View source for Whistleblower Protection Act

{{Short description|US law regarding protection of federal whistleblowers}}
{{for|the Act in India|Whistle Blowers Protection Act, 2011}}
{{Infobox U.S. legislation
| shorttitle        = Whistleblower Protection Act
| othershorttitles  =
| longtitle         = An Act to amend title 5, United States Code, to strengthen the protections available to Federal employees against prohibited personnel practices, and for other purposes. 
| colloquialacronym = 
| nickname          = Whistleblower Protection Act of 1989
| enacted by        = 101st
| effective date    = April 10, 1989
| public law url    = http://www.gpo.gov/fdsys/pkg/STATUTE-103/pdf/STATUTE-103-Pg16.pdf
| cite public law   = 101-12
| cite statutes at large = {{usstat|103|16}}
| acts amended    = 
| acts repealed   = 
| title amended   = [[Title 5 of the United States Code|5 U.S.C.: Government Organization and Employees]]
| sections created = <!--{{USC}} can be used-->
| sections amended = {{Usc-title-chap|5|12}} § 1201 et seq.
| leghisturl      = http://thomas.loc.gov/cgi-bin/bdquery/z?d101:SN00020:@@@R
| introducedin    = Senate
| introducedbill  = {{USBill|101|S.|20}}
| introducedby    = [[Carl Levin]] ([[Democratic Party (United States)|D]]–[[Michigan|MI]])
| introduceddate  = January 25, 1989
| committees      = 
| passedbody1     = Senate
| passeddate1     = March 16, 1989
| passedvote1     = 97-0, {{US Senate Vote|101|1|24}}
| passedbody2     = House
| passedas2       = <!-- used if the second body changes the name of the legislation -->
| passeddate2     = March 21, 1989
| passedvote2     = Agreed voice vote
| conferencedate  = 
| passedbody3     = 
| passeddate3     = 
| passedvote3     = 
| agreedbody3     = <!-- used when the other body agrees without going into committee -->
| agreeddate3     = <!-- used when the other body agrees without going into committee -->
| agreedvote3     = <!-- used when the other body agrees without going into committee -->
| agreedbody4     = <!-- used if agreedbody3 further amends legislation -->
| agreeddate4     = <!-- used if agreedbody3 further amends legislation -->
| agreedvote4     = <!-- used if agreedbody3 further amends legislation -->
| passedbody4     = 
| passeddate4     = 
| passedvote4     = 
| signedpresident = [[George H. W. Bush]] 
| signeddate      = April 10, 1989
| unsignedpresident = <!-- used when passed without presidential signing -->
| unsigneddate    = <!-- used when passed without presidential signing -->
| vetoedpresident = <!-- used when passed by overriding presidential veto -->
| vetoeddate      = <!-- used when passed by overriding presidential veto -->
| overriddenbody1 = <!-- used when passed by overriding presidential veto -->
| overriddendate1 = <!-- used when passed by overriding presidential veto -->
| overriddenvote1 = <!-- used when passed by overriding presidential veto -->
| overriddenbody2 = <!-- used when passed by overriding presidential veto -->
| overriddendate2 = <!-- used when passed by overriding presidential veto -->
| overriddenvote2 = <!-- used when passed by overriding presidential veto -->
| amendments      = 
| SCOTUS cases    = 
}}

The '''Whistleblower Protection Act of 1989''', 5 U.S.C. 2302(b)(8)-(9), Pub.L. 101-12 as amended, is a United States federal law that protects federal [[whistleblowers]] who work for the government and report the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. 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.<ref>[http://www.gpo.gov/fdsys/pkg/STATUTE-103/pdf/STATUTE-103-Pg16.pdf Public Law 101-12 (1989)] at gpo.gov</ref>

==Authorized federal agencies==
* The [[Office of Special Counsel]] investigates federal whistleblower complaints. In October 2008, then-special counsel [[Scott Bloch]] resigned amid an [[Federal Bureau of Investigation|FBI]] investigation into whether he obstructed justice by illegally deleting computer files following complaints that he 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. Today, the primary mission of OSC is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.
* 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]] (GAP) analysis. Obama appointed a new chairperson and vice chairperson with backgrounds as federal worker advocates, but [[Tom Devine (lawyer)|Tom Devine]] of the GAP argued that it would be "likely to take years for them to turn things around." Currently, this office works to protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.
* The [[Court of Appeals for the Federal Circuit]] was established under Article III of the Constitution on October 1, 1982. It is the only court empowered to hear appeals of whistleblower cases decided by the merit board. The Federal Circuit has been criticized by [[Chuck Grassley|Senator Grassley]] (R-Iowa) and others in Congress for misinterpreting whistleblower laws and setting a 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.<ref>{{cite news|url=https://www.usatoday.com/news/washington/2010-03-14-whistleblowers_N.htm|title=Whistle-blowers' rights get second look|author=Eisler|first=Peter|date=March 15, 2010|newspaper=[[USA Today]]|url-status=live|archive-url=https://web.archive.org/web/20180324065225/https://usatoday30.usatoday.com/news/washington/2010-03-14-whistleblowers_N.htm|archive-date=March 24, 2018}}</ref>

==Legal cases==
The [[Supreme Court of the United States|US Supreme Court]], in the 2006 case of ''[[Garcetti v. Ceballos]]'', ruled that [[Civil service|government employees]] do not have protection from retaliation by their employers under the [[First Amendment to the United States Constitution|First Amendment]] of the Constitution when they speak pursuant to their official job duties.<ref>{{Cite news|url=http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/05/30/national/w132119D75.DTL&type=politics|title=High Court Trims Whistleblower Rights|last=Holland|first=Gina|date=May 30, 2006|work=[[San Francisco Chronicle]]|url-status=dead|archive-url=https://web.archive.org/web/20060601213237/http://sfgate.com/cgi-bin/article.cgi?f=%2Fn%2Fa%2F2006%2F05%2F30%2Fnational%2Fw132119D75.DTL&type=politics|archive-date=June 1, 2006|agency=[[Associated Press]]|access-date=August 14, 2021}}</ref> 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.<ref>McCarthy, Robert J.[http://www.wm.edu/as/publicpolicy/wm_policy_review/Archives/Volume%203/McCarthy.pdf "Blowing in the Wind: Answers for Federal Whistleblowers"]. ''William & Mary Policy Review'' 3:184 (2012).</ref> The most common characteristics for a court claim that are encompassed within the protection of the Act include: that the plaintiff is an employee or person covered under the specific statutory or common law relied upon for action, that the defendant is an employer or person covered under the specific statutory or common law relied upon for the action, that the plaintiff engaged in protected whistleblower activity, that the defendant knew or had knowledge that the plaintiff engaged in such activity, that there was retaliatory action taken against the one doing the whistleblowing and that the unfair treatment would not have occurred if the plaintiff had not brought to attention the activities.<ref>{{cite web|url=http://www.whistleblowers.org/index.php?option=com_content&task=view&id=34&Itemid=63|title=Know Your Rights FAQ|publisher=[[National Whistleblowers Center]]|access-date=April 27, 2016}}</ref>

[[Robert MacLean]] of the [[Federal Air Marshal Service]] blew the whistle on the fact that the [[Transportation Security Administration|TSA]] had cut its funding for hiring additional [[sky marshal|air marshal]]s. In 2009, the [[Government Accountability Project]] challenged MacLean's dismissal to the Merit Systems Protection Board on the grounds that "his disclosure of the text message was protected under the Whistleblower Protection Act of 1989, because he 'reasonably believe[d]' that the leaked information disclosed 'a substantial and specific danger to public health or safety'." In ''[[Department of Homeland Security v. MacLean]]'' (2015), the Supreme Court ruled in his favor.<ref>{{cite web|url=https://couragefound.org/2014/11/whistleblower-protection-case-reaches-us-supreme-court/|title=Whistleblower protection case reaches US Supreme Court|publisher=[[Courage Foundation]]|date=November 7, 2014|access-date=April 27, 2016}}</ref>

== Related legislation ==
President [[Barack Obama]] issued Presidential Policy Directive 19 (PPD-19), entitled "Protecting Whistleblowers with Access to Classified Information". According to the directive signed by Obama on October 10, 2012, it is written that "this Presidential Policy Directive ensures that employees serving in the Intelligence Community or who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse.<ref>{{cite web|url=https://obamawhitehouse.archives.gov/sites/default/files/image/ppd-19.pdf|access-date=1 May 2023
|website=obamawhitehouse.archives.gov|title=Presidential Policy Directive|date=October 10, 2012}}</ref>

However, according to a report that the Committee on Homeland Security and Governmental Affairs submitted to accompany S. 743, "the 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 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."<ref>[http://www.gpo.gov/fdsys/pkg/CRPT-112srpt155/pdf/CRPT-112srpt155.pdf 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</ref>
S. 743 would address these problems by restoring the original congressional intent of the WPA to adequately protect whistleblowers, by strengthening the WPA, and by creating new whistleblower protections for intelligence employees and new protections for employees whose security clearance is withdrawn in retaliation for having made legitimate whistleblower disclosures.<ref>{{cite web|url=https://www.gpo.gov/fdsys/pkg/CRPT-112srpt155/pdf/CRPT-112srpt155.pdf|access-date=1 May 2023|website=gpo.gov|title=Whistleblower Protection Enhancement Act of 2012|date=April 19, 2012|quote=S. 743 ultimately became Pub.L. 112-199 (S.Rep. 112-155).}}</ref>

Passed in September 2014, the [[All Circuit Review Extension Act]] authorized federal employees to appeal their judgements from the [[United States Merit Systems Protection Board|Merit Systems Protection Board]] and [[United States Office of Personnel Management|Office of Personnel Management]] to whichever [[United States courts of appeals|Court of Appeals]] has jurisdiction.<ref name="4197sum">{{cite web|url=https://www.congress.gov/bill/113th-congress/house-bill/4197|title=H.R.4197 - All Circuit Review Extension Act {{!}} Summary|publisher=United States Congress|via=[[Congress.gov]]|access-date=July 15, 2014}}</ref><ref name="4197allactions">{{cite web|url=https://www.congress.gov/bill/113th-congress/house-bill/4197/all-actions|title=H.R. 4197 - All Circuit Review Extension Act {{!}} Actions|publisher=United States Congress|via=[[Congress.gov]]|access-date=July 15, 2014}}</ref>

==See also==
{{div col begin}}
*[[Whistleblower protection in United States]]
*[[False Claims Act]]
*[[Federal crime]]
*[[Immunity from prosecution]]
*[[Informant]]
*[[List of whistleblowers]]
*[[Military Whistleblower Protection Act]]
*[[Qui tam]]
*[[Testimony]]
*[[Turn state's evidence]]
*[[White collar crime]]
*[[Witness]]
*[[Witness intimidation]]
*[[United States Federal Witness Protection Program]]
*[[United States Marshals Service]]
{{div col end}}

==References==
{{reflist}}

==External links==
*[https://www.sec.gov/eeoinfo/whistleblowers.htm "Whistleblower Protection Act Information."] ''U.S. Securities and Exchange Commission''. January 30, 2004. Retrieved May 3, 2007
*[https://osc.gov/Pages/File-Complaint.aspx "File a Complaint (OSC.Gov)."] ''U.S. Office of Special Counsel''. Retrieved January 13, 2020

[[Category:1989 in American law]]
[[Category:101st United States Congress]]
[[Category:United States federal criminal legislation]]
[[Category:Whistleblower protection legislation]]
[[Category:Whistleblowing in the United States]]
[[Category:United States federal labor legislation]]