Whistleblower Protection Enhancement Act passed by Unanimous Consent
(Washington, DC) – The Government Accountability Project (GAP) hailed last night's 'Unanimous Consent' approval by the US Senate of S. 743, the Whistleblower Protection Enhancement Act (WPEA). The legislation provides millions of federal workers with the rights they need to safely report corruption from inside the federal bureaucracy.
GAP Legal Director Tom Devine commented, "This is the fourth time the Senate has unanimously approved similar legislation to restore protections for federal whistleblowers. The spotlight now shifts to the House of Representatives, where action is long overdue. Despite unanimous approval last November, the House Committee on Oversight and Government Reform has not yet reported the bill to the full House."
Over the past 12 years, GAP has been at the forefront of advocating for passage of the WPEA, heading a coalition of hundreds of groups demanding these protections. Last Congress, the legislation – after passing both the Senate and House by Unanimous Consent in some form – was killed by an anonymous Senator's "secret hold" in the remaining hours of the session. Working with NPR's On The Media on a campaign to identify the responsible party, GAP was informed that House Republican leadership was responsible for the hold.
Commented Devine: "This reform would have been law in December 2010, except that then-incoming House leaders asked Senate allies to place an anonymous hold blocking final enactment … on grounds that they would produce a better reform. It is past time to prove it. The House won the last election on a pledge to reduce government waste, fraud and abuse. That commitment has rung hollow, as there has been no action to protect those who risk their professional lives to stand against federal wrongdoing. What are they waiting for?"
Stronger protections in the reform remain intact from the Senate's 2010 Unanimous Consent approval, prior to the hold(s) that blocked final enactment. The most significant benefits are listed below:
1.) Expanded Free Speech Rights
- Closes judicially-created loopholes to protection, such as canceling a requirement that the Whistleblower Protect Act (WPA) only protects “the first” person who discloses given misconduct, and overriding a Supreme Court decision, Garcetti v. Ceballo, which limits federal workers’ free speech rights while carrying out job duties. (Sec. 101. 102)
- Cancels the 1999 precedent that translates “reasonable belief” to require irrefragable proof, which has required employees to present “undeniable, uncontestable, or incontrovertible proof that is incapable of being overthrown” before they are eligible for protection. (Sec. 103)
- Creates specific legal protection for scientific freedom, providing WPA rights to employees who challenge censorship, and make it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research. (Sec. 110)
- Codifies and provides a remedy for the Anti-Gag Statute – a rider in the Treasury Postal Appropriations bill for the past 22 years – that bans enforcement of agency gag orders that seek to override statutory rights to communicate with Congress or WPA rights to make unclassified public disclosures. (Sec. 104(a), (b) and 115)
- Bars Critical Infrastructure Information, a hybrid secrecy category created by the Patriot Act, from overriding WPA free speech rights. (Sec. 111)
- As an anti-leaks measure, requires Executive branch regulations providing free speech rights for employees of the Intelligence Community who disclose government misconduct to their supervisors, or institutional checks and balances such as the Inspector General or Congress.
2.) Expanded Coverage and Due Process Rights
- Provides Title 5 workers access to federal district court jury trials to challenge major disciplinary actions. (Sec. 117)
- Ends the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act (The Court has single-handedly gutted the WPA, leading to a 3-220 record through March 2012 against whistleblowers for decisions on the merits since October 1994), restoring all-Circuit review for a five-year experiment as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
- Extends whistleblower rights to some 40,000 airport baggage screeners. (Sec. 109)
- Provides normal due process administrative and jury trial whistleblower appeal rights to those who refuse to violate the law. (Sec. 101(b), 117)
- Guarantees that when whistleblowers receive an administrative hearing or day in court, they can make their case of government misconduct and corresponding harassment, before their retaliation complaint can be dismissed on independent grounds. (Sec. 114)
- Makes it illegal to deny, suspend or remove an employee’s security clearance in retaliation for a lawful whistleblowing disclosure.
- Requires agencies to follow minimum due process standards equivalent to the Administrative Procedures Act before actions on an employee’s security clearance.
- Establishes an autonomous board for appeals of security clearance decisions, consisting of members chosen by intelligence community leaders but independent of individual agencies.
- 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. (Sec. 105)
3.) Expanded Resources
- Provides compensatory damages reimbursement for expert witness fees to prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)), and the same remedies with a $300,000 damages cap for court and security clearance actions. (Sec. 117(a); and 202(b))
- Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)
- Makes it easier for the Special Counsel 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 Special Counsel does not prevail in a disciplinary action. (Sec. 107(a))
- Requires the Merit Systems Protection Board (MSPB) to file annual reports providing for data, starting for 2009, on the outcomes of whistleblower cases, from administrative judge through Board appeal. (Sec. 116(b))
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.