The Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(8)-(9), Pub.L. 101-12 as amended, is a United States federal law that protects federal

whistleblowers Whistleblowing (also whistle-blowing or whistle blowing) is the activity of a person, often an employee, revealing information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe, unethical or ...

who work for the government and report the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant.

Authorized federal agencies

* The Office of Special Counsel investigates federal whistleblower complaints. In October 2008, then-special counsel Scott Bloch resigned amid an

FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and Federal law enforcement in the United States, its principal federal law enforcement ag ...

investigation into whether he obstructed justice by illegally deleting computer files following complaints that he had retaliated against employees who disagreed with his policies. Then-Senator

Barack Obama Barack Hussein Obama II (born August 4, 1961) is an American politician who was the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, he was the first African American president in American history. O ...

made a campaign vow to appoint a special counsel committed to whistleblower rights. It was not until April 2011 that President Obama's appointee Carolyn Lerner was confirmed by the Senate. Today, the primary mission of OSC is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. * The

Merit Systems Protection Board The Merit Systems Protection Board (MSPB) is an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for fed ...

, a quasi-judicial agency that adjudicates whistleblower complaints, uses appointed administrative law judges who often back the government. Since 2000, the board has ruled for whistleblowers just three times in 56 cases decided on their merits, according to a

Government Accountability Project The Government Accountability Project (GAP) is a nonprofit whistleblower Whistleblowing (also whistle-blowing or whistle blowing) is the activity of a person, often an employee, revealing information about activity within a private or publi ...

(GAP) analysis. Obama appointed a new chairperson and vice chairperson with backgrounds as federal worker advocates, but

Tom Devine Sir Thomas Martin Devine (born 30 July 1945), usually known as Sir Tom Devine, is a Scottish academic and author who specializes in the history of Scotland. He was knighted and made an Officer of the Order of the British Empire for his contr ...

of the GAP argued that it would be "likely to take years for them to turn things around." Currently, this office works to protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices. * The

Court of Appeals for the Federal Circuit The United States Court of Appeals for the Federal Circuit (in case citations, Fed. Cir. or C.A.F.C.) is one of the 13 United States courts of appeals. It has special appellate jurisdiction over certain categories of cases in the U.S. federal ...

was established under Article III of the Constitution on October 1, 1982. It is the only court empowered to hear appeals of whistleblower cases decided by the merit board. The Federal Circuit has been criticized by Senator Grassley (R-Iowa) and others in Congress for misinterpreting whistleblower laws and setting a precedent that is hostile to claimants. Between 1994 and 2010, the court had ruled for whistleblowers in only three of 203 cases decided on their merits, GAP's analysis found.

Legal cases

The

US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...

, in the 2006 case of '' Garcetti v. Ceballos'', ruled that government employees do not have protection from retaliation by their employers under the

First Amendment First most commonly refers to: * First, the ordinal form of the number 1 First or 1st may also refer to: Acronyms * Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array * Far Infrared a ...

of the Constitution when they speak pursuant to their official job duties. The U.S. Merit Systems Protection Board (MSPB) uses agency lawyers in the place of

administrative law judges An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law, thus involving administrative units of the executive branch of go ...

to decide federal employees' whistleblower appeals. These lawyers, dubbed "attorney examiners," deny 98% of whistleblower appeals; the Board and the Federal Circuit Court of Appeals give great deference to their initial decisions, resulting in affirmance rates of 97% and 98%, respectively. The most common characteristics for a court claim that are encompassed within the protection of the Act include: that the plaintiff is an employee or person covered under the specific statutory or common law relied upon for action, that the defendant is an employer or person covered under the specific statutory or common law relied upon for the action, that the plaintiff engaged in protected whistleblower activity, that the defendant knew or had knowledge that the plaintiff engaged in such activity, that there was retaliatory action taken against the one doing the whistleblowing and that the unfair treatment would not have occurred if the plaintiff had not brought to attention the activities. Robert MacLean of the

Federal Air Marshal Service The Federal Air Marshal Service (FAMS) is a United States federal law enforcement agency under the supervision of the Transportation Security Administration (TSA) of the United States Department of Homeland Security (DHS). Because of the natur ...

blew the whistle on the fact that the TSA had cut its funding for hiring additional air marshals. In 2009, the

challenged MacLean's dismissal to the Merit Systems Protection Board on the grounds that "his disclosure of the text message was protected under the Whistleblower Protection Act of 1989, because he 'reasonably believe that the leaked information disclosed 'a substantial and specific danger to public health or safety'." In '' Department of Homeland Security v. MacLean'' (2015), the Supreme Court ruled in his favor.

Related legislation

President

issued Presidential Policy Directive 19 (PPD-19), entitled "Protecting Whistleblowers with Access to Classified Information". According to the directive signed by Obama on October 10, 2012, it is written that "this Presidential Policy Directive ensures that employees serving in the Intelligence Community or who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse. However, according to a report that the Committee on Homeland Security and Governmental Affairs submitted to accompany S. 743, "the federal whistleblowers have seen their protections diminish in recent years, largely as a result of a series of decisions by the United States Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over many cases brought under the Whistleblower Protection Act (WPA). Specifically, the Federal Circuit has accorded a narrow definition to the type of disclosure that qualifies for whistleblower protection. Additionally, the lack of remedies under current law for most whistleblowers in the intelligence community and for whistleblowers who face retaliation in the form of withdrawal of the employee's security clearance leaves unprotected those who are in a position to disclose wrongdoing that directly affects our national security." S. 743 would address these problems by restoring the original congressional intent of the WPA to adequately protect whistleblowers, by strengthening the WPA, and by creating new whistleblower protections for intelligence employees and new protections for employees whose security clearance is withdrawn in retaliation for having made legitimate whistleblower disclosures. Passed in September 2014, the All Circuit Review Extension Act authorized federal employees to appeal their judgements from the

and

Office of Personnel Management The United States Office of Personnel Management (OPM) is an independent agency of the United States government that manages the United States federal civil service. The agency provides federal human resources policy, oversight, and support, a ...

to whichever

Court of Appeals An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to hear a case upon appeal from a trial court or other lower tribunal. Appellat ...

has jurisdiction.

References

{{reflist

External links

"Whistleblower Protection Act Information."
''U.S. Securities and Exchange Commission''. January 30, 2004. Retrieved May 3, 2007
"File a Complaint (OSC.Gov)."
''U.S. Office of Special Counsel''. Retrieved January 13, 2020 1989 in American law 101st United States Congress United States federal criminal legislation Whistleblower protection legislation Whistleblowing in the United States United States federal labor legislation

Authorized federal agencies

Legal cases

Related legislation

See also

References

External links