Get GAP Email Updates Are you a journalist?

Whistleblower Protection Act Amendments – H.R. 985 and S. 274

• In 1989, Congress unanimously passed the Whistleblower Protection Act (“WPA”) as the premier good government law for the federal civil service. Unfortunately, the law has been functionally overturned by a series of increasingly hostile case decisions from the U.S. Court of Appeals for the Federal Circuit, which holds a monopoly on judicial review of whistleblower cases.
• The Court now excludes the most common situations in which whistleblower disclosures are made, Including if the whistleblower disclosure is made in the course of doing one’s job duties (like an auditor or safety inspector), or if the disclosure challenges illegal government policies. 
• The bottom line is that government whistleblowers virtually always lose hearings and appeals when they challenge retaliation, which means the law is hurting freedom of speech more than it is helping. Since Congress unanimously strengthened the law in 1994, whistleblowers have a 2-193 track record at the Federal Circuit for decisions on the merits. 
• The attacks on September 11, 2001, resulted in a wave of whistleblowing by those on the frontlines protecting the United States from further acts of terrorism. Unfortunately, these employees are the most vulnerable to retaliation when they disclose government wrongdoing that is threatening U.S. national security. The first tactic used by managers fearing criticism and embarrassment if security failings are exposed is to silence security professionals by suspending or revoking their security clearance. There is currently no independent review of security clearance revocations, so this type of retaliation almost always results in the termination of the employee who spoke out. 
• Jury trials for cases of whistleblower retaliation are necessary because they have long been recognized as a whistleblower’s only genuine opportunity for a fair day in court – with justice decided by the taxpayers who the employee purports to defend while risking professional termination. In 2002, Congress provided that right to corporate workers. In July 2005, it extended the right to Department of Energy and Nuclear Regulatory Commission whistleblowers.
  

• The amendments codify the legislative history of “any” protected disclosure, restoring the scope of protection already approved by three unanimous votes, overturning a series of activist decision from the Federal Circuit that gutted the original scope of protection for employees.
• The House bill grants jury trials to federal whistleblowers.
• The House bill extends genuine rights to employees of the FBI and intelligence agencies and to all employees of government contractors. 
• The House bill extends specific protections to government scientists.
• The amendments make permanent the anti-gag statute – an annual rider in the Appropriations bill for the past 16 years - and make it a prohibited practice to issue an illegal gag order. 
• The amendments codify protection against retaliatory investigations against whistleblowers. 
• The amendments end the Federal Circuit Court of Appeals monopoly on appellate review, restoring All Circuit review as in the 1978 Civil Service Reform Act and the Administrative Procedures Act. 
• The amendments allow due process review of security clearance determinations for whistleblower reprisal. 
• The amendments provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff who have the appropriate security clearances.