Special Counsel pushes for right to appeal whistleblower cases

The Office of Special Counsel's inability to appeal decisions in whistleblower cases undermines its ability to protect federal employees who disclose government wrongdoing, Special Counsel Elaine Kaplan told a Senate panel last week. The Office of Special Counsel is the independent agency responsible for investigating federal whistleblowers' allegations of retaliation and for enforcing the 1989 Whistleblower Protection Act. OSC can argue cases before the Merit Systems Protection Board (MSPB), but has no authority to argue against adverse decisions in an appeals court. Instead, the Justice Department, which also represents agency managers in whistleblower cases, represents the Office of Special Counsel in all judicial proceedings. MSPB is the administrative body that hears and decides complaints related to personnel actions. Individual whistleblowers may appeal MSPB decisions on their own. According to Kaplan and some congressional lawmakers, certain court decisions in whistleblower cases have created loopholes that have eroded the law's protections for employees. "Under current law, the Special Counsel-whom Congress intended would be a vigorous, independent advocate for the protection of whistleblowers-is rarely a participant in the arena in which the law is largely shaped: the Court of Appeals for the Federal Circuit," said Kaplan during a hearing last Wednesday before a Senate Governmental Affairs subcommittee on amendments to the Whistleblower Protection Act. A bill introduced by Sen. Daniel K. Akaka, D-Hawaii (S. 995), would extend independent litigating authority to the Office of Special Counsel, allowing the agency to appeal an MSPB decision before the Federal Circuit.

The bill would also give the Special Counsel the right to petition the MSPB to reconsider its final decisions. Currently, the Special Counsel has to ask the Office of Personnel Management to seek review of MSPB decisions in whistleblower cases. OPM has the authority to ask MSPB to reconsider decisions and seek judicial review in decisions that could have a significant impact on the interpretation of federal personnel laws, including the Whistleblower Protection Act.

Rep. Connie Morella, R-Md., introduced a companion bill (H.R. 2588) in the House last week. Stuart E. Schiffer, acting attorney general for the Justice Department's civil division, said allowing the Special Counsel to appeal MSPB decisions in appellate court would disrupt the system of centralized control the Justice Department retains in litigating personnel cases. Schiffer said the government must present a uniform position on legal issues and a strict objectivity in such cases to ensure that federal personnel law is applied consistently. Kaplan said that while a majority of whistleblower cases are settled without litigation, the power to appeal certain MSPB decisions and to petition the board to reconsider certain decisions is important in protecting the spirit of the Whistleblower Protection Act. "We believe that providing OSC with a greater role in shaping the law will help address some of the other concerns that animate S. 995's sponsors: the whittling away of the Whistleblower Protection Act's protections by erroneous interpretations of the law," she said.

Kaplan referred to a few recent cases in which judicial interpretation held that employees who, as part of their job, approached their supervisors or possible wrongdoers with allegations of government waste, fraud, and abuse were not protected from retaliation. Akaka's bill would clarify language in the existing law to ensure that those employees who make disclosures to their supervisors or members of Congress would be protected from reprisal.