PRACTICE AREAS

Whistleblowing

Maryland/ Washington, D.C., Whistleblower Lawyer - Whistleblower Protection Act Attorney

What protections do Federal Employees have under the Whistleblower Protection Act?

The purpose of the Whistleblower Protection Act is to encourage government personnel to disclose government wrongdoing to persons who may be in a position to remedy the problem without fearing retaliatory action by their supervisors or those who might be harmed by the disclosures. However, criticism directed to the wrongdoers themselves is not normally viewable as whistleblowing. Therefore, it’s not enough for federal employees to complain to their supervisors about violations of the law. They need to complain to persons not ordinarily in their supervisory chain, such as a congressman or secretary about the violation. That person has to be in a position to correct fraudulent or illegal activity.

What types of whistleblower complaints are protected?

In short, federal employees must demonstrate that they engaged in whistle blowing activity by making a protected disclosure under 5 U.S.C. 2302(b)(8), i.e., (s)he disclosed information that (s)he reasonably believed evidenced a violation of the law, rule or regulation, gross mismanagement, a gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety; and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 U.S.C. 2302(a). Employees should make sure that their complaints encompassed one of the categories listed under the statute to assure protection under the Whistleblower Protection Act. The employee doesn’t necessarily have to be right with respect to the complaint filed, as long as the employee had a good faith belief that the alleged activity occurred necessitating a complaint.

Once it is demonstrated that the federal employee engaged in whistleblower protection, to prove retaliation the employee must establish that the government official, usually the employee’s supervisor or manager was aware of the complaint and that as a result of becoming aware of the whistleblower’s complaint took some legally defined personnel action against the employee. These include: (1) an appointment; (2) a promotion; (3) an adverse action under 5 U.S.C. Chapter 75 or other disciplinary or corrective action; (4) a detail, transfer, or reassignment; (5) a reinstatement; (6) a restoration; (7) a reemployment; (8) a performance evaluation under 5 U.S.C. Chapter 43; (9) a decision concerning pay, benefits or awards, or concerning education or training if the education r training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action; (10) a decision to order psychiatric testing or examination; or (11) any other significant change in duties, responsibilities, or working conditions.

How are whistleblower claims adjudicated?

With respect to federal employees, these claims are typically filed with the Office of Special Counsel, an office charged with investigating the federal employee’s claim. More often than not, the Office of Special Counsel will issue notice to the employee that (s)he may file the whistleblower complaint with the Merit Systems Protection Board, (“M.S.P.B.”) and an Administrative Law Judge (“ALJ”), a federal employee, will hear the case. The ALJ will then issue an acknowledgement order, which an administrative court schedule is listing all deadlines for discovery to be initiated and completed.

Discovery is a legal process in which each side to the litigation has an opportunity to demand that certain documents in the other side’s possession be produced. This may be especially helpful to the federal employee, who can compel the agency to produce, for example, all records of communications between various agency officials regarding knowledge of the whistleblower’s complaint. These communications, such as e-mails, can ultimately prove that federal agency officials were well aware of the federal employee’s complaint and that they took action against the employee.

Some ALJ’s will issue something called an “Order to Show Cause” during the litigation in an attempt to dismiss the case for lack of jurisdiction. The employee must tell the ALJ the reasons that the case falls under the province of the M.S.P.B. by demonstrating that the complaints met all of the elements of the whistleblower protection act discussed above. If this occurs, the employee still has to comply with the strict discovery deadlines listed in the acknowledgement order.

Assuming the ALJ does not dismiss the complaint, which is no sure guarantee, the case will then go to hearing, a legal procedure much like a trial. However, many of the Federal Rules of Evidence are relaxed, for example, out of court statements made for the truth of the matter asserted, called “hearsay” is generally permitted. Witnesses testify and are cross-examined. Depending upon the particular ALJ, closing statements are either done orally or a legal brief summarizing all of the evidence is filed.

Should the federal employee not prevail at hearing, the employee can appeal his action to the full board of the M.S.P.B. If the full board affirms the ALJ’s decision, the employee can appeal again to the United States Circuit Court for the Federal Circuit, in which a Federal Appeals Court can review the relevant portions of the hearing transcript and can overturn the decision.

Generally speaking federal agency witnesses, usually supervisors or managers of the protected employee, will take the position that they took the adverse action against the federal employee for some reason other than whistleblower retaliation. Usually, they argue, the employee’s job performance was poor. In some cases, the agency argues that no true danger existed and that the employee who complained about some perceived danger, did so in a rude or non-cooperative manner, thereby attempting to shift the focus of the administrative hearing away from that which the agency did and onto the employee’s conduct.

This is a common defense raised by employers, both public and private, throughout employment law and wrongful termination actions. The employee never should be on trial, despite defense lawyer’s attempts to place him or there. A good part of the litigation battle in employment law cases consists of capturing the fact finder’s attention onto the employer.

Recent Development in Whistleblower Protection

On March 14, 2007, by a vote of 331 to 94, The House of Representatives passed the Whistleblower Protection Enhancement Act (H.R. 985). The Enhancement Act is the first major reform of federal whistleblower laws in 18 years, and cures numerous weaknesses in existing legislation. The Enhancement Act will:

• For the first time, provide most federal employees with a right to have their claims heard in federal court;
• Protect most federal employees who expose waste fraud and corruption through their chain of command;
• Provide a new remedy for federal contractors who expose fraud on the taxpayers

Stephen Kohn, the President of the National Whistleblower Center, issued the following statement regarding the passage of H.R. 985:

“This is a historic victory for oversight and accountability. For the first time in 18 years, Congress is getting serious about protecting Federal employee-whistleblowers. The House has taken the first step in passing Whistleblower Protection Enhancement Act (H.R. 985). It is now up to the Senate to get the job done. We fully expect that at the end of the day that Congress will pass, and the President will sign, effective whistleblower protections; we will accept nothing less."

Do I need an employment lawyer to represent me in a whistleblower claim?

No, but litigating against the United States federal government has many pitfalls. The employee is literally fighting the modern day Roman Empire. They have skilled soldiers with knowledge of all legal traps inherent in the system against the employee. Having an employment lawyer concentrating in this field will greatly help minimize the great advantage the government has in these kinds of cases. Even Goliath had a spot between his eyes that was unprotected. A good employment attorney should be able to focus the case onto the points in which the government is especially weak.

We invite you to contact our office and discuss your whistleblower case at no cost to you. At our consultation, we will speak with you about your particular situation and develop a litigation strategy that we can implement right away.