Sunday Reading: The Whistleblower Protection Act
This overview of the Whistleblower Protection Act (WPA) was sent as part of National Whistleblower Center’s (NWC) Sunday Reading series that aims to educate supporters about specific whistleblower legislative or policy initiatives. For more information like this, please join our mailing list.
Every day, thousands of federal employees staffed in various government agencies work on matters affecting virtually every facet of American life — whether it is approving new drugs, enforcing environmental laws, or administering federal benefit programs. Due to the often highly politicized nature of this work and the pervasive influence of special interests, these employees frequently uncover misconduct within their agencies, and unfortunately, they run the risk of facing retaliation for reporting it.
The Whistleblower Protection Act, originally enacted in 1978, is the primary law protecting federal employee whistleblowers and was intended to make it easier and safer for whistleblowers to disclose what they reasonably believe to be a violation of “any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302. Moreover, the WPA protects federal employees who report misconduct from various forms of retaliation, or adverse “personnel actions,” including those relating to appointments, promotions, performance evaluations, payments and benefits, or any other significant change in duties or working conditions.
How It Works
Unlike private sector whistleblowers, federal employees cannot have their claims tried before a jury in federal district court. Instead, the WPA requires these claims to be adjudicated by a quasi-judicial administrative agency, the Merit Systems Protection Board (MSPB). Under this system, federal employees alleging retaliation typically must first file a complaint with the Office of Special Counsel (OSC), which conducts an independent investigation to determine whether the agency committed a prohibited personnel practice against the whistleblower. If the OSC finds that a prohibited personnel practice occurred, it can file an administrative complaint with the MSPB on the whistleblower’s behalf.
Conversely, if the OSC decides to take no action on behalf of the employee, the whistleblower can request a hearing before an administrative judge appointed by the MSPB. Once a case is filed with an administrative judge, the parties can then conduct discovery, including questioning witnesses at depositions, subpoenaing records, submitting document requests, and compelling responses to written interrogatory questions. The administrative judge will then issue a final written decision, which either party can appeal to the three-member MSPB. The MSPB issues the final agency decision which can only be appealed to the U.S. Court of Appeals for the Federal Circuit.
How Whistleblowers Win Their Cases
With respect to what the whistleblower must prove in order to prevail, the burden of proof under the WPA is more advantageous to whistleblowers compared to prior statutes. Under the previous Civil Service Reform Act, which was amended by the WPA, employees had to show that their whistleblowing was a significant factor in the agency’s action. However, the WPA lowered this burden by requiring employees to show only that the whistleblowing was a contributing factor in the agency’s decision. If this standard is met, the burden shifts to the agency which then must demonstrate, by “clear and convincing evidence,” that it would have taken the same action regardless of the whistleblowing. By lowering the evidentiary burden, Congress intended to make it easier for whistleblowers to win their cases. If the employee prevails, the MSPB must then order corrective action which can include reinstatement, backpay, and attorney fees.
Whistleblower Reforms are Needed
Unfortunately, this complex process has significant flaws that can work to the disadvantage of federal employee whistleblowers. This is primarily because the system lacks the safeguards of traditional judicial review in federal district courts — safeguards meant to ensure adequate due process and the impartiality of the judges. For instance, the three members of the MSPB are appointed by the President, and, by law, two of the three members must be from the President’s political party. Political influence in the MSPB can make it hostile to whistleblower claims, which by nature can be highly politicized. Finally, the MSPB has lacked a quorum since 2017 resulting in an unprecedented backlog of more than 3,000 cases.
Lastly the OSC, which is tasked with protecting federal employees, has insufficient resources to adequately represent all whistleblowers. As a result, the OSC often does not rule in the employee’s favor or even conduct a thorough investigation.
NWC has launched several grassroots campaigns intended to strengthen protections for federal employee whistleblowers — including allowing federal whistleblowers to have their cases heard in district courts and creating better incentives for whistleblowers to come forward. There is broad bipartisan support for these reforms. An effective civil service depends on rooting out misconduct in all forms. Whistleblowers are critical to this effort, and NWC is committed to ensuring that they are able to report wrongdoing safely and efficiently.
