Bill would give all whistleblowers their day in court

A House bill introduced Wednesday would allow whistleblowers to file civil suits against their employers in federal district court, and would protect whistleblowers who make disclosures to members of Congress.

The "Paul Revere Freedom to Warn Act" aims to give whistleblowers in the government and the private sector the opportunity to sue their employers in federal district court in a jury trial for compensatory damages, lost wages and other damages resulting from reprisal. The bill also protects whistleblowers who approach members of Congress with allegations of wrongdoing from retaliation, particularly if employees are involved in national security work.

"While various whistleblower statutes provide administrative remedies, coverage has been hit-or-miss, particularly in the private sector," said Rep. Steve Israel, D-N.Y., the bill's sponsor, during an event organized by government watchdog groups to honor whistleblowers.

The proposed legislation would give federal whistleblowers, whose cases appear before administrative judges at the Merit Systems Protection Board, an opportunity to present their arguments, free from any political pressure, before a jury. The Justice Department currently represents both whistleblowers and agency managers in cases before the Federal Court of Appeals, the judicial body largely responsible for shaping federal whistleblower law.

The bill allows federal employees to seek compensatory damages for monetary losses, emotional suffering and injury to reputation. Under current law, federal whistleblowers can be awarded consequential damages, which include back pay and related benefits, but cannot receive compensation for nonmonetary losses.

Compensatory damages can often yield the complainant more money than consequential damages, according to Bill Bransford, an attorney at the law firm Shaw, Bransford, Aubeilleux and Roth.

"This legislation would open up a whole new legal action by making the option of claiming compensatory damages available to federal whistleblowers," he said.

When federal whistleblowers file a complaint with the Office of Special Counsel, they cannot seek compensatory damages, Bransford said.

The 1989 Whistleblower Protection Act, enforced by the Office of Special Counsel, protects federal employees from reprisal. In 1994, Congress amended the act to protect whistleblowers from any "significant change in duties, responsibilities or working conditions" that occurs in retaliation for going public with information.

An anti-gag statute, which Congress has approved every year since 1987, keeps federal agencies from forcing employees to sign gag orders giving away their right to free speech or their right to be a whistleblower. But many whistleblower advocates believe there are still too many loopholes in the law.

"The 1994 amendments to the Whistleblower Protection Act are so full of loopholes that it's like a road with more potholes than pavement," said Thomas Devine, legal director of the Government Accountability Project, a nonprofit watchdog group. In recent cases, judicial interpretation held that employees who, as part of their job, approach their supervisors or possible wrongdoers with allegations of government waste, fraud and abuse are not protected from retaliation.

State laws covering whistleblower protection are a "crazy patchwork of hit-or- miss coverage," Devine said. Private sector employees can sue for damages in court, but states have different definitions of what constitutes whistleblowing and may apply different laws to protected disclosure. "What is protected in one state as whistleblowing may not be protected in another state," he said.

Israel's bill is one of many that seek to fill the loopholes in the Whistleblower Protection Act. In June, Sen. Daniel K. Akaka, D-Hawaii, introduced legislation (S. 995) that would protect from reprisal employees who disclose agency waste, fraud and abuse to their supervisors or members of Congress. Rep. Connie Morella, R-Md., introduced similar legislation (H.R. 2588) in the House. Both bills are still in committee.

Lawmakers and good government groups praised the whistleblowers from the Federal Aviation Administration, the Customs Service and the Energy Department for their courage and commitment to protecting the public.

"Employees in the government and private sector who have refused to put personal comfort and profit above public safety represent true public service and patriotism," Morella said. "Whistleblowers have saved the American taxpayer billions of dollars, and they have literally saved countless lives."

Bogdan Dzakovic, a former FAA special agent and air marshal who has accused the agency of ignoring serious security breaches at airports, called on the government to instill accountability in its employees.

"If anything of value is to be achieved by the tragedy of Sept. 11, it should be that accountability is instilled in government service, and that no one will be able to hide behind some bureaucratic shield," Dzakovic said. "Where does it say in the Constitution of the United States that government bureaucrats are unaccountable for what they do?"