New FOIA Requests: No FEAR Reports to determine total cost of federal whistleblower defense

In 2002, Congress passed the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), which mandated several things:

  • any damages or attorneys’ fees required to be paid to prevailing complainants would come out of agencies’ budgets, rather than the general U.S. Treasury Judgment Fund;
  • agencies must report to Congress statistics about discrimination and retaliation complaints;
  • these reports must also include the amount of money agencies must pay to complainants who prevail, including attorneys’ fees;
  • and agencies must post online statistics (but not money paid) in connection with equal employment opportunity discrimination complaints.

Recently, fellow advocate site highlighted a report that the California State University spent $9 million to defend itself against seven whistleblower suits since 2008. This triggered an inquiry: how much does the federal government spend each year to defend itself against whistleblower complaints?

The dollar amount is surprisingly difficult to ascertain. Because the law does not require agencies to post this information online, it must be FOIA’ed. In addition, the No FEAR Act applies to “federal agencies,” which includes the 15 executive departments and numerous independent agencies. There are also untold number of agencies within the departments, but it is unclear at this point if department-level reports contain statistics for their subordinate agencies. (DOT’s 2010 report, which is also available here, does not cover its agencies FAA, FTA, FRA, etc.)

To that end, I have begun with two agencies and one department:

  • MSPB FOIA No. 2012-04-019: MSPB’s No FEAR Act Annual Reports to Congress, for 2009 to present, as required under section 203 of Pub. L. 101-474.
  • FAA FOIA No. : FAA’s No FEAR Act Annual Reports to Congress, for 2009 to present, as required under section 203 of Pub. L. 101-474.
  • DOT FOIA No. : DOT’s No FEAR Act Annual Reports to Congress, since 2002 but excluding 2010, as required under section 203 of the No FEAR Act of 2002.