Comments on the Whistleblower Protection Enhancement Act
by Peter Broida
The Whistleblower Protection Enhancement Act, Public Law 112-199, became effective in December 2012. To decipher the impact of the WPEA, it is necessary to apply the 2012 amendatory language to the preexisting statute-essentially to track the changes.
I share with you the results of my analysis of the amendments and include what I think are the most important points for practitioners. There are provisions of the WPEA that I do not include here. The statute should be reviewed in its entirety.
Covered Disclosures to Wrongdoers: Per the Federal Circuit, no protected disclosure occurred if an individual told a wrongdoer that he or she violated a law or regulation or committed waste or mismanagement. The result was that no actionable whistleblower reprisal occurred if an employee told a supervisor she was violating a statute, the supervisor politely thanked her for the information and immediately informed the employee that she was fired for her trouble. The WPEA changes that result by including as a covered disclosure a communication to a wrongdoer. Section 101(b)(2)(C) of the WPEA, amending 5 USC 2302 by adding (f)(i)(A).
Broader Class of Disclosure: Matters Included within 5 USC 2302(b)(9): WPEA broadens IRA jurisdiction under 5 USC 1214 and 1221 to include protection not only against reprisal for the usual forms of disclosures covered by 5 USC 2302(b)(8), but also against further reprisal if a reprisal case under a (b)(8) type of disclosure is first made in a complaint, grievance, or appeal described in 5 USC 2302(b)(9). Section 101 of the WPEA, amending 5 USC 1214, 1221 and 2302. So, for example, a person files an EEO complaint for nonselection. Then the complainant suffers reprisal. She files an EEO reprisal complaint alleging another violation of Title VII. Reprisals continue. At that point, it appears she could invoke the IRA mechanism because she has been the victim of reprisal for previously complaining of the type of reprisal covered by 2302(b)(8). Note that in the case of the underlying EEO violation and allegation of reprisal, the WPEA also expands the definition of "a" disclosure to "any" disclosure-overcoming prior MSPB decisions distinguishing types of violations actionable under 2302(b)(8) depending on whether a complaint or appeal process was separately available to redress a violation of law. Related reprisal cases end up being litigated in two forums, each forum with different exhaustion and remedial provisions. The revisions to Section 1214 as they relate to Section 2302(b)(9) include other matters: testifying for or assisting individuals in their appeals, complaints, or grievances, cooperating with or disclosing information to an IG or OSC, or refusing to obey an order that would require an individual to violate a law. The language describing the scope of an IRA case under (b)(9) is very indirect and subject to differing interpretations.
Broader Class of Disclosures: Matters Arguably Within the Ordinary Scope of Employment: The 2012 statute changed existing Federal Circuit law by providing protection to disclosures made in the normal course of employment if there is a disclosure of a violation of law, rule, regulation, gross mismanagement, waste, fraud, or abuse of authority, or a substantial and specific danger to public health and safety. Section 101, amending 5 USC 2302(b)(2)(C) by adding (f)(2).
Broader Class of Disclosures: "Any" means "any": 5 USC 2302(b)(8)A)(I) is amended to include "any" rather than "a" violation of law, rule, or regulation, with the apparent effect of eliminating application of a de minimis test to an otherwise covered disclosure. Section 2302(b)(8)(B)(I) is similarly amended as to a like disclosure to OSC or OIG. Section 101(a) of the WPEA.
Broader Class of Disclosures: Policy Disputes: Disclosures concerning policy decisions are protected if the disclosures reveal matters encompassed by 5 USC 2302(b)(8). Section 102 of WPEA, amending 2302(a)(2).
Limitation of Defenses to Disclosures: The 2012 legislation precludes exclusion of disclosures on the bases that the information was previously disclosed, the disclosure was not in writing, the disclosure was made while the employee was off duty. Section 101(b)(2)(C) of WPEA, amending 5 USC 2302 by adding (f)(1)(B), (D), and (E).
Order of Proof: The Board allowed its judges to invert the order of proof in a whistleblower case by assuming that whistleblowing occurred, in order to quickly resolve the case with the agency's clear and convincing evidence that the appellant would have suffered the action appealed without regard to whistleblowing. The judge could short-circuit the whistleblowing analysis, including the intensity of the agency's motive to retaliate and rid themselves of, or otherwise discipline, the whistleblower, by jumping straight to the agency's defense. WPEA precludes inversion of proof and requires the opportunity for full evidentiary development: appellant puts on her case followed by the agency's defense and rebuttal by the appellant. Section 114(b) of the WPEA, amending 5 USC 1221(e)(2).
No more presumptions concerning timing of disclosures and reprisals: Board law was that, without direct evidence of reprisal, disclosures in IRA cases occurring much more than a year prior to the complained of personnel action would not serve to establish nonfrivolous allegations of whistleblowing reprisal. WPEA changes that by precluding an arbitrary time constraint linking the disclosure and appealed action. That does not mean that a disclosure ten years prior to a personnel action will establish a strong case, but it does mean that the evidence will need to be examined and weighed. Section 101(b)(2)(C), amending 5 USC 2302 by adding (f)(1)(F).
No more presumptions favoring agency officials: The statute precludes any strong presumption that agency officials act in good faith when their actions are challenged as retaliatory, but the statute did not do more than recognize relatively recent developments in Board law. Section 103 of WPEA.
Expanded Economic Recovery: WPEA redefines consequential damages to include compensatory damages-presumably for the emotional and physical effects of whistleblowing reprisal. Section 107(b) of WPEA, amending 5 USC 1214(g)(2) and 1221(g)(1)(A)(ii). The 2012 amendments to do not incorporate Title VII caps on compensatory damages.
Gag Orders and Research Activities: WPEA limits the ability to agencies to use nondisclosure agreements in agency investigations as a means of muzzling employees from making whistleblower disclosures. And the statute established protections against agency censorship of defined research activities. Sections 115 and 110 of the WPEA.
New Judicial Review Options: WPEA provides that for a period of two years parties may take their whistleblowing cases from the MSPB to circuit appellate courts or to the Federal Circuit. Section 108(a) by amending 7703(b).
Facilitation of OSC Disciplinary Cases. OSC's burden of proof is now modified. The law was that disciplinary cases were established by proving that reprisal was a significant or important factor in the complained action(s) or inaction, not that it was a contributing or tangential factor. The 2012 amendments state that the Board may impose discipline if protected activity was a significant motivating factor. This is true even if other factors also motivated the decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by a preponderance of the evidence, that he or she would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity. Through amendment of 5 USC 1204(m), OSC is no longer potentially liable to an appellant for her counsel fees if it loses a disciplinary case taken to the Board; instead, if counsel fees are paid, they are paid by the employing agency. Section 107(a) of WPEA.
Retaliatory Investigations. A Board order for corrective action may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action. Section 104 of WPEA, amending 5 USC 1214 and 1221(g).
Other Provisions: There are other provisions of WPEA that enhance whistleblower protection for TSA employees (Section 109 of WPEA, establishing the new 5 USC 2304), permit OSC to file amicus briefs in court (Section 113of WPEA, amending 1212), require OIG offices to designate whistleblower protection ombudsmen (Section 117 of WPEA), and call for public reporting and review of whistleblower cases by the MSPB and GAO (Section 116 of WPEA).
What the WPEA did not do: The 2012 amendments did not extend protection to security clearance suspensions or revocations. It did not appear to modify the preexisting exclusion of intelligence agencies. It did not provide for jury trials. See, though, Presidential Policy Directive/PPD-19, Protecting Whistleblowers with Access to Classified Information (October 10, 2012).
The House and Senate reports preceding the statute do not provide especially complete descriptions of the changes by the WPEA to the Reform Act, the Whistleblower Protection Act, and to interpretative case law from the MSPB and Federal Circuit. The best way to decipher the impact of the 2012 legislation is to apply the language of the 2012 amendments to the preexisting statutes.
For the text of the statute, refer to http://www.gpo.gov/fdsys/pkg/PLAW-112publ199/html/PLAW-112publ199.htm
The Senate Report is at http://thomas.loc.gov/cgi-bin/cpquery/T?&report=sr155&dbname=112&.
The House Report is found at http://www.fas.org/irp/congress/2012_rpt/wpea2.html
Please note that my comments reflect nothing other than my review of the statute. In your work, make sure you review the actual text of the statutory changes.
Readers should take a look at the statute and cross-reference the sections of the U.S. Code amended by the statute. Doubtless there will be law review articles and much discussion of the amendments in the years to come, but the time for serious reflection on the statutory changes is at hand. The best examination of the statute is by the individual practitioner reviewing the language of the legislation rather than reliance upon interpretations by others.