Whistleblower Protection Act (1989)

Under the Whistleblower Protection Act, a federal employee makes a protected disclosure when they reasonably believe the information shows certain categories of wrongdoing. These include a violation of any federal law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. Protected disclosures can be made to almost anyone, including supervisors and the public, unless the information is classified or otherwise restricted.

The “reasonable belief” standard does not require the employee to prove the misconduct actually occurred. The employee must only show that a person in their position, with the information available, could reasonably believe the disclosed information evidences one of the statutory categories of wrongdoing. This is an objective standard based on the perception of the employee.

The difference between filing an OSC (Office of Special Counsel) complaint and appealing directly to the MSPB (Merit Systems Protection Board) depends on whether the personnel action is “otherwise appealable” to the Board.

– OSC Complaint: This is the required first step for most whistleblower claims involving non-appealable actions. The OSC investigates and may seek corrective action. If OSC closes the case, the employee can then file an Individual Right of Action (IRA) appeal with the MSPB
– Direct MSPB Appeal: This route is available for “otherwise appealable actions,” such as a termination or demotion. The employee can appeal the action directly to the MSPB and raise whistleblower retaliation as an affirmative defense, without first going to OSC

A federal employee who prevails in a WPA retaliation claim is entitled to “make whole” relief designed to restore them to the position they would have been in absent the retaliation. The Merit Systems Protection Board (MSPB) can order a range of corrective actions.

– Reinstatement: The employee must be restored to their former position or an equivalent one
– Back Pay and Benefits: The agency must compensate the employee for lost wages and benefits from the date of the adverse action
– Compensatory Damages: The employee can recover uncapped compensatory damages for non-economic losses like emotional distress and harm to reputation
– Attorneys’ Fees and Costs: The agency is generally required to pay the employee’s reasonable attorneys’ fees and other litigation costs
– Other Relief: The MSPB may also order other corrective actions, such as expunging the adverse action from the employee’s personnel file or providing a neutral employment reference

The WPA covers most federal civil service employees, former employees, and applicants for executive branch positions. It also extends to certain Legislative Branch employees like those at the Government Publishing Office.

However, the law has key exclusions:

– Political appointees, including federal inspectors general
– Uniformed military service members
– Non-career Senior Executive Service employees
– Employees of intelligence community elements and the FBI
– U.S. Public Health Service and NOAA Commissioned Corps officers
– U.S. Postal Service employees

The Whistleblower Protection Enhancement Act of 2012 (WPEA) made significant changes to strengthen the WPA. It clarified the scope of protected disclosures and overturned court decisions that had narrowed protections.

– Broadened protected disclosures: A disclosure remains protected even if made to the wrongdoer, previously disclosed, made orally or off-duty, or in the normal course of duties
– Expanded coverage: Extended protections to Transportation Security Administration (TSA) employees and those reporting scientific censorship
– Enhanced remedies: Added uncapped compensatory damages for victims of retaliation
– Strengthened enforcement: Increased penalties for retaliators and expanded the OSC’s powers
– Added new requirements: Mandated agency Whistleblower Protection Ombudsmen and required anti-gag provisions in nondisclosure agreements

An “otherwise appealable action” (OAA) is a personnel action, like a demotion or suspension, that is directly appealable to the Merit Systems Protection Board (MSPB).

This matters because it provides a direct path for a whistleblower to challenge the action and claim retaliation, without first filing a complaint with the Office of Special Counsel. In an OAA appeal, the employee can raise whistleblower retaliation as an affirmative defense directly to the MSPB.

This is distinct from an Individual Right of Action (IRA) appeal, which is for personnel actions not directly appealable to the Board.