Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

On April 12, 2013, the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of King v. Department of the Air Force. At issue is whether the provision of the Whistleblower Protection Enhancement Act of 2012 (“WPEA”) regarding compensatory damages applies to all current cases pending before the MSPB. The MSPB requested stakeholders to file briefs on the issue as they did in Day v. Department of Homeland Security.  

In its brief, the NWC again strongly urged the MSPB to retroactively apply the WPEA to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Stephen M. Kohn, Executive Director of the NWC, said, “it is unequivocal that the intent of Congress was to apply the WPEA, including the provision on compensatory damages, to all pending cases retroactively.”

The NWC’s brief can be viewed here.

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 Today the Court of Appeals for the Federal Circuit issued a decision in MacLean v. Department of Homeland Security.  In 2003, Robert MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to remove U.S. air marshals from long distance flights during a heightened terrorist alert.  Mr. MacLean was concerned that the suspension of overnight missions created a danger to the flying public. He complained to his supervisor and to the Office of Inspector General; both responded that they could do nothing. 

Mr. MacLean then gave information to a MSNBC reporter about the TSA’s plan. The reporter published an article criticizing the plan. The TSA withdrew its plan after criticism from the public and members of Congress. The TSA subsequently fired Mr. MacLean. 

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Today the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of Day v. Department of Homeland Security. At issue is whether the new definition of a protected disclosure set forth in the Whistleblower Protection Enhancement Act will apply to cases pending and/or which arose before that law was passed. The MSPB requested stakeholders to file briefs on the issue.

In its brief, the NWC strongly urged the MSPB to retroactively apply the WPEA’s definition of protected disclosure to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

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Yesterday, the Department of Justice held a listening session with representatives of the National Whistleblowers Center, American Civil Liberties Union, Government Accountability Project and Project on Government Oversight to discuss needed improvements in the DOJ regulations that implement the Whistleblower Protection Act for FBI employees. The meeting was called as a result of a directive issued by President Obama ordering the Attorney General, in consultation with the Office of Special Counsel and FBI employees, to make recommendations to improve the effectiveness of the DOJ whistleblower program for FBI employees.

Steve Kohn and I attended the meeting on behalf of NWC and provided our insights on the weaknesses in the current FBI whistleblower program after representing several FBI employees who faced whistleblower retaliation over the past 20 years.

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On January 15, 2013 U.S. District Court Judge Robert H. Cleland issued a key ruling in support of Justice Department whistleblower Richard G. Convertino in his longstanding Privacy Act lawsuit against the DOJ. The Court ordered the Detroit Free Press to produce all documents related to how the Justice Department smeared its former star prosecutor, Richard Convertino, after Convertino exposed serous flaws in the government’s “war on terror.”   

Convertino, one of the Justice Department’s most successful prosecutors, obtained the first guilty verdicts in a post-9/11 terrorism prosecution. However, instead of lauding the Justice Department’s counterterrorism program, Convertino testified that it was fundamentally flawed and administered by incompetent and politically motivated officials. The Justice Department, led by officials appointed by former Attorney General John Ashcroft, struck back and leaked false and highly derogatory information about Convertino to the Detroit Free Press. The leak was designed to discredit Convertino before his peers and force his resignation from the Department. 

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Take Action!

As part of a House/Senate Conference approved Tuesday, Congress passed an “Enhancement Act” for Department of Defense contractors.  These contractors already had a right to go to federal court and obtain a jury trial. 

However, this new “Enhancement Act” creates a “National Security Exception” that does not exist in the current law.  The new amendment states that whistleblower protections “shall not apply to any disclosure made by an employee of a contractor, sub-contractor, or grantee of an element of the intelligence community.” See section 827(e).

The Committee members also approved an amendment to expand protection previously only available to employees of DOD contractors to cover employees of all federal contractors. Although this is a significant step forward, this amendment also exempted the intelligence committee and has a four-year sunset provision. In other words, if Congress does not reenact it in four years it terminates.

“Exempting National security whistleblowers from all legal protections is a recipe for disaster,” stated Stephen Kohn, Executive Director of the Washington, DC based National Whistleblowers Center.

We need you to take swift action and urge Congress to protect National Security Whistleblowers. Please click the link above and take action. Also, pass this along to friends and whistleblower advocates. Congress must be told in strong terms that they can’t undermine whistleblower protections.

 Click here to read the provisions. 

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President Barack Obama signed into law today the Whistleblower Protection Enhancement Act (WPEA). Whistleblower attorneys working pro bono with the NWC played an instrumental role in passing this Act. NWC’s Executive Director Stephen Kohn testified before the Senate Homeland Security Committee and David Colapinto testified before the House Government Oversight hearing in support of the bill.

The bill contains important advances including an expanded definition of “protected disclosure” and permits whistleblowers to collect compensatory damages. Kohn and Colapinto worked for over two years to successfully block three “poison pills” that had been inserted into the law. These “poison pills” would have permitted the MSPB to summarily dismiss cases without a hearing, repealed existing protections for FBI whistleblowers and permitted the executive branch to fire whistleblowers for reporting “minor” violations of law.

“The bill contains important reforms, but federal employee still lack most of the basic rights available to whistleblowers in the private sector. We hope that President Obama and Congress will continue their efforts to ensure federal employees are fully protected during the next Congress.” Kohn said. “This is a small but meaningful step. “

Pursuant to this Act, its new provisions will become effective in thirty days. Click this link to view a copy of the WPEA.

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A recent White House directive on national security whistleblowers has sparked a major dialog in the whistleblower community. You can read the National Whistleblowers Center's press release on the directive here.

Below is a full-text analysis from the Whistleblower Support Fund's Linda Lewis (originally published here). 

On Wednesday, President Obama signed a new Presidential Policy Directive (PPD-19) entitled, “Protecting Whistleblowers with Access to Classified Information.”

The presidential policy directive aims to ensure intelligence and national security employees are able to legally report agency wrongdoing and be protected from retaliation for doing so. (Federal News Radio).

When I first heard about the directive, I was hopeful that whistleblowers with security clearances might finally get needed protections. But, as I pored over the directive’s details, I became disappointed. I am not a lawyer, so perhaps I missed something of potential benefit. I am quite familiar, though, with the federal bureaucracy’s past responses to whistleblowers with security clearances.

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Today the National Whistleblowers Center (NWC) joined with the American Civil Liberties Union (ACLU) in an amicus brief filed by the National Treasury Employees Union (NTEU). The brief urges the Federal Circuit to reverse the holding of its panel decision in Berry v. Conyers.  There, the Court held that the Merit Systems Protection Board (MSPB) does not have jurisdiction over management determinations that certain federal employees are "ineligible" for certain jobs (even the employee's current job) due to "sensitive" information, even when the information is not classified and the position does not require a security clearance. 

The amicus brief notes that the text of the Civil Service Reform Act (CSRA) gives the MSPB jurisdiction under 5 U.S.C. § 7701.  The CSRA has no provision denying jurisdiction based on eligibility to handle "sensitive" information. In contrast, the Supreme Court was focused on the President's statutory authority to make decisions on security clearances to handle classified information. See Department of the Navy v. Egan, 484 U.S. 518 (1988). Finally, the brief notes how federal managers could easily abuse authority to deny "eligibility" to "sensitive" information, particularly in whistleblower cases where the federal employee has used access to information to disclose waste, fraud or abuse. The brief urges the Court to rehear and redecide the case. 

Rhonda K. Conyers and Devon Haughton Horthover are federal employees for whom the MSPB issued final decisions. They are represented by the American Federal of Government Employees (AFGE). John Berry, the Director of the Office of Personnel Management (OPM) appealed the decisions to the Federal Circuit and prevailed, 2-1, in the Court's initial panel decision.

Thanks go to NTEU attorney Paras Shah for leading the writing and filing of this amicus brief.

UPDATE:  On October 16, 2012, the Federal Circuit granted leave to file the brief of amici curiae.

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Today, the National Whistleblowers Center and the No FEAR Coalition announced their support for the immediate passage of the Whistleblower Protection Enhancement Act (WPEA) for federal employee whistleblowers.  The decision to support the Senate version (S. 743) of the WPEA came after the Senate removed a final poison pill from the bill. 

Last week, the Senate removed the controversial summary judgment provision from the WPEA. The provision would have given the Administrative Judges of the Merit Systems Protection Board (MSPB) the power to summarily dismiss whistleblower cases without a hearing. The NWC, No FEAR Coalition and other whistleblower groups argued that the summary judgment provision would be harmful to federal employees by radically increasing costs for whistleblowers, undermining their ability to reach settlements, and delaying final decisions. A prior blog posting provides a more thorough analysis of the dangers of the summary judgment provision.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, acknowledged that "the revised Senate bill (S. 743) is far from what federal employees were promised, but it is finally a step forward." He encouraged Congress to immediately pass the WPEA and promised that the NWC would continue working to improve protections for all federal employee whistleblowers. 

Dr. Marsha Coleman-Adebayo, President of the No FEAR Coalition and member of the NWC Board of Directors, stated that the "summary judgment provisions of Senate bill (S.743) would have seriously undermined the due process provisions of the 1964 Civil Rights Act."  Dr. Coleman-Adebayo explained, "The MSPB has a long history of victimizing federal employees who seek justice by ruling nearly 97% in favor of federal agencies" and that giving MSPS summary judgment "would have been the death nail for any semblance of justice." She urged civil rights and whistleblower groups to support the WPEA and continue working together to improve federal employee whistleblower protections.   

For more information about the legislative history of the Whistleblower Protection Enhancement Act please read the NWC’s position statement. 

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