GAP today praised unanimous action by the Senate Homeland Security and Governmental Affairs Committee (HSGAC) approving S. 743, the Whistleblower Protection Enhancement Act (WPEA). This long-overdue legislation would overhaul the ineffective Whistleblower Protection Act (WPA).
The Senate re-introduced this legislation in April. The WPEA was blocked from passage last Congress by an anonymous hold placed hours before adjournment, after the reform unanimously had passed both the Senate and House of Representatives.
GAP Legal Director Tom Devine commented, “This landmark action is thanks to a marathon commitment and hard work since 1999 by Senator Daniel Akaka (D-Hi) and his staff. Despite new membership on the Committee, the reform retains unanimous bipartisan support. Legislators know that their promises to cut federal misspending will not be credible, if they do not deliver genuine rights to whistleblowers who risk their careers to expose waste and fraud.”
Devine added, however, “Before final passage the bill must be updated to address recent developments. The highest priority is to protect whistleblowers whose disclosures have been marked as newly-created pseudo-secrecy categories, known as ‘Controlled Unclassified Information.’”
The legislation includes many necessary improvements that represent the emerging legislative consensus (so far). These include:
- Closes judicially-created loopholes in the law’s protection, while tightening language to preclude circumvention of the congressional free speech mandate.
- Provides those covered by the WPA with access to jury trials in federal district court to challenge major disciplinary actions.
- Restores normal appeals court access for whistleblowers who lose at the Merit Systems Protection Board, freeing them from the Federal Circuit Court of Appeals (The court has a 3-216 track record against whistleblowers since Congress last reaffirmed the law in 1994).
- Extends WPA rights to some 40,000 airport baggage screeners.
- Provides whistleblower rights to those who refuse to violate the law.
- Creates specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.
- Restores the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
- Codifies and gives a remedy for the anti-gag statute, which bars agency rules or after-the-fact classification of information from overriding whistleblower rights.
- Outlaws security clearance harassment as a WPA violation, establishes minimum due process standards for agency clearance actions, and breaks out of the grievance model through appellate review of clearance actions by an inter-agency intelligence community board required to have both merit system and national security expertise.
- Explicitly states that FBI employees retain their exclusive remedy for prohibited personnel practices and are not placed into the new section on prohibited personnel practices for the intelligence community.
- Extends rights analogous to the WPA for disclosures within the chain of command to employees of intelligence community agencies (i.e., CIA, NSA), and requires the Administration to issue corresponding enforcement regulations customized for the IC context but equivalent to the WPA.
- Bars the President from exercising discretionary power to impose national security exemptions that deprive employees of Title 5 WPEA rights after the employee files a reprisal complaint.
- Provides specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or to their staff.
- Provides compensatory damages up to $300,000, and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws.
- Modifies the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.
- Provides the Special Counsel with authority to file friend-of-the-court briefs in support of whistleblower rights cases appealed from the administrative level.
- Creates a whistleblower ombudsman as a five-year experiment to advice employees of their rights in Offices of Inspectors General (OIG) for title 5 employees.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.