Federal Employee Whistleblowers Should Have Access to Federal Court Access
Take action now, and demand that Congress grant federal employee whistleblowers the right to have their cases heard in court. Federal employees should have the same whistleblower and anti-retaliation protections as other whistleblowers, as Congress intended.
The Limits of Current Federal Employee Whistleblower Protections
Most federal employees who are retaliated against for speaking up and blowing the whistle have just a single avenue to find justice: the Merit Systems Protection Board (MSPB). The MSPB, whose three Board members are appointed by the President and confirmed by the Senate, reviews the whistleblower cases of federal employees, and makes the final determination.
As a result, most federal employees do not have the avenue for redress that some other federal employees, and all private sector workers, have. Federal employees cannot currently have their whistleblower cases heard in federal district court. That means that these employees cannot appeal to a court for justice. Only a single administrative law judge, or at most the three-person panel of the MSPB, can make a decision on their case.
There is no justification for continuing with this inadequate system. Legislative history strongly suggests that while Congress intended a unique avenue for federal employees, it certainly did not intend for federal employees to be left stranded without adequate whistleblower protection. In fact, legislative history as well as Congressional intent since the Founding Fathers instead demonstrates that Congress has always wanted to have special additional protections for federal employees, who are likely to blow the whistle on significant fraud and misconduct at the very heart of the federal government.
Further complicating the issue, the MSPB’s political nature is a drawback for whistleblowers. While the structure of the MSPB may be appropriate for handling the majority of its cases, which are simple civil service appeals that don’t raise political issues, it is not well equipped to handle whistleblower cases that can easily become politicized.
Two of the three Board members must be of the President’s own political party, and one of the three Board members must be of the opposing political party. With only three members in total, this is particularly fraught. Additionally, because the Board members are political appointees, there is a constant risk of a lack of any or sufficient appointees, in a particularly politically-polarized environment.
This is even more problematic when considering that the MSPB cannot make any decisions on cases without a quorum. Whistleblower cases can, and have, sat for years without any resolution; in the meantime, supervisors feel empowered to retaliate against whistleblowers knowing that they will have no substantive redress.
Currently, the MSPB has not had a quorum in three years and has not had a single sitting member since May 2019. This has led to a backlog of over 2,500 cases.
Finally, while the Office of Special Counsel (“OSC”) does have the ability to intervene on some cases, and give immediate if temporary relief, it only has the capacity to do so for an estimated 10% of pleas it receives, and is not structured to be a substantial alternative to the MSPB.
One Whistleblower You Should Know: Dr. Toni Savage
One of the cases affected by MSPB backlogs is that of Army Corp of Engineers whistleblower, Dr. Toni Savage. Dr. Savage was stuck in a legal limbo for over five years. As reported by the Whistleblower Protection Blog,
Savage joined the Corps fresh out of high school and through her career she progressed onto leadership positions, achieving a flawless performance record, countless awards and recognitions, and working with the highest-ranking officials on multiple programs….
All of that changed when Savage discovered rampant fraud involving millions of taxpayer dollars while working on a program to design ranges for soldier training. In 2007 she reported the fraud, never expecting the backlash she would face from her supervisors and even co-workers.
She was removed from her position, issued downgraded performance reviews for the first time in her 20-year career, denied performance awards, subjected to racial slurs, malicious gossip, and was forced to work in an incredibly hostile environment.
Dr. Toni Savage is not alone. Many whistleblowers now sit in limbo as they wait, because the system is not set up to help them. The laws passed by Congress, such as the Whistleblower Protection Enhancement Act, were intended to ensure that whistleblowers have access to the justice they deserve. Instead, because federal employee whistleblowers who are not represented by a union may only utilize the MSPB process and lack federal court access for redress, whistleblowers are inadequately protected.
Federal Employee Whistleblowers Should Have Access to Federal Court Review
A grassroots campaign to demand that Congress pass legislation to permit federal employee whistleblowers to file their cases in federal district court was launched by the National Whistleblower Center. This push has gained widespread support by a broad coalition of whistleblower advocates and policy makers who understand the need for real reform on this particular issue.
NWC issued an Action Alert asking supporters to demand that their representatives in Congress work to ensure these equal rights and protections for federal employees. It is a basic denial of due rights to do anything otherwise.
As noted by NWC Board Chairman and whistleblower law expert Stephen M. Kohn,
“Without court access, federal employee whistleblower rights are non-existent. The MSPB administrative process, even before the current crisis brought on by the lack of quorum, was criticized by every major whistleblower advocacy group in the nation. Now with the lack of quorum and year-long backlog, the broken system is simply not fixable. Federal employee whistleblowers need what other whistleblower laws provide, access to federal court and independent judges.”
Even once the quorum on the MSPB is restored, through the nomination of new Board members and their approval by the Senate, the problem will not be solved. MSPB terms are only seven years, raising the specter of a repeat of the 2017 to 2020 problem for years to come. Additionally, the built-in inefficiencies and problems of the MSPB will continue to fester. And finally, the backlog of over 2,500 cases will take the Board years to work through if they give each case due process under law, even as more cases continue to come in.
Take action now, and demand that Congress grant federal employee whistleblowers the right to have their cases heard in court.
There Already Exists Significant Support for This Reform
The campaign to allow federal employee whistleblowers access to federal court and jury trials has long seen widespread, bipartisan support.
In 2008, the House of Representatives overwhelmingly endorsed H.R. 985, an amendment for federal court access for all federal employees. The bill had the support of a majority of all Democrats and a majority of all Republicans.
Then, on May 14, 2009, a total of 292 public interest organizations and corporations published an open letter to then-President Obama and Members of Congress in support of what the group termed “swift action to restore strong, comprehensive whistleblower rights.” The very first item on the list was to “[g]rant employees the right to jury trial in federal court.” The letter noted,
Whistleblower protection is a foundation for any change in which the public can believe. It does not matter whether the issue is economic recovery, prescription drug safety, environmental protection, infrastructure spending, national health insurance, or foreign policy. We need conscientious public servants willing and able to call attention to waste, fraud and abuse on behalf of taxpayers.
The letter also noted the systemic problems of the MSPB.
Specific testimony supporting federal court access by leading academic Robert Vaughn and groups involved with advocating for whistleblowers included Government Accountability Project, Public Citizen, and the National Whistleblower Center can be found here and here.
The National Whistleblower Center testimony noted that, “Full court access, including the right to a trial by jury, is the cornerstone of the… reforms.”
The reforms included two separate, important provisions related to federal court access to federal employees. As noted by the Government Accountability Project in its testimony, the law would both,
“Provide whistleblowers with access to district court for de novo jury trials if the Merit Systems Protection Board fails to issue a ruling within 180 days, providing whistleblowers with the same court access as with EEO anti-discrimination law.”
“End the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act through restoring ‘all circuits’ review, as in the original Civil Service Reform Act of 1978.”
As noted by Public Citizen,
“Perhaps the most important improvement to the law is the addition of access to jury trials and more judicial review, granting the same safety net for federal workers that Congress has already granted to millions of private-sector employees.”
Another Whistleblower You Should Know: Bunnatine “Bunny” Greenhouse
The written testimony of Public Citizen to the hearing on the bill in the House of Representatives also included an important note on Bunnatine “Bunny” Greenhouse, a whistleblower who has worked extensively with the National Whistleblower Center.
“Bunnatine H. Greenhouse, the former procurement executive in the Army Corps of Engineers who blew the whistle on improper no-bid contracting with Halliburton for reconstruction in Iraq, poignantly said, “The bottom line is that without access to independent courts, real judges and juries, whistleblowers don’t stand a chance, and fairness and transparency will not see the light day.”
Read more about Ms. Greenhouse’s story here. Her entire story, published after the National Whistleblower Center announced the settlement – and victory for Ms. Greenhouse – after a six-year legal battle, can be read here.
Bunny Greenhouse risked her job and career when she objected to the gross waste of federal taxpayer dollars and illegal contracting practices at the Army Corps of Engineers. She had the courage to stand-alone and challenge powerful special interests. She exposed a corrupt contracting environment where casual and clubby contracting practices were the norm. Her courage led to sweeping legal reforms that will forever halt the gross abuse she had the courage to expose. Bunny Greenhouse epitomizes what government service is all about. Bunny Greenhouse is an American hero. This is a victory for every federal worker. We hope that it marks a turning point in Administration policy. Whistleblowers serve the public interest, save the taxpayers hundreds of billions of dollars and are on the front line fighting fraud and corruption. They need to be rewarded and supported. Ms. Greenhouse was forced to fight for over six years, enduring continued discrimination and retaliation. Under the settlement Ms. Greenhouse will receive the full salary that she was illegally denied by the Army Corps of Engineers and maximum amount of compensatory damages permitted under law. Ms. Greenhouse will now be able to retire from public service vindicated and with her full pension benefits.
Ms. Greenhouse’s story was featured by CBS News. The video can be viewed here.
Additional Reforms for the MSPB and Federal Employee Whistleblowers
The problems of the MSPB have demonstrated that it is ripe for several specific and technical reforms which will best protect whistleblowers and implement the original and longstanding intent of Congress. Below are additional reforms that the National Whistleblower Center, in collaboration with other whistleblower advocacy groups such as the Government Accountability Project and the Project on Government Oversight, support. This includes not only access to jury trials, but also:
- Closing the loophole of retaliatory investigations;
- Providing temporary relief to whistleblowers facing reprisal;
- Covering non-career executive service federal employees;
- Prohibition on attorney fee waivers as a condition for settlement awards;
- Attorney fees for judicial review; and
- Making whistleblowers genuinely whole at the resolution of their case.
Take action now, and demand that Congress grant federal employee whistleblowers the right to have their cases heard in court – access to justice should not longer be denied to federal employee whistleblowers!