On December 9, the U.S. House of Representatives passed the Protecting Our Democracy Act, a 174-page package of oversight and transparency initiatives. Included in the package is the Whistleblower Protection Improvement Act (WPIA), a landmark bill which, among other reforms, would grant federal employee whistleblowers access to federal court trials.
The WPIA was reintroduced by a bipartisan group of representatives on May 4, 2021. The bill aims to address a number of shortcomings with the Whistleblower Protection Act (WPA), the main law offering whistleblower protections to federal employees. The bill is widely supported by whistleblower advocates, who have pushed for some of the reforms for decades.
According to leading whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto, “the most important part of the bill targets the failure of Congress to permit federal employees to have their day in court. The bill would permit most federal employees to remove their cases to federal district court for a real trial, if the Merit Systems Protection Board (MSPB) does not issue a ruling on their whistleblower retaliation claims within 180 days.”
Currently, under the WPA, federal employees’ whistleblower retaliation claims are exclusively heard by the MSPB, a quasi-judicial federal agency chaired by Presidential appointees. Whistleblower advocates have long taken issue with the lack of court access for federal employee whistleblowers, but the cause has taken on added urgency in recent years as the MSPB has faced a crisis: the MSPB has not had a quorum since January 2017. Without the two members needed to form a quorum, the MSPB has been unable to rule on any whistleblower retaliation cases for over four years. According to exclusive reporting by WNN, at the beginning of 2021, the MSPB had a backlog of 3,118 cases. This backlog could take years to work through. On October 6, the U.S. Senate Committee on Homeland Security & Governmental Affairs voted to advance President Biden’s three nominees for the MSPB but a full Senate vote has yet to be scheduled.
“Protections for whistleblowers need to be strengthened to preserve the crucial role these brave federal employees play in holding the government accountable,” said Representative Carolyn Maloney (D-NY) in a statement announcing the reintroduction of the bill. Representatives Nancy Mace (R-SC), Gerry Connolly (D-VA), Jackie Speier (D-CA), Eddie Bernice Johnson (D-TX), and Kathleen Rice (D-NY) introduced the bill alongside Maloney.
“When Americans alert the nation to waste, fraud, and abuse by the federal government, they take immense personal, professional, and emotional risks,” said Mace. “Right now, these brave citizens are vulnerable to vicious campaigns of intimidation and retaliation which put their ability to provide for their families in jeopardy. Whistleblowers help root out corruption and we must ensure they aren’t victimized or silenced by those who seek to abuse their power.”
The WPIA contains a number of other reforms to the WPA. It prohibits federal agencies from launching retaliatory investigations against whistleblowers, clarifies that no federal employee (including the President) may interfere with a whistleblower who provides information to Congress, and provides federal whistleblowers the timely opportunity to obtain temporary relief. The bill also expands the WPA to cover non-career Senior Executive Service and Public Health Service employees.
The Protecting Our Democracy Act
The Decades-Long Fight for Court Access for Federal Employee Whistleblowers