The New Whistleblower's Handbook

by Stephen Kohn

  Legal standards governing Pickering causes of action: Mt. Healthy v. Doyle, 429 U.S. 274 (1977) (standard of proof); Givhan v. Western Line, 439 U.S. 410 (1979) (complaints raised internally may still be protected, even if no public disclosure); Connick v. Myers, 461 U.S. 138 (1983) (First Amendment protections only apply on issues of “public concern,” private workplace grievances not covered under Pickering); Rankin v. McPherson, 483 U.S. 378 (1987) (broad definition of protected activity); Bush v. Lucas, 462 U.S. 367 (1983) (when seeking damages, federal employees must exhaust administrative remedies); Garcetti v. Ceballos, 547 U.S. 410 (2006) (narrowed definition of protected activity to exclude disclosures made pursuant to “official duties”); U.S. v. NTEU, 513 U.S. 454 (1995) and Sanjour v. EPA, 56 F.3d 85 (DC Cir. 1995) (en banc) (injunctive relief available to prevent chilling effect on First Amendment); Swartzwelder v. McNeilly, 297 F.3d 228 (3rd. Cir. 2002) (Circuit Judge—now Supreme Court Justice—Samuel Alito upholding preliminary injunction concerning police department rule that limited employee rights to make protected disclosures).

  In Borough of Duryea v. Guarnieri, 131 S.Ct. 2488 (2011), the Supreme Court held that petitions to government bodies filed by public employees (including lawsuits filed in court) are protected under the First Amendment if they address matters of “public concern.”

  Richard Whitmore and David Urban, “Public Employees and Free Speech,” www.Dailyjournal.com/cle.cfm.

  The laws protecting federal employees are set forth in Rule 4.

  Rule 14: Federal Employees—Defend Your Jobs!

  The major law covering federal employee whistleblowers is the Civil Service Reform Act, 5 U.S.C. § 2302, and the Whistleblower Protection Act of 1989, as amended, 5 U.S.C. §§ 1211–15, 1218–19, and 1221–22. See Passman and Kaplan, P. C., Federal Employees Legal Survival Guide (Cincinnati, OH: National Employee Rights Institute, 1999); Robert Vaughn, Merit Systems Protection Board: Rights and Remedies (New York: Law Journal Press, 1984); and Peter Broida, A Guide to Merit Systems Protection Board Law and Practice (Dewey Publications, 1998).

  The U.S. Merit Systems Protection Board published a case-law guide for the Whistleblower Protection Act. The guidebook was published before the law was amended in 2012 and is out of date on various issues. See MSPB, Whistleblower Protections for Federal Employees (September 2010); published at www.mspb.gov/.

  The MSBP also publishes a Q&A on filing whistleblower cases: www.mspb.gov/appeals/whistleblower.htm.

  An excellent decision outlining the proof employers need to prevail in a WPA action is Chambers v. Department of Interior, 2011, MSPB 7 (January 11, 2011) (ordering the Chief of U.S. Park Police reinstated to her position). This decision was issued before the 2012 amendments that significantly strengthened the WPA.

  On November 27, 2012, President Obama signed the Whistleblower Protection Enhancement Act (Public Law 112-199) into law. The act improved the legal protections afforded federal workers under the WPA. The legislative history of the Enhancement Act contained in Senate Report 112-155, published by the U.S. Senate Committee on Homeland Security and Government Affairs, “Whistleblower Protection Enhancement Act of 2012) (April 19, 2012).

  The Whistleblower Protection Enhancement Act of 2012 prohibited government agencies from using restrictive nondisclosure forms that would prohibit an employee’s ability to file complaints with various government agencies, including the Office of Special Counsel or to communicate with Congress. See Public Law 112-199 § 115(a). Additionally, Congress uses the Appropriations Act process to prohibit the use of any government funds to pay the salary of any government employee who is responsible for having employees execute nondisclosure forms that restrict an employee’s ability to file complaints or blow the whistle to Congress. See Consolidated Appropriations Act of 2016, Public Law 114-113 § 713.

  Executive Order 12731, § 101(k) (October 17, 1990), mandates that all federal employees “shall disclose waste, fraud, abuse, and corruption to appropriate authorities.” The Office of Government Ethics interpreted this mandate broadly and intended that the executive order encourage the “over reporting” of potential abuses. Office of Government Ethics, “Standards of Ethical Conduct for Employees of the Executive Branch, Final Rule,” 57 Federal Register 35006 (August 7, 1992).

  Mixed Cases. If an employee alleges retaliation based on both discrimination (i.e., a sex or race discrimination claim) and whistleblowing, the two cases can be joined and litigated in U.S. District Court: 5 U.S.C. § 7702; Ikossi v. Navy, 516 F.3d 1037 (D.C. Cir. 2008); Bonds v. Leavitt, 629 F.3d 369 (4th Cir. 2011).

  Federal employees are also protected under some specific federal laws that govern limited areas of the government. For example, federal employees of the Nuclear Regulatory Commission and the Department of Energy are protected under Section 211 of the Energy Reorganization Act, 42 U.S.C. § 5851, if they make disclosures related to nuclear safety. Similarly, a number of the environmental whistleblower laws also cover federal employees. In Erickson v. U.S. EPA, 1999-CAA-2 (consolidated case; ARB, May 31, 2006) (available online at http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/CAA/03_002A.CAAP.PDF.), the Department of Labor, after briefings from the Solicitor of Labor, held that federal employees were protected under the Clean Air Act, 42 U.S.C. § 7622, and the Solid Waste Disposal Act, 42 U.S.C. § 6971. The Solicitor of Labor argued that federal employees were also covered under the Comprehensive Environmental Response (Superfund), 42 U.S.C. § 9610 and the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i). The Department indicated that they would follow that guidance, but did not formally decide the issue.

  The case law under the federal environmental whistleblower statutes which provide protection for federal employees is located at http://www.oalj.dol.gov/LIBWHIST.HTM.

  Employees of the Federal Reserve, the Federal Housing Finance Board, the Comptroller of the Currency, and the Office of Thrift Supervision are covered under the Depository Institution Employee Protection law, 12 U.S.C. § 1831j. Under the Credit Union Act, 12 U.S.C. § 1790b, federal employees of the National Credit Union Administration have whistleblower protections independent of the weaker WPA.

  The Privacy Act is codified at 5 U.S.C. § 552a.

  Federal employees must first exhaust administrative remedies before they can file a First Amendment retaliation claim (Bush v. Lucas, 462 U.S. 367 [1983]). However, pre-enforcement challenges to rules, policies, or practices of federal agencies that violate the First Amendment may be directly challenged in federal court (Weaver v. USIA, 87 F.3d 1429 [D.C. Cir. 1996]).

  Federal employees who suffer adverse employment actions based on an unconstitutional law cannot challenge that law directly in federal court. They must first exhaust their administrative remedies before the MSBP before being able to raise a challenge in federal court. Moreover, that challenge may have to be raised as part of the appeal of a final decision of the MSPB, which presumably (as a federal administrative agency) will have to uphold the constitutionality of the challenged statute (Elgin v. Department of Treasury, 132 S.Ct. 2126 [2012]).

  The administrative processes open to federal employees under the Whistleblower Protection Act, and the exclusion of federal employees who perform work for intelligence agencies from protection under the law, have been severely criticized: Senate Committee on Homeland Security and Government Affairs, “The Federal Employee Protection of Disclosures Act: Amendment to the Whistleblower Protection Act,” hearing (November 12, 2003); House Committee on Oversight and Government Reform, “Protecting the Public from Waste, Fraud, and Abuse: H.R. 1507, The Whistleblower Enhancement Act,” hearing (May 14, 2009).

  National Security and Intelligence Agency Whistleblowers. The full public law enacting protections for intelligence agency whistleblowers is located at Pub. L. 113– 126, title VI, § 604, July 7, 2014, 128 Stat. 1421.

  Rodney Perry, Intelligence Whistleblower Protection: In Brief, Congressional Research Service (October 23, 2014), is an excellent overview of the laws covering intelligence a
gency whistleblowers.

  Office of the Director of National Intelligence web pages explaining the Intelligence Community Whistleblower Protection Act are located at www.dni.gov/files/documents/ICD/ICD%20120.pdf and www.dni.gov/index.php/about-this-site/contact-the-ig/making-lawful-disclosures.

  U.S. Department of Defense Office of Inspector General, Guide to Investigating Military Whistleblower Reprisal and Restriction Complaints: www.dodig.mil/Programs/Whistleblower/ioguide.html.

  Presidential Policy Directive 19 (PPD-19) (October 10, 2012), Protecting Whistleblowers with Access to Classified Information, provides some protection for intelligence community employees against retaliation for lawfully blowing the whistle. In addition, employees and contractors are protected from reprisals in the security clearance adjudication process. PPD-19 requires that the inspector general review whistleblower reprisal allegations in violation of PPD-19. See www.whitehouse.gov/sites/default/files/image/ppd-19.pdf.

  The Intelligence Community Whistleblower Protection Act is an early law that sets forth procedures for intelligence agency employees to report information to Congress. It is limited to reporting “urgent concerns.” The Act may protect employees from criminal prosecution, but it does not prohibit retaliation. The Act is deficient. See, Public Law 105-272.

  Dan Meyer and David Berenbaum, “The WASP’s Nest: Intelligence Community Whistleblowing and Source Protection, vol. 8, Journal of National Security Law and Policy (May 8, 2015).

  New York Times Co. v. United States, 403 U.S. 713 (1971) (Pentagon Papers case).

  Snepp v. U.S., 444 U.S. 507 (1980); U.S. v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) (cases discussing the pre-publication review process).

  The FBI Whistleblower Protection Act is codified at 5 U.S.C. § 2303. In 2016 the Senate Judiciary Committee issued a report critical of this Act and proposed reforms. See S. Rep. 114-261: www.congress.gov/congressional-report/114th-congress/senate-report/261/1.

  In 2015–16 the FBI whistleblower program was studied by both Congress and the Government Accountability Office (GAO). See U.S. Government Accountability Office, Whistleblower Protection: Additional Actions Needed to Improve DOJ’s Handling of FBI Retaliation Complaints (GAO-15-112; January 2015); Senate Judiciary Committee, FBI Whistleblower Protection Enhancement Act of 2016, Senate Report No. 114-261 (May 25, 2016), located at https://www.congress.gov/114/crpt/srpt261/CRPT-114srpt261.pdf.

  Rule 15: Make Sure Disclosures Are Protected

  James Madison floor speech introducing the Bill of Rights in Congress is found in The Annals of Congress, 1st Congress, 1st Session (June 8, 1789), p. 451, and is posted on the Library of Congress website at: http://memory.loc.gov/ammem/amlaw/lwac.html.

  The following list is a nonexhaustive summary of cases that define the scope of protected activity under various state and federal laws. The whistleblower protection laws themselves also contain explicit statutory provisions defining various protected disclosures. Always double-check the specific law to ensure that your whistleblower disclosures are protected. Not all federal laws protect the same activities. Each state has its own definition of a protected disclosure.

  EXAMPLES UNDER STATE LAW

  Disclosing a “statutory violation for the public’s benefit”: Gantt v. Sentry, 824 P.2d 680 (Calif. 1992) (cases interpreting state public policy exception).

  Exercising statutory or constitutional right: Gantt v. Sentry, 824 P.2d 680 (Calif. 1992); Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984) (cases interpreting state public policy exception).

  General Common Law/Disclosures protected under “public policy”: Tameny v. Atlantic Richfield, 610 P.2d 1330 (Calif. 1980); Carl v. Children’s Hospital, 702 A.2d 159 (D.C. App. 1997) (en banc) (see analysis contained in various concurring and dissenting opinions); Kelsay v. Motorola, Inc., 384 N.E.2d 353 (Ill. 1978); Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505 (N.J. 1980); Payne v. Rozendaal, 520 A.2d 586 (Vt. 1986) (cases interpreting state tort laws).

  Internal disclosure to upper management: Tartaglia v. UBS PaineWebber, 961 A.2d 1167 (N.J. 2008).

  Internal Quality Assurance complaint concerning patient safety: Darrow v. Integris Health, Inc., 176 P.3d 1204 (Okla. 2008).

  Performing a duty required under law: Gantt v. Sentry, 824 P.2d 680 (Calif. 1992) (cases interpreting state public policy exception).

  Refusal to commit an act in violation of clear mandate of public policy: D’Agostino v. Johnson & Johnson, 628 A.2d 305 (N.J. 1993).

  Refusal to violate a law: Gantt v. Sentry, 824 P.2d 680 (Calif. 1992) (cases interpreting state public policy); Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984).

  Refusal to commit perjury: Petermann v. International Brotherhood of Teamsters, 344 P.2d 25 (Calif. App. 1959).

  Report to government agency: Wendeln v. The Beatrice Manor, Inc., 712 N.W.2d 226 (Neb. 2006).

  Testimony before City Council: Carl v. Children’s Hospital, 702 A.2d 159 (D.C. App. 1997) (en banc); Williams v. Johnson, 597 F.Supp.2d 107 (D.D.C. 2009).

  Threat to Make Protected Disclosure: Shallal v. Catholic Social Services, 566 N.W.2d 571 (Mich. 1997); Tartaglia v. UBS PaineWebber, 961 A.2d 1167 (N.J. 2008).

  Unsafe employer practices: Palmateer v. International Harvester, 421 N.E.2d 876 (Ill. 1981); Wheeler v. Caterpillar Tractor, 485 N.E.2d 2d 372 (Ill. 1985) (cases interpreting state public policy exception).

  Violation of criminal laws: Palmateer v. International Harvester, 421 N.E.2d 876 (Ill. 1981); Hodges v. Gibson Products, 811 P.2d 151 (Utah 1991); Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984) (cases interpreting state public policy exception).

  EXAMPLES UNDER FEDERAL LAW

  Broad Interpretation of Scope of Protected Activity under Federal Laws: NLRB v. Scrivener, 405 U.S. 117 (1972) (National Labor Relations Act); Clean Harbors v. Herman, 146 F.3d 12 (1st Cir. 1998) (Surface Transportation Act); U.S. ex rel. Yesudian v. Howard University, 153 F.3d 731 (D.C. Cir. 1998) (False Claims Act). See also definition of protected activity in the EEOC Compliance Manual, § 8-II(B)(2), available at http://www.eeoc.gov/policy/docs/retal.html#IIpartB.

  Congress: Richards v. Mileski, 662 F.2d 65 (D.C. Cir. 1981); Tremblay v. Marsh, 750 F.2d 3 (1st Cir. 1984); Robinson v. Southeastern Pennsylvania Transp., 982 F.2d 892 (3rd Cir. 1993); Chambers v. Department of Interior, 515 F.3d 1362, 136768 (Fed. Cir. 2008) (claim under Whistleblower Protection Act). The Lloyd-LaFollette Act of 1912 provides that “the right of employees” to “petition Congress or a Member of Congress” and to “furnish information” to Congress “may not be interfered with.” H. Rep. 388, 62nd Cong. 2nd Sess. (1912). The Congressional debates on this early whistleblower law are at 48 Congressional Record 671–77, 4513, 4654, 10728–10733, 10792–10804 and 10676 (1912). Congress also enacted antigag rules as part of the appropriations process (i.e., prohibiting federal agencies from spending any money on gag orders that restrict employee communications with Congress). See The Consolidated Appropriations Act of 2010, Public Law 111-117 § 717.

  Direct Contact with Federal Law Enforcement or Regulatory Authorities: Most whistleblower statutes explicitly protect these contacts. The federal obstruction of justice statute makes it a criminal offense to harm any person in their livelihood who provides truthful information to federal law enforcement. 18 U.S.C. § 1512(e); DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983).

  Disclosing Allegations though an Attorney: Eng v. Cooley, 552 F.3d 1062, 1073 (9th Cir. 2009).

  Failure to Raise Concerns through the Chain of Command or by Using Mandatory Procedures: Fabricius v. Town of Braintree, 97-CAA-14, Decision and Order of Department of Labor Administrative Review Board (Feb. 9, 1999) (Clean Air Act case); Pogue v. DOL, 940 F.2d 1287 (9th Cir. 1991) (environmental laws); Dutkiewicz v. Clean Harbors Environmental Services, 95-STA-4, Decision of Department of Labor Administrative Review Board (Aug. 8, 1997), affirmed 146 F.3d 12 (1st Cir. 1998) (Surface Transportation Act).

  Internal Reports “before Plaintiff Puts Together
All the Pieces of the Puzzle”: Young v. CHS Middle East, LLC, 2015 U.S. App. LEXIS 8732 (4th Cir. 2015).

  Internal Complaints to Supervisors: Munsey v. Morton, 507 F.2d 1202 (D.C. Cir. 1974); Phillips v. Board of Mine Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974) (Mine Health and Safety Act); Passaic Valley Sewerage Commissioners v. DOL, 992 F.2d 474 (3rd Cir. 1993) (Clean Water Act); Haley v. Retsinas, 138 F.3d 1245 (8th Cir. 1998) (banking whistleblower laws); Givhan v. Western Line Consolidated, 439 U.S. 410 (1979) (First Amendment).

  News Media: Pickering v. Board of Education, 391 U.S. 563 (1968) and Andrew v. Clark, 561 F.3d 261 (4th Cir. 2009) (First Amendment); Dep’t of Homeland Sec. v. MacLean, 135 S.Ct. 913 (2015) (contacting news media protected); Donovan v. R.D. Anderson, 552 F.Supp. 249 (D. Kan. 1982) (under OSHA); Chambers v. Dept. of Interior, 602 F.3d 1370, 1379 (Fed. Cir. 2010) (media contacts protected under Whistleblower Protection Act); Haney v. North American Car Corp., 81-SWDA-1, Recommended Decision and Order of Labor Department Administrative Law Judge (Aug. 10, 1981), affirmed, Secretary of Labor (June 30 1982) (under environmental whistleblower laws); Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10, Order of Secretary of Labor (Jan. 10, 1996) (Atomic Energy Act); Wrighten v. Metropolitan Hosp., Inc., 726 F.2d 1346, 1355 (9th Cir. 1984) (holding a press conference is protected under Title VII); Huffman v. Office of Personnel Management, 263 F.3d 1341, 1351 (Fed. Cir. 2001) (citing Horton, 66 F.3d at 282, holding that media disclosures are an indirect way of disclosing information of wrongdoing to a person in a position to provide a remedy) (Whistleblower Protection Act case). In a 2011 decision, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit broke with most precedent and found that employee contacts with the press were not protected under 18 U.S.C. section 1514A(a)(1) of the Sarbanes-Oxley Act. However, the court left open the issue as to whether contacts with the press were protected under another clause of the Act, section 1514A(a)(2). Tides v. Boeing, 644F.3d 809 (9th Cir. 2011). Even if a contact with the news media is protected under federal law, whistleblowers who use a state law as the basis for a complaint risk losing their case. Pacheco v. Waldrop, 84 F.3d 606 (W.D. Ky. 2015) (media disclosure not protected under state whistleblower statute).