Legislative Remedies

2003 Legislation

Government reorganization is a major issue in the 108th Congress. Not only do the MSPB and OSC face reauthorization, the Bush administration is using reorganization of the Defense Department to change the unworkable current system. Trouble is, whistleblowers are still likely to be left out--Defense Department secrecy and misadministration has always produced many whistleblowers, as well as creative retaliation practices.

Whistleblowers made news in 2002, as TIME magazine named FBI employee Colleen Rowley and two private sector whistleblowers its persons of the year. Meanwhile, the 107th Congress passed three significant pieces of legislation concerning whistleblowers in 2002, all discussed at the bottom of this page.

Recent Adverse Court Decisions

Congress has long been deeply concerned about the OSC's and MSPB's disregard of whistleblowers, since the CRSA and WPA made them whistleblowers' first line of defense. They have proved anything but. To counteract those agencies' narrow interpretations and the Federal Circuit's continuing restrictive decisions, Congress again needs to reiterate its policy to protect federal whistleblowers. Meaningful access to the courts is needed, especially to federal district courts and the regional Courts of Appeal, which know about the dysfunctions of fraud, government waste, and corruption, as well as witness intimidation and other crimes. The Federal Circuit's most anti-whistleblower language usually comes in non-whistleblower cases or unpublished decisions, perhaps so as not to erode public trust in the government.

Retaliation through the Security Clearance Process

Stopping leaks is a priority of the current administation. A DEA employee who leaked investigative information to the British press was convicted earlier this year, as spies have also been. And soon the Supreme Court will consider the secret detentions of foreigners arrested after the September 11 tragedy.

Of course, much government information is legitimately private (for example, not many people want their confidential tax files peeked at). Yet in the rush to limit unauthorized disclosures, including to the press, corruption or simple dirty linen can be hidden.

Security clearance revocations have always been one way to get rid of whistleblowers as well as less idealistic leakers. In Department of the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court told Congress it needed to explicitly add security clearance removals to the list of prohibited personnel practices. Congress passed the WPA the next year, but without the explicit language. Both the MSPB and Federal Circuit have found the 1994 Amendment's catchall clause insufficient. See Hesse v. State, 217 F.3d 1372 (Fed. Cir.2000) and related MSPB decisions. So if Congress wants to protect federal employee whistleblowers with security clearances, it must legislate again.

Legislative History of Whistleblower Protection

President Bush signed the Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002, P.L. 107-174 on May 15, 2002 (formerly H.R. 169). NoFEAR requires agencies to pay retaliation and discrimination judgments out of their own funds. This creates a financial incentive to follow the law. However, this may well become window dressing since the MSPB and Federal Circuit almost never find discrimination, much less retaliation.

The Corporate and Criminal Fraud Accountability Act of 2002 (formerly H.R.4098 and S.2010, to be codified at 18 U.S.C. 1514A), and the Public Company Reform and Investor Protection Act (a/k/a the Sarbanes-Oxley Act) were both enacted in response to recent scandals, including Enron and WorldCom. They apply to private whistleblowers, not government employees. The Department of Labor, one of the federal agencies which will enforce Sarbanes-Oxley, has posted the legislative history.

Thomas allows searches of the Congressional Record online, including for the Whistleblower Protection Act of 1989 and its 1994 Amendments. Congressional materials have now been digitized back to 1989. Here is a list of committee reports and hearing transcripts relating to the WPA, with links to interesting excerpts. Plus, legislators may distribute updates to the Congressional Research Service report.