Whistleblower

Whistleblower Cases

What is it?

Whistleblowing is the employee practice of reporting waste, fraud or abuse at a federal agency or at a company who contracts with a federal agency. Whistleblower retaliation is the practice of an employee related to the underlying conduct about which the employee complained taking an adverse action against the complaining employee. Usually, federal employees are not terminated as a retaliatory action; rather they are marginalized, moved to a basement type, isolated office, given no work assignments, thereby encouraging them to quit.

Whistleblower Law Provisions

5 USC § 2302(b)(8) – Prohibited Personnel Practices

Under 5 USC § 2302(b)(8) it is a prohibited personnel practice to take or fail to take a personnel action against any employee or applicant as reprisal for a disclosure that the employee reasonably believes evidences:

(1) A violation of any law, rule, or regulation;
(2) Gross mismanagement;
(3) A gross waste of funds;
(4) An abuse of authority; or
(5) A substantial and specific danger to public health or safety.

A violation of § 2302(b)(8) is “whistleblower reprisal.” Reprisal occurs even if the person taking the action believes the allegations to be false; the key question is whether the whistleblower reasonably believed them to be true.

Proof Standard – Contributing Factor

The employee must prove by preponderant evidence that the disclosure described in § 2302(b)(8) was a contributing factor to the adverse personnel action. This includes any disclosure the appellant reasonably believed evidenced gross waste of funds or gross mismanagement (5 USC § 2302(b)(8)(A)(ii)).

Legislative History of “Gross” Standard

The “gross” standard was intended to protect serious disclosures, not trivial matters. As the Senate report explains:

“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 certain nuclear plants.”
S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted in 1978 USCCAN 2723, 2730.

WPEA 2012 – Clarification of Disclosures Covered

Sec. 101. Clarification of Disclosures Covered.

Amends § 2302(b)(8) to strike “a violation” and insert “any violation” in both subparagraphs (A)(i) and (B)(i)—broadening covered disclosures.

WPEA 2012 – Prohibited Practices under § 2302(b)(9)

Sec. 101(b). Adds § 2302(b)(9) protections and makes technical & conforming amendments across 5 USC §§ 1214 & 1221 to cover “protected activity” alongside disclosures.

WPEA 2012 – Definitional Amendments

Sec. 102. Definitional Amendments.

Amends § 2302(a)(2) to define “disclosure” as any formal or informal communication evidencing violations, gross mismanagement, waste, abuse, or danger to public health/safety, with no exclusions for motive, format, prior reporting, or on-duty/off-duty status.

WPEA 2012 – Remedies

Sec. 107. Remedies.

Attorney’s Fees (5 USC § 1204(m)): Prevailing parties recover fees in the agency where they worked or applied.
Damages (5 USC §§ 1214(g)&1221(g)): Expands recoverable travel expenses, consequential & compensatory damages, expert fees, and costs.

How We Help You with Whistleblower Cases

Whistleblower protections safeguard employees who report violations or mismanagement. Our services provide strategic planning, timely filings, and aggressive advocacy to challenge reprisals and secure remedies like reinstatement and damages.

Strategic Disclosure Planning

We analyze your situation and craft a tailored plan to protect your rights under the Whistleblower Protection Act.

Timely Filings & Deadlines

We prepare and submit OSC complaints, MSPB appeals, and contractor claims on time—ensuring your legal protections remain intact.

Aggressive Advocacy

From OSC investigations to MSPB hearings, we vigorously represent you and cross-examine witnesses to expose retaliation.

Skilled Negotiation & Remedies

We negotiate reinstatement, back pay, compensatory damages, and pursue appeals to maximize your recovery.

National Whistleblower MSPB & OSC Lawyer

Litigating whistleblower retaliation claims before the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC) can be daunting. With over 20 years of experience, Morris E. Fischer, LLC guides federal employees through the complexities of reporting waste, fraud, and abuse—ensuring your rights under the Whistleblower Protection Act are forcefully defended at every step.

MSPB Whistleblower Retaliation Cases

Taylor Johnson v. DHS, MSPB No. SF-1221-16-0004-W-2

Represented Senior ICE Agent who testified to the Senate Committee on EB-5 program abuses. Overcame weapon and credential confiscation, retaliatory removal, and resolved the matter to the parties’ satisfaction.

Keegan v. Social Security Administration

Guided former SSA Associate Commissioner in televised Senate testimony on congressional misrepresentation of a $300M computer project, and litigated before the MSPB and oversight committees.

Jason Mount v. DHS, 1st Cir. No. 18-1762 (2019)

On appeal under the All Circuit Review Extension Act, secured a new standard requiring MSPB judges to accept sufficient factual allegations for whistleblower investigations.

Whistleblower FAQ

Is Edward Snowden a patriotic whistleblower or a traitor to this country?

Based on the information available to the public, Mr. Snowden does not meet the elements of a whistleblower protection action, even according to the recent WPEA 2012 amendments. Consequently, were he to bring a whistleblower claim, he would very likely not prevail as per the current state of the law. Whether he is a patriot or traitor is a question that probably relates to many factors, including his motives and his actual conduct. Unquestionably, the United States, Department of Justice has taken the position that he is a traitor that could have greatly or already has damaged national security and should he be returned to the United States, undoubtedly, he would have to stand a criminal trial.

I am a big believer in the jury system and I make it a habit not to judge others in the absence of the requisite legal proceedings. Under our system of justice, he has not been convicted of any crime yet, but given the information available, a whistleblower case would be a long shot, if that.

I happened to have litigated a matter back in 2006-2007 alongside Bruce Fein, Esq., the lawyer for the Snowden family. Mr. Fein was also general counsel for the Ron Paul presidential campaign. Having worked with Mr. Fein before and having spent some time with him, I know him to demonstrate great integrity and professionalism. I’m sure he deeply believes in his cause; however, the Snowden case would not be my firm’s cup of tea.

I live in Florida, can your firm represent me in a whistleblower action?

Yes. Whistleblower actions are litigated before Administrative Law Judges, federal judges in an administrative law system and we can and have litigated these cases before in many states aside of the Washington, DC area.

Can my agency retaliate against me if I file a whistleblower claim?

Under the law they are not allowed to and it would be foolish if they did. In most cases we’ve had, once a federal employee files a whistleblower action, the agency will not retaliate against that person, assuming that employee has a lawyer to protect their interests. We have seen some cases where the second action of retaliation turned out to be a better case than the original claim.

When is it worth it to bring a whistleblower action?

My strongest recommendation is not to bring a whistleblower claim until you’ve met with an attorney that concentrates in this area. Think of it this way. If you bring a defective whistleblower claim before you meet with an attorney, your supervisor will be extremely upset at you and you don’t have whistleblower case against him. Instead, if you met with your attorney on the claim, your attorney can advise you on what needs to occur to meet the legal elements before you bring the claim. My office has counseled numerous employees, both in the federal and private sectors that didn’t meet the elements of a claim. We performed the necessary filings for those clients to protect them in the future. Those clients were grateful that we not only solved their problems, but saved them a whole lot of money and headache.

How much does your firm charge to bring a whistleblower claim?

Each case has a set of factors that may lend itself to a different kind of payment arrangement. We invite you to discuss your case with our office and after studying the case, we can work with you in developing a fee structure that benefits both you and the law firm.

Whistleblower Success at a Glance

20+ Years of Whistleblower Advocacy
Timely OSC & MSPB Filings
High-Profile Senate & Media Spotlight
Reinstatement & Damages Secured

Experiencing retaliation for whistleblowing? Our dedicated team will protect your rights and pursue the remedies you deserve.