Whistleblower Protection Enhancement Act of 2012

On Tuesday, November 27, 2012, President Barack Obama signed into a law the Whistleblower Protection Enhancement Act of 2012 (“WPEA”). This bill is the culmination of over a decade of activism by the protectors of whistleblower rights in response to continued judicial erosion of whistleblower rights.

In 1989 the Whistleblower Act was passed with the understanding that it would protect whistleblowers who work for the government who report government fraud, waste, and abuse.  However, from October of 1994 to May of 2012, courts have consistently ruled against whistleblowers in favor of employee supervisors.  In fact, it has been reported that only 3 out of 229 cases have been decided in favor of the whistleblower.

Among those cases is Ceballos v. Garcetti, (4)a Supreme Court case which decided that the whistleblower does not have First Amendment protection for protected speech in reporting prosecutorial misconduct.  The Supreme Court decided that to qualify as a protected whistleblower, a Federal employee, past or present, must disclose a violation of any law or regulation involving gross waste of funds and abuse of authority or specific danger to the public.  The whistleblower, to preserve his or her rights, must make a report to someone other than the wrongdoer and there must be a personal action or threat against that whistleblower.  Moreover, the whistleblower was required to seek redress first pursuant to his/her agencies administrative process before appealing to the U.S. Merit Systems Protection Board (MSPB).  Thereafter, any adverse decision could be appealed to the Federal Circuit Court of Appeal.

However, the MSPB and the Federal Circuit Court have consistently found against the whistleblower.  In September 2010 a report to President Obama was made detailing the difficulties of a potential federal whistleblower.  In this report Chairman Susan ­Grundman of MSPB stated:

“The law can be quite different from common parlance.  In the Federal Government not everyone who discloses wrongdoing will be considered a whistleblower and not every act of retaliation against a whistleblower is legally redressable (sic)”

The report however failed to mention that only 1.7% of the cases have been decided in favor of the federal employee.  Nor does the report mention that in Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999), cert. denied, the Supreme Court affirmed the Federal Circuit Court of Appeals in requiring that the whistleblower rebut a mandatory presumption that public officers perform their duties correctly, fairly and in good faith and in accordance with the law with irrefutable proof to the contrary.  See also Alaska Airlines v. Johnson, 8 F.3d 791 (Fed. Cir.1993).

In interpreting the WPA the Supreme Court has ruled that four requirements are needed to establish a violation:

  1. The acting official has authority to take, recommend or approve any personal action;
  2. That the disclosure made by the aggrieved employee is protected;
  3. The acting official used his authority against the aggrieved employee and;
  4. The action by the official was because of the protected disclosure.

In applying this 4 prong test the courts have progressively tightened the requirements of each prong of the test.

For example, the courts have held that the WPA only applied to a “covered” employee.  An employee who was involved in confidential policy determines decisions are not covered.  Moreover, employees of the postal service, the GAO, FBI, CIA and NSA were not considered covered employees.

If a disclosure is made as part of an assigned duty and ordinary channels are used the disclosure is not protected.  Kahn v. Dept. of Justice, 528 F.3d 1336 (Fed. Cir. 2008).

Also, a report directly to the wrong doer is not protecting and therefore the wrongdoer’s retaliation against the aggrieved employee is also unprotected.

The Whistleblower Protection Enhancement Act of 2012 was authored by Senator Daniel Akaka (D-Hawaii) who said “Federal employees who risk their careers to step forward and disclose waste fraud and abuse save tax payers and make our government more efficient.  They absolutely deserve our support and I so proud that these new protections are enacted into law.”

Among these added protections are:

  1. Closed the first to report loophole giving protection to subsequent filers;
  2. Giving Whistleblowers the power to challenge governmental policy decisions :
  3. Overrules the almost impossible standard that requires “irrefragable” evidence to rebut the presumption that the acting official that the official was acting with color of the law to a more subjective standard of whether the aggrieved employee has a “reasonable belief” that the employee had disclosed information of mismanagement or fraud;
  4. Expands the definition of covered employee to include government scientists, intelligence personnel and TSA employees

Most importantly the new bill takes exclusive jurisdiction over appeals from the MSPB  away from the Federal Circuit to allow local Circuit Court of Appeals to review these appeals. In light of the Federal Circuit’s 98% record against Whistleblowers, this is a very welcome change.

Young Law Group, P.C., Attorneys-at-Law, represents whistleblowers nationwide. For a free confidential consultation, please call Eric L. Young, Esquire at 1-800-590-4116 or email to eyoung@young-lawgroup.com.