Legislation Look: Whistleblower Protection Enhancement Act Introduced in Senate

Currently being considered in the U.S. Senate is a piece of legislation called the Whistleblower Protection Enhancement Act of 2012 which claims to:


“…strengthen the rights of and protections for federal whistleblowers so that they can more effectively help root out waste, fraud, and abuse in the federal government. Whistleblowers play a critical role in keeping our government honest and efficient. Moreover, in a post-9/11 world, we must do our utmost to ensure that those with knowledge of problems at our nation’s airports, borders, law enforcement agencies, and nuclear facilities are able to reveal those problems without fear of retaliation or harassment. Unfortunately, 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).”


Legislation related to promoting the exposure of waste, fraud, and abuse within the federal government began most prominently in 1978 with the Civil Service Reform Act.  This law created the Office of Special Counsel (OSC) to help encourage disclosure of waste and fraud, as well as the Merit Systems Protection Board (MSPB) to handle causes related to prohibited personnel practices.  This legislation was deemed largely ineffective as individuals still feared retaliation for whistleblower behavior, so Congress passed the Whistleblower Protection Act (WPA) in 1989, which prohibited reprisal against employees who reveal waste, fraud, mismanagement, etc.  The WPA was amended in 1994.


And now, 17 years later, Congress wants to amend it again.


The proposed Whistleblower Enhancement Protection Act, which would cost $24 million to implement over the next five years, was introduced to Congress on April 6, 2011 by 14 Senators: Akaka, Collins, Grassley, Lieberman, Levin, Carper, Leahy, Harkin, Pryor, Landrieu, McCaskill, Tester, Begich, and Cardin.


There are 20 principle amendments proposed in the new version of the Act aimed at bringing clarification and enhancement of protection and rights for whistleblowers.  Among these are revised penalties for retaliatory investigations, as well as a proposal for whistleblowers to have the right to a full hearing.  The legislation would also require the Government Accountability Office (GAO) and MSPB to annually report to Congress the number of whistleblower cases and the outcome of each.  The bill would close the potential loophole that previously designated certain entire agencies exempt from the WPA and would revise previous regulations about the exclusive subject matter of the Federal Circuit.  Additionally, there is a change to the current law which requires the existence of “irrefragable proof” to claim that a public official has violated a law; the new bill states that only “reasonable belief” is needed.  The bill also aims to implement education initiatives to teach employees about their rights against retaliation as well as establish an ombudsman in each OIG office to act as an intermediary between the agency and its employees.



The full text of the bill can be found here.

WhistleWatch: Cause of Action Not for Profit Advocate Seeks Information on Whistleblower Retaliation From Federal Agencies

The WhistleWatch Blog: Cause of Action Not for Profit Advocate Seeks Information on Whistleblower Retaliation From Federal Agencies

22:20, April 23, 2012 by Evelynn Brown, J.D., LL.M

Amazing how quickly the Government Services Administration (GSA) scandal can rally members of Congress to take a fresh look at the failure of the federal government to protect their own whistleblowers.  Whistlewatch.org and other advocacy groups have been sounding the alarm for years, seemingly to no avail. However, the recent request by Cause of Action, a non-profit, public benefit corporation to the acting director of the Office of Management and Budget to perform a government-wide audit to determine whether agencies are abiding by whistleblower protection laws looks promising.  Congratulations to Daniel Epstein on this bold move who joins us in seeking to know exactly how much the federal government is spending to retaliate against federal whistleblowers.  Mr. Epstein’s Freedom of Information Act (FOIA) and related requests are available below. We further note the comments by GSA Inspector General Brian Miller that Regional Administrator Jeff Neely “‘squashed’ agency whistleblowers ‘like a bug”  should garner immediate public interest in abuse of authority and tax payer waste.  Perhaps now there will be renewed interest in the plight of whistleblowers who honor the Fourteen Principles of Ethical Conduct as revelations surface on the insidious long-term, financial impact on tax payers when whistleblowers are mistreated. Better protections of federal employees are desperately needed.  The recent Senate committee report on S. 743 to the Whistleblower Protection Enhancement Act (WPEA), can be found at this site with comments from our colleague, David Pardo.  Essentially federal agencies have been hiding the costs of retaliation against whistleblowers because Congress does not require them to publish the information. If the federal government loses a case (overwhelming majority of complaints are never recorded or are dismissed or settled because the whistleblower is pressured), the agency must reimburse the Judgment Fund.  This money comes out of the agency budget (funded by tax payers), usually the offending official’s department.  What is odd is that even when federal executives are aware of retaliation by management, they will still approve bonuses and excellent performance appraisals for those who violate whistleblower protection laws.  Rarely does any executive get called on the carpet.  There has been a lack of enforcement proceedings against management committing prohibited personnel practices. The Office of Special Counsel (OSC) reviews federal employee whistleblower complaints recently requested action be taken against 2 higher-ups in the Dover Air Force Base mortuary scandal.  Among other things, the investigation showed a tone set at the top to willfully harm the whistleblowers who reported gruesome details of how deceased veterans remains were being mishandled including sawing off an arm of a dead Marine and veteran remains left in boxes, leaking blood, for months.  This article discusses the severe retaliation including forensic analysis of computer hard drives reserved for espionage cases.  With government agencies and corporations openly calling whistleblowers snitches, rats, disloyal and character flawed, the tax payers must ask themselves some hard questions.  Do you want government employees to protect your money?  Or do you want it to be used to harm public servants who report misappropriation of funding, criminal conduct and dangers to public health and safety? WhistleWatch » Blog Archive » Cause of Action Not for Profit Advocate Seeks Information on Whistleblower Retaliation From Federal Agencies.

Federal News Radio: Dan Epstein Discussing Whistleblower Protection

Federal News Radio “In Depth” host Francis Rose talks with Dan Epstein about how the federal government is failing to protect whistleblowers.

Listen to the interview here.