By Robert Brodsky
April 8, 2011
A bipartisan contingent of senators has reintroduced legislation to provide better protections for federal whistleblowers.
The 2011 Whistleblower Protection Enhancement Act is virtually identical to the legislation that narrowly missed passage last December, when an anonymous senator blocked it on the last day of the 111th Congress.
In the only change to last year's version, the new law would strike an exception to whistleblower protection for minor, inadvertent violations of law. "That exception attempted to codify an exception created by Federal Circuit case law, but there were concerns raised about whether the exception is appropriate and whether the provision inadvertently went further than current case law," said Jesse Broder Van Dyke, spokesman for Sen. Daniel Akaka, D-Hawaii, the bill's lead Democratic sponsor.
Akaka first sponsored a whistleblower bill in 2000 and has reintroduced the measure every Congress since then. "This bill strengthens the Whistleblower Protection Act and restores congressional intent that whistleblowers be protected from retaliation," Akaka said. "This protection is crucial to efforts to improve government management, cut the deficit, protect public health and safety, and to secure the nation."
The new measure would strengthen the 1989 Whistleblower Protection Act, most notably by suspending for the next five years the U.S. Federal Circuit Court of Appeals sole jurisdiction over federal employee whistleblower cases. That court rarely has ruled in favor of federal whistleblowers. Alleged victims of whistleblower retaliation now would be able to seek a jury trial anywhere in the country.
The legislation also would extend whistleblower coverage for the first time to 40,000 Transportation Security Administration baggage screeners, along with federal scientists. And the bill would end a provision in existing law that protects only "the first" person who discloses the misconduct. The bill also would clarify that disclosures of waste, mismanagement, fraud, abuse or other illegal activity are protected, but not disagreements over policy decisions.
In addition, the act would give the Office of Special Counsel the authority to file friend -of -the court briefs to support employees appealing Merit Systems Protection Board rulings. MSPB would be required to file annual reports on the outcomes of whistleblower cases, and an experimental whistleblower ombudsman position would be created to advise employees of their rights in offices of inspectors general. The board also would be provided with authority to consider and grant summary judgment motions in certain cases.
In a move likely to strike some controversy, the bill once again includes whistleblower protections for national security and intelligence community employees, who would be given an administrative appeals process to provide legal and safe channels for disclosures of wrongdoing. An identical provision was cut from the version that the House passed last year, ultimately leading to the bill's undoing in the Senate.
The Senate passed a prior version of the whistleblower bill by unanimous consent in 2007. The House passed a similar bill, but the chambers were unable to work out their differences before the 110th Congress adjourned.
Federal watchdogs and whistleblower advocates called on Congress to finally pass the measure."Quick passage of this bill would signal that Congress is serious about tackling waste and saving taxpayer dollars," said Angela Canterbury, director of public policy at the Project on Government Oversight. "Federal workers are on the front lines for witnessing waste, fraud and abuse. They need safe, legal channels for making legitimate disclosures and adequate protections for looking out for the rest of us."
By Robert Brodsky
April 8, 2011