Whistleblower Protections for Federal Employees

Whistleblower Protections for Federal Employees

97-787 A
CRS Report for Congress
Received through the CRS Web
Whistleblower Protections for Federal Employees
Updated May 18, 1998
L. Paige Whitaker
Legislative Attorney
American Law Division
Michael Schmerling
Law Clerk
American Law Division
Congressional Research Service ˜ The Library of Congress

Whistleblower Protections for Federal Employees
Summary
This report discusses the federal statutory protections for federal employees who
engage in "whistleblowing," that is, a disclosure made by an employee evidencing
illegal or improper government activities.
With the enactment of the Civil Service Reform Act of 1978, the first statutory
protections for federal employee whistleblowers were created. The law was designed
to encourage the disclosure of government illegality, waste and corruption by
strengthening and improving protection of federal employee rights, and preventing
reprisals against employees taken because of employee whistleblowing. As a result
of findings that the statutory protections were inadequate, however, beginning with
the ninety-ninth Congress, legislative attempts were made to increase whistleblower
protection. Finally, in 1989, Congress and the Bush Administration reached a
consensus on this legislation and the Whistleblower Protection Act of 1989 was
enacted. Dissatisfied with its impact, Congress strengthened that legislation in 1994.
Specifically, the protections cover most federal executive branch employees and
would become applicable where a "personnel action" was taken "because of" a
"protected disclosure" made by a "covered employee." The whistleblower protections
may be raised within basically four general forums or proceedings: (1) in employee
appeals to the Merit System Protection Board of an agency's adverse action against
the employee, known as "Chapter 77" appeals; (2) in actions instituted by the Office
of Special Counsel; (3) in an individually maintained right of action before the Merit
Systems Protection Board (known as an individual right of action, or IRA); and (4)
in grievances brought by the employee under negotiated grievance procedures.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Original Statutory Protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislative Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reagan Veto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Effects of the Original 1989 Protections . . . . . . . . . . . . . . . . . . . . . . . 4
Congressional Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Covered Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Protected Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Personnel Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Nexus Between a Protected Disclosure and a Personnel Action . . . . 13
Forums Where Whistleblower Protections May Be Raised . . . . . . . . . . . . 14
"Chapter 77" Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Actions by the Office of Special Counsel . . . . . . . . . . . . . . . . . . . . . 15
Individual Right of Action (IRA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Negotiated Grievance Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Other Protected Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
General Information Regarding Filing a Complaint with the Office of Special
Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Whistleblower Protections for Federal
Employees
Background
Original Statutory Protections. Federal employees who disclose illegal or
improper governmental practices, "whistleblowers," first received statutory protection
from reprisal personnel actions with the enactment of the Civil Service Reform Act
of 1978 (CSRA). T
1
he law was designed to encourage the disclosure of government
illegality, waste, and corruption by protecting whistleblowers from reprisal.
As stated in the Senate Report concerning the whistleblowing provisions of the
civil service reform legislation:
Often, the whistle blower's reward for dedication to the highest morale
principles is harassment and abuse. Whistle blowers frequently encounter
severe damage to their careers and substantial economic loss. Protecting
employees who disclose government illegality, waste, and corruption is a
major step toward a more effective civil service. In the vast Federal
bureaucracy it is not difficult to conceal wrongdoing provided that no one
summons the courage to disclose the truth. Whenever misdeeds take place
in a Federal agency, there are employees who know that it has occurred,
and who are outraged by it. What is needed is a means to assure them that
they will not suffer if they help uncover and correct administrative abuses.
What is needed is a means to protect the Pentagon employee who discloses
billions of dollars in cost overruns, the GSA employee who discloses
widespread fraud, and the nuclear engineer who questions the safety of
1 Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1114.

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certain nuclear plants. These conscientious civil servants deserve statutory
protection rather than bureaucratic harassment and intimidation.2
Among its provisions, the CSRA created the Merit Systems Protection Board
(MSPB) and the Office of Special Counsel (OSC) to investigate and adjudicate
allegations of prohibited personnel practices or other violation of the merit system.
Under the statute, employees subjected to significant adverse personnel actions,
including removal, reduction-in-grade, reduction-in-pay, and suspensions of more than
fourteen days, could appeal directly to the MSPB for redress, regardless of the
agency's reason for taking the personnel action. For les
3
s significant personnel actions,
such as transfers or denials of promotions, employees could not appeal to the MSPB
directly, but could seek assistance from the OSC, if the action was based on a
"prohibited reason."4
Prohibited reasons included reprisal for whistleblowing; reprisal for the exercise
of appeal rights; engaging in discrimination; engaging in nepotism, willfully
obstructing any person's right to compete for employment; or taking or failing to take
a personnel action if the taking of or failure to take such action violated any law, rule,
or regulation regarding merit systems principles.5 Personnel actions based on
prohibited reasons are called "prohibited personnel practices."6 Employees subjected
to adverse personnel actions that were taken solely for prohibited reasons could
simultaneously appeal to the MSPB and seek assistance from the OSC.
7
8 If the OSC
determined that there were reasonable grounds to believe that a prohibited personnel
practice occurred, it had authority to seek a postponement or "stay" from the MSPB.
Moreover, if the OSC determined that corrective action was indicated, it could
request the MSPB to consider the matter; the OSC did not, however, have litigating
authority to appeal the MSPB's decision in federal court.9
In 1984, the MSPB found that, in practice, the CSRA contributed little to the
protection of whistleblowers. Statistics illustrated that no measurable progress had
been made in overcoming federal employee resistance to reporting instances of fraud,
waste, and abuse. Indeed, the percentage of employees who did not report
2 S.Rept. 969, 95th Cong., 2d Sess. 8 (1978).
3 5 U.S.C. § 7513(d).
4 5 U.S.C. § 1206(a)(1982), repealed by Whistleblower Protection Act of 1989, P. L.
101-12, 92 Stat. 1114.
5 5 U.S.C. § 2302(b).
6 5 U.S.C. § 2302(a).
7 5 U.S.C. § 7701(c)(2)(B) (affirmative defense).
8 5 U.S.C. § 1206(a)(1).
9 For a detailed discussion of the original federal statutory protection of whistleblowers,
see "Overview of Whistleblower Protections In Federal Law," by Jack H. Maskell, Legislative
Attorney, (CRS Report 86-1018A, Nov. 26, 1986), which this report updates.

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government wrongdoing due to fear of reprisal almost doubled between 1980 and
1983.10
Congress identified two major sources of concern. First, Senate and House
committee studies indicated that the OSC had viewed its primary role to be that of
protector of the merit system rather than as protector of the employees who comprise
that system. Further,
11
they found that employees were distrustful of the OSC due to
what was viewed as the OSC's apathetic and sometimes positively detrimental
practices toward employees seeking its assistance. Second, Congress noted tha
12
t
restrictive MSPB and federal court decisions had hindered the ability of
whistleblowers and other alleged victims of prohibited personnel practices to win
redress.13
Legislative Responses. In response to this perceived lack of whistleblower
protection, in 1987, S. 508, the "Whistleblower Protection Act," was introduced.14
Similar to legislation that had been introduced but not enacted in the ninety-ninth
Congress, S. 508, inter alia, would have granted the OSC litigating authority so that
it could appeal decisions of the MSPB in federal court and would have eased the
burden of proof to be met by an employee seeking to establish a claim that an adverse
personnel action had been taken because of whistleblowing: an aggrieved employee
would have been required to prove that retaliation against whistleblowing was merely
"a factor" of a personnel action, rather than a "significant" or a "predominant" factor.
Once the employee had made out a prima facie case of reprisal by proving that the
whistleblowing was a factor in the personnel action, the agency would then have had
the burden of proving by "clear and convincing evidence," which is a higher standard
than the then-existing statute required, that the whistleblowing was not a "material
factor" in the personnel action.
Reagan Veto. On October 26, 1988 President Reagan pocket vetoed S. 508,
the "Whistleblower Protection Act," criticizing it for redesigning the whistleblower
protection process in such a manner that "employees who are not genuine
whistleblowers could manipulate the process to their advantage simply to delay or
avoid appropriate adverse personnel actions." Specifically, he cited objection t
15
o
reducing the employee's burden of proving that a whistleblowing disclosure was a
substantial factor in the agency's personnel decision and to imposing a heavier burden
upon the department or agency to prove by "clear and convincing" evidence that the
10 H.Rep. 413, 100th Cong., 2d Sess. 5 (1988).
11 S.Rept. 413, 100th Cong., 2d Sess. (1988) [hereinafter Senate Report] (accompanying
S. 508), at 7-10; H.Rept. 274, 100th Cong., 2d Sess. (1988) [hereinafter House Report]
(accompanying H.R. 25), at 20-25.
12 See Senate Report, at 7-11; House Report, at 19-21.
13 Senate Report at 11-16; House Report at 25-29.
14 S. 508, 100th Cong., 1st Sess. (1987).
15 24 Weekly Comp. Pres. Doc. 1377 (Oct. 31, 1988).

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same personnel decision would have been made absent the disclosure. He concluded
16
that these standards of proof inequitably favored the employees over management.
President Reagan also cited constitutional concerns with a provision that would
have prohibited prior executive review of reports or testimony by the Special Counsel
or his employees when requested by a congressional committee and with a provision
17
that would have authorized the Special Counsel to appeal Merit System Protection
Board decisions in federal court. Implementati
18
on of the latter provision, he asserted,
would have resulted in two executive branch agencies litigating their disputes in
federal court, thereby conflicting with the constitutional grant of Executive power
authorizing the President to supervise and resolve disputes among subordinates.19
In a joint effort by Congress and the Bush Administration to reach a consensus
on whistleblower legislation, without eviscerating provisions that would increase the
protection of federal whistleblowers, S. 20, the "Whistleblower Protection Act of
1989," was signed into law on April 10, 1989. A substantial change between S. 20
20
and earlier legislation was the deletion of provisions that would have enabled the
Special Counsel to oppose other executive branch agencies in court. One proponent
of the bill maintained that although the constitutional objections that had been raised
concerning these provisions were "little more than legal window dressing on an
essentially ideological argument," the Committee on Post Office and Civil Service
agreed to the modification because it decreased the power of the Special Counsel,
which the Committee perceived was in the best interest of whistleblowers.21
Effects of the Original 1989 Protections. Congress envisioned the
Whistleblower Protection Act of 1989 as a comprehensively protective statute;
however, a study of its operation during the four years following its enactment led to
a congressional finding that the law was counterproductive. Passage of the law was
22
followed by an increase from 30 to 50 percent, in the number of Federal employees
challenging fraud, waste, and abuse. However, at the same time, retaliation resulting
from these complaints rose from 24 percent to 37 percent; fewer than 10 percent of
individuals exercising their legal remedies were helped; and 45 percent of individuals
16 Id. (Citing S. 508, 100th Cong., 2d Sess. § 1221(e) (1988)).
17 Id. (Citing S. 508, 100th Cong., 2d Sess. § 1217 (1988)).
18 Id. (Citing S. 508, 100th Cong., 2d Sess. § 1212(d)(3)(A) (1988)).
19 Cf. 135 Cong. Rec. S2782 (daily ed. March 16, 1989). Memorandum from the
American Law Division of the Congressional Research Service to Senate and House
Subcommittees, concluding that constitutional objections of the President to provisions in
legislation would not likely be sustained by a reviewing court.
20 Whistleblower Protection Act of 1989, P.L. 101-12, 103 Stat. 16 (5 U.S.C. § 1201
et seq.).
21 135 Cong. Rec. H751 (daily ed. March 21, 1989). See generally Rosenberg,
Congress's Prerogative Over Agencies And Agency Decisionmakers: The Rise and Demise
of the Reagan Administration's Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627
(1989).
22 H.Rept. 769, 103d Cong., 2d Sess. 12 (1994).

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reported that exercising their new rights caused them even more trouble. In addition,
23
between 1989 and 1993, less than 20 percent of employees bringing cases to the
MSPB were successful. In the Federal Circuit, aggrieved employees fared eve
24
n
worse, prevailing only twice on the merits of the whistleblower defense between 1982
and 1993.25
The vulnerability of whistleblowers' legal rights following the implementation of
the 1989 Act is clearly illustrated in Clark v. Department of the Army. In that case,
26
a former Department of the Army employee claimed that her removal was in
retaliation for whistleblowing. Her termination was upheld by the MSPB and on
appeal, by the Federal Circuit. The court's actions, which contributed to the decision
to amend the Act, were criticized in the report of the Committee on Post Office and
Civil Service:
[T]he Court erased the Act's clear legislative intent that protected
whistleblowing may not play any factor in personnel actions, unless the
agency demonstrates by clear and convincing evidence that it was an
immaterial factor.
Clark effectively canceled the whistleblower defense, by permitting an
agency simultaneously to defeat a prima facie case through meeting the
same burden of supporting its personnel action that exists under section
7701(c), whether or not the employee raises an affirmative defense.27
Despite the documented lack of success with the original statute, Congress
indicated the importance of whistleblower protections by strengthening and improving
the provisions of the 1989 Act with the passage of the 1994 amendments.
The Whistleblower Protection Act of 1989, as Amended
The Whistleblower Protection Act of 1989, as amended in 1994, applies to a
reprisal personnel action taken on or after July 9, 1989. The Act amends federal law
28
to: (1) allow the awarding of reasonable attorney fees by agencies to prevailing parties
in certain cases; (2) subject to
29
review in whistleblower cases any agency decision to
require psychiatric testing or examination of an employee or any other significant
23 Id. At 13. See also Office of Policy and Evaluation, Merit Systems Protection Board,
"Whistleblowing in the Federal Government: An Update" (1993).
24 H.Rept. 769, 103d Cong., 2d Sess. 17 (1994).
25 Sullivan v. Dept. Of Navy, 720 F.2d 1266 (Fed. Cir. 1983); Marano v. Dept. Of
Justice, 2 F.3d 1137 (Fed. Cir. 1993).
26 Clark v. Dept. Of Army, 977 F.2d 1466 (Fed. Cir. 1993), cert. Denied, 510 U.S. 1091
(1994).
27 H.Rept. 769, 103d Cong., 2d Sess. 18 (1994).
28 5 U.S.C. § 2302.
29 5 U.S.C. § 1204.

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changes in duties, responsibilities, or working conditions made by the agency; (3)
30
make agency heads responsible for ensuring that their employees are informed of
whistleblower rights and remedies; (4) make compliance with merit system
31
s
principles a factor in Senior Executive Service performance appraisals; (5) provide
32
for the application of certain merit systems provisions to certain Department of
Veterans Affairs personnel; (6) allow corrective actions by the Merit System
33
s
Protection Board to include placing the individual, as nearly as possible, in the
position he or she would have been had the prohibited personnel practice not
occurred, as well as reimbursement for attorney's fees, back pay and related benefits,
medical costs incurred, travel expenses, and any other reasonable and foreseeable
consequential damages; (7) provide aggrieved individual
34
s (including, specifically, the
employees of the Resolution Trust Corporation and Thrift Depositor Protection
Oversight Board) with a choice of remedies with respect to certain prohibited
personnel practices;
35 (8) and revise the definition of "covered position" with respect
to prohibited personnel practices.36
Congressional Intent. The stated congressional intent of the 1989
Whistleblower Protection Act, as amended, is consistent with the stated intent in the
original legislation. In enacting the original provisions, Congress made clear that:
The purpose of this Act is to strengthen and improve protection for the
rights of Federal employees, to prevent reprisals, and to help eliminate
wrongdoing within the Government by-- (1) mandating that employees
should not suffer adverse consequences as a result of prohibited personnel
practices; and (2) establishing ... that while disciplining those who commit
prohibited personnel practices may be used as a means by which to help
accomplish that goal, the protection of individuals who are the subject of
prohibited personnel practices remains the paramount consideration.37
Statute. The operative statutory protections are embodied in the definition of
"prohibited personnel practices" set forth in the Act:38
§ 2302. Prohibited personnel practices
30 5 U.S.C. § 2302(a)(2)(A).
31 5 U.S.C. § 2302(c).
32 5 U.S.C. § 4313(5).
33 5 U.S.C. § 2105.
34 5 U.S.C. § 1214.
35 12 U.S.C. § 1441a.
36 5 U.S.C. § 2302(a)(2)(B).
37 5 U.S.C. § 1201 nt.
38 5 U.S.C. § 2302(b)(8).

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(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(8) take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any employee
or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee
or applicant reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, or
(ii) gross mismanagement, a
gross waste of funds, an abuse of
authority, or a substantial and
specific danger to public health or
safety,
if such disclosure is not
specifically prohibited by law and
if such information is not
specifically required by Executive
Order to be kept secret in the
interest of national defense or the
conduct of foreign affairs; or
(B) any disclosure to the Special Counsel,
or to the Inspector General of an agency or
another employee designated by the head of
the agency to receive such disclosures, of
information which the employee or
applicant reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, or
(ii) gross mismanagement, a
gross waste of funds, an abuse of
authority, or a substantial and
specific danger to public health or
safety;
Elements of Whistleblowing Cases
In order to trigger the statutory whistleblower protections, a case must contain
the following elements: a personnel action that was taken because of a protected
disclosure made by a covered employee.39
39 Id.

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Covered Employees. Although anyone may disclose whistleblowing
information to the Special Counsel for referral to the appropriate agency, the Special
Counsel may order an investigation and require a report from the head of the agency
only if the information is received from a covered employee. In addition, with few
exceptions, prohibited personnel practices apply only to covered employees. Hence,
as a threshold matter, it is important to note which federal employees are statutorily
covered.
Generally, current employees, former employees, or applicants for employment
to positions in the executive branch of government in both the competitive and the
excepted service, as well as positions in the Senior Executive Service are considered
covered employees. However, those positions which are excepted from th
40
e
competitive service because of their "confidential, policy-determining, policy-making,
or policy-advocating character," a
41
nd any positions exempted by the President based
on a determination that it is necessary and warranted by conditions of good
administration,
42 are not protected by the whistleblower statute. Moreover, the statute
does not apply to federal workers employed by the Postal Service or the Postal Rate
Commission,
43 the General Accounting Office, the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense Intelligence Agency, the National
Imagery and Mapping Agency, the National Security Agency, and any othe
44
r
executive entity that the President determines primarily conducts foreign intelligence
or counter-intelligence activities. As a result of the
45
1994 whistleblower amendments,
"Government corporations" are also exempt from coverage except in the case of an
alleged prohibited personnel practice described under 5 U.S.C. § 2302(b)(8).46
Protected Disclosures. "[A]ny disclosure of information" which the employee
"reasonably believes" evidences "a violation of any law, rule, or regulation" or
evidences "gross mismanagement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health or safety" is protected on the
condition that the disclosure is not prohibited by law nor required to be kept secret
by Executive Order. Mo
47
reover, "any disclosure" made to the Special Counsel or to
the Inspector General of an agency or another employee designated by the head of the
agency to receive such disclosures, which the employee "reasonably believes"
evidences "a violation of any law, rule, or regulation," or evidences "gross
40 5 U.S.C. § 2302(a)(2)(B).
41 5 U.S.C. § 2302(a)(2)(B)(i).
42 5 U.S.C. § 2302(a)(2)(B)(ii).
43 5 U.S.C. § 2105(e).
44 The Central Imagery Office was exempted from coverage with the passage of the 1994
whistleblower amendments. The agency was renamed the "National Imagery and Mapping
Agency" with the passage of the National Defense Authorization Act for Fiscal Year 1997.
P.L. 104-201, § 1122(b)(1).
45 5 U.S.C. § 2302(a)(2)(C).
46 Id.
47 5 U.S.C. § 2302(b)(8)(A).

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mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety" is also protected. The 1994 whistleblower
48
amendments mandate that agency heads inform their employees of these protections.49
Any Disclosure of Information. As a result of the Whistleblower Protection
Act of 1989 and amendments, the statute now expressly provides that "any disclosure
of information" is protected. Changing the phrase "a disclosure" to "any disclosure"
was done to emphasize the point that the courts, the OSC, and the MSPB should not
erect barriers to disclosures which will limit the necessary flow of information from
employees with information of government wrongdoing. In the Committee Report,
50
the Senate specifically criticized the Federal Circuit decision in Fiorello v. Department
of Justice, where an employee's di
51
sclosures were found not to be protected because
the employee's "primary motivation" was not for the public good, but rather, personal
motives. The court reached this conclusion despite lack of any indication in th
52
e
CSRA that the motives of an employee are relevant to deciding whether a disclosure
is protected. The change of "a disclosure" to "any disclosure" was not reflected in
53
case law following enactment of the 1989 Act. This lack of responsiveness by the
courts and the MSPB was one factor prompting Congress to amend the whistleblower
statute in 1994. In the report accompanying the amendments, it is noted that:
Perhaps the most troubling precedents involve the Board's inability to
understand that "any" means "any." The WPA protects "any" disclosure
evidencing a reasonable belief of specified misconduct, a cornerstone to
which the MSPB remains blind. The only restrictions are for classified
information or material the release of which is specifically prohibited by
statute. Employees must disclose that type of information through
confidential channels to maintain protection; otherwise there are no
exceptions.54
Reasonable Belief. For a disclosure to be protected, an employee must have a
"reasonable belief" that the information is true. This is substantially a good faith
requirement. In theory, the actual veracity of any disclosure does not affect whether
a disclosure is protected. In addition, for those discl
55
osures enumerated under section
2302(b)(8)(A) which do not have to be kept confidential, the statute does not specify
to whom the disclosures must be made in order to qualify as protected.56
48 5 U.S.C. § 2302(b)(8)(B).
49 5 U.S.C. § 2302(c).
50 S.Rept. 413, 100th Cong., 2d Sess. 13 (1988).
51 795 F.2d 1544 (Fed. Cir. 1986).
52 S.Rept. 413, 100th Cong., 2d Sess. 13 (1988).
53 Id.
54 H.Rept. 769, 103d Cong., 2d Sess. 18 (1994).
55 S.Rept. 413, 100th Cong., 2d Sess. 12 (1988).
56 Id.

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Subject Matter of Disclosure.
a. In General
The statutory language of the whistleblower protections requires the
disclosure to evidence:
(i) a violation of any law, rule, or regulation, or;
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety;
(iii) and not be prohibited by law or Executive Order, except when the disclosure
is made to the Special Counsel or to the Inspector General of an agency or another
employee designated by the head of the agency to receive such disclosures.
The 1989 Act limited evidence of mismanagement as set forth in the CSRA to
only "gross" mismanagement. As explained in the Senate Report,
While the Committee is concerned about improving the protection of
whistleblowers, it is also concerned about the exhaustive administrative and
judicial remedies provided under S. 508 that could be used by employees
who have made disclosures of trivial matters. CSRA specifically established
a de minimums standard for disclosures affecting the waste of funds by
defining such disclosures as protected only if they involved "a gross waste
of funds." Under S. 508, the Committee establishes a similar de minimums
standard for disclosures of mismanagement by protecting them only if they
involve "gross mismanagement."57
As to the subject of danger to public health and safety, the Senate Report
accompanying the CSRA legislation explained that general criticisms or complaints,
or those of a non-substantial nature, were not intended to be covered:
With respect to the latter category, the Committee intends that only
disclosures of public health or safety dangers which are both substantial
and specific are to be protected. Thus, for example, general criticism by an
employee of the Environmental Protection Agency that the Agency is not
doing enough to protect the environment would not be protected under this
subsection. However, an allegation by a Nuclear Regulatory Commission
engineer that the cooling system of a nuclear reactor is inadequate would
fall within the whistleblower protections.58
Whistleblowing disclosures that are made public must not contain information
the disclosure of which is prohibited by law or which is prohibited by an Executive
57 Id. At 13.
58 S.Rept. 969, 95 Cong., 2d Sess. 21 (1978), reprinted in
th
1978 U.S. Code Cong. &
Ad. News 2730. See Prescott v. H.H.S., Institute of Child Health and Development, 6
M.S.P.B. 216, 221 (1981), where termination of research into child abuse and neglect did not
show that a "substantial and specific danger existed as to the public health or safety."

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Order in the interest of national defense or the conduct of foreign affairs.59
Disclosures which are otherwise "protected" disclosures may be made, however,
regardless of statutory Executive Order secrecy requirements, to the Special Counsel
or to an Inspector General of an agency or to an employee designated by the agency
head to receive disclosures.
60
b.
Disclosures to Members of Congress
The Whistleblower Protection Act of 1989, as amended, provides that the
whistleblowing provisions are "not to be construed to authorize...the taking of any
personnel action against an employee who discloses information to the Congress".61
The Congress sought to protect its right to receive even "confidential" information
from federal employees, without the employee's fear of reprisals:
The provision is intended to make clear that by placing limitations on the
kinds of information any employee may publicly disclose without suffering
reprisal, there is not intent to limit the information an employee may
provide to Congress or to authorize reprisal against an employee for
providing information to Congress. For example, 18 U.S.C. 1905 prohibits
public disclosure of information involving trade secrets. That statute does
not apply to transmittal of such information by an agency to Congress.
Section 2302(b)(8) of this act would not protect an employee against
reprisal for public disclosure of such statutorily protected information, but
it is not to be inferred that an employee is similarly un-protected if such
disclosure is made to the appropriate unit of the Congress. Neither title I
nor any other provision of the act should be construed as limiting in any
way the rights of employees to communicate with or testify before
Congress.62
In addition to the protections provided by the whistleblower statute, an employee
is guaranteed the right to freely petition or furnish information to Congress, a Member
of Congress, a committee, or a Member thereof.
63
Personnel Actions. The whistleblower statute protects employees from
reprisals in the form of an agency taking or failing to take a "personnel action." This
encompasses a broad range of actions by an agency having a negative or adverse
impact on the employee. The statute specifically defines the term "personnel action"
to include eleven areas of agency activity:
(2) For the purpose of this section--
59 5 U.S.C. § 2302(b)(8).
60 Id.
61 5 U.S.C. § 2302(b).
62 H.Rept. 1717 (Conference Report), 95th Cong. 2d Sess. 128, 132 (1978), reprinted in
1978 U.S. Code Cong. & Ad. News 2861.
63 5 U.S.C. § 7211.

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(A) "personnel action" means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other
disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of
this title;
(ix) a decision concerning pay, benefits, or awards, or
concerning education or training if the education or
training may reasonably be expected to lead to an
appointment, promotion, performance evaluation, or
other action described in this subparagraph;
(x) a decision to order psychiatric testing or
examination; and
(xi) any other significant change in duties,
responsibilities, or working conditions;
with respect to an employee in, or applicant for, a covered
position in an agency, and in the case of an alleged prohibited
personnel practice described in subsection (b)(8), an employee or
applicant for employment in a Government corporation as
defined in section 9101 of title 31;64
The 1989 Act protected employees from only ten personnel practices. According
to the House Report:
One reason for the WPA's disappointing record is the plethora of coverage
gaps that leave many reprisal victims defenseless. Some are due to
erroneous statutory interpretations by hostile implementing agencies and
fora. Many, however, are because the ten actions listed in 5 U.S.C.
2302(a)(2)(A) reflect the outer boundaries of whistleblower protection.
The list has not kept pace with the creativity of effective harassment
tactics.65
To remedy the problem, the 1994 whistleblower amendments added the performance
of psychiatric testing or examinations to the list of personnel practices that may
violate the law. This provision is not applicable to an employee whose case wa
66
s
before the Board prior to the enactment of the 1994 whistleblower amendments.67
64 5 U.S.C. § 2302(a)(2)(A).
65 H.Rept. 769, 103d Cong., 2d Sess. 14 (1994).
66 5 U.S.C. § 2302(a)(2)(A).
67 Caddell v. Department of Justice, 96 F.3d 1367 (Fed. Cir. 1996).

CRS-13
The final category of covered personnel actions was intended to embrace
significant actions or changes which, in relation to an employee's overall duties,
responsibilities, or working conditions, are inconsistent with his or her professional
qualifications, training, grade, or rank. The Conference Report provided a detailed
discussion of the types of actions which may fall within or be excluded from the final
category of personnel actions:
To be covered under this provision a personnel action must be significant,
but it need not be expected to result in a reduction in pay or grade. It must
also be inconsistent with an employee's salary or grade level. Thus, for
example, if an individual is currently employed and assigned duties or
responsibilities consistent with the individual's professional training or
qualifications for the job, it would constitute a personnel action if the
individual were detailed, transferred, or reassigned so that the employee's
new overall duties or responsibilities were inconsistent with the individual's
professional training or qualifications. Or, if an individual holding
decisionmaking responsibilities or supervisory authority found that such
responsibilities or authority were reduced so that the employee's
responsibilities were inconsistent with his or her salary or grade level, such
an action could constitute a personnel action within the meaning of this
subsection.
This is not intended to interfere with management's authority to assign
individuals in accordance with available work, the priorities of the agency,
and the needs of the agency for individuals with particular skills or to
establish supervisory relationships. Moreover, it is the overall nature of the
individual's responsibilities and duties that is the critical factor. The mere
fact that a particular aspect of an individual's job assignment has been
changed would not constitute a personnel action, without some showing
that there has been a significant impact as described above on the overall
nature or quality of his responsibilities or duties.68
Nexus Between a Protected Disclosure and a Personnel Action. The 1989
Act changed the definition of prohibited reprisals against whistleblowers such that
personnel actions taken "because of" protected conduct are prohibited, rather than
personnel actions taken "as a reprisal for" protected conduct, as set forth in the
original statute. The amendment was made because the phrase, "as a reprisal for" has
been interpreted to require a showing of an improper, retaliatory motive, on the part
of the acting official. Two disciplinary action cases,
69
Starrett v. Special Counsel70 and
Harvey v. M.S.P.B., required employees to show proof of the acting official's state
71
of mind. These cases stand for the proposition that reprisal will not be found even if
an agency's actions against an employee were based on factors arising from protected
68 H.Rept. 1717 (Conference Report), 95th Cong. 2d Sess. 128, 129-130(1978), reprinted
in 1978 U.S. Code Cong. & Ad. News 2861.
69 S.Rept. 413, 100th Cong., 2d Sess. 16(1988).
70 792 F.2d 1246 (4th Cir. 1986).
71 802 F.2d 537 (D.C. Cir. 1986).

CRS-14
whistleblowing activities, so long as the agency officials were motivated by valid
management reasons and not by any intent to "punish" the employee. Congress'
72
s
intent under the new definition is that a showing of the official's state of mind is no
longer required. "Regardless of the official's motives, personnel actions against
employees should quite simply not be based on protected activities such as
whistleblowing."73
The amendment also expanded the definition contained in the original statute of
prohibited reprisal against whistleblowers to include "threats to take or fail to take"
a personnel action against a whistleblower. "Mere harassment and threats, without
74
any formally proposed personnel actions, can constitute a prohibited personnel
practice under this language," as explained in the joint statement. Testimony before
75
Congress suggested that this definitional change would assist the OSC in providing
additional or expedited assistance to whistleblowers.76
Forums Where Whistleblower Protections May Be Raised
There are four general forums or proceedings where whistleblower protections
may be raised: (A) in employee appeals to the Merit Systems Protection Board
(MSPB) of an agency's adverse action against the employee, known as "Chapter 77"
appeals; (B) in actions instituted by the Office of Special Counsel (OSC);
77

78 (C) in
an individual right of action; and (D) in grievances brought by the employee under
79
negotiated grievance procedures. As a result of the 1994 whistleblowe
80
r
amendments, an aggrieved employee affected by a prohibited personnel action is
precluded from choosing more than one of the above remedies.
81
"Chapter 77" Appeals. The MSPB is authorized to hear and rule on appeals
by employees regarding agency actions affecting the employee and which are
appealable to the Board by law, rule, or regulation. Types of agency actions against
82
employees which are appealable to the MSPB and in which an employee may raise the
defense of reprisal for whistleblowing as a "prohibited personnel practice" include
adverse actions against the employee for "such cause as will promote the efficiency
72 S.Rept. 413, 100th Cong., 2d Sess. 15 (1988).
73 Id. At 16.
74 Id.
75 135 Cong. Rec. S2784 (daily ed. March 16, 1989) (joint explanatory statement on S.
20 submitted by Senator Levin during floor debate).
76 S.Rept. 413, 100th Cong., 2d Sess. 16 (1988).
77 5 U.S.C. § 7701.
78 5 U.S.C. §§ 1211-1215.
79 5 U.S.C. § 1221.
80 5 U.S.C. § 7121.
81 5 U.S.C. § 7121(g)(2).
82 5 U.S.C. § 7701, 5 U.S.C. § 1205.

CRS-15
of the service" generally referred to as conduct-based adverse actions;83 and
performance-based adverse actions against employees for "unacceptable
performance." In such appeals, an agency's decision and action will
84
not be upheld
if the employee "shows that the decision was based on any prohibited personnel
practice described in section 2302(b) of this title." As provided for in the 1989 Act,
85
if the MSPB finds that an employee or applicant for employment has prevailed in an
appeal, the employee or applicant may be provided with interim relief, pending the
outcome of any petition of review. Moreover, the Special Co
86
unsel may not intervene
in a "Chapter 77" appeal without the consent of the individual bringing the appeal.87
Actions by the Office of Special Counsel. As established by the Whistleblower
Protection Act of 1989, the OSC is now an agency independent from the MSPB. Its
88
primary responsibilities, however, have remained essentially the same as set forth in
the CSRA. With the goal of protecting employees, former employees, and applicants
for employment from prohibited personnel practices, the OSC has the duty to receive
allegations of prohibited personnel practices and to investigate such allegations, as
89
well as to conduct an investigation of possible prohibited personnel practices on its
own initiative, absent any allegation. The intent of Congress in enacting the OS
90
C
provisions has been clearly stated:
There should be no doubt about legislative intent in passing this bill.
Individuals should be able to go to the Special Counsel to make a
disclosure under section 1213, to complain about a prohibited personnel
practice under section 1214, or to allege a violation of another law within
the jurisdiction of the Special Counsel under section 1216, without any fear
that the information they provide or the investigation they set off will be
83 5 U.S.C. § 7513(a), see 5 U.S.C. § 7513(d) as to appealability under § 7701.
84 5 U.S.C. § 4303(a), see 5 U.S.C. § 4303(e) as to appealability to the MSPB under §
7701.
85 5 U.S.C. § 7701(c)(2)(B).
86 5 U.S.C. § 7701(b)(2)(A).
87 5 U.S.C. § 1212(c)(2).
88 5 U.S.C. § 1211(a). This section established the Office of Special Counsel, provides
that it will be headed by the Special Counsel, and that it shall have a judicially noted official
seal. The Senate report states that although the MSPB and the OSC had "separated themselves
administratively in 1984," the whistleblower legislation "completes this process by
establishing the OSC as an independent agency." S.Rept. 413, 100th Cong., 2d Sess. At 18.
The Special Counsel, appointed by the President with the advice and consent of the Senate,
may only be removed from office for "inefficiency, neglect of duty, or malfeasance in office."
5 U.S.C.A. § 1211(b).
89 5 U.S.C. § 1212(a)(2).
90 5 U.S.C. § 1214(a)(5).

CRS-16
used against them. Simply put, the Special Counsel must never act to the
detriment of employees who seek the help of the Special Counsel.91
The Special Counsel has several avenues available through which to pursue
allegations, complaints, and evidences of reprisals for whistleblowing activities,
including (1) requiring agency investigations and agency reports concerning actions
the agency is planning to take to rectify those matters referred; (2) seeking an order
92
for "corrective action" by the agency before the MSPB; (3) seeking "disciplinar
93
y
action" against officers and employees who have committed prohibited personnel
practices;
94 (4) intervening in any proceedings before the MSPB, except that in cases
where an individual has brought an individual right of action (IRA) under Section
1221 or a Chapter 77 appeal, the OSC must first obtain the individual's consent; and
95
(5) seeking a stay from the MSPB for any personnel action pending an investigation.96
(1) Investigations. As a result of the 1994 whistleblower amendments, once a
whistleblowing complaint has been received by the OSC, that office must make the
required determination within 240 days. The amendments also require that, within
97
fifteen days of a complaint's receipt, OSC must determine whether there is a
substantial likelihood that the information "discloses a violation of any law, rule, or
regulation, or gross mismanagement, gross waste of funds, abuse of authority, or
substantial and specific danger to public health and safety."
98
If a positive determination is made and the information was sent to the Special
Counsel by an employee, former employee, applicant for employment, or an employee
who obtained the information acting within the scope of employment, the Specia
99
l
Counsel must transmit the information to the appropriate agency head and require that
the agency head conduct an investigation and submit a written report. The identity
100
of the complaining employee may not be disclosed without such individual's consent,
unless the Special Counsel determines that disclosure is necessary to avoid imminent
danger to health and safety or an imminent criminal violation. The Special Counsel
101
then reviews the reports as to their completeness and the reasonableness of the
91 135 Cong. Rec. H748 (daily ed. March 21, 1989) (joint explanatory statement on S.
508 submitted by Rep. Sikorski during floor debate).
92 5 U.S.C. § 1213(c).
93 5 U.S.C. § 1214(b)(2).
94 5 U.S.C. § 1215(b).
95 5 U.S.C. § 1212(c); supra at 16-17, infra at 23-24.
96 5 U.S.C. § 1212(b)(1).
97 5 U.S.C. § 1214(b)(2)(A)(i).
98 5 U.S.C. § 1213(b).
99 5 U.S.C. § 1213(c)(2).
100 5 U.S.C. § 1213(c)(1).
101 5 U.S.C. § 1213(h).

CRS-17
findings and submits the reports to Congress, the President, the Comptrolle
102
r
General,103 and the complainant.104
If the Special Counsel does not make a positive determination, however, he or
she may only transmit the information to the agency head with the consent of the
individual. Further, if the Special Counsel receives the information from som
105
e
source other than the ones described above, he or she may transmit the information
to the appropriate agency head who shall inform the Special Counsel of any action
taken.
In any case evidencing a criminal violation, however, all information i
106
s
referred to the Attorney General and no report is transmitted to the complainant.107
Throughout its investigation, OSC must give notice of the status of the
investigation to the individual who brought the allegation. The 1994 amendments
changed the period of this notification from 90 to 60 days. In addition, th
108
e
amendments require that no later than 10 days before the termination of an
investigation, a written status report including the proposed findings and legal
conclusions must be made to the individual who made the allegation of wrongdoing.109
(2) Corrective Actions. If in any investigation the Special Counsel determines
that there are "reasonable grounds to believe" a prohibited personnel practice exists
or has occurred, the Special Counsel must report findings and recommendations, and
may include recommendations for corrective action, to the MSPB, the agency
involved, the Office of Personnel Management and, optionally, to the President. If
110
the agency does not act to correct the prohibited personnel practice, the Special
Counsel may petition the MSPB for corrective action.11 The MSPB, before rendering
1
its decision, is required to provide an opportunity for oral or written comments by the
Special Counsel, the agency involved, the Office of Personnel Management, and
written comments by any individual who alleges to be the victim of the prohibited
personnel practices.112
The whistleblower protection statute makes its easier than had been the case
prior to enactment for a complainant to prove retaliation for whistleblowing in a
corrective action before the MSPB. The Special Counsel need only prove by a
102 5 U.S.C. § 1213(e)(2).
103 5 U.S.C. § 1213(e)(3).
104 5 U.S.C. § 1213(e)(1).
105 5 U.S.C. § 1213(g)(2).
106 5 U.S.C. § 1213(g)(1).
107 5 U.S.C. § 1213(f).
108 5 U.S.C. § 1214(a)(1)(C)(ii).
109 5 U.S.C. § 1214(a)(1)(D).
110 5 U.S.C. § 1214(b)(2)(B).
111 5 U.S.C. § 1214(b)(2)(C).
112 5 U.S.C. § 1214(b)(3).

CRS-18
preponderance of the evidence that the disclosure was a "contributing factor" in the
personnel action, instead of a "significant factor." The
113
sponsors of the legislation
defined a "contributing factor" to mean "any factor which, alone or in connection with
other factors, tends to affect in any way the outcome of the decision." They als
114
o
proffered one possible method of proving that an action was a contributing factor:
"show that the official taking the action knew (or had constructive knowledge) of the
disclosure and acted within such a period of time that a reasonable person could
conclude that the disclosure was a factor in the personnel action." This test wa
115
s
specifically designed to overrule the MSPB's adoption of the Supreme Court's
approach in Mt. Healthy School District v. Doyle.11 Under
6
Mt. Healthy, an employee
must prove that the protected conduct was a "significant," "motivating," "substantial,"
or "predominant" factor in the employer's personnel action in order to overturn that
action.1 In a letter from Attorney General Richard Thornburgh to Senator Car
17
l
Levin, incorporated within the 1989 Act's exhaustive legislative history, the Attorney
General explained the importance of this change:
By reducing the excessively heavy burden imposed on the employee under
current case law, the legislation will send a strong, clear signal to
whistleblowers that Congress intends that they be protected from any
retaliation related to their whistleblowing and an equally clear message to
those who would discourage whistleblowers from coming forward that
reprisals of any kind will not be tolerated. Whistleblowing should never be
a factor that contributes in any way to an adverse personnel action.118
In addition, once the MSPB renders a final order or decision of corrective action,
complainants now have the right to judicial review in the U.S. Court of Appeals for
the Federal Circuit.119
In what is probably the most significant change from the original statute, the
1989 Act increases the standard by which an agency must prove its affirmative
defense that it would have taken the personnel action even if the employee had not
engaged in protected conduct. Once the complainant's prima facie case of reprisal has
been established by showing that the whistleblowing was a contributing factor in the
personnel action, the government is required to demonstrate by "clear and convincing
evidence" that it would have taken the same personnel action even in the absent of
113 5 U.S.C. §1214(b)(4)(i).
114 135 Cong. Rec. H747 (daily ed. March 21, 1989) (explanatory statement on Senate
Amendment to S. 20 submitted by Representative Sikorski during floor debate).
115 Id. At H749 (daily ed. March 21, 1989) (joint explanatory statement on S. 508
submitted by Representative Sikorski during floor debate).
116 429 U.S. 274 (1977).
117 135 Cong. Rec. H747 (daily ed. March 21, 1989) (explanatory statement on Senate
Amendment to S. 20 submitted by Representative Sikorski during floor debate).
118 Id.
119 5 U.S.C. § 1214(c).

CRS-19
such disclosure. Under the original s
120
tatute, the government's standard of proof was
a "preponderance of the evidence." "Clear and convincing evidence," although a lesser
standard than the criminal standard of "beyond a reasonable doubt," is greater than
"preponderance of the evidence." In their explanatory statement, the sponsors justify
imposing the heavier burden by noting that "when it comes to proving the basis for
an agency's decision, the agency controls most of the cards--the drafting of the
documents supporting the decision, the testimony of witnesses who participated in the
decision, and the records that could document whether similar personnel actions have
been taken in other cases."121 Ergo, the sponsors concluded, it is appropriate to
impose this heavier burden of proof.122
(3) Disciplinary Actions. Proceedings for disciplinary action against an officer
or employee who commits a prohibited personnel practice may be instituted by the
Special Counsel by filing a written complaint with the MSPB. After proceeding
123
s
before the MSPB or an administrative law judge,
if violations are found, the MSPB
124
may impose any of various disciplinary action, including removal, reduction in grade,
debarment from federal employment for a period not to exceed five years, suspension,
reprimand, or an assessment of civil fines up to $1,000. In addition, the 199
125
4
whistleblower amendments provide that the agency involved may be held responsible
for reasonable attorney's fees.126 In the case of presidentially appointed and Senate
confirmed employees in "confidential, policy-making, policy-determining, or policy-
advocating" positions, the complaint and the statement of facts, along with any
response from the employee, are to be presented to the President for disposition in
lieu of the presentation to the Board. The 1989 Act al
127
so provides that the OSC may
recommend, to the appropriate federal agency head, disciplinary action against
members of the uniformed services or contractor personnel, who have engaged in a
prohibited personnel practice against a federal employee.128
(4) Intervention. As a matter of right, the Special Counsel may intervene or
otherwise participate in any proceedings before the MSPB, except that in cases where
an individual has brought an individual right of action (IRA) under Section 1221 or
a Chapter 77 appeal, the OSC must first obtain the individual's consent.
129
120 5 U.S.C. § 1214(b)(4)(B).
121 135 Cong. Rec. H747 (daily ed. March 21, 1989) (explanatory statement on Senate
Amendment to S. 20 submitted by Representative Sikorski during floor debate).
122 Id.
123 5 U.S.C. § 1215(a)(1).
124 5 U.S.C. § 1215(a)(2)(C).
125 5 U.S.C. § 1215(a)(3).
126 5 U.S.C. § 1204(m)(1).
127 5 U.S.C. § 1215(b).
128 5 U.S.C. §1215(c)(1).
129 5 U.S.C. § 1212(c).

CRS-20
(5) Stays. Upon application by the OSC, a member of the MSPB may "stay" or
postpone, for forty-five days, pending an investigation, a personnel action which the
Special Counsel has reasonable grounds to believe constitutes a prohibited personnel
practice, unless the member determines that a stay would not be appropriate under the
circumstances.
130 If no MSPB member acts within three days of the OSC application,
by operation of law, the stay becomes effective. After the
131
employing agency has had
an opportunity to comment on the appropriateness of extending a stay, the MSPB
may extend it.132 At any time the MSPB may terminate a stay, unless the motion to
terminate was made by the MSPB, the OSC, or an agency. In that case, it may only
133
terminate a stay after providing notice and opportunity to comment to the OSC and
to the individual on whose behalf the stay was ordered.134
Individual Right of Action (IRA)
Prior to enactment of the Whistleblower Protection Act of 1989, when an
individual was held subject to a prohibited personnel practice and the action was not
appealable to the MSPB, the individual could request that the OSC seek corrective
action from the MSPB. If the OSC did not act, however, the individual had no further
administrative remedy.
Now, an employee, former employee, or applicant for employment has the
independent right to seek review of whistleblower reprisal cases by the MSPB 60 days
after the OSC closes an investigation or 120 days after filing a complaint with the
OSC.
135 As a result of the IRA provisions, a greater number of employees, including
probationers, temporaries, and excepted service, now have a method of appeal to the
MSPB for whistleblower reprisals that was not previously available. Retire
136
d
employees are not barred from instituting this type of appeal. If the employee is the
137
prevailing party before the MSPB, based on the finding of a prohibited personnel
practice, or if the employee is the prevailing party in an appeal from the MSPB,
regardless of the basis of the decision, the 1994 whistleblower amendments provide
for several remedies. These may include placing the individual, as nearly as possible,
in the position the individual would have been in had the prohibited personnel practice
not occurred, back pay and related benefits, medical costs incurred, travel expenses,
or any other reasonable and foreseeable consequential charges. In all cases
138
,
130 5 U.S.C. § 1214(b)(1)(A)(i),(ii).
131 5 U.S.C. § 1214(b)(1)(A)(iii).
132 5 U.S.C. § 1214(b)(1)(B),(C).
133 5 U.S.C. § 1214(b)(1)(D).
134 Id.
135 5 U.S.C. § 1221(a).
136 See 5 U.S.C. § 7701.
137 5 U.S.C. § 1221(j).
138 5 U.S.C. § 1221(g)(1)(A)(i),(ii).

CRS-21
corrective action includes attorneys' fees. As a result of the 1994 whistleblowe
139
r
amendments, the MSPB findings can be based on circumstantial evidence.140
Moreover, the Special Counsel may not intervene in an individual right of action
without the consent of the individual bringing the appeal.141
Negotiated Grievance Procedures. The fourth general forum where the
defense or claim of reprisal for whistleblowing activities may be raised is a grievance
proceeding initiated by an employee pursuant to a grievance procedure which was
negotiated through collective bargaining between the employee's agency and the
employee union representing employees of the agency. The statutory provisions for
142
grievance procedures note that certain actions which may be pursued either in a
grievance proceeding or by other statutory means, such as discrimination complaints
referenced under 5 U.S.C. § 2302(b)(1) or appeals of adverse actions for "conduct"
or "performance," may o
143
nly be pursued in one forum or the other, but not through
both.
144 Selection of the negotiated procedure does not, however, prejudice the right
of an aggrieved employee to request that the MSPB review the final decision in the
case of any personnel action that could have been appealed to the Board; or, where
applicable, to request that the Equal Employment Opportunity Commission (EEOC)
review a final decision in any other matter involving a complaint of discrimination of
the type prohibited by any law administered by the EEOC.145
Other Protected Activities
The Whistleblower Protection Act of 1989, as amended, also expressly protects
employees from prohibited personnel practices taken because they engaged in
activities that are often related to whistleblowing, including testifying for or lawfully
assisting others exercise any appeal, complaint, or grievance right; cooperating with
146
or disclosing information to an Inspector General or Special Counsel; or fo
147
r
refusing to obey an order that would violate the law. In addition, as was provided
148
in the existing statute, employees are also protected from prohibited personnel
practices taken because they exercised any appeal, complaint, or grievance right
granted by any law, rule, or regulation.149
139 5 U.S.C. § 1221(g)(1)(B).
140 5 U.S.C. § 1221(e)(1).
141 5 U.S.C. § 1212(c)(2).
142 5 U.S.C. § 7121.
143 5 U.S.C. §§ 4303 and 7512.
144 5 U.S.C. § 7121(d),(e).
145 5 U.S.C. § 7121(d).
146 5 U.S.C. § 2302(b)(9)(B).
147 5 U.S.C. § 2302(b)(9)(C).
148 5 U.S.C. § 2302(b)(9)(D).
149 5 U.S.C. § 2302(b)(9)(A).

CRS-22
General Information Regarding Filing a Complaint with the Office
of Special Counsel
An employee reporting an alleged prohibited activity to the OSC does not need
the representation of an attorney and there is no time limit for filing a complaint.150
Upon request, the OSC will provide complaint forms to employees. The Complaints
Examining Unit (CEU) in the OSC headquarters office receives, reviews, and
evaluates all complaints. All complaints, disclosures, and requests should be sent to
the following address:151
Office of Special Counsel
Complaints Examining Unit
1730 M Street, N.W.
Suite 300
Washington, D.C. 20036-4505
Hotline for
Whistleblowing Disclosures: (202) or (FTS) 653-9125 or 1 (800) 572-2249
Complaints Examining Unit: (202) or (FTS) 653-7188
Hotline for
Prohibited Personnel Practices:
(800) 872-9855
150 U.S. Office of Special Counsel, "The Role of the Office of Special Counsel" (1994).
151 Id. See also Implementation of the Whistleblower Protection Act, 5 C.F.R. pts. 1800-
1850.