Washington Post: Requiem for the Whistleblower Protection Act

Break out the black bunting. Tune up a mournful dirge.

May the Whistleblower Protection Act rest in peace.

That’s the attitude of whistleblowers and their advocates, who accuse the Merit Systems Protection Board of striking a lethal blow last week to retaliation safeguards for federal employees who expose waste, fraud and abuse.

“Until Congress acts, the Whistleblower Protection Act is dead,” said Tom Devine, legal director of the Government Accountability Project. “The MacLean decision means government agencies can fire employees for any disclosure otherwise protected by the WPA. The decision reduces the WPA to a voluntary guideline that agencies can cancel at will by issuing blanket gag regulations.”

But Devine and other advocates, including those in Congress, aren’t willing to let the law pass away peacefully. Rather than grieving, they are using the decision as evidence in their long battle to pass stronger whistleblower protections.

The ruling involved Robert MacLean, an air marshal who was fired three years ago after he exposed plans to no longer place air marshals on long-distance flights so the Transportation Security Administration would not have to pay their overnight expenses.

The TSA would not comment directly on the case, but it did issue a statement that said agency whistleblowers “shall not be subjected to harassment, adverse employment consequences or other forms of retaliation.”

That’s no comfort to MacLean, who was sacked because the agency said the material he disclosed was “sensitive security information.” The problem, however, is the information MacLean revealed was not labeled sensitive until after he released it.

His disclosures led to congressional and public outrage and cancellation of the ill-conceived plan. That high-level vindication may have made MacLean a hero in the eyes of airline passengers, but telling tales out of school, even factual ones in the public interest, can make a federal worker an unwelcome troublemaker to the bosses.

The Merit Systems Protection Board said it lacked the authority to review the TSA decision to retroactively cloak in secrecy the material MacLean had disclosed.

That decision merely confirmed the long-held belief among advocacy organizations and their Capitol Hill supporters that stronger whistleblower protections are needed because the current sources of would-be relief are useless.

Devine reviewed MSPB decisions involving whistleblowers since 2000 and found that the board ruled against them 95 percent of the time. His figures for federal circuit court of appeal cases are even more one-sided: Whistleblowers lost in 98.5 percent of the cases.

“The cases speak for themselves,” said B. Chad Bungard, the MSPB’s general counsel. “The board members decide these cases carefully and thoughtfully and follow federal circuit precedent.”

That’s not good enough for Sen. Claire McCaskill (D-Mo.), who is among those in Congress who favor jury trials for whistleblowers who go to court to fight retaliation.

“It is no secret in Washington that the MSPB has not provided adequate protections to federal whistleblowers for years now,” she said. “It’s way past due that we provide more meaningful protections to the brave federal employees who are willing to step out and risk their careers to expose fraud, waste and abuse of taxpayer dollars, much as we are doing for whistleblowers at federal contractors.”

The MSPB ruling can be found here.

The Government Accountability Project’s brief supporting MacLean can be found here.