by Stephen Kohn
The Supreme Court affirmed that public employees did not give up their constitutional rights when they took on a job with the government. “[F]ree and unhindered debate on matters of public importance” is part of the “core value” standing behind the “Free Speech Clauses of the First Amendment.” Government workers were in a position to learn about official misconduct, and they often had specialized knowledge on matters of public concern that the people needed to know about in order to make informed decisions within a democratic society.
“The public interest in having free and unhindered debate on matters of public importance [is] the core value of the Free Speech Clause of the First Amendment . . the threat of dismissal from public employment is [a] potent means of inhibiting speech.”
Justice Thurgood Marshall, Pickering v. Board of Education
However, these rights had limits. Whistleblowers were not immune from termination simply because they engaged in protected speech. Not all workplace grievances would rise to a constitutionally protected status. The Supreme Court balanced the needs of employers to maintain discipline in their workplace with the right of free speech. “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
State and Local Government Workers and the Civil Rights Act of 1871
The 1968 Supreme Court ruling in Pickering recognized that government whistleblowers were protected under the First Amendment. These newly established rights were given significant teeth by a once obscure Reconstruction Era civil rights law that provided for a tort remedy whenever state and local government officials violated constitutional rights. Once the Supreme Court applied First Amendment protections to public-sector employees, the tort remedies contained in this old civil rights law also became available to public-sector workers.
Six years after the Civil War, Congress enacted the Civil Rights Act of 1871, better known today simply as 42 U.S.C. section 1983. This act created a private cause of action for any person alleging that, under the “color of law,” they were deprived of a “right” “secured by the Constitution and laws” of the United States. As a result of the 1968 Pickering decision, state and local government workers who were fired for blowing the whistle could collect damages under the 1871 act.
The remedies in the Civil Rights Act are broad. Employees can file claims in federal court and can request a trial by jury. Whistleblowers who prevail are entitled to a full range of damages and injunctive relief, including compensatory damages, punitive damages, and attorney fees and costs.
The Civil Rights Act of 1871 only covers violations committed under color of state law, and does not apply to the federal government or private sector jobs.
The law has a number of pitfalls, including a prohibition of directly suing a state government—the law permits lawsuits against “persons,” not the state. Thus, whenever a state government is responsible for the retaliation, it is imperative to name all the individual managers responsible for the termination, the governor of the state, and the head of the relevant state agency. Additionally, the Supreme Court decision in Garcetti v. Ceballos narrowed the rights of employees to obtain constitutional protection for speech performed as part of their “official duties,” even when exposing wrongdoing.
Injunctive Relief Under the First Amendment
State and federal government employees can also directly use the First Amendment to challenge workplace rules that harass, restrict, or prevent employee whistleblowing. For example, in 1992 the Environmental Protection Agency implemented “outside speaking” rules that restricted its own employees from speaking publicly about problems with the agency. In Sanjour v. EPA, the rules were challenged under the First Amendment and the U.S. courts issued a nationwide injunction preventing all federal agencies from using the rule to restrict whistleblowing speech. The whistleblower did not win damages, but rules that could have been used to discipline him and others were struck down as unconstitutional. The Sanjour precedent has been applied to state and local government. In 2002, Justice Samuel Alito, while still an appeals court judge, applied Sanjour and other precedents to strike down as unconstitutional a Philadelphia police department rule that limited the right of policemen to testify against their department.
Federal Employees
The Sanjour precedent was limited to cases in which employees used the First Amendment to obtain nonmonetary injunctive relief prohibiting agencies from instituting unconstitutional conditions of employment, such as illegal gag orders or restrictions on outside speaking and writing activities. That precedent does not permit federal employees to file claims in court for damages.
In the case of Bush v. Lukas, the Supreme Court ruled that federal employees who sought monetary damages had to “exhaust” their administrative remedies. Instead of filing First Amendment challenges to adverse employment decisions in federal court, they had to first file their claim before the Merit Systems Protection Board under the procedures set forth in the Civil Service Reform Act and a 1989 amendment to that law known as the Whistleblower Protection Act or WPA.
As explained in Rule 14, the WPA is now the primary law covering federal employee whistleblowers. Employees must file their cases with the Merit Systems Protection Board or the Office of Special Counsel.
PRACTICE TIP
Checklist 2 includes citations to the major cases under the First Amendment, the Civil Rights Act of 1871, and the Civil Rights Attorney Fee Act.
• Pickering v. Board of Education, 391 U.S. 563 (1968) (landmark case establishing First Amendment protection for public employee whistleblowers).
• Garcetti v. Ceballos, 547 U.S. 410 (2006) (affirming and explaining Pickering, but limiting protections for internal disclosures).
RULE 14Federal Employees—Defend Your Jobs!
“In the vast federal bureaucracy it is not difficult to conceal wrongdoing provided that no one summons the courage to disclose the truth.”
Senate Report, Whistleblower Protection Enhancement Act (2012)
Federal employees are on the front lines of controversy. They witness abuses highly political in nature, and embarrassing to those who live or work in the White House. Their expertise is called upon to address the hottest topics that divide the country, such as how to best combat terrorism, the science behind global warming, and the safety of offshore oil drilling. Given the sensitive nature of the work performed by these civil servants, federal employees are regularly caught in the middle of special interest lobbyists and political opportunists. They become whistleblowers, either by choice or just plain bad luck.
Laws protecting federal employee whistleblowers have been subject to intense debate for many years. The main law covering federal employees, the Whistleblower Protection Act; (WPA), was originally passed in 1978 as part of the Civil Service Reform Act, it has been amended three times—in 1989, 1994, and 2012. The law is complex, technical, and problematic. There are some alternatives to the WPA, such as Title VII of the Civil Rights Act (discrimination), the Privacy Act (improper leaks of private information), and environmental whistleblower laws. Also, rules governing employee speech outside of work can provide an outlet for effective whistleblowing. But on a whole the whistle-blower laws protecting federal workers are not as strong as those protecting most corporate employees. They lack rewards, and access to federal court jury trials is almost impossible.
The Whistleblower Protection Act (WPA)
The WPA is the main law protecting federal employee whistleblowers. It covers applicants, employees, and former employees working in the federal civil service. The Act was originally passed as part of the Civil Service Reform Act of 1978. The Senate Report accompanying that law spelled out the intent of the new whistleblower law:
Often, the whistleblower’s reward for dedication to the highest moral principles is harassment and
abuse. Whistleblowers frequently encounter severe damage to their careers and substantial economic loss. Protecting employees who disclose government illegality, waste, and corruption is a major step toward a more effective civil service. In the vast federal bureaucracy, it is not difficult to conceal wrongdoing provided that no one summons the courage to disclose the truth. Whenever misdeeds take place in a federal agency, there are employees who know that it has occurred, and who are outraged by it. What is needed is a means to assure them that they will not suffer if they help uncover and correct administrative abuses.
After its initial enactment in 1978, the law proved to be weak and ineffective. It was amended in 1989, but still did not function properly. Amended again in 1994, it still was plagued with problems. In 2012 it was amended for the last time. Its most glaring defects were fixed, but unlike with many modern laws, employees are required to have an administrative agency, the Merit Systems Protection Board (MSPB), decide their cases. The board is supposed to act independently, but its composition undermines its independence. The Board consists of three presidential appointees. Two of these Members are required to be members of the political party that holds the White House, and one Member is required to be a member of the opposition party; for example, President Donald Trump would appoint the three members, two would be Republicans, and one a Democrat. Senate approval is needed for these appointments. Federal employees cannot have their retaliation cases heard by a jury in federal court, but there is judicial review of final orders issued by the MSPB.
PROTECTED ACTIVITY UNDER THE WPA
The Whistleblower Protection Act broadly describes what conduct is protected:
any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—(i) any violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law . . . or Executive order [emphasis added].
The “any disclosure” provision is deceptively broad. Information that federal employees have, which may form the basis of their whistleblowing, may be prohibited by law from being revealed to the public.
In addition to the “any disclosure” provision, the WPA also explicitly protects disclosures to certain receiving offices. This enables whistleblowers to make disclosures that may otherwise be prohibited from public release. These receiving offices are the safest place to make a disclosure:
• The Office of Special Counsel (a special office established to accept whistleblower allegations, even if those disclosures are filed confidentially or anonymously).
• The Office of Inspector General. Every executive agency has an Inspector General and is also permitted to accept complaints on a confidential or anonymous basis.
The WPA also protects disclosures to Congress.
Finally, the WPA protects employees who “refuse to obey an order that would require the individual to violate a law” or who participate as witnesses or informants to any investigation of the Inspector General or Special Counsel.
Protected disclosures do not include arguments over policy.
Given confusion as to the meaning of “any disclosure,” in the 2012 amendments to the WPA that term was explicitly defined to include the following:
• Disclosure to a supervisor.
• You do not have to be the first person to raise the concern.
• An employee’s motive for making a disclosure is not relevant.
• Disclosures do not need to be in writing.
• A disclosure can be informal or formal.
• Disclosures can be made while the employee is off duty.
• A disclosure can be made during the normal course of an employee’s duties.
• Disclosures of information that has been “previously disclosed” and the amount of time that has transpired between the time an employee makes the disclosure and the time the alleged wrongful act happened are irrelevant.
ADVERSE ACTION
Consistent with most other employment discrimination laws, the WPA broadly defines the adverse actions from which whistleblowers are to be shielded. Adverse “personnel actions are actions that impact the following areas of an employee’s job or pay: (i) an appointment; (ii) a promotion; (iii) disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance evaluation; (ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; (x) a decision to order psychiatric testing or examination; (xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and (xii) any other significant change in duties, responsibilities, or working conditions.
FILING A RETALIATION COMPLAINT
The WPA permits employees to initially seek protection from the Office of Special Counsel or the Merit Systems Protection Board (MSPB), depending on the type of adverse action at issue in the case and the status of the employee victimized by the retaliation. Employees can also choose to file a grievance under their union contract. These options are mutually exclusive. Whichever option you choose will likely waive your right to file under the other two options.
The primary procedure used by federal employees to adjudicate their whistleblower cases starts with filing a complaint before the Office of Special Counsel (OSC). Complaints can be confidentially filed, and the OSC is required to protect the whistleblower’s privacy. Any whistleblower case filed with the OSC triggers specific due process rights, cumulating with the right to a hearing before an administrative judge and judicial review before the U.S. Court of Appeals for the Federal Circuit (or another appeals court, if permitted).
The OSC process begins with an independent investigation by the OSC into the allegation that the agency committed a prohibited personnel practice when it took adverse action against the whistleblower. If the OSC backs up the worker, the OSC can file administrative complaints on behalf of the employee, seeking a “stay” of an adverse action. The OSC also has a mediation program, which it can employ to try to resolve a case.
If the OSC issues a finding in support of the employee, and the agency appeals the OSC finding, the OSC can represent the worker in an administrative hearing, seeking damages or reinstatement. The whistleblower also has a right to intervene in this action and participate with his or her own counsel, or pro se. If the OSC supports the employee, there is a very high likelihood that the case will be favorably settled or resolved to the advantage of the whistle-blower, as OSC backing sends a strong message that the agency involved most likely violated the law. Unfortunately, the OSC has very limited resources and simply cannot come close to representing all whistleblowers who have valid cases. As a result, the OSC often does not rule in the employee’s favor or even conduct a thorough investigation.
If the OSC decides to take no action on behalf of the employee, delays issuing a finding, or makes a finding adverse to the employee, the whistle-blower can request a hearing before an “administrative judge” appointed by the MSPB. Employees can request a full hearing before the MSPB judge either within 65 days of receiving an adverse determination from the OSC or within 120 days of filing the complaint with the OSC. Employees do not have to wait for a final ruling by the OSC in order to request a hearing. One-hundred-and-twenty-days after filing a complaint with the OSC, employees can abandon the OSC process and directly request a hearing on the merits before an MSBP judge.
Once a case is filed with an MSPB judge, the parties have the right to conduct discovery. This includes questioning witnesses at depositions, subpoenaing records, submitting document requests, and requiring under oath responses to written interrogatory questions. The time limits for filing and completing discovery are strict. If employee
s fail to take immediate advantage of the discovery rules, they may miss strict deadlines contained in the MSPB rules, and inadvertently waive their right to discovery. One of the major criticisms of the hearing process concerns the quality and temperament of the judges. MSPB administrative judges do not need to be licensed attorneys. Unlike federal court judges or statutory “administrative law judges,” MSPB judges are not subject to a formal confirmation process and their appointments are not for life. They are civil servants and there are no mandatory qualifications for holding one of these “judgeships.”
After the hearing, the MSPB judge must issue a written decision, which either party can appeal to the three-member MSPB. The Board then issues the final agency decision, which either party can appeal to the U.S. Court of Appeals for the Federal Circuit. Under the 2012 amendments, appeals can also be heard in other appeals courts, but this right was provided on a temporary basis.
Some federal employees have the option to skip the OSC process and request an immediate hearing before an MSPB judge. There are two benefits to this option. First, the case will move very quickly, as the MSPB judges are required to expedite discovery and conduct the hearing on the merits in a fairly short time period. Second, the employee can raise issues beyond the whistleblower issue. If you are a tenured civil servant, the government can fire you only if it has “just cause.” The government has the burden of proof to demonstrate just cause and also must demonstrate that it afforded you the proper procedural due process available to tenured federal employees. By filing a case directly with the MSPB, and bypassing the OSC, an employee can enjoy the full benefits of civil service protection. A direct appeal to the MSPB permits the federal employee to raise both civil service issues, and he or she can raise the whistleblower issues as an affirmative defense.
