complaint.