Following are key sections of the House Oversight and Reform Committee report on a bill that the panel recently passed on a voice vote, typically a signal of a vote soon on the bill in the full House.
H.R. 2988 would establish several new protections for whistleblowers. Section 2(a) would prohibit investigations or referrals to inspectors general in retaliation against protected whistleblower activity. This change fills a critical hole created by a 2020 Federal Circuit Court decision that held that current whistleblower laws only prohibit a retaliatory investigation if the investigation ultimately resulted in a ‘‘significant change’’ in the employee’s working conditions.
Section 2(c) would prohibit federal employees from publicly disclosing the identity of an employee because of that employee’s whistleblowing activity. Public disclosure of a whistleblower’s identity can lead to threats against a whistleblower’s career, well-being, and even life. Attempts to out whistleblowers also deter other potential whistleblowers from coming forward.
Section 2(d) would amend the Lloyd–La Follette Act, 5 U.S.C. § 7211, to make clear that no officer or employee of the federal government—including the president or vice president—may interfere with or retaliate against a federal employee for sharing information with Congress. This subsection also clarifies that federal officers and employees have the right to petition Congress, provide information to Congress, and respond to congressional requests for information.
The new protections in this bill will help prevent the retaliation some whistleblowers have historically faced, such as retaliation for cooperating with congressional requests for documents and testimony.
In another example, Transportation Security Administration officials moved employees to new duty stations because the employees alerted Congress about their concerns with security at the airports where they worked. These supervisors used involuntary reassignments as a reprisal tactic to punish these whistleblowers, forcing them to move their families hundreds of miles away.13
Section 3(d) would expand existing whistleblower protections. It would strengthen whistleblower protections to cover disclosures to an employee’s supervisor or others in an employee’s supervisory chain of command, closing a loophole in current law. One recent example of this ‘‘chain-of-command’’ retaliation was when a White House supervisor moved files beyond the reach of an employee who reported concerns to her supervisor, and to the Committee, about White House security clearance practices in 2019.
Section 3(f) of H.R. 2988 would extend existing whistleblower protections to noncareer Senior Executive Service employees, Public Health Service officers or applicants, and the Commissioned Officer Corps of NOAA. On January 25, 2021, Rep. Eddie Bernice Johnson, Chairwoman of the House Committee on Science, Space, and Technology, wrote a letter to Chairwoman Maloney emphasizing the importance of extending these protections to the NOAA Corps to ensure that they have the same protections as other NOAA employees.
H.R. 2988 includes several procedural improvements to ensure that whistleblowers have rights to effective process and equitable relief. Section 3(a) would enable the Office of Special Counsel to refer disclosures of alleged misconduct by an officer or employee of an Office of Inspector General (OIG) to the Integrity Committee of the Council of the Inspectors General on Integrity and Efficiency. This change would allow for a more efficient process to ensure allegations involving OIGs are promptly investigated by the Integrity Committee, the body that Congress has tasked with investigating this kind of misconduct.
Section 3(c) would require timely consideration and appeals of employees’ requests for stays of personnel actions and would establish a more permissive legal standard for such requests. It also would expand employees’ rights to challenge executive branch nondisclosure agreements that limit the employees’ ability to share information with Congress, report violations of law to an inspector general, or engage in any other protected whistleblowing activity.
This subsection would empower an employee to file an action directly with the appropriate United States district court if the Merit Systems Protection Board (MSPB) fails to issue a final order or decision within 180 days (or 240 days for complex cases) of receiving the employee’s request for corrective action. MSPB lacked a quorum between January 2017 and March 2022. Vacancies at MSPB resulted in a historic backlog of more than 770 whistleblower cases. This provision, which is retroactive for a period of five years, would provide a new avenue for relief for employees whose claims have been stymied by MSPB’s lack of a quorum. This subsection would also require that the case in district court be tried before a jury upon request by either party. Access to jury trials has been a longtime priority of whistleblower advocates. In 2012, then-Ranking Member Elijah Cummings said on passage of the Whistleblower Protection Enhancement Act:
I know this bill represents a compromise based on the political realities of today. But the fight is not over. I will continue to fight for the protections that are not in this bill and hope that my colleagues on both sides of the aisle will join me in that fight. . . . [W]e need to amend the law to allow whistleblowers the ability to go to court and have their case heard by a jury.
Section 3(e) would make clear that an employee would also be entitled to recover attorney fees if the employee prevails in judicial review of a decision by MSPB, bringing the remedy for this procedural right in line with other protections of employee rights. Section 3(g) would also make clear that an employee who prevails in an appeal to MSPB is entitled to the relief necessary to make the employee whole, including training, seniority, and promotions consistent with the employee’s record.
New Cases Part 2: MSPB Issues Another Precedential Whistleblower Decision
New Cases Part 3: MSPB Sides with VA Whistleblower