Since its formation 1988, the National Whistleblowers Center has provided protection and assistance to thousands of whistleblowers across the United States. Click to learn more>
Senate Passes S.372: A Bad Deal for Whistleblowers
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 Drakecase 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 overturnsone 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.
SeeOGE, 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
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
6. The Bill Permits Policy-Based Censorship of
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 excludesfrom 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
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.
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
Without major corrections to S 372, most federal employees who are
retaliated against for blowing the whistle will continue to lose their
cases. We call upon the House of
Representatives to fix the bill when the House considers it.