U.S. Congress Discussing Two Federal Employee Whistleblower Bills

Two bills expanding whistleblower protection are currently working their way through the United States Congress.  Rep. Darrell Issa (R-CA) introduced the Whistleblower Protection Enhancement Act (“WPEA”) with the intention of addressing the 1988 Supreme Court Egan decision, and providing government employees who have their security clearance revoked as a retaliatory measure with a means to challenge that decision.  The second piece of whistleblower legislation currently in Congress is the Non-Federal Employee Whistleblower Protection Act (“NFEA”), introduced by Senator Claire McCaskill (D-MO).   The NFEA primarily seeks to expand the whistleblower coverage provided to government employees to include government contractors as well.

The Merit Systems Protection Board (“MSPB”) is an independent, quasi-judicial agency in the executive branch that serves as the guardian of federal merit systems.  In Department of the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that the MSPB “does not have authority to review the substance of an underlying security clearance determination in the course of reviewing an adverse action.”  Their reasoning for this is that “the grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information.”

What this means, however, is that to the extent a federal employee is retaliated against via revocation of his or her security clearance, and that revocation is then upheld by whatever internal agency appeal system exists, the employee has no legal recourse.  As a result, this type of adverse action has become a very effective means for supervisors in federal agencies – particularly in the intelligence field, where without a clearance you have no career – to cause career derailing retaliation upon whistleblowers with impunity.  The WPEA seeks to create a means for federal employees to appeal changes in their security clearance, and provides a mechanism to penalize supervisors and agencies found to have altered or revoked an employee’s clearance in response to protected activity.

Another significant gap in federal whistleblower protection coverage exists regarding government contractors.  Depending on the industry, these whistleblowers are sometimes covered by other pieces of whistleblower legislation, but there have been multiple instances of government contractor whistleblowers that have been retaliated against and simply had no legal recourse.  This is obviously very bad – right now a huge percentage of what is the de facto federal workforce exists in the form of government contractors.  If we assume government oversight is helpful for our country, and that an integral part of effective oversight is providing legal protection to whistleblowers, then the NFEA is simply a no-brainer.

That two pieces of crucial whistleblower legislation are currently working their way through the U.S. Congress is very encouraging.  These bills are particularly important during a time where our country is facing such a significant budget shortfall.  One surefire way to reduce federal spending is to reduce fraud and waste, and one of the most effective ways to do that is to protect those employees who are willing to stand up and tell the public where fraud and waste is occurring.