Washington, D.C. December 11, 2010. Yesterday, the Senate passed the Whistleblower Protection Enhancement Act (S. 372) by unanimous consent.  After a careful review of S. 372, the National Whistleblowers Center, the Federal Ethics Center, the National Security Whistleblowers Coalition, and the No FEAR Coalition strongly recommend that the bill not be approved in its current form.  We urge the House of Representatives to fix the bill and send it back to the Senate for final approval.  Here is why the bill must be fixed:

1. New Summary Dismissal Authority.  The bill gives the Merit Systems Protection Board (MSPB) sweeping new powers to dismiss whistleblower claims without a hearing.  The MSPB Administrative Judges will now be able to dismiss WPA claims without a hearing, based solely on affidavits filed by executive agencies.  If whistleblowers did not conduct extensive and expensive pre-trial depositions, they will be unable to rebut these affidavits, and their cases will be dismissed.  Even if the whistleblower is able to afford the significant additional fees and costs caused by the new summary dismissal proceedings, based on the track record of the AJs, the vast majority of cases will be summarily dismissed based on agency affidavits.  The opportunity to create a record at a hearing, or use the pre-hearing process as an opportunity to reach a settlement, will be lost.  This is a significant rollback of current rights that will make it more costly and more difficult for whistleblowers to prevail in any actions, despite any of the other reforms contained in the legislation.

Significantly, in one of the handful of positive Federal Circuit decisions, that Court has rejected numerous requests from the executive branch that the authority to dismiss cases summarily be judicially created.  The Court recognized that in 1978, when the Civil Service Reform Act was originally passed, this was a big issue and was hotly contested.  The whistleblowers prevailed at that time.  It would be a shame to lose that hard earned victory in an "Enhancement" act. See Crispin v. Dept. of Commerce, 732 F.2d 919 (Fed. Cir. 1984). The summary dismissal provision, section 118 is linked here.

2. New Powers for the MSPB Without Structural Reform.  S. 372 contains no substantive provisions to reform either the Office of Special Counsel or the MSPB.  These two gatekeeper offices, which have a notoriously bad record on whistleblower cases, remain intact.  Instead of reforming these departments, S. 372 gives significant new authorities to the MSPB, including the power to dismiss cases on the basis of agency affidavits alone, and the power to act as the gatekeeper for court access.  Any meaningful reform of the WPA process should have included substantive corrections to the OSC and MSPB. Recommendations that the MSPB be required to utilize statutory Administrative Law Judges, in place of the current "administrative judges" were rejected.

3. A New Reactionary Definition of Protected Disclosure.  Consistent with other whistleblower laws, the WPA currently protects employees who disclose violations of law, rule or regulation."   This is an unqualified right and was affirmed by the U.S. Court of Appeals for the Federal Circuit in Drake v. AID.  The Drake case is one of the very few cases in the 32-year history of the Civil Service Reform Act in which an employee actually won his case in the Federal Circuit and the agency was ordered by the court to take corrective action.  S. 372 radically changes the definition of protected disclosures, permits agencies to fire employees who report actual violations of law and overturns one of the only good decisions ever to be rendered by the Federal Circuit.   The new definition of protected disclosure also conflicts with the fundamental Merit Systems Principles codified into law at 5 U.S.C. § 2301(b)(9) and the Office of Government Ethics implementation of Executive Order 12731.  See OGE, Standards of Ethical Conduct for Employees of the Executive Branch, Final Rule, 57 Federal Register 35006 (August 7, 1992).

This radical change to the definition of protected disclosure, which is unprecedented in any existing whistleblower law and which is not supported by any current federal court decision, was made in the following sections of S. 372 (which are linked here):  Section 101(a); Section 102; Section 110(b)(1)(A)(i)(I) and (B)(A)(i)(I), and numerous other sections.

4. No All-Circuit Review.  Since the reform efforts commenced, every advocate for fixing the current WPA process strongly urged that the Act be amended to permit "all-circuit" review of MSPB decisions.  Currently, only the Federal Circuit can hear WPA appeals, and every witness and every Member of Congress who addressed the issue soundly condemned that court's record in these cases.  All Circuit review was always viewed as a bottom-line demand. 

S. 372 does not achieve the goal of all-circuit review.  On its face it does not permit all-circuit review for all WPA cases, but limits such review to cases in which the WPA claim is not joined with claims related to other sections of the CSRA. (It is typical that WPA cases are joined with other civil service claims)  Section 108(b)(1)(B).  Second, the provision has terminates in five years, and their is no guarantee that it will be renewed.  Section 108(b)(1)B). 

However, the largest loophole in the all-circuit review procedure is an exception that swallows the rule.  The bill permits the Office of Personnel Management to have appeals filed in other judicial circuits transferred back to the Federal Circuit.  Section 108(b).

5. No Meaningful Access to Federal Court.  The supporters of S. 372 point to the provisions in the law that permit some WPA cases to be transferred to federal court for a jury trial as a landmark reform contained in the law.  However, this reform is illusory.  First, the MSPB is empowered to be the gatekeeper for federal court.  The MSPB must approve any initial application for court access, and the standards it must apply for permitting court access are strict.  Given the high standards on demonstrating a right to remove the case, and the reputation of the MSPB, few if any whistleblowers will ever have their case approved for court access.  Section 117(a), new provisions (k)(4).

Second, if the MSPB issues a final order of dismissal in a case within 270 days, the right to federal court access is terminated. Section 117(a), new provisions (k)(3(B). Given the new summary dismissal authority, the Board will not have a problem dismissing whistleblower cases well within the 270 day time period.  Moreover, the Administrative Judges in WPA cases have historically held whistleblowers to very strict time limits, that are often prejudicial to the employees (who lack resources and, because of the very low success rate before the Board, access to attorneys).  The new 270-day deadline will make the MSPB procedures even less employee-friendly than under the current, broken system.

6. The Bill Permits Policy-Based Censorship of Government Scientists.  Supporters of S. 372 have pointed to a provision of the law that prohibits censorship of government scientists as a major breakthrough for federal employee rights.  Again, a close reading of those provisions demonstrates that the opposite is true.  The bill actually would permit censorship of scientific papers and dissenting scientific opinion.  S. 372 explicitly excludes from the definition of protected activity dissenting policy positions advocated by government employees.  Section 102. Furthermore, the Act narrowly defines the circumstances upon which a government scientist can claim improper censorship.  Those circumstances are limited only to "censorship" that "relate(s)" to a gross "violation of law, rule or regulation," "gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety."  Sec. 110(b).   It will be very difficult for scientists who are being censored to meet this standard and obtain any relief.

7. The Bill Does Little To Aid in National Security-Related Disclosures.  S. 372 contains a very narrow right for employees to make classified whistleblowers to a limited committees in Congress.  This provision adds little to pre-existing law.  See Whistleblower Protection for Intelligence Community Employees; Reporting Urgent Concerns to Congress, 5 U.S.C. App. § 3, §8H.  The new procedures in S. 372 to protect intelligence agency employees from retaliation suffer from the same problems that exist for all other federal employees.

CONCLUSION

S. 372 is a bad deal for whistleblowers. It contains limitations on the right to protected activity and the right to court access that will set a dangerous precedent for other whistleblower laws.  Many of its positive features are thwarted by carefully drafted "fine print" that will negate, in practice, the ability of employees who report waste, fraud and abuse to obtain protection.