Whistleblower Laws

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 for employment as reprisal for a disclosure that the employee or applicant 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 referred to as whistleblower reprisal. Reprisal occurs even if the individual taking the reprisal believes the allegations to be false; the question is whether the individual making the allegations reasonably believed them to be true.

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

The legislative history makes it clear, however, that the “gross” standard in relation to funds was not intended to protect trivial or de minimis matters. It states that “[w]hat 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.

Key changes brought about by the Whistleblower Protection Enhancement Act of 2012:

SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.

(a) IN GENERAL.—Section 2302(b)(8) of title 5, United States Code, is amended—

(1) in subparagraph (A)(i), by striking ‘‘a violation’’ and inserting ‘‘any violation’’; and

(2) in subparagraph (B)(i), by striking ‘‘a violation’’ and inserting ‘‘any violation (other than a violation of this section)’’.

(b) PROHIBITED PERSONNEL PRACTICES UNDER SECTION 2302(b)(9).—

(1) TECHNICAL AND CONFORMING AMENDMENTS.—Title 5, United States Code, is amended—

(A) in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of section 1214 and in subsections (a), (e)(1), and (i) of section 1221, by inserting ‘‘or section 2302(b)(9) (A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’ each place it appears; and

(B) in section 2302(a)(2)(C)(i), by inserting ‘‘or section 2302(b)(9) (A)(i), (B), (C), or (D)’’ after ‘‘(b)(8)’’.

(2) OTHER REFERENCES.—(A) Title 5, United States Code, is amended in subsection (b)(4)(B)(i) of section 1214 and in subsection (e)(1) of section 1221 by inserting ‘‘or protected activity’’ after ‘‘disclosure’’ each place it appears.

(B) Section 2302(b)(9) of title 5, United States Code, is amended—

(i) by striking subparagraph (A) and inserting the following: by adding at the end the following:

‘‘(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation— ‘‘(i) with regard to remedying a violation of paragraph (8); or ‘‘(ii) other than with regard to remedying a violation of paragraph (8);’’; and (ii) in subparagraph

(B), by inserting ‘‘(i) or (ii)’’ after ‘‘subparagraph (A)’’.

(C) Section 2302 of title 5, United States Code, is amended by adding at the end the following: ‘‘(f)(1) A disclosure shall not be excluded from subsection (b)(8) because—

‘‘(A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

‘‘(B) the disclosure revealed information that had been previously disclosed;

‘‘(C) of the employee’s or applicant’s motive for making the disclosure;

‘‘(D) the disclosure was not made in writing;

‘‘(E) the disclosure was made while the employee was off duty; or

‘‘(F) of the amount of time which has passed since the occurrence of the events described in the disclosure.

‘‘(2) If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection

(b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.’’.

SEC. 102. DEFINITIONAL AMENDMENTS.

Section 2302(a)(2) of title 5, United States Code, is amended—

(1) in subparagraph (B)(ii), by striking ‘‘and’’ at the end;

(2) in subparagraph (C)(iii), by striking the period at the end and inserting ‘‘; and’’; and

(3) by adding at the end the following: ‘‘(D) ‘disclosure’ means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences— ‘‘(i) any 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.’’.

SEC. 107. REMEDIES.

(a) ATTORNEY FEES.—Section 1204(m)(1) of title 5, United States Code, is amended by striking ‘‘agency involved’’ and inserting ‘‘agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case’’. (b) DAMAGES.—Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5, United States Code, are amended by striking all after ‘‘travel expenses,’’ and inserting ‘‘any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).’’ each place it appears.