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A whistleblower protection bill containing access to jury trials, which has long been a priority for advocates, passed in the United States House of Representatives on September 15.
The legislation, the Whistleblower Protection Improvement Act (WPIA), was sponsored by Representative Carolyn Maloney, who is the chair of the House Committee on Oversight and Reform.
It allows whistleblowers to have their claims heard by a jury in a US district court if the Merits Systems Protection Board (MSPB), an administrative body largely unknown to most Americans, does not rule on their case within 180 days (or 240 days if the MSPB certifies that a case is “complex”).
The MSPB has a backlog of at least 3,000 cases as of June 2022, according to the Federal News Network. If this bill were to pass in the US Senate and be signed by President Joe Biden, it would break a major logjam that has blocked whistleblowers from obtaining a review of their claims.
Furthermore, the bill grants “any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.”
Research by the Government Accountability Project (GAP) showed [PDF] in the first six months of 2021 that MSPB judges “ruled against whistleblowers in fifty of the past fifty-one retaliation cases.”
“Federal employees are the only major labor group of whistleblowers in the country who don’t have access to a jury trial to challenge retaliation against their free speech rights,” GAP legal director Tom Devine declared. “Instead of being able to seek justice from a jury of the citizens who they are reporting to defend when they risk their careers, their day in court is limited to administrative judges who rule against whistleblowers in 96 percent of cases and are extremely vulnerable to political pressure.”
Devine also said, “It is ironic and indefensible that federal employees, whose whistleblower disclosures are the highest stakes for our country, have the weakest due process rights to defend themselves.”
Significantly, the bill recognizes the impotency of the MSPB by making whistleblower access to a jury trial “retroactive for claims filed to MSPB for up to five years prior to the date of enactment.”
This means whistleblower complaints from as early as the first year of Donald Trump’s presidency, which are still pending before the MSPB, could be submitted to a federal court.
Whistleblower complaints in a US district court, particularly those involving discrimination, would fall under the Civil Rights Act (1964), the Age Discrimination in Employment Act (1967), or the Fair Labor Standards Act (1938).
Congress was urged in 2012 to include access to jury trials in the Whistleblower Protection Act (WPA). The Justice Department aggressively fought the provision. President Barack Obama ultimately caved.
According to Devine, Jeff Sessions, who was a US senator and later became attorney general under Trump, also threatened to put a hold on the legislation if it included court access. Staff for Senator Susan Collins suggested the bill may not pass at all if whistleblower advocates did not back down.
Stephen Kohn of the National Whistleblower Center previously stated, “Federal employees need the same access to US courts as corporate employees, government contractors, truck drivers, food service workers, state and local government employees, Dodd-Frank Act whistleblowers, False Claims Act whistleblowers, whistleblowers who file state common law claims, and the vast majority of all other whistleblowers.”
Only two House Republicans voted for the bill. GAP noted Republicans claimed “whistleblowers already have more rights than they need,” and the legislation would “make it impossible to fire incompetents and wrongdoers.”
“However, whistleblowers routinely wait three to five years to lose over 95 percent of decisions on the merits,” GAP responded. “Rather than creating an insurance policy, the legislation transforms fraudulent rights into genuine ones.”
The bill does not cover intelligence agency employees, contrary to what several Republicans suggested in their attacks on the bill.
It does not appear that similar legislation has been introduced in the Senate, but Republican Senator Chuck Grassley, a longtime supporter of whistleblowers, previously introduced legislation that would establish basic protections for FBI whistleblowers.
Yet the expanded protection for FBI whistleblowers would not include access to a jury trial.
Author: Kevin Gosztola