Congress stated that the amendments to the WPA would strengthen the rights of and protections for federal whistleblowers in part by overturning narrow interpretations of the protections afforded in the Act. Image: Margoe Edwards/Shutterstock.com
By: FEDweek StaffFollowing are key sections from a Congressional Research Service report providing an overview of Whistleblower Protection Act protections for federal employees and potential changes in the law.
The Whistleblower Protection Act of 1989 (WPA or the Act) protects most federal civil service employees who disclose government illegality, waste, and corruption from adverse personnel actions. The WPA, which amended the Civil Service Reform Act of 1978, prohibits retaliation against federal employees who act as whistleblowers. The WPA was amended by the Whistleblower Protection Enhancement Act in 2012.
The employment retaliation protections of the WPA are available only when certain elements are satisfied. To trigger the application of the protections, an individual must be a covered employee under the Act, the covered employee must make a protected disclosure, and a personnel action must have been taken because of that protected disclosure.
In general, the WPA covers current employees, former employees, and applicants for employment to positions in the executive branch of the government. The WPA protects a disclosure of information that a covered employee reasonably believes evidences behavior of “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.” The WPA prohibits employees with authority over government personnel from retaliating against a whistleblower by taking, failing to take, or threatening to take a personnel action, including a decision regarding a promotion, pay or benefits, removal, suspension, or any other significant change in duties, responsibilities, or working conditions, among other actions.
Whistleblower retaliation is a prohibited personnel practice that is investigated by the U.S. Office of Special Counsel (OSC or Special Counsel). Individuals may bring an allegation that a personnel action has been taken in retaliation for whistleblowing to OSC for investigation. If the Special Counsel finds evidence of whistleblower retaliation prohibited by the WPA, the findings of the investigation and recommendations are reported to the Merit Systems Protection Board (MSPB or the Board) and to the agency that engaged in the prohibited personnel practice. OSC may further petition the MSPB for corrective action if the agency fails to correct it on its own. A covered employee has the right to file an appeal with the MSPB if OSC terminates the investigation or fails to respond to the complaint (“individual right of action”) or as an affirmative defense to certain personnel actions, such as termination, which are appealable to the MSPB (“otherwise appealable actions”). If the covered employee or OSC proves to the Board that a protected disclosure was a contributing factor in the personnel action, the Board has the authority to order corrective action for the whistleblower and to discipline retaliating personnel. Appeals of final decisions or orders by the MSPB regarding claims under the WPA can be brought in federal court.
Considerations for Congress
In passing the WPEA in 2012, Congress stated that the amendments to the WPA would strengthen the rights of and protections for federal whistleblowers in part by overturning narrow interpretations of the protections afforded in the Act. However, not all personnel actions—even if they are taken in response to whistleblowing activity—are covered by the Act. For example, a revocation of a security clearance is not a personnel action within the jurisdiction of the MSPB. Additionally, while an employee may recover “fees, costs, or damages reasonably incurred due to an agency investigation of the employee,” a retaliatory internal investigation into an employee’s conduct is not itself a personnel action prohibited by the Act. If Congress wishes to provide additional protections for federal whistleblowers, Congress may add to the list of personnel actions prohibited in retaliation against employees. Congress may also extend the protections of the WPA to executive branch employees not covered by the WPA, or to employees outside of the executive branch. Alternatively, Congress may narrow the investigatory or enforcement jurisdiction over personnel actions or employees by OSC or the MSPB.
Congress may also consider alternative remedies under the Act. For example, prior to the enactment of the WPEA, the Board was not authorized to award compensatory damages for violations. In other whistleblower statutes, Congress has enacted reward or “bounty” provisions to encourage whistleblowers to come forward. Congress may also consider punitive, or exemplary, damages, to further punish whistleblower retaliation and deter such conduct.
The protections of the WPA are primarily enforced by the MSPB. Typically, the MSPB consists of three Board members, each appointed by the President with the advice and consent of the Senate. Between January 7, 2017, and March 3, 2022, the Board did not have a quorum of two members. Due to the lack of a quorum, the Board was unable to perform its review functions, including issuing final decisions in cases when an initial decision issued by an administrative judge has been appealed to the full Board. In addition to the thousands of pending appeals, the Board was unable to promulgate new regulations in response to any legislative changes involving the MSPB.
In September, the MSPB issued an interim final rule updating its adjudicatory and operational regulations, including modifying the authority of a lone Board member to take certain actions, when the Board is unable to act, and additional responsibilities for administrative judges. To address a potential lack of quorum in the future, Congress could choose to reform the MSPB in various ways, such as by codifying the reforms in the Board’s interim final rule, increasing the number of appointees to the Board, or lengthening appointments.
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