The Whistleblower Protection Act: An Overview

The Whistleblower Protection Act: An Overview

Order Code RL33918
The Whistleblower Protection Act: An Overview
March 12, 2007
L. Paige Whitaker
Legislative Attorney
American Law Division

The Whistleblower Protection Act: An Overview
Summary
This report discusses the federal statutory protections contained within the
Whistleblower Protection Act (WPA) for federal employees who engage in
“whistleblowing,” that is, making a disclosure evidencing illegal or improper
government activities. The protections of the WPA apply to most federal executive
branch employees and become applicable where a “personnel action” is taken
“because of” a “protected disclosure” made by a “covered employee.” Generally,
whistleblower protections may be raised within four forums or proceedings: (1)
employee appeals to the Merit Systems Protection Board of an agency’s adverse
action against an employee, known as “Chapter 77” appeals; (2) actions instituted by
the Office of Special Counsel; (3) individually maintained rights of action before the
Merit Systems Protection Board (known as an individual right of action, or IRA); and
(4) grievances brought by the employee under negotiated grievance procedures.
On March 9, 2007, the House Committee on Oversight and Government Reform
reported H.R. 985 (110th Cong.) H.Rept. 110-42, the Whistleblower Protection
Enhancement Act of 2007, which would amend the WPA by providing protections
for certain national security, government contractor, and science-based agency
whistleblowers, and by enhancing the existing whistleblower protections for all
federal employees.

Contents
Introduction and Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Essential Elements Triggering Application of the Whistleblower Protection
Act (WPA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Covered Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Protected Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Any Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reasonable Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Subject Matter of Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Disclosures to Members of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Personnel Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Nexus Between a Protected Disclosure and a Personnel Action . . . . . . . . . . 7
Other Protected Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Forums Where Whistleblower Protections May Be Raised . . . . . . . . . . . . . . . . . . 8
“Chapter 77” Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Actions by the Office of Special Counsel (OSC) . . . . . . . . . . . . . . . . . . . . . . 9
Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Corrective Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Disciplinary Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Individual Right of Action (IRA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Negotiated Grievance Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Summary of the Whistleblower Protection Enhancement Act of 2007
(H.R. 985, 110th Congress) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Whistleblower Protection Act:
An Overview
Introduction and Background
The Whistleblower Protection Act (WPA) provides statutory protections for
federal employees who engage in “whistleblowing,” that is, making a disclosure
evidencing illegal or improper government activities. The protections of the WPA
apply to most federal executive branch employees and become applicable when a
“personnel action” is taken “because of” a “protected disclosure” made by a “covered
employee.” Generally, whistleblower protections may be raised within four forums
or proceedings: (1) employee appeals to the Merit Systems Protection Board of an
agency’s adverse action against an employee, known as “Chapter 77” appeals; (2)
actions instituted by the Office of Special Counsel; (3) individually maintained rights
of action before the Merit Systems Protection Board (known as an individual right
of action, or IRA); and (4) grievances brought by the employee under negotiated
grievance procedures.
When Congress first enacted the Whistleblower Protection Act (WPA) in 1989,
it stated that the intent of the legislation was 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.1
The operative statutory protections of the WPA are embodied in its definition
of “prohibited personnel practices”:
§ 2302. Prohibited personnel practices
(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
1 5 U.S.C. § 1201 nt.

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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;2
Essential Elements Triggering Application of the
Whistleblower Protection Act (WPA)
In order to trigger the protections of the WPA, a case must contain the following
elements: a personnel action that was taken because of a protected disclosure made
by a covered employee.3
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.4 However, those positions that are excepted from the
competitive service because of their “confidential, policy-determining, policy-
making, or policy-advocating character,”5 and any positions exempted by the
President based on a determination that it is necessary and warranted by conditions
of good administration,6 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,7 the Government Accountability Office, the Federal Bureau of
Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the
National Imagery and Mapping Agency,8 the National Security Agency, and any other
2 5 U.S.C. § 2302(b)(8).
3 Id.
4 5 U.S.C. § 2302(a)(2)(B).
5 5 U.S.C. § 2302(a)(2)(B)(i).
6 5 U.S.C. § 2302(a)(2)(B)(ii).
7 5 U.S.C. § 2105(e).
8 The Central Imagery Office was exempted from coverage with the passage of the 1994
(continued...)

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executive entity that the President determines primarily conducts foreign intelligence
or counter-intelligence activities.9
Protected Disclosures
“[A]ny disclosure of information” that a covered 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.10 Moreover, “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 mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety” is also protected.11 Agency heads are required to inform their
employees of these protections.12
Any Disclosure of Information. The WPA expressly provides that “any
disclosure of information” is protected. With enactment of the WPA, Congress
amended its statutory predecessor, the Civil Service Reform Act (CSRA).13 In so
doing, it changed the phrase “a disclosure” to “any disclosure,” emphasizing the point
that the courts, the OSC, and the MSPB should not erect barriers to disclosures that
will limit the necessary flow of information from employees with information of
government wrongdoing.14 In the Committee Report accompanying the WPA
legislation, the Senate specifically criticized a 1986 decision by the U.S. Court of
Appeals for the Federal Circuit, Fiorello v. Department of Justice,15 where an
employee’s disclosures were found not to be protected because the employee’s
“primary motivation” was not for the public good, but rather was for personal
reasons.16 The court reached this conclusion despite a lack of any indication in the
8 (...continued)
WPA 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).
9 5 U.S.C. § 2302(a)(2)(C).
10 5 U.S.C. § 2302(b)(8)(A).
11 5 U.S.C. § 2302(b)(8)(B).
12 5 U.S.C. § 2302(c).
13 Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1114.
14 S.Rept. 100-413 (1988) at 13.
15 795 F.2d 1544 (Fed. Cir. 1986).
16 S.Rept. 100-413 (1988) at 13.

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Civil Service Reform Act that employee motives were relevant to deciding whether
a disclosure is protected.17
Following enactment of the WPA in 1989, case law did not reflect the statutory
expansion of “a disclosure” to “any disclosure.” This lack of responsiveness by the
courts and the MSPB was one factor prompting Congress in 1994 to amend the
whistleblower statute. As the House report accompanying the 1994 amendments
notes:
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.18
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.19 In addition, for those disclosures enumerated under
section 2302(b)(8)(A) that 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.20
Subject Matter of Disclosure. The statutory language of the whistleblower
protections requires the disclosure to (a) 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; and (b) 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.21
The WPA limits evidence of mismanagement to only “gross” mismanagement.
As explained in the accompanying 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
minimis 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 minimis standard for disclosures
17 Id.
18 H.Rept. 103-769 (1994) at 18.
19 S.Rept. 100-413 (1988) at 12.
20 Id.
21 2 U.S.C. §2302(b)(8)(A).

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of mismanagement by protecting them only if they involve “gross
mismanagement.”22
Moreover, 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 Order in the interest of national defense or the conduct of foreign affairs.23
Disclosures that 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.24
Disclosures to Members of Congress. The WPA expressly provides that
the statute is “not to be construed to authorize ... the taking of any personnel action
against an employee who discloses information to the Congress.”25 With this
provision of the law, Congress sought to protect its right to receive even
“confidential” information from federal employees, without employee 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.26
Personnel Actions
The WPA 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 11 areas of agency
activity:
22 S.Rept. 100-413, supra at 12.
23 5 U.S.C. § 2302(b)(8).
24 Id.
25 5 U.S.C. § 2302(b). See also 5 U.S.C. § 7211, providing that an employee is guaranteed
the right to freely petition or furnish information to Congress, a Member of Congress, a
committee, or a Member thereof.
26 H.Rept. 95-1717 (Conference Report) (1978), reprinted in 1978 U.S. CODE CONG. & AD.
NEWS 2861.

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(2) For the purpose of this section —
(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 31.27
The final category, (xi), of covered personnel actions was intended to embrace
significant actions or changes that, 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 accompanying WPA
provided a detailed discussion of the types of actions that 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
27 5 U.S.C. § 2302(a)(2)(A).

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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.28
Nexus Between a Protected Disclosure and a
Personnel Action
The WPA changed the CSRA’s definition of prohibited reprisals against
whistleblowers in such a manner that personnel actions taken “because of” protected
conduct are prohibited, rather than personnel actions taken “as a reprisal for”
protected conduct, as the original statute provided. The amendment was made
because the phrase, “as a reprisal for” had been interpreted to require a showing of
an improper, retaliatory motive on the part of the acting official.29 Indeed, two
disciplinary action cases decided prior to the enactment of the WPA, Starrett v.
Special Counsel30 and Harvey v. M.S.P.B.,31 required employees to show proof of the
acting official’s state 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 whistleblowing activities, so long as the agency officials were
motivated by valid management reasons and not by any intent to “punish” the
employee.32 With the definition of “because of,” Congress intended that a showing
of the official’s state of mind is no longer required. As stated in the Senate report
accompanying the WPA legislation, “[r]egardless of the official’s motives, personnel
actions against employees should quite simply not be based on protected activities
such as whistleblowing.”33 The WPA also expanded the CSRA definition of
prohibited reprisal against whistleblowers to include “threats to take or fail to take”
a personnel action against a whistleblower.34
Other Protected Activities
The WPA also expressly protects employees from prohibited personnel practices
taken because they engaged in activities that are often related to whistleblowing,
including testifying for others or lawfully assisting others exercise any appeal,
complaint, or grievance right;35 cooperating with or disclosing information to an
28 H.Rept. 95-1717 (Conference Report)(1978) at 128, 129-130, reprinted in 1978 U.S.
CODE CONG. & AD. NEWS 2861.
29 S.Rept. 100-13 (1988).
30 792 F.2d 1246 (4th Cir. 1986).
31 802 F.2d 537 (D.C. Cir. 1986).
32 S.Rept. 100-413 (1988) at 15.
33 Id. at 16.
34 Id.
35 5 U.S.C. § 2302(b)(9)(B).

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Inspector General or Special Counsel;36 or for refusing to obey an order that would
violate the law.37 In addition, 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.38
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;39 (B) in actions instituted by the Office of Special Counsel (OSC);40 (C) in
individual rights of action;41 and (D) in grievances brought by the employee under
negotiated grievance procedures.42 As a result of the 1994 WPA amendments, an
aggrieved employee affected by a prohibited personnel action is precluded from
choosing more than one of the above remedies.43
“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.44 Types of agency actions against employees that 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 of the service” (generally
referred to as conduct-based adverse actions),45 and performance-based adverse
actions against employees for “unacceptable performance.”46 In such appeals, an
agency’s decision and action will not be upheld if the employee “shows that the
decision was based on any prohibited personnel practice described in section 2302(b)
36 5 U.S.C. § 2302(b)(9)(C).
37 5 U.S.C. § 2302(b)(9)(D).
38 5 U.S.C. § 2302(b)(9)(A).
39 5 U.S.C. § 7701.
40 5 U.S.C. §§ 1211-1215.
41 5 U.S.C. § 1221.
42 5 U.S.C. § 7121.
43 See 5 U.S.C. § 7121(g)(2).
44 5 U.S.C. § 7701, 5 U.S.C. § 1205.
45 5 U.S.C. § 7513(a). See 5 U.S.C. § 7513(d) as to appealability under § 7701.
46 5 U.S.C. § 4303(a). See 5 U.S.C. § 4303(e) as to appealability to the MSPB under § 7701.

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of this title.”47 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.48 Moreover, the Special
Counsel may not intervene in a “Chapter 77” appeal without the consent of the
individual bringing the appeal.49
Actions by the Office of Special Counsel (OSC)
The WPA established the OSC as an agency independent from the MSPB.50 Its
primary responsibilities, however, have remained essentially the same as set forth in
its statutory predecessor, 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,51 as well as to conduct an investigation of possible
prohibited personnel practices on its own initiative, absent any allegation.52
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;53 (2) seeking an order
for “corrective action” by the agency before the MSPB;54 (3) seeking “disciplinary
action” against officers and employees who have committed prohibited personnel
practices;55 (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;56
47 5 U.S.C. § 7701(c)(2)(B).
48 5 U.S.C. § 7701(b)(2)(A).
49 5 U.S.C. § 1212(c)(2).
50 5 U.S.C. § 1211(a). This section established the Office of Special Counsel (OSC), and
provided that it will be headed by the Special Counsel and 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. 100-413 at 18. Moreover, the
statute provides that 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. § 1211(b).
51 5 U.S.C. § 1212(a)(2).
52 5 U.S.C. § 1214(a)(5).
53 5 U.S.C. § 1213(c).
54 5 U.S.C. § 1214(b)(2).
55 5 U.S.C. § 1215(b).
56 5 U.S.C. § 1212(c).

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and (5) seeking a stay from the MSPB for any personnel action pending an
investigation.57
Investigations.58 Within 240 days of receipt of a complaint, the OSC must
make a determination as to whether there are reasonable grounds to believe that a
prohibited personnel practice has occurred, exists, or is to be taken.59 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,60 the Special Counsel must
transmit the information to the appropriate agency head and require that the agency
head conduct an investigation and submit a written report.61 The identity 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.62 The Special Counsel
then reviews the reports as to their completeness and the reasonableness of the
findings63 and submits the reports to Congress, the President, the Comptroller
General,64 and the complainant.65
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.66 Further, if the Special Counsel receives the information from some
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.67 In any case evidencing a criminal violation, however, all information is
referred to the Attorney General and no report is transmitted to the complainant.68
Throughout its investigation, the OSC must give notice of the status of the
investigation to the individual who brought the allegation. The 1994 WPA
57 5 U.S.C. § 1212(b)(1).
58 In addition to investigating whether prohibited personnel actions have been taken because
of protected whistleblowing disclosures, the WPA also charges the OSC with investigating
whether there is a “substantial likelihood” that whistleblowing disclosures evidence
violations of a law, rule or regulation. See 5 U.S.C. §1213(b).
59 5 U.S.C. § 1214(b)(2)(A)(i).
60 5 U.S.C. § 1213(c)(2).
61 5 U.S.C. § 1213(c)(1).
62 5 U.S.C. § 1213(h).
63 5 U.S.C. § 1213(e)(2).
64 5 U.S.C. § 1213(e)(3).
65 5 U.S.C. § 1213(e)(1).
66 5 U.S.C. § 1213(g)(2).
67 5 U.S.C. § 1213(g)(1).
68 5 U.S.C. § 1213(f).

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amendments changed the period of this notification from 90 to 60 days.69 In addition,
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.70
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.71
If the agency does not act to correct the prohibited personnel practice, the Special
Counsel may petition the MSPB for corrective action.72 The MSPB, before rendering
its decision, is required to provide an opportunity for oral or written comments by the
Special Counsel, the agency involved and the Office of Personnel Management, and
for written comments by any individual who alleges to be the victim of the prohibited
personnel practices.73
The WPA made it easier for a complainant to prove retaliation for
whistleblowing in a corrective action before the MSPB. The Special Counsel need
only prove by a preponderance of the evidence that the disclosure was a “contributing
factor” in the personnel action, instead of a “significant factor.”74 In addition, once
the MSPB renders a final order or decision of corrective action, complainants have
the right to judicial review in the U.S. Court of Appeals for the Federal Circuit.75
In what is probably the most significant change from its statutory predecessor,
the CSRA, the WPA increased 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 such disclosure.76 Under the CSRA, 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.”
69 5 U.S.C. § 1214(a)(1)(C)(ii).
70 5 U.S.C. § 1214(a)(1)(D).
71 5 U.S.C. § 1214(b)(2)(B).
72 5 U.S.C. § 1214(b)(2)(C).
73 5 U.S.C. § 1214(b)(3).
74 5 U.S.C. §1214(b)(4)(i).
75 5 U.S.C. § 1214(c).
76 5 U.S.C. § 1214(b)(4)(B).

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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.77 After proceedings
before the MSPB or an administrative law judge,78 if violations are found, the MSPB
may impose any of various disciplinary actions, 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 $1,000.79 In addition, the
agency involved may be held responsible for reasonable attorney’s fees.80 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.81 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.82
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.83
Stays. Upon application by the OSC, a member of the MSPB may “stay” or
postpone, for 45 days, pending an investigation, a personnel action that 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.84 If no MSPB member acts within three days of the OSC
application, the stay becomes effective.85 After the employing agency has had an
opportunity to comment on the appropriateness of extending a stay, the MSPB may
extend it.86 A stay may be terminated by the MSPB at any time, except that a stay
may not be terminated by the MSPB on its own motion or on the motion of an
agency, unless notice and opportunity for oral or written comments are first provided
to the Special Counsel and the individual on whose behalf the stay was ordered; or
77 5 U.S.C. § 1215(a)(1).
78 5 U.S.C. § 1215(a)(2)(C).
79 5 U.S.C. § 1215(a)(3).
80 5 U.S.C. § 1204(m)(1).
81 5 U.S.C. § 1215(b).
82 5 U.S.C. §1215(c)(1).
83 5 U.S.C. § 1212(c).
84 5 U.S.C. § 1214(b)(1)(A)(i),(ii).
85 5 U.S.C. § 1214(b)(1)(A)(iii).
86 5 U.S.C. § 1214(b)(1)(B),(C).

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on a motion of the Special Counsel, unless notice and opportunity for oral or written
comments are first provided to the individual on whose behalf the stay was ordered.87
Individual Right of Action (IRA)
The WPA provides that 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.88 As a result of the IRA statutory provisions, a greater
number of employees, including probationers, temporaries, and excepted service,
have a method of appeal to the MSPB for whistleblower reprisals that was not
previously available under the CSRA.89 In addition, retired employees are not barred
from instituting this type of appeal.90 If the employee is the 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 to the MSPB, regardless of the basis of the
decision, the WPA provides 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, awarding back pay and related
benefits, recompensing medical costs incurred, travel expenses, or any other
reasonable and foreseeable consequential charges.91 In all cases, corrective action
includes awarding attorneys’ fees.92 As a result of the 1994 WPA amendments, the
MSPB findings can be based on circumstantial evidence.93 Moreover, the Special
Counsel may not intervene in an individual right of action without the consent of the
individual bringing the appeal.94
Negotiated Grievance Procedures
Beyond the statutory provisions of the WPA, 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 that was
negotiated through collective bargaining between the employee’s agency and the
employee union representing employees of the agency.95 The federal statutory
provisions for grievance procedures note that certain actions that 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
87 5 U.S.C. § 1214(b)(1)(D).
88 5 U.S.C. § 1221(a).
89 See 5 U.S.C. § 7701.
90 5 U.S.C. § 1221(j).
91 5 U.S.C. § 1221(g)(1)(A)(i),(ii).
92 5 U.S.C. § 1221(g)(1)(B).
93 5 U.S.C. § 1221(e)(1).
94 5 U.S.C. § 1212(c)(2).
95 5 U.S.C. § 7121.

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“conduct” or “performance,”96 may only be pursued in one forum or the other, but not
through both.97
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.98
Summary of the Whistleblower Protection
Enhancement Act of 2007 (H.R. 985, 110th Congress)
On February 12, 2007, Representatives Waxman, Platts, Van Hollen, and T.
Davis introduced H.R. 985 (110th Cong.), the Whistleblower Protection Enhancement
Act of 2007, which on March 9, the House Committee on Oversight and Government
Reform reported with amendments (H.Rept. 110-42), and placed on the legislative
calendar.
H.R. 985 would amend the WPA to extend whistleblower protections to federal
employees who specialize in national security issues. While current law expressly
exempts employees of certain agencies relating to national security, Section 10 of the
bill extends whistleblower protections to employees of the Federal Bureau of
Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National Security Agency, and the
National Reconnaissance Office and “any other Executive agency, or element or unit
thereof, determined by the President ... to have as its principal function the conduct
of foreign intelligence or counterintelligence activities.” Likewise, Section 11 of the
bill would extend whistleblower protections to employees of companies with
government contracts.
Current law defines “disclosures” covered by the WPA to include information
evidencing an abuse of authority. Section 13 of the bill would extend WPA
protections to employees of science-based agencies by providing that “abuse of
authority” includes “any action that compromises the validity or accuracy of federally
funded research and analysis” and “the dissemination of false or misleading
scientific, medical, or technical information.”
Section 3 of the bill would clarify that “any” disclosure regarding waste, fraud,
or abuse means that the WPA applies to such disclosures “without restriction as to
time, place, form, motive, context, or prior disclosure” and includes formal and
informal communication. Section 4 of the bill would provide that an employee
covered by the WPA can rebut the presumption that a federal official performed his
96 5 U.S.C. §§ 4303 and 7512.
97 5 U.S.C. § 7121(d),(e).
98 5 U.S.C. § 7121(d).

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or her duties in accordance with the law by providing substantial evidence to the
contrary. In addition, Section 9 of the bill would provide that such covered
employees may bring an action for de novo review in the appropriate U.S. district
court if the Merit Systems Protection Board (MSPB) does not take action on their
claims within 180 days.