The Whistleblower Protection Enhancement Act (WPEA) may move through Congress in the coming days, or even hours, and contains many important reforms that will help federal employees. However, both the House (H.R. 3289) and Senate (S. 743) versions still have one provision that, if enacted into law, will significantly harm whistleblowers.
Continue Reading Why Summary Judgment Must be Removed from the WPEA

Federal CircuitIn this week’s Honesty Without Fear radio program, I interviewed Robert “Bob” Whitmore and his lawyer, Paula Dinerstein, about the landmark decision Whitmore won from the U.S. Court of Appeals for the Federal Circuit last week. The Federal Circuit has finally put to rest the unfortunate practice of judges at the Merit System Protection Board (MSPB) of allowing the agency to “prove” that they would have fired the whistleblower anyway, and then never hearing the whistleblower’s side of the story.  The Court rejected this procedure saying:

Doing so prevents whistleblowers from effectively presenting their defenses, and leaves only the agency’s side of the case in play. This can have a substantial effect on the outcome of the case, and so constitutes harmful error. (Page 28.)

The Court also held that the MSPB judge erred in excluding Whitmore’s witnesses about his whistleblowing.  The Court upheld the exclusion of one witness on grounds that Whitmore’s attorney had not submitted a detailed statement of what the witness would say (a claim that Dinerstein disputes). Most importantly, the Court held that the MSPB failed to consider evidence that points to retaliation as management’s real motive for firing Whitmore, and that without considering this evidence, it cannot say that the agency proved “by clear and convincing evidence” that it would have fired Whitmore even if he had never done any whistleblowing.  This decision represents a bold change in direction for the Federal Circuit, and breaths life into the 1994 amendments to the Whistleblower Protection Act.  The Federal Circuit concluded its decision by recognizing the important role that whistleblowers play in our country:

The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the public, yet whistleblowers are at a severe evidentiary disadvantage to succeed in their defenses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove—by clear and convincing evidence—that the same adverse action would have been taken absent the whistleblowing. …

Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.

Dinerstein, a lawyer at Public Employees for Environmental Responsibility (PEER), this victory is a remarkable accomplishment. Dinerstein also represented whistleblower Teresa Chambers.  Chambers has been reinstated to her position as Chief of the U.S. Park Police after winning a decisive victory from the Federal Circuit last year. As Dinerstein explained on Honesty Without Fear this week, the Chambers opinion was more narrowly crafted to help Chambers without changing too much precedent.  Whitmore’s decision is a sweeping opinion that rejects the limitations of past Federal Circuit decisions, requires MSPB judges to conduct full hearings with all the relevant witnesses, and enforces the “clear and convincing” standard for the agency’s burden.


Continue Reading Federal Circuit finally gets due process and “clear and convincing”

Yesterday, Senator Daniel Akaka (D-Hawaii) introduced the Whistleblower Protection Enhancement Act of 2011 (WPEA), S. 743. Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC) issued the following statement on this bill:Stephen M. Kohn

In December of 2010, the National Whistleblowers Center (NWC), the Federal Ethics Center, the National Security Whistleblowers Coalition and the No FEAR Coalition, together with nationally respected whistleblowers and thousands of citizen activists, strongly opposed the prior version of the WPEA (S. 372) calling it a “bad deal for whistleblowers.” We laid out seven detailed reasons for why the bill would be detrimental for federal employees and would roll back existing whistleblower protections.

We were strongly criticized for opposing S. 372. We were told that this was the best bill we were going to get and if we did not change our position federal employee whistleblower protections offered in the new Congress would be worse. However, we believed that we were doing what was in the best interest of all federal employee whistleblowers and refused to back down.

Federal employees deserve better and were promised more by President Obama. If the flawed S. 372 had passed in December, all federal employees would have been materially harmed by the roll backs in protections. We had no choice but to stand our ground and it turns out that we were right – changes could be made to improve the bill.

The WPEA was re-introduced yesterday with one of our major concerns fixed. The exception for “minor” and “inadvertent” violations of law in the definition of protection disclosure has now been removed from this latest version of the Senate bill.

We are pleased that the Senate sponsors of the WPEA have agreed with the NWC, the Federal Ethics Center, the National Security Whistleblowers Coalition and the No FEAR Coalition, and the thousands of persons who advocated for this important change in the bill from what was proposed in the last Congress.


Continue Reading Citizen activism does the impossible: One WPEA loophole closed