Last week the House of Representatives passed the Whistleblower Protection Enhancement Act (WPEA) (S. 743) by unanimous consent. The bill represents a rare bi-partisan effort to strengthen whistleblower protection rights for millions of federal workers that is a decade in the making.
The Whistleblower Protection Enhancement Act, which has been bouncing around Congress for a decade, took an important step toward becoming law with House approval Friday.While the WPEA is an important first step that closes many loopholes in the protections for federal whistleblowers, there is still a gaping hole in protection for intelligence employees that the Obama administration needs to fix:
[Tom] Devine [of the Government Accountability Project] noted that the Obama administration promised to take executive action on national security whistleblower rights, if Congress didn’t: "Because this bill excludes intelligence community workers, now is the time for the President to honor his promise and provide an effective, responsible channel for reporting waste, fraud and abuse."
1.) Expanded Protection for Disclosures of Government WrongdoingThe House's move in passing the WPEA is an important step for whistleblower reform, and the WPEA will provide increased protections for millions of federal workers. But, there are still many whistleblowers who risk sacrificing their careers for their consciences, or in cases of whistleblower subjected to criminal prosecution, their very freedom. Last night, I attended a TRUTHCON event presented by the Bradley Manning Support Network and the Georgetown Chapter of the National Lawyers Guild. Go here to support an individual whistleblower now.
* Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)
* Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
* Protects government scientists who challenge censorship. (Sec. 110)
* Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)
2.) Expanded Coverage and Fair Processes
* Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
* Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
* Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers’ presenting their evidence of retaliation. (Sec. 114)
* Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).
3.) Administrative Authorities
* Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).