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Whistleblower Protection Act: Difference between revisions
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* 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 [[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 [[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= | * 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== | ==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= | 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> | [[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> | ||