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Published: 2012-12-05

Whistleblower Protection Enhancement Act of 2012 Becomes Law



On November 27, 2012, President Obama signed S. 743, the Whistleblower Protection Enhancement Act of 2012 (WPEA). The law amends chapter 23 of title 5 of the United States Code, also known at the Whistleblower Protection Act of 1989 (WPA), and provides clarification and further protections to federal employees who report government fraud, illegality, waste and corruption.

The WPA was enacted in 1989 to strengthen and improve protection for the rights of Federal employees, prevent reprisals, and help eliminate wrongdoing within the Government. To accomplish that goal, the WPA mandated that employees should not suffer adverse consequences as a result of prohibited personnel practices, established that the primary role of the Office of Special Counsel was to protect federal employees from prohibited personnel practices, and that the protection of individuals who are the subject of prohibited personnel practices was the paramount consideration.

According the Government Accountability Project, unfortunately the rights of employees under this law were narrowed considerably by subsequent judicial opinions from the Federal Circuit Court of Appeals, who had sole jurisdiction of cases brought under the WPA. The GAP cited a particularly stark statistic that the Court had "a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits."

The WPEA was introduced on April 6, 2011, but had a long history prior to that re-introduction.

Ultimately passing both houses by unanimous vote, the WPEA was enacted to "clarify the disclosures of information protected from prohibited personnel practices, require a statement in non-disclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes."

Here are some of the key pieces of the legislation:

Additional Protections

1. Previously, section 2302(b)(8) used the language "a violation" when discussing what disclosures were covered. The WPEA amends the language in this section to now read "any violation."
2. Disclosures will not be excluded even if the disclosures reveal information that had been previously disclosed, so the whistleblower does not have to be the first person to report to be covered.
3. Disclosures to coworkers or supervisors will be covered.
4. Disclosures made during the normal course of duties will be covered.
5. Policy decisions may be covered if "the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety."
6. Prohibits personnel practice of implementing or enforcing any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order.
7. The President must remove an intelligence agency from coverage under the statute prior to a challenged personnel action taken against the whistleblower for the whistleblower to be denied protection.
8. Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.

Expands Class of Persons Protected

1. Extends whistleblower protections to employees at the Transportation Security Administration.
2. Extends protection to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information.

Court Review

1. Appellate jurisdiction is expanded to any court of appeals of competent jurisdiction for 2 years from the effective date of the legislation (rather than exclusively in the Federal Circuit).
2. Establishes that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence, and creates a "disinterested observer" standard to be used when a determining whether an employee reasonably believes that such employee has disclosed information that evidences any violation.
3. Office of Special Counsel may appear as amicus curiae in whistleblower actions.

Procedural Changes

1. Revises the standard of proof when disciplining an employee who takes an adverse personnel action against a whistleblower such that the Office of Special Counsel only has to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
2. The Merit Systems Protection Board (MSPB), in disciplinary actions, can require payment of reasonable attorney fees, as well as consequential and compensatory damages by the agency where the prevailing party is employed, if specified conditions apply.
3. Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
4. Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure. (According to GAP, the MSPB had an unusual practice that allowed agencies in some cases to present their defense first and the MSPB to rule on the case prior to the whistleblowers' presenting their evidence of retaliation).
5. Requires the MSPB to report annually on the number and outcome of whistleblower cases.
6. Within 4 years, the Government Accountability Office must report on the changes in the number of cases filed with the MSPB alleging violations, the outcome of such cases, whether Congress should grant MSPB summary judgment authority, whether district courts should have jurisdiction over a subset of cases, and an evaluation of the impact that would have on the Merit Systems Protection Board and the Federal court system.

The law was enacted after President Obama signed the bill, and goes into effect 30 days thereafter, meaning it should be effective as of December 27, 2012.

Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.