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Whistleblower Protection Act

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For the Act in India, see Whistle Blowers Protection Act, 2011.
Whistleblower Protection Act
Great Seal of the United States
Long titleAn Act to amend title 5, United States Code, to strengthen the protections available to Federal employees against prohibited personnel practices, and for other purposes.
NicknamesWhistleblower Protection Act of 1989
Enacted bythe 101st United States Congress
EffectiveApril 10, 1989
Citations
Public law101-12
Statutes at Large103 Stat. 16
Codification
Titles amended5 U.S.C.: Government Organization and Employees
U.S.C. sections amended5 U.S.C. ch. 12 § 1201 et seq.
Legislative history
  • Introduced in the Senate as S. 20 by Carl Levin (D–MI) on January 25, 1989
  • Passed the Senate on March 16, 1989 (97-0, Roll call vote 24, via Senate.gov)
  • Passed the House on March 21, 1989 (Agreed voice vote)
  • Signed into law by President George H.W. Bush on April 10, 1989

The Whistleblower Protection Act of 1989, Pub.L. 101-12 as amended, is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct. 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. Whistleblowers[1] may file complaints that they believe reasonably evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

Authorized Federal Agencies

  • The Office of Special Counsel investigates federal whistleblower complaints. In October 2008, then-special counsel Scott Bloch resigned amid an FBI investigation into whether he obstructed justice by illegally deleting computer files following complaints that he himself had retaliated against employees who disagreed with his policies. Then-Senator Barack Obama 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.
  • The Merit Systems Protection Board, 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 analysis. Obama appointed a new chairperson and vice chairperson with backgrounds as federal worker advocates, but Tom Devine of GAP says, "It's likely to take years for them to turn things around."
  • The Court of Appeals for the Federal Circuit, only court empowered to hear appeals of whistleblower cases decided by the merit board, has been criticized by Senator Grassley (R-Iowa) and others in Congress for misinterpreting whistleblower laws and setting 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.[2]

The U.S. Supreme Court, in the case of Garcetti v. Ceballos, 04-473, ruled in 2006 that government employees do not have protection from retaliation by their employers under the First Amendment of the Constitution when they speak pursuant to their official job duties.[3] The U.S. Merit Systems Protection Board (MSPB) uses agency lawyers in the place of administrative law judges 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.Katherine Mitchell is one of the more recent whistleblowers of the 21st century. Ms. Mitchell, an employee for the Department of Veteran Affairs, was responsible for bringing to light the falsified records that tried to hide the long wait times for returning veterans. She has not been prosecuted and was not faced with any retaliation for her actions.[4] Bradley, now Chelsea, Manning is one of the more infamous whistlblowers of this generation. Manning was accused and convicted of turning over large amounts of classified military data over to the website WikiLeaks. Some of the videos turned over showed the U.S military killing innocent journalists an citizens. Though acquitted of aiding the enemy, he is currently serving 35 years for espionage with a chance at parole after 7 years.[5]

Whistleblower Protection Enhancement Act and Presidential Policy Directive 19

The Whistleblower Protection Enhancement Act of 2012 ("WPEA"), Pub.L. 112-199, made many revisions to the Whistleblower Protection Act.[6] According to the legislative history for S. 743, which ultimately became Pub.L. 112-199 (S.Rep. 112-155), "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 wrongly 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."[7]

Additional whistleblower protections for intelligence agency employees were ordered by President Barack Obama in Presidential Policy Directive 19 in October 2012.[8]

On July 14, 2014, the United States House of Representatives voted to pass the All Circuit Review Extension Act (H.R. 4197; 113th Congress), a bill that gives authority to federal employees who want to appeal their judgment to any federal court, and which allows whistleblowers to appeal to any U.S. Court of Appeals that has jurisdiction. The bill would extend from three years after the effective date of the Whistleblower Protection Enhancement Act of 2012 (i.e., December 27, 2012), the period allowed for: (1) filing a petition for judicial review of Merit Systems Protection Board decisions in whistleblower cases, and (2) any review of such a decision by the Director of the Office of Personnel Management (OPM).[9][10]

There is also a bill in its early stages called the FBI Whistleblower Protection Enhancement Act. This bill was introduced by Senators Grassley and Leahy in 2015. It would protect whistleblowers in the FBI more completely from reprisals by supervisors, by assigning administrative law judges to adjudicate the cases, and enabling FBI employees to appeal their decisions to the courts. [11][12] This bill is still in the process of possibly getting passed and has individuals cosponsoring it in March 2016.

See also

References

  1. ^ Public Law 101-12 (1989) at gpo.gov
  2. ^ Peter Eisler (2010-03-15). "Whistleblowers". USA TODAY.
  3. ^ High Court Trims Whistleblower Rights
  4. ^ Template:Http://www.azcentral.com/story/news/investigations/2014/05/02/second-va-doctor-blows-whistle-patient-care-failures/8595863/
  5. ^ Template:Https://www.washingtonpost.com/world/national-security/judge-to-sentence-bradley-manning-today/2013/08/20/85bee184-09d0-11e3-b87c-476db8ac34cd story.html
  6. ^ Public Law 112–199 at gpo.gov
  7. ^ WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012 REPORT OF THE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS, UNITED STATES SENATE TO ACCOMPANY S. 743. April 19, 2012
  8. ^ PRESIDENTIAL POLICY DIRECTIVE/PPD-19 at fas.org
  9. ^ "H.R. 4197 - Summary". United States Congress. Retrieved July 15, 2014.
  10. ^ "H.R. 4197 - All Actions". United States Congress. Retrieved July 15, 2014.
  11. ^ Joe Davidson. How FBI blocks whistleblower fighting dismissal; new bill could help others. Washington Post 2 Feb 2016.
  12. ^ Grassley-Leahy Bill Improves Disclosure & Review Process for FBI Whistleblowers. Website of Senator Grassley. Dec 10, 2015
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