Twelve Part Blog Series beginning August 18, 2009
Whistleblower Protection Blog
By Stephen M. Kohn
NOTE: Due to the tremendous grassroots pressure from members of our Action Alert Network a number of the following areas were fixed in the most recent version of the Whistleblower Protection Enhancement Act. Some areas still need to be fixed before federal employee whistleblowers are truly protected.
On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372,
the Whistleblower Protection Enhancement Act of 2009. Unfortunately,
this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
Over the next two weeks I will present the NWC analysis of the Senate
Bill. Hopefully, this will explain why the Senate needs to adopt
important provisions included in the House legislation.
This is the first in a series of twelve posts examining specific
weaknesses in the Senate Bill. Each installment will examine a crucial
issue of whistleblower rights compromised by the Senate’s version of
I. THE DEFINITION OF PROTECTED ACTIVITY: SMALL LOOPHOLE OR LARGE NOOSE?
The Senate Bill added a dangerous clause within the definition of
“protected disclosure.” Under this new definition, federal employees
who disclose any violation of law are protected, unless their disclosure was “a minor, inadvertent violation that occurs during the conscientious carrying out of the violator’s assigned duties.” See Section 101.
This new exception to protected activity is devastating to the law.
existence is without precedent, and runs counter to every whistleblower
law ever enacted in the United States. It also runs counter to the
conclusions of every respected analysis of whistleblower protection.
Why is this provision so harmful?
First, what exactly is a “minor” or “inadvertent violation?” Whistleblower laws are supposed to encourage the disclosure of any
violation. In fact, most major violations are first discovered through
the disclosure of something we might initially consider minor. Rarely
does an employee stumble upon a violation she immediately recognizes as
a national scandal. More often employees disclose a minor violation
(or even a potential violation). Upon investigation such a minor
violation may provide the first information about a major case of
fraud, waste, abuse or injustice – or it may not. However, every
whistleblower law in the United States is designed to protect and
encourage the disclosure of any potential violation. The supervisory authority to which the disclosure is made then has the duty to investigate the claim.
This new standard is completely unworkable. If the employee uncovers a
violation, but it turns out the violation was “minor” or was caused by
an “inadvertent” mistake, the employee can be fired for making an
unprotected disclosure! Obviously, few employees would ever come
forward with any disclosure under these chilling conditions.
Any employee who has the courage to report a potential violation places
himself or herself at risk. If the managers involved in the violation
can prove that the violation was “minor” or “inadvertent,” then the law
says the employee has not engaged in lawfully protected activity by
disclosing it. As a result, the whistleblower case will be
automatically dismissed and the employee will have no protection under
There is no other whistleblower law in any jurisdiction in the entire
United States that places this burden on an employee. In fact, every
whistleblower law in the United States protects employees who make
“good faith” disclosures of any suspected violations, even if it turns
out that there was no actual violation.
This provision will create a dream defense that will undermine any
whistleblower case. It will make the whistleblower claim extremely
expensive to litigate at best and very hard to win, even if the
underlying violation was indeed a major violation. It will add to the
litigation costs and burden every case by creating what is essentially
an additional trial of fact.
Every defendant will claim that what the employee disclosed was not a
protected disclosure because, at best, it only revealed a “minor,
inadvertent” violation. The burden will shift to the employee to prove
the alleged violation is now a “major” violation. That employee will
have to do so without benefit of a full investigation into his or her
initial disclosure. Even if that disclosure could lead to a major
violation, when investigated.
Of course, an employee who has to prove that the disclosed violation is
major, the employee will have to undergo significant litigation
expenses. Worse there is no current legal precedent as to how to
demonstrate that a violation is a major one.
This new provision also contradicts the findings of every major modern
study concerning fraud detection and prevention. Respected auditing
firms such as PricewaterhouseCoopers, the Association of Certified Fraud Examiners, and the Ethics Resource Center have all studied fraud detection programs in both the public and private sectors. Their conclusions are all similar:
• Employee whistleblowers are key to any successful fraud detection program;
• Agencies must create programs which encourage and reward employees who report potential violations of law or ethics; and
• Strict prohibitions against retaliation must be instituted.
Each study recognizes the value and importance of encouraging employees
to disclosure any instances of misconduct as quickly as possible. The
requirement to determine if a violation is “major” or not can only
delay detection of real fraud.
The language in the Senate Bill runs counter to this teaching, and
contradicts years of legal precedent. It will create a chilling effect
on employee disclosures, and result in numerous otherwise meritorious
cases being dismissed.
No Senator should vote for a law that establishes this burden on an
employee. At a time when trillions of dollars are being added to the
federal budget why would we want to make it more difficult to detect
II. ADVERSE ACTIONS REVISTED
The Senate Bill goes out of its way to reverse gains whistleblowers
have won in the U.S. Supreme Court. It returns whistleblowers to the
days when an employee had to demonstrate a certain level of harm or
damages to obtain whistleblower protection.
years the lower courts debated what level of adverse action was
necessary to permit an employee to file a retaliation case in federal
court. Some courts required material adverse actions – such as a
termination. Other courts looked to the purposes behind the enactment
of anti-retaliation laws, and permitted filing claims in court for
adverse actions that did not result in actual loss of salary or
The unanimous U.S. Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White, 548 U.S. 53 (2006)
finally resolved this long-standing dispute. A whistleblower could file
a claim in court even if they suffered what might be called a less
significant adverse action. Why? The Court correctly understood that
smaller adverse actions still have significant impacts on a person’s
career. Employees who faced transfers to less desirable jobs, whose
performance reviews suffered or who were harassed at work could have
their careers severely damaged, even when they suffered no reduction in
salary. Moreover, permitting employees who engaged in protected
activities to suffer any retaliation on the job has a major
chilling effect on other employees and discourages anyone from making
The court case was a major victory for all whistleblowers. We thought the battle was over, that is until we read S. 372.
The Senate Bill statutorily overturns the unanimous Supreme Court
decision and again creates an artificial differentiation between the
level of harassment and the right of an employee to have his or her
case heard in court. It limits who can file in federal court. See Section 117(a)(k)(4)(A)(i)(I).
Under S. 372 only employees who suffer what is called a major personnel
action including being suspended for 14 days or more are allowed to
file a claim in federal court. Employees who suffer severe harassment
or whose careers are stalled by bad performance reviews have no
recourse in court. Common retaliatory tactics such as transferring
employees to more demeaning work, forcing employees to undergo
intrusive psychological testing, and stripping someone of all
meaningful work will now become even more common since employees will
have no way to fight it in court.
The Supreme Court got it right in Burlington. Employee
action that “dissuades” a reasonable employee from engaging in
protected activities is an adverse action for which an employee should
be able go to court and have the claim heard in a full and fair manner.
This provision in S. 372 is extremely harmful to whistleblowers. It
would result in the majority of federal employees being blocked from
access to federal court proceedings. We strongly oppose this
reactionary attempt to overturn the Supreme Court and the NWC cannot
support any “so-called” whistleblower bill, which contains this
III. HOW THE NEW “270 DAY RULE” BLOCKS COURT ACCESS FOR FEDERAL EMPLOYEES
S. 372 has been promoted as creating a virtual revolution in federal
employee whistleblower rights. Supporters specifically point to the
provisions that permit employees to bring a case in federal court
before a jury.
But are these claims justified?
In the first post we pointed out that an insidious change in the
definition of protected activity would result in numerous cases being
dismissed. In the second post we pointed out that most employee
whistleblowers could never bring a case in federal court because the
types of retaliation they suffered (including poor job assignments,
hostile work environments, retaliatory performance reviews) do not
qualify for removal to federal court.
In addition, hundreds of thousands of other federal employees are
barred from filing in federal court. Specifically, employees in
various law enforcement and intelligence agencies are barred from
filing in federal court, even if their cases have no relationship to
any actual national security issue.
Who’s left? Even if you happen to be one of the “lucky ones” whose
case is eligible for a jury trial, will you ever actually have your
case heard in front of a jury of your peers?
The answer is no.
372 contains a provision that says if the Merits Systems Protection
Board can complete the adjudication of your case in 270 days you have
no right to go to court. This will open the door for the MSPB to create
procedures that force the adjudication of claims within the
Congressionally mandated time-period, and effectively block access to
federal court. See Section 117(a)(k)(3)(B).
Under the new “reformed” law, employees who already have difficulty
finding attorneys will have to find a good attorney who can immediately
come up to speed on the merits of the case and have the resources
necessary to fund a complex lawsuit that to be completed within the
time period. Analyzing all the documents in such a case, learning all
the facts, interviewing the witnesses can take considerable time.
Lawyers will be very reluctant to commit to a full hearing on the
merits in such a rushed procedure.
Unfortunately, this is not even the worst part of it. The worst part
is that if the MSPB completes the hearing within 270 days the
whistleblower has no right to go to federal court and seek a jury
What if you are one of the “lucky” ones, and the railroad just doesn’t
come in on time? Here is the true injustice of this law. After
spending 270 days on rushed and expensive proceedings before the MSPB
you finally get the right to file a new lawsuit in federal court. But
guess what happens? You have to start new – you have to file a new
complaint, you may have to file new discovery, you have to file new
motions and ultimately you have to spend the time and money on a whole
new trial. The costs have doubled and you had no choice but to waste
the first 270 days of your case. We note with some irony that this
also increases the costs to all parties. Those who want to limit
whistleblower rights as a matter of judicial economy should take note
that S.372 adds a layer of procedures for everyone.
We are extremely disappointed that S. 372 did not adopt a procedure
proven to work well under other employee retaliation laws. For
example, under Title VII a federal employee can start a lawsuit with a
request for “counseling.” The employee does not have to file a formal
lawsuit and start any such 270-day clock.
Instead, the employee simply seeks informal counseling, and the agency,
the employee and the EEOC attempt to reach a settlement. Obviously, an
attempt to promote and reach a settlement at an early stage is fairer
to all parties. However, if there is no settlement, the employee has
the right to file an informal complaint, and the agency’s EEO office
conducts an investigation during the next 180 days. This investigation
provides cost-free discovery for the employee, as the EEO-investigation
is required to interview witnesses and obtain documentary evidence. At
the end of the 180 days, the employee learns the results of the
investigation and then has a choice, he or she can either file for an
administration hearing before the EEOC or can file directly in U.S.
District Court and request a jury trial.
Even if the employee chooses for the administrative approach, he or she
still can seek removal of the case to federal court if the employee
does not like the manner in which the administrative process is
These procedures are already in place in every federal agency. The
General Accounting Office has determined that these provisions could be
made applicable to employee whistleblower cases at all federal
agencies, including national security agencies.
The right to a jury trial in the U.S. Constitution. State and local
government employees have the right to a jury trial under the Stimulus
Bill. Federal contractors have the right to a jury trial. Terrorists
housed in Guantanamo Bay have the right to have their claims heard in
federal court! Any federal employee (including national security
related employees) who alleges discrimination because of their age,
sex, race, religion or disability has a right to file a claim in
federal court and have their case heard by a jury. We have procedures
that work to make this right work in a reasonable manner for all
parties. Yet the Senate refuses to adopt a real framework to allow
Federal Employees a right to a jury trial.
Americans need to ask the Senators why they refuse to fully protect
federal employee whistleblowers. If the Senate wants credit for federal
employee jury trial access – they need to make it real!
IV: BACKSTABBING FBI WHISTLEBLOWERS: WILL THIS PROBLEM REALLY GET FIXED?
Putting it bluntly: S. 372 repeals all existing whistleblower rights for FBI employees.
From the start of the negotiation process with the White House, the NWC
identified this roll back of FBI whistleblower rights. In meetings
with the White House staff the NWC urged that these provisions be
changed. Unfortunately, they were incorporated into the Senate
markup. Upon reviewing the Senate markup language, the NWC notified
the Senate Judiciary Committee of this problem on August 5th
and asked that they ensure that it be corrected. Since then, the
public interest community has insisted that the current FBI
whistleblower rights must be restored. As reported in the Washington Times,
it appears that the White House is expressing a willingness to fix the
problem. However, the White House has not committed to the promise in
writing and no alternative language has been proposed. The devil will
be in the details.
was most disappointing that a whistleblower “enhancement” bill would in
fact roll back protections FBI employees have had for over 12 years.
Between 1993-98 the NWC had the honor of representing FBI whistleblower
Frederic Whitehurst. On his behalf we sued the government in order to
force the President of the United States to establish legally required
protections for FBI whistleblowers under an obscure section of the
Civil Service Reform Act codified as 5 U.S.C. § 2303.
Dr. Whitehurst prevailed in his case, and in 1997 President Clinton
signed a memorandum that mandated the Attorney General implement
whistleblower protections for FBI employees. Those protections were
implemented, and today they are as good as those which exist for most
other federal employees. FBI employees can file whistleblower
complaints, which are investigated by the Department of Justice Office
of Inspector General. FBI employees who file claims with the IG have
the same procedural rights as other government workers who file claims
before the Office of Special Counsel. An employee who disagrees with
the results of the IG investigation, can request a hearing within the
Department of Justice.
These protections will be repealed under S. 372!
Congress must be careful when fixing this repeal. There are 3 points
that must be changed in order to fully fix the problem. First, Section 121(b)(2)
(Page 59) sets an effective date that would, if signed into law, result
in the immediate dismissal of all pending FBI whistleblower cases.
Second, Section 121(b)(1) (Page 58) contains the actual revocation of the existing 2303 protections. Third, Section 121(a)(2)(A)
(Page 44) places the FBI under the jurisdiction of the new Intelligence
Community Whistleblower Protection Board. That board (as will be
explored in a future blog post) affords no substantive protections to
national security employees. By placing the FBI under the Board’s
jurisdiction the Act repeals 2303 by implication because the FBI cannot
be under two simultaneous procedures. Therefore, in order to ensure
the restoration of FBI whistleblower rights all three provisions must
This all begs the question what ever happened to “enhanced”
whistleblower rights? The law will devastate existing rights enjoyed
by FBI agents, and provide them with no new protections. It is a
complete victory for those who would cover up any abuse of authority or
wrongdoing in the FBI. In regard to oversight of the FBI and
protection of FBI whistleblowers, S. 372 is the worst setback for
accountability and due process in over thirty years.
The House of Representatives got it right. The House version will
effectively protect all national security whistleblowers and should be
signed into law.
V: THE NEW SUMMARY JUDGEMENT RULE: GOLIATH FINALLY WINS!
S. 372 contains a new provision that permits the Merit Systems
Protection Board to dismiss whistleblower claims under a procedural
rule known as “summary judgment.” See Section 118. This new rule permits the MSPB “judges” to summarily dismiss a whistleblower claim without ever conducting a hearing.
of the main purported benefits of the current MSPB process is its
streamlined procedures. Under the current law, employees are entitled
to a hearing before the MSPB if they can establish jurisdiction. The
employees avoid the considerable costs associated with defending a
traditional summary judgment motion and instead may address those
issues at the hearing on the merits of the case.
Why is this summary judgment procedure a bad development? Here is
what will happen in practice. In almost every case the agency will
file for summary judgment. In a motion for summary judgment the judge
decides, without a full trial, that there is “no genuine issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law.” If the judge grants the agency’s motion the
whistleblowers case will be dismissed.
The new summary judgment provision forces the employee to conduct
expensive discovery simply to defeat the motion. Given the past
substantive and procedural decisions issues by MSPB “judges,” the
overwhelming majority of these motions will be granted and the
whistleblower cases will be dismissed without there ever being a
hearing. Over 90 percent of the summary judgment decisions will be
against the whistleblower. [Note: MSPB judges are not real judges.
They are not subject to any judicial confirmation process and do not
have to be attorneys. Their appointments are not reviewed or approved
by the Senate Judiciary Committee.]
Given the new 270 day rule for completing adjudications before the MSPB, summary judgment rulings will become commonplace.
This rule is a major setback for employees. First, agencies will not
settle cases until their summary judgment motions are filed. The
pressure to settle a case shortly before a hearing will be eliminated
because agencies will wait to see if the case is dismissed before a
hearing is even set.
Second, given the 270-day rule for completing adjudications, employees
will be forced to comply with short deadlines in responding to summary
judgment motions. The agencies will be able to compile an evidentiary
record against the employee in short period of time that the employee
will not have the time to contradict.
Third, Section 117 (a)(k)(4)(A)(ii)(1)
(Page 29) provides that an employee can request a certification to
federal court within the first 30 days of filing a complaint with the
MSPB (Please read tomorrow’s posting for more explanation of this
section). In practice, as soon as employee requests a certification
for federal court the employer will file a summary judgment motion in
order to try to dismiss the case at the MSPB level. This allows the
agencies to convert the entire MSPB process into a costly and overly
prejudicial summary dismissal action.
The summary judgment provision tilts the procedures radically onto the
side of the agencies, and all but guarantees that cases will be
completed within the 270 day time period necessary to block access to
Americans need to ask the Senate why they inserted such an
anti-whistleblower provision into a law purportedly designed to
“enhance” whistleblower rights. The summary judgment provision must be
removed from the Senate Bill.
VI: WILL ANY FEDERAL EMPLOYEES EVER HAVE THEIR CASE HEARD IN FEDERAL COURT?
The short answer to this question is virtually, none.
When read together, the numerous “poison pill” provisions inserted into
S. 372 all but guarantee that very few, if any, federal employee cases
will ever be removed to district court for a real trial.
As outlined in the blog postings 1, 2, 3, and 5,
between the new limits on the definition of protected disclosure, the
extremely narrow class of cases permitted to be filed in federal court,
the 270 day rule, and the summary judgment rule, it will be virtually
impossible for an employee to successfully meet the criteria
established in the Senate Bill for filing a claim in federal court.
The Senate Bill does contain a provision in which a federal employee
can ask the MSPB to certify their case for a federal court trial before
they undergo the expensive full MSPB proceeding. See Section 117 (a)(k)(4)(A)(ii)(1)
(Page 29). However, this certification provision is a complete
illusion. It requires the MSPB to admit that a case is too complex for
the MSPB to handle. It will be extremely rare for that certification
Additionally, an employee has no practical method to appeal a ruling by
the MSPB denying certification and court access. First, such appeals
cannot be immediately filed. The employee will be forced to spend
money fully litigating their case before the MSPB, and can only appeal
the denial after the employee loses their case.
Second, the standard of review contained in S. 372 is the highest
standard applicable in law. Instead of a de novo review of the law or
facts, the courts are required under the law to defer to the rulings of
the MSPB, and can only reverse such a ruling if the decision is found
to be “arbitrary, capricious or an abuse of discretion.” This standard
is almost impossible to meet. Thus, a ruling by the MSPB denying an
employee the right to file his or her claim in federal court is, for
all practical purposes, unreviewable.
President Obama promised all federal employees full access to federal
court when adjudicating their whistleblower cases. In one such
statement, published on the official Obama transition team web site,
the President-Elect stated:
Often the best source of information about waste, fraud, and
abuse in government is an existing government employee
committed to public integrity and willing to speak out. Such
acts of courage and patriotism, which can sometimes save lives
and often save taxpayer dollars, should be encouraged rather
than stifled. We need to empower federal employees as
watchdogs of wrongdoing and partners in performance. Barack
Obama will strengthen whistleblower laws to protect federal
workers who expose waste, fraud, and abuse of authority in
government. Obama will ensure that federal agencies expedite
the process for reviewing whistleblower claims whistleblowers
have full access to courts and due process.
S. 372, as it is currently reads, does not fulfill that promise. It
creates a false hope, and then cheats federal workers out of the rights
for which they were promised and for which they need.
VII: CAPS ON DAMAGES AND OTHER LITTLE GEMS
In addition to the problems already addressed in earlier postings,
there are some smaller, yet still very important, problems that need to
be addressed before the Senate votes on the final version of S. 372.
Caps: For the first time a Congressional Committee has
recommended that caps be placed on the amount of compensatory damages
in a law designed to protect federal employee whistleblowers. See Section117 (a)(5)(C)(ii)(I) (Page 33).
These caps set a very bad precedent for whistleblower laws. No current federal whistleblower law has a cap on compensatory damages.
the law compensatory damages must be proven – they are not like
punitive damages, which are designed to punish a wrongdoer. Instead,
they are part of the “make whole” remedy, and are designed to
compensate employees for actual and proven losses for emotional
distress, loss of reputation, physical injuries and other demonstrable
non-wage damages often suffered by a whistleblower.
The key to all employment laws is the “make whole” idea that an
employee should not suffer because he or she engaged in protected
activity (i.e. made a disclosure, in the public interest, concerning
waste, fraud or abuse). Compensatory damages are designed to
compensate an employee for actual and demonstrable harms. If an
employee can prove that he or she had more then $300,000.00 in
compensatory damages, the employee should be entitled to obtain all of
the relief he or she needs to be made whole.
The caps contained in S. 372 set a dangerous and bad precedent for all
future whistleblower laws, and need to be removed from the bill before
it is voted on by the Senate.
Burden of Proof: Since the late 1980’s it became
apparent to whistleblower supporters that the standard burden of proof
in civil law cases was difficult for whistleblowers to meet. The
agency which employed the worker controlled access to most of the
personnel information relevant to a case, many witnesses were either
under the control of the agency, or were afraid to testify against
their bosses at trial and the agency controlled the timing of the case
(i.e. the agency could decide it wanted to get rid of the
whistleblower, and then spend a year collecting negative information,
and spring the termination decision on the employee only after it had
carefully concocted a case). Consequently, Congress changed the burden
of proof under all of the modern whistleblower laws. In order to
justify the termination of a whistleblower, the agency would have to
prove, by “clear and convincing evidence” that it would have made the
same employment decision, even if the worker had never blown the
S. 372 takes a major step backward on this issue. The Senate Homeland
Security Committee adopted the recommendation of the White House to
abolish this burden of proof in any case in which an employee somehow
gets into federal court. See Section 117(a)(5)(C)(iii)
(Page 33). In other words, if the employee somehow jumps over each and
every roadblock and files a claim in federal court, the employee will
discover another painful fact: their case is much harder to prove.
The burden on agencies to prove the termination was justified by clear
and convincing evidence has been lifted and replaced with the lower
standard of “preponderance of the evidence.”
Please see Professor Robert G. Vaughn’s testimony in front of the Senate for a more complete explanation of burdens of proof.
Appellate Review: For years, as reflected in numerous
public statements and comments/testimony before the relevant
Committees, both the House and the Senate have recognized that it was a
terrible mistake granting exclusive appellate review to a special
federal court whose jurisdiction is primarily a review of trademark and
copyright infringement cases. This special court, known as the Federal
Circuit, lacked any expertise in employment or labor disputes, and had
no sympathy or understanding of whistleblower law. Both the House and
the Senate Committees reviewed the case precedent rendered by the
Federal Circuit and concluded that granting this court exclusive
jurisdiction over whistleblower claims was disastrous.
Significantly, the Federal Circuit has exclusive control over only
cases filed by federal employees. All other whistleblower laws (and
all other federal employment laws) are heard in normal appeals courts.
The Senate bill properly ends the Federal Circuit’s monopoly over
appellate review. However, the bill contains two provisions that could
undermine this reform. First, the bill permits the Office of Personnel
Management to file appeals of federal whistleblower claims. See Section 108(b).
OPM can file the appeal in the Federal Circuit. Because of this
loophole, employees may find themselves before the notoriously
anti-whistleblower Federal Circuit, even though Congress had intended
to break that Court’s monopoly.
Second, there is a five-year sunset provision. The problems with this sunset provision are explained below.
Sunset: The progressive features in the Senate bill that allow a whistleblower access to federal court (See Section 117(b)(1)) and all circuit review (See Section 108)
have a five-year sunset provision. This means that after five years
the right to go to federal court and have any circuit review the case
automatically disappears. This makes no sense. The record in the
House and Senate Oversight Committees unquestionably supports the need
for these two provisions and they should not be subjected to as sunset
provision after five years. The sunset provisions could result in
federal employees losing these two important procedural right five
years after the bill is passed.
All of these problems must be fixed before the Senate votes on the final legislation.
VIII: WHAT HAPPENS TO NATIONAL SECURITY WHISTLEBLOWERS?
National security whistleblowers are the biggest losers in S. 372.
The Senate Homeland Security approved a bill that, if enacted, would
seriously undercut national security whistleblower rights and set
terrible precedent. It would in practice constitute an
anti-whistleblower law. It would do permanent harm to "the public's
right to know," and ensure that national security whistleblowers did
not "blow the whistle." This is not an exaggeration!
Title II of S. 372
(Page 38) completely ignores the findings of the General Accounting
Office (GAO). The GAO conducted an in-depth review of
employment-protections for employees at the CIA, the NSA and the
Defense Intelligence Agency. These employees were excluded from
protection in the Civil Service Reform Act of 1978. The reason for
this exclusion was the issue of classified information, and whether
permitting these employees access to administrative or judicial
remedies could result in the improper release of classified
information, and thereby harm national security.
The GAO reviewed how these intelligence agencies handle Title VII cases
(i.e. cases filed with the EEOC alleging race, sex and other forms of
discrimination). Under Title VII, these employees are allowed to take
their retaliation cases to a jury trial in federal court.
After a systemic and in-depth review, the GAO concluded that national
security employees could have full civil service protection, and could
have their employment claims adjudicated in federal court, without any threat
to national security. The GAO concluded that there were already in
existence agency-controlled methods to prevent the release of
classified information in employment cases, and that national security
employees could have full civil service protection.
The Senate Committee and the White House acted as if this report never existed.
The NWC provided the GAO report and an explanation of the report to
White House and Senate Committee staff. Not one objection was made by
either the White House or Senate Committee staff to the findings of the
GAO. This was probably due to the fact that the GAO report completely
debunked the argument that national security would be endangered if
national security employees were given meaningful whistleblower
protection. They had no legitimate reason to deny national security
employees the protection they have long deserved.
However, despite the undisputed facts set forth in the GAO report and
President Obama’s campaign promises, the White House introduced a
legislative proposal that ignores the GAO findings and completely guts
all national security whistleblower protections. The Senate approved
the White House proposal.
Tomorrow we will learn why the national security whistleblower section in S. 372, if passed, would constitute one of the most anti-whistleblower laws ever enacted into law by Congress.
IX: DUE PROCESS FOR NATIONAL SECURITY WHISTLEBLOWERS?
The national security whistleblower protection sections of S. 372 are a
bad joke. They completely undermine any semblance of whistleblower
rights, and ensure that no national security worker will ever prevail
in a disputed whistleblower case. The language set forth in Title II of S. 372 is disheartening, and should be struck from the law without delay.
Why is it so bad?
First, there is no court access.
right to federal court in provided in the House version of the bill and
recommended by the GAO does not exist in S. 372. This not only
undercuts essential due process rights, but also creates an atmosphere
where the intelligence agency can retaliate against the whistleblower
knowing that the employee will never be able to have his or her day in
Access to federal court remedies is the single most effective check on
any government agency’s propensity to try to silence a whistleblower.
Instead of providing court access, the Senate bill creates an
Intelligence Community Whistleblower Protection Board that only
purports to be system of review.
The Board is comprised of intelligence agency officials, not
administrative judges, and is not subject to the minimum due process
requirements of the Administrative Procedures Act. The Board does not
have the authority to hold hearings or interview the whistleblower.
However, the Board is given the authority to determine a
whistleblower’s credibility solely on the basis of the recorded created
by the agency that retaliated against the employee.
Second, the Inspectors General are stripped of their responsibility to
investigate or remedy a whistleblower retaliation case. Instead, the
power to investigate whistleblower cases is vested directly with the
agency that retaliated against the whistleblower in the first place.
There is not even a pretext of independence. If you blow the whistle
against the CIA, it is the CIA that will look into your case.
Third, the due process protections afforded whistleblowers under the
current Whistleblower Protection Act do not exist. Under current law,
the Office of Special Counsel investigates whistleblower claims.
Because of abuses within that office, the contents of these
investigations remain protected by the Privacy Act. Only the employee
can consent to the release of the findings. Why? In the past, a
whistleblower would go to the Special Counsel. The Special Counsel
would draft a report critical of the whistleblower. The agency could
and would use the report to discredit the whistleblower and would
effectively end that employees career.
In 1989 that process was reformed. The Special Counsel report could
only be provided to the employee, who would have the ability to keep
the report confidential.
Not so under the new Senate legislation. The agency itself will
conduct the investigation and issue the report. The report is not
confidential, and can be used to justify further retaliation against
Forth, the agency is vested with the power to draw “credibility”
determinations against the whistleblower. Thus, the agency can reach a
finding that the employee is not credible. This finding will not only
be used to defeat the whistleblower case, but will be sent over to the
security clearance office. An employee who is found not “credible”
will very likely lost their security clearance and with that their
reputation and ability to even obtain work in law enforcement or
Fifth, the adverse credibility determination is not subject to any
meaningful appeal. The Board can only reach a ruling on the credibility
of a whistleblower based on the record created by the very agency that
retaliated against the employee! The Board is prohibited from even talking to the whistleblower and reaching its own credibility finding.
For example, if the CIA makes a finding that a whistleblower is not
credible, and the whistleblower files an appeal of that finding, the
Intelligence Community Whistleblower Protection Board is prohibited from taking any testimony from the whistleblower in order to rebut the adverse agency finding.
Sixth, the agencies can introduce secret evidence in a whistleblower
case against the employee, and the employee is prohibited from ever
learning what that evidence is. Thus, an employee can lose his or her
case based on secret evidence that they are never able to rebut.
Seventh, the law creates a short sixty-day statute of limitations for
filing national security whistleblower claims. The current
Whistleblower Protection Act contains no such statute of limitations.
Such a short filing period will result in many cases being dismissed as
untimely filed. Given the other problems with the law, that may end up
being a blessing to most workers, who will not have to incur additional
attorney fees simply to have the agency that fired them write a report
attacking their credibility!
The bottom line is that the provisions set forth in Title II of S. 372 are anti-whistleblower in nature, and represent a serious setback for all national security whistleblowers.
X: IF IN DOUBT – THROW OUT THE CASE!
Buried at the very end of the national security whistleblower section
of S. 372 is a grant of unprecedented power to the directors of the
FBI, CIA, NSA and every other intelligence agency.
These directors are authorized to have any whistleblower case summarily dismissed, with no administrative or judicial review.
right. The Director of the FBI can simply order the dismissal of any
whistleblower case filed by any FBI employee. End of story.
I know this sounds radical, but Section 121(e) (Page 56) grants these powers to the agency directors!
This radical grant of power to the agencies accused of wrongdoing is
one of the most obvious manifestation of the deficiencies in the Senate
bill. The national security whistleblower provisions are not designed
to protect whistleblowers. They are designed to ensure that no
whistleblower case is ever filed, and if it is filed, that the
whistleblower will lose – not just their case, but potentially their
security clearance and their ability to ever work in law enforcement or
other security areas again.
The fact that the directors of each agency covered under the national
security whistleblower provisions are granted this extraordinary power
is simply the last step in a process that undermines whistleblower
It is unacceptable to create a process that grants the agency
embarrassed by the whistleblower’s disclosure the authority to
summarily and without any judicial review throw out a whistleblower’s
XI: IS FILING A NATIONAL SECURITY WHISTLEBLOWER CASE UNDER S. 372 MALPRACTICE PER SE?
In the posts 9 and 10,
we set forth some of the deficiencies in the national security
whistleblower section of S. 372. We explained how it is basically
impossible for a whistleblower to win under the current Senate language.
Simply wasting many years and thousands of dollars in a new bureaucracy
that Franz Kafka would have marveled at is not enough unto itself to
say that filing a claim under the Senate provisions would constitute
legal malpractice. However, Title II of S. 372
is not so benign. It is a retaliators fantasy. It creates a process,
which permits the agency to completely discredit an employee and
destroy their career in law enforcement and intelligence forever.
are extremely serious allegations, but let me explain how it works.
When the employee files a whistleblower claim the agency conducts the
investigation. The agency is empowered by the statute to render a
credibility determination against the whistleblower. The agency can
make a finding that the employee is not trustworthy. Such a finding in
law enforcement or intelligence will mark the end of that employee’s
First, under the Supreme Court cases of Brady v. Maryland, 373 U. S. 83 (1963) and Giglio v. United States,
405 U. S. 150 (1972) if a law enforcement officer has issues related to
truthfulness in testimony the prosecution in any criminal case is
required to provide this information to the defense. Therefore, these
agency findings will be required, under constitutional law, to be
submitted to the defense in any case where the employee may testify.
These types of findings on credibility will mark the end of an
employee’s career as they will no longer be able to work on any cases
that may require in-court testimony.
Second, a finding by an agency that an employee was not truthful or
reliable will be forwarded to the security clearance office. They
security clearance will likely be reviewed and denied. If an
employee’s security clearance is revoked they will be removed from
Third, a whistleblower who suffers a Giglio smear or has
their security clearance revoked will face long-term consequences,
including the inability to work in the private sector. Essentially the
ability to get another job in the intelligence or law enforcement area
Finally, the Title II has a masterful stroke if the employee appeals
their adverse credibility determination to the newly created
Intelligence Community Review Board. The Board is statutorily given
the ability to issue a final decision on the credibility and
truthfulness of the whistleblower. Under the statue, this finding must
be made public and published to Congress. The finding that will
destroy a whistleblowers career is plastered in the public domain for
anyone to see.
You may be asking yourself, isn’t the right to an appeal something good?
Under normal circumstances, yes, but not when Franz Kafka writes the
law. The appeals provision is as follows. The whistleblower is not
given the right to appeal before a court, they must appear before the
Intelligence Community Whistleblower Board. The Board is comprised of
executives in the intelligence community and is prohibited from hearing
testimony or admitting evidence. Thus, when an agency discredits a
whistleblower, they cannot present any new evidence to defend
themselves. The Board will render a final decision on credibility,
which will be based solely on an agency created record. They are
prohibited under the statute from simply calling the whistleblower in
and rendering their own decision on credibility.
So, is taking a whistleblower to this Board legal malpractice? Yes.
The risk that any employee faces in appearing before the Board is
just too great. The employee should avoid these procedures at all
costs. Given the track record of the FBI and other agencies in
handling whistleblower complaints, to place a client’s hands in this
process would be tantamount to professional suicide. There is nothing
good in Title II as it is currently drafted. It will be a sad day for
the public’s right to know, oversight and accountability, and basic
fair play for the Senate to ever approve such a bill.
XII: WHAT HAPPENED TO THE WHITE HOUSE?
I had the “honor” of being involved in the initial discussion process
with the White House and reviewing the proposals circulated by the
White House. I could spend the rest of this blog venting my
frustration over what did and did not happen as a result of that
process, but I won’t.
The bottom line is that President Obama did promise,
on numerous occasions, to support whistleblowers. He did specifically
endorse the framework for protection set forth in the House bill.
promises are easy to fulfill. S. 372 can be amended on the Senate to
make the law consistent with President Obama’s campaign promises – and
consistent with the goal of providing real protection to federal
It is time for the White House to stop listening to those who benefit
from whistleblowers being silenced. President Obama must demand that
his staff fully and immediately implement the promises he made to every
American whistleblower during his campaign.
It is a promise that he must keep.
President Obama stated
that whistleblowers are the “watchdogs of wrongdoing” and should have
“full access to courts and due process.” The President must take a
leadership role and ensure that the whistleblower bill that passes in
the Senate is consistent with his campaign promises.
When the next disaster hits – and it turns out there was a
whistleblower trying to warn the public before people were hurt – will
President Obama be able to stand before the voters and say that he did
his best, that he fulfilled his promise? Or will he be accused of
abandoning the courageous employees who tried to “do the right thing?”