Whistleblower laws protect individuals who report wrongful conduct from retaliation by the wrongdoer, often an employer. Other blog articles cover whistleblower laws in general, including The False Claims Act, the predecessor of whistleblower provisions. This article focuses on protections afforded to federal government employees by The Whistleblower Protection Act of 1989, its predecessor, The Civil Service Reform Act of 1978, and laws that enhance these protections.
Whistleblower Protection Act and Additional Legislation Strengthening Whistleblower Protections for Federal Employees
The Whistleblower Protection Act of 1989 (WPA) (Pub. L. 101-12 as amended) is a United States federal law enacted to protect certain federal government employees who report agency misconduct amounting to illegality, waste, and corruption. The WPA expands existing whistleblower protections in the Civil Service Reform Act of 1978 (CSRA) (Pub. L. No. 95-454, 92 Stat. 1111.)
In recent years, a main area of concern has been the protection of employees working for intelligence agencies, who – in the name of national security – have not received due whistleblower protections. The Whistleblower Protection Enhancement Act of 2012 (“WPEA”) (Pub. L. 112-199) was enacted to enhance protections to these employees by revising some provisions of the WPA, strengthening the Office of Special Counsel (OSC), and closing some of the loopholes created by the courts. In addition, Presidential Policy Directive 19 was issued in October 2012 to provide additional whistleblower protections for intelligence agency employees, although it affords limited protections to government contractors.
Prohibited Personnel Practices (PPP)
Under the WPA, an employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority – take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of disclosure by that employee or applicant of specified wrongful activity by the agency. The laws define the wrongful activity and provide lists of prohibited personnel actions (e.g., disciplinary action) and illegal reasons (e.g., retaliation for whistleblowing) for such actions that qualify as prohibited personnel practices.
A whistleblower must have a “reasonable belief” that what he or she disclosed was a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or pose a substantial and specific danger to public health or safety. As discussed ahead, redress for retaliation against a covered employee for reporting activity the employee reasonably believed was wrongful may be available even if no wrongful activity is found.
A federal employee may report wrongful activity to a supervisor, the agency’s Inspector General, or the Office of Special Counsel (OSC). Reporting the wrongdoing to a supervisor during the normal course of duties, or to the Inspector General of the agency where the wrongdoing took place is possible, but it may not guarantee confidentiality or any action to redress the wrongful activities reported. There are various advantages in reporting directly to the OSC.
The OSC is an independent federal agency that evaluates, investigates, and prosecutes whistleblower complaints brought by federal government employees. A whistleblower can file a disclosure via the phone, a form provided online, via fax, or via mail. All disclosures to OSC are confidential. Once OSC evaluates the disclosure, it can take action, including ordering the agency to investigate and report on the complaint. It can also report on any feedback received from the agency and the whistleblower to the President, Congress, and Comptroller General, or explain to the whistleblower why it has decided not to take action on the complaint. Even under this last circumstance, the OSC must advise the whistleblower of any other avenues for disclosure. Most importantly, even if OSC finds no fraud, waste, or abuse, a whistleblower may still pursue a complaint if there is retaliation against him or her for reporting.
Who Can File a Complaint?
The following agencies and individuals (even if they are federal agencies or employees) may NOT file a whistleblower complaint with OSC and will need to seek recourse through other means, unless otherwise specified:
- Private sector employer
- Federal contractor (even if federally funded)
- State or local government employer (even if federally funded)
- Legislative or judicial branch of federal government
- Any branch of the (uniformed) military
- Commissioned Corps of National Oceanic and Atmospheric Administration
- Commissioned Corps of the Public Health Service
- Non-appropriated fund entity
- National Guard
- Veterans Canteen Service
- Postal Regulatory Commission
- Government Accountability Office
- Certain intelligence agencies: Central Intelligence Agency, Defense Intelligence Agency, National Geospatial-Intelligence Agency, National Security Agency, Office of the Director of National Intelligence, National Reconnaissance Office
- Federal Bureau of Investigation
- United States Postal Service, except cases of nepotism (“Section (b)(7)”) or arbitrary and capricious withholding under the Freedom of Information Act (FOIA)
- Government corporations, except cases of retaliation (“Section (b)(8)” or “Section (b)(9)”)
- Federal Aviation Administration, except cases of retaliation (“Section (b)(8)” or “Section (b)(9)”)
- Transportation Security Administration, except cases of discrimination (“Section (b)(1)”) and retaliation (“Section (b)(8)” or “Section (b)(9)”)
Filing a Complaint
Covered federal employees, former federal employees, and applicants for federal employment may file a complaint through various means, depending on the basis for the complaint. The options will determine the filing process and the time it will take for the matter to be resolved.
A whistleblower can file a “PPP complaint” with OSC online, via fax or mail. The whistleblower’s complaint is an appeal and “affirmative defense” to an adverse action against him or her (e.g., being demoted or removed). After examination and investigation, administrative law judges in the Merit Systems Protection Board (MSPB) (a quasi-judicial agency that adjudicates whistleblower complaints) within OSC will review the matter.
The appellant must establish a “prima facie case,” by proving by a preponderance of the evidence that the disclosure was a contributing factor in the personnel action against him or her. However, this does not guarantee that the employee will prevail. Once the appellant establishes a prima facie case, the agency will have an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. The employee will prevail if the agency does not meet its proof. If the complaint is dismissed by the MSPB, the whistleblower may raise an appeal in court before The Court of Appeals for the Federal Circuit, which is empowered to hear appeals of whistleblower cases decided by the MSPB. The appellant may also be offered an opportunity to settle.
The matter may also be addressed through an “Individual Right of Action” (IRA) within the OSC. The employee may also pursue redress through a grievance with the employee’s union.
However, choosing to file a complaint through a particular option may prevent the employee from pursuing other options. Therefore, it is key that the whistleblower is informed of all options available and which one suits the situation best before making a decision to report a wrongdoing and/or file a complaint.
The time to process a disclosure and a complaint varies depending on the matter and course of action chosen for the complaint, among other factors. The evaluation process for disclosures is separate and different from processing PPP complaints of retaliation for whistleblowing activities.
Specifically, once a disclosure is made, OSC interviews the federal employee by telephone and evaluates the information to determine whether the information is “substantially likely” to be true. Once this determination is made, the relevant agency has 60 days (subject to an extension request) to provide a report to OSC with the results of their own investigation of the wrongdoing. For complaints, about 80 percent of complainants hear from an examiner within 60 to 90 days. The examiner may request additional information to support a case. A complaint will then be referred to an investigator for prosecution and legal review. The investigator will update on status at least every 60 days. Upon a determination, the complaint may be closed, or there may be recommendations for remedies.
Statute of Limitations
There is no statute of limitations to file a PPP complaint. However, it is best to file a complaint as soon as possible because with the passage of time it may be increasingly difficult to investigate a complaint (e.g., witnesses may have left federal employment, memory may fade, and documents may have been destroyed as part of normal records management procedures.)
Remedies to Complainant
Remedies available to a successful complainant may include corrective action as well as damages. OSC may offer a settlement that may include corrective action, monetary damages, and disciplinary action against the wrongdoer.
Burruezo & Burruezo attorneys can assist you in assessing your options under a whistleblower situation, whether you wish to report a violation, or file a retaliation complaint. Click here to contact an attorney now.