Whistleblower protection bill gives feds facing retaliation avenue for relief outside MSPB

The Whistleblower Protection Improvement Act would grant whistleblowers access to a federal district court jury trial if the Merit Systems Protection Board does.

May 4, 2021 6:54 am 4 min read

Whistleblowing federal employees and contractors who face retaliation from their agencies would have a new legal remedy available to them through a bill introduced by members of the House Oversight and Reform Committee.

The Whistleblower Protection Improvement Act would grant whistleblowers access to a federal district court jury trial if the Merit Systems Protection Board does not issue a decision in 180 days, or 240 days in complex cases.

The MSPB is currently unable to hear these cases in its 3,500-case backlog because it hasn’t had any members in three years, and hasn’t had a quorum in four years.

Liz Hempowicz, the Project on Government Oversight’s director of public policy, said whistleblowers facing retaliation are “effectively shut out of relief” under the current process, creating a chilling effect for would-be whistleblowers from reaching out to an agency inspector general or Congress.

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“Right now the system is broken, and so I think it is actually serving as a deterrent from further whistleblowers coming forward and exposing fraud, waste and abuse in the federal government,” Hempowicz said at a hearing held by the government operations subcommittee.

The bill also clarifies whistleblowers are entitled to recover attorney fees and relief such as missed training, restoration of seniority or any promotion consistent with the employee’s record.

The bill would extend Title 5 merit systems protections to non-career Senior Executive Service employees, Public Health Service officers or applicants, and the National Oceanic and Atmospheric Administration’s commissioned officer corps.

Government Accountability Project Legal Director Tom Devine said in a statement that the bill would give federal whistleblowers “a fair chance to defend themselves when they defend the public.”

“The Whistleblower Protection Act has been in a coma. This bill not only would revive it, but give federal workers global best practice whistleblower rights against workplace harassment when America needs whistleblowers the most,” Devine said.

The legislation would also take steps to prevent the public disclosure of a whistleblower’s identity. Hempowicz said the harassment federal employees face as whistleblowers when publicly identified serves as a deterrent.

“If you’re a public servant and your name is now everywhere all over Twitter as somebody who is a traitor … instead of addressing the issue that you’re blowing the whistle on, we’re going to drag your name through the mud,” Hempowicz said.

The risk of doing nothing, she added, is that whistleblowers disaffected by the current disclosure process will take their claims to organizations outside the federal government.

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“What we do is we just incentivize people to work outside of the proper channels, and I think that’s where we can see things like leaking classified information, if whistleblowers don’t feel like they will be protected if they use the protected channels that Congress has laid out for them, or they just won’t blow the whistle at all and you won’t have the benefit of their experience,” Hempowicz said.

The committee also reviewed a package of bills members recently introduced to strengthen agency oversight.

The Accountability for Acting Officials Act would limit acting agency heads to serve no more than 120 days on the job, and would require acting agency heads to testify before Congress at least once every 60 days.

Rep. Katie Porter (D-Calif.), the bill’s sponsor, said the legislation would close loopholes that allow acting officials to serve in senior positions for years without Senate approval.

“Agency officials play a critical role in executing laws as they were intended by Congress, and we’ve seen what can happen when there aren’t guardrails in place to protect the public from unqualified, inexperienced officials,” Porter said.

The committee also gave further consideration to the IG Independence and Empowerment Act introduced last month. The bill would give agency inspectors general administrative subpoena authority to question former federal employees and contractors.

Hempowicz said the fact the federal employees can avoid IG scrutiny by leaving the agency “completely undermines their ability to conduct fulsome investigations”

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Zack Smith, a legal fellow with the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, said lawmakers should instead leave that subpoena work to a federal grand jury.

“If there is a legitimate concern about a criminal act having occurred or a criminal investigation, then the grand jury process and the grand jury subpoena process would certainly be an available mechanism for that investigation,” Smith said.

The bill would also limit a president authority to fire an IG down to a narrow set of “for cause” reasons. Hempowicz said former President Donald Trump’s string of IG firings last year made it clear these watchdogs essentially serve as at-will employees.

“What we heard from the remaining inspectors general was that they were terrified to do their jobs, and that’s terrible for the American taxpayer. If IGs are worried at the beginning of an investigation that it may, at the end of that investigation, lead back to anybody that has the political favor of the president, then they’re incentivized not to do those investigations at all,” she said.