The U.S. Court of Appeals for the Ninth Circuit issued its decision today in Kerr v. Salazar (now Kerr v. Jewell), holding that certain disclosures to supervisors and disclosures made in the normal course of the employee’s duties are protected because, notwithstanding certain 2001-era Federal Circuit decisions that barred protection for such disclosures, the language of the original Whistleblower Protection Act of 1989 was sufficient to confer protection to “any disclosure.” Thus, it didn’t matter that the Whistleblower Protection Enhancement Act of 2012 restored or clarified the original meaning of the WPA of 1989, as this particular appellate court was not bound by the widely-decried rulings of the Federal Circuit:
Kerr does challenge, however, the district court’s determination that her pre-OIG communications do not constitute protected disclosures. In reaching this conclusion, the district court relied on a number of doctrines arising from cases in the Federal Circuit. See Huffman v. Office of Personnel Mgmt., 263 F.3d 1341 (Fed. Cir. 2001); Horton v. Dep’t of the Navy, 66 F.3d 279 (Fed. Cir. 1995); Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 (Fed. Cir. 1992). The government urges us to adopt these doctrines and reject Kerr’s WPA claims. We decline the invitation and, instead, decide the question as a straightforward issue of statutory interpretation. Section 2302(b)(8)(A) protects an employee making “any disclosure” (emphasis added) where the employee reasonably believes that the information evidences: “(i) a 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[.]” Clearly, we must take the language “any disclosure” at face value, which compels us to conclude that Kerr’s complaints fall within the broad protective scope of § 2302(b)(8)(A).
Because we hold that the district court erred in granting summary judgment on the ground that Kerr’s pre-OIG disclosures were not protected, we need not decide whether the WPEA should be retroactively applied.
In other words, the 9th Circuit showed the wisdom of the all-circuit review, which is currently under a two-year test run pursuant to the WPEA.
Background: Kerr v. Salazar
As a lawyer and an advocate for whistleblowers and federal employees, I get to see a lot cases of retaliation. I also get exposed to a variety of factors that determine the course and outcome of litigation: the merit of the allegations, the legal acumen of the litigant, the severity of the retaliation, the tactics employed by the agency, and the judge’s commitment to justice. Perhaps no factor ranks more highly than this: how well the case is organized.
What is a Trial?
Tampa Bay Times’ Politifact.com has updated its long-running fact check of President Obama’s campaign promise to strengthen whistleblower laws. I was honored to be included as a source of information by its author, Lilly Maier.
Politifact’s bottom line is this:
Obama promised to strengthen whistleblower laws by speeding up the review process of claims and granting full access to jury trials and due process. When we last checked his promise in 2012, we rated it a Compromise, saying that Obama has made a lot of progress (especially through his appointments), but that he was nowhere near the standards set by his own campaign rhetoric.
Since then, a lot has changed.
Obama enacted structural reforms by signing the Whistleblower Protection Enhancement Act and the Presidential Policy Directive 19 – which closed many loopholes in whistleblower protections for federal employees, and gave the intelligence community free speech rights for the first time ever.
All the experts we have talked to were more than eager to acknowledge that Obama has done more to protect whistleblowers than any other president before him. But national security whistleblowers represent a glaring exception. The Obama administration has prosecuted more whistleblowers under the Espionage Act than any president before.
Additionally, Obama didn’t manage to get whistleblowers access to jury trials, which was part of his original promise.
We continue to rate his promise a Compromise.
My email interview with Ms. Maier included more information than was necessary for updating this particular fact-check, but I thought it would be valuable to include a lightly-edited excerpt of it here, for the whistleblower community, to comprehensively list the outstanding issues I’ve identified for the past 2 years which stymie access to justice at the Merit Systems Protection Board:
President Obama ran on a platform of protecting and listening to whistleblowers, as well as making sure that they have full access to courts.
The reality is that, with regards to employees who have access to the MSPB (non-national security employees, by and large), the situation has improved only marginally. The percentage of cases decided in favor of employees has increased from less than 2% to about 3-4%. Some of these numbers are available at www.mspbwatch.org/statistics.
An article written by attorney and federal whistleblower Robert J. McCarthy compared statistics at MSPB versus other whistleblower offices (Department of Labor, OSHA) and other administrative tribunals (Social Security Administration). The numbers are still unfavorable to MSPB appellants: http://mspbwatch.org/2012/07/30/mspb-judges-are-hopelessly-biased-heres-how/ and http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/october_2012/stand.cfm.
I have been trying for about 2+ years to raise awareness about the due process issues at the MSPB, as have others. The non-profit Public Employees for Environmental Responsibility recently re-sounded the alarm about an “assembly line of injustice” at MSPB, something they’ve done in 2011. It seems nothing’s changed in 2 years with Obama-appointed leadership at the helm: http://mspbwatch.org/2013/09/09/peer-mspb-draft-plan-ignores-assembly-line-injustice-in-whistleblower-cases/
The White House is fond of citing to the President’s signing of the Whistleblower Protection Enhancement Act to bolster its pro-whistleblower bona fides. While it is true that the WPEA represents much-needed reform to restore Congress’ 1978 and 1989 intentions to protect federal whistleblowers, the law itself did not provide “full access to courts.” Early versions of the WPEA would have allowed whistleblowers to go to federal district court, but tradeoffs included no jury trials and weakening of burdens of proof for agencies to justify terminations or other personnel actions. In the end, the latter proved too high a price for the whistleblower community.
On the national security front, there are reports that the White House balked at providing protections for national security employees, and thus such protections were stripped in the final WPEA version, despite its earlier promises. I believe Stephen Kohn of the National Whistleblowers Center is the person who can best speak about this: http://www.washingtontimes.com/news/2013/jun/11/obama-blamed-nsa-spying-revelations-whistleblower-/
There is an objective “gold standard” in whistleblowing laws, as identified by now-senior OSC official Jason Zuckerman. While in private practice, he co-wrote an article that called the District of Columbia’s newly-amended whistleblower law the “the strongest public sector whistleblower protection statute in the country.” What makes this law the gold standard is access to jury trials, strengthened disciplinary provisions for supervisors found to have engaged in retaliation, and public recognition of whistleblowers through statutory awards: http://mspbwatch.org/2012/06/16/what-would-state-of-the-art-federal-whistleblowing-legislation-look-like/
One of the biggest problems at MSPB is lack of transparency, condensed periods of adjudication that do not allow litigants to gather crucial evidence, and too much deference to the rulings and credibility determinations of administrative judges, which are often deemed “virtually unreviewable.” There are usually no smoking guns to point to why the statistics are lopsided against litigants, just a series of rulings (death by a thousand paper cuts) that deny litigants access to witnesses, discovery, testimony, and so forth. I am trying to shine a light on this situation by publicizing willing litigants’ full dockets: http://mspbwatch.org/2013/10/04/donate-your-docket/. Future posts will delve into specific instances to bolster my admittedly broad claim.
The Board would likely point to the statistics and say that 3-4% does not represent an accurate picture, since many litigants settle with agencies (around 30%). While this is technically correct, we have no way of knowing the quality of those settlements. Further, many cases that are “dismissed with prejudice” used to be because of what we now know to be erroneous, or at least congressionally-unintended, rulings that removed protections from disclosures (because they were made to one’s supervisor, for instance): http://mspbwatch.org/2013/06/06/appellant-success-rate-at-mspb-whats-the-right-number/ and http://mspbwatch.org/2013/06/07/mspb-executive-director-responds-to-whistleblowers-critical-article/. There is evidence that the practice continues: the Board recently limited protections for a disclosure as a per se, legal basis, in arguable contravention of Congress’ intent in 2012: http://mspbwatch.org/2013/11/06/mspb-upholds-rejection-of-disclosure-on-meuwissen-grounds/.
A contributing factor to the situation at MSPB is the absence of an independent Inspector General (its general counsel assumes this role, which I contend is a conflict of interest). Further, a recent MSPB FOIA revealed that no IG investigations took place between 2009 to 2012: http://mspbwatch.org/2013/11/07/mspbs-non-functioning-inspector-general-function-comes-into-focus/. Further, no administrative judge has been disciplined for failing to meet performance standards between 2002-2012, despite the Board adjudicating some 80,000 cases in that time: http://mspbwatch.org/2012/10/20/mspb-chair-the-board-has-not-disciplined-any-administrative-judge-for-failure-to-meet-performance-standards-between-2002-and-the-present/.
Finally, journalist David Cay Johnston has called for the MSPB to be “overhaul[ed]” recently: http://www.newsweek.com/hounding-whistleblowers-wrong-1164.
A last point is that the Board technically has the function of studying the merit systems systematically and answering the yes/no question of “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Chairman Susan Tsui Grundmann made an explicit pledge in her confirmation hearing to do so. To date it has not occurred, even after Ms. Grundmann elucidated the history of the “special studies function” in a subsequent Senate hearing: http://mspbwatch.org/2012/03/24/mspb-chair-grundmanns-remarks-to-the-senate-show-promise/ and http://mspbwatch.org/2011/11/17/mspb-chair-susan-tsui-grundmanns-pledge-to-the-president-and-the-congress/.
The reason for the Board’s failure to do so, I contend, is because of an institutional conflict of interest, as predicted by the DOJ in 1978: http://mspbwatch.org/2013/04/10/in-1978-the-dojs-office-of-legal-counsel-predicted-the-irrelevance-of-mspbs-special-studies-function-it-was-right/ and
http://mspbwatch.org/2013/02/15/is-a-conflict-of-interest-at-the-mspb-hampering-its-mission/ and http://mspbwatch.org/2013/03/12/sen-grassley-wonders-why-voting-section-problems-have-never-been-dealt-with/.
The above notwithstanding, the Board took issue with my and another advocate’s assertion that it has never answered the yes/no question: http://mspbwatch.files.wordpress.com/2011/11/01-08-2013_mspb-response-to-petition-for-rulemaking-re-5-usc-1204a3.pdf. You can decide for yourself, but a “founding father” of the CSRA and MSPB, Dwight K. Ink, wrote the following in 1998:
The MSPB Office of Policy and Evaluation has had excellent people but does not have anything approaching the resources needed to uncover systemic problems related to the merit principles and prohibited practices. Congress has tended to look upon the special studies as duplicative of OPM work. This is due in part to the fact that over its lifetime, so many of the MSPB studies, while useful, have been of the type that OPM should be doing rather than its primary mission under the law to conduct studies and report to the president and Congress on whether the “public interest in a civil service free of prohibited personnel practices is being adequately protected.”
Second, OSC has not been formally reauthorized since 2007. While this does not prevent OSC from receiving appropriations, reauthorization provides Congress with an opportunity to evaluate OSC’s authorities and responsibilities and make any necessary adjustments. In light of our steadily increasing workload, Congress may want to consider the onerous procedural requirements imposed on OSC in all prohibited personnel practice cases as a possible area for revision. Additionally, there is no statute of limitations for filing a prohibited personnel practice complaint with OSC. Congress may want to consider whether a reasonable time limit for filing a complaint with OSC is appropriate. Finally, OSC’s authority to compel the production of documents in whistleblower disclosure cases could be clarified, and the mechanism for enforcing OSC subpoenas against federal entities should be updated and streamlined.
Job Title: Attorney Advisor (General)
Agency: Merit Systems Protection Board
Job Announcement Number: MSPB-EXE-2014-0003
SALARY RANGE: $89,033.00 to $136,771.00 / Per Year
OPEN PERIOD: Monday, November 18, 2013 to Monday, December 02, 2013
SERIES & GRADE: GS-0905-13/14
POSITION INFORMATION: Full-Time – Excepted Service
PROMOTION POTENTIAL: 14
DUTY LOCATIONS: 1 vacancy in the following location: Washington DC, DC
WHO MAY APPLY: This announcement is open to all United States citizens.
JOB SUMMARY: Protect the Merit Principles and promote an effective Federal Workforce free of Prohibited Personnel Practices.
MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies. In addition, MSPB reviews the significant actions of the Office of Personnel Management to assess the degree to which those actions may impact merit.
About the Position: This position is with the Merit Systems Protection Board (MSPB), Office of General Counsel (OGC). The Merit Systems Protection Board is responsible for overseeing federal merit systems and enforcing compliance with merit systems principles, statutes, and regulations. One of the Board’s primary functions is to adjudicate appeals of certain personnel actions and decisions of federal agencies. The Board’s Office of General Counsel (OGC) is responsible for providing legal advice on a broad range of issues including ethics and labor and employment; drafting certain types of Board decisions, including those drafted in cases in which an administrative judge issues a recommendation for enforcement of a Board decision; subpoena enforcement; representing the Board and its officials in the courts and before administrative agencies; conducting the Board’s Petition for Review Settlement Program; coordinating the Board’s legislative policy and congressional relations functions; drafting and coordinating the issuance of Board regulations; and providing oversight of the Board’s activities by performing Inspector General functions. The job is a full-time, permanent position with flexible working hours, alternative work schedules, the opportunity to work with considerable independence, and a desirable downtown Washington location.
A new FOIA response reveals that the MSPB’s quasi-Inspector General has not filed any end-of-year IG reports to the Board between 2002 and 2008.
This follows an earlier FOIA response which stated that “[n]o IG reports were completed because no IG investigations were conducted between 2009 – 2012.”
In other words, the MSPB’s quasi-IG has not submitted any IG reports to the Chairman between 2002 to 2012 in what is either a violation of Section 17.B. of MSPB Order 1095 (the Board’s IG Manual, page no. 24**), or because it hasn’t conducted any Hotline and investigative activity between 2002 and 2012.
Either way, the result is the same: complaints to the MSPB’s IG get buried.
**Section 17.B. of MSPB Order 1095 states: “OGC shall submit an end-of-year report summarizing the Hotline and investigative activity for the year to the Chairman or his/her designee.”
See also pages 1-2 of Order 1095, which state:
[P]ursuant to Section 8G(h)(2) of the [Inspector General Act of 1978], the head of each Federal entity is required to prepare and transmit to the Director of the Office of Management and Budget and to each House of Congress a report which specifies the actions taken by the Federal entity to ensure that audits are conducted of its programs and operations and summarizes any matters relating to the personnel, programs, and operations of the Federal entity referred to prosecutorial authorities, including a summary description of any preliminary investigation conducted by or at the request of the Federal entity concerning these matters. In short, although the Merit Systems Protection Board is not required by law to have an inspector general as a staff position, the agency is nonetheless responsible for ensuring fulfillment of the investigating and audit functions required by the Inspector General Act of 1978, as amended.
Section 8G(h)(2) of the Inspector General Act in turn states:
§8G. Requirements for Federal entities and designated Federal entities
(h)(2) Beginning on October 31, 1989, and on October 31 of each succeeding calendar year, the head of each Federal entity (as defined under subsection (a) of this section) shall prepare and transmit to the Director of the Office of Management and Budget and to each House of the Congress a report which—
(A) states whether there has been established in the Federal entity an office that meets the requirements of this section;
(B) specifies the actions taken by the Federal entity otherwise to ensure that audits are conducted of its programs and operations in accordance with the standards for audit of governmental organizations, programs, activities, and functions issued by the Comptroller General of the United States, and includes a list of each audit report completed by a Federal or non-Federal auditor during the reporting period and a summary of any particularly significant findings; and
(C) summarizes any matters relating to the personnel, programs, and operations of the Federal entity referred to prosecutive authorities, including a summary description of any preliminary investigation conducted by or at the request of the Federal entity concerning these matters, and the prosecutions and convictions which have resulted.
The above-linked FOIA responses also indicate that the MSPB has not filed these required reports with the Congress between 2002 and 2012.
- MSPB’s Non-Functioning Inspector General Function Comes Into Focus (Nov. 7, 2013)
- Putting the MSPB’s Crisis of Leadership in Focus (Oct. 14, 2013)
- Is the MSPB’s quasi-Inspector General Function Working? (Oct. 13, 2013)
- Revealed: MSPB’s Inspector General Manual and Performance Management Documents (Aug. 19, 2013)
- Complaint against MSPB (Aug. 12, 2013)
- MSPB Chair: “The Board has not disciplined any administrative judge for failure to meet performance standards between 2002 and the present” (Oct. 20, 2012)
The proposed regulatory changes would be entitled to Chevron deference because the relevant statutes and regulations that provide for Board jurisdiction are silent or ambiguous with respect to the identity of jurisdictional elements and the applicable burden of proof, and because the Board has either been given express rulemaking authority or has implicit rulemaking authority because it has been charged with the administration of the statutes and regulations at issue.
Identifying jurisdictional requirements in Board appeals falls squarely within the Chevron principle that agencies are authorized to interpret a statute that is “silent or ambiguous” with respect to a particular matter. That Congress and OPM did not unambiguously and with precision identify jurisdictional elements or specify applicable burdens of proof for establishing jurisdiction would be an understatement. Accordingly, as the agency charged with administering (by adjudication) the various laws and regulations authorizing the Board to hear various types of appeals, the Board is authorized to resolve Congress’s and OPM’s silence and/or ambiguity by notice-and-comment rulemaking, and the Federal Circuit would be required to defer to the Board’s interpretation as long as it is a permissible one.
Chevron deference is a rule of construction that requires courts to defer to an agency’s permissible construction of a statute “if the statute is silent or ambiguous with respect to the specific issue“:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
The problem with the Board’s reasoning is that Congress was not, in fact, silent or ambiguous with regards to the specific issue of summary judgment authority.
Here is Congress in the text of the enacted version of the Whistleblower Protection Enhancement Act of 2012:
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.–
(1) Report.–Not later than 4 years after the date of enactment of this Act, the Comptroller General shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives on the implementation of this title.
(2) Contents.–The report under this subsection shall include–
(A) an analysis of any changes in the number of cases filed with the Merit Systems Protection Board alleging violations of section 2302(b)(8) or (9) of title 5, United States Code, since the effective date of this Act;
(B) the outcome of the cases described under subparagraph (A), including whether or not the Merit Systems Protection Board, the United States Court of Appeals for the Federal Circuit, or any other court determined the allegations to be frivolous or malicious as well as a recommendation whether Congress should grant the Merit Systems Protection Board summary judgment authority for cases described under subparagraph (A);
Here is specific language about granting the Board summary judgment authority, in a prior version of the WPEA, S. 743RS, which Congress then removed:
SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.
(a) In General- Section 1204(b) of title 5, United States Code, is amended–
(1) by redesignating paragraph (3) as paragraph (4);
(2) by inserting after paragraph (2) the following:
`(3) With respect to a request for corrective action based on an alleged prohibited personnel practice described in section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for which the associated personnel action is an action covered under section 7512 or 7542, the Board, any administrative law judge appointed by the Board under section 3105 of this title, or any employee of the Board designated by the Board may, with respect to any party, grant a motion for summary judgment when the Board or the administrative law judge determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’.
(1) IN GENERAL- Except as provided under paragraph (2), the amendments made by this section shall cease to have effect 5 years after the effective date of this Act.
(2) PENDING CLAIMS- The amendments made by this section shall continue to apply with respect to any claim pending before the Board on the last day of the 5-year period described under paragraph (1).
And here is the language in the committee report accompanying the WPEA, S. Rep. 112-155, which at the time corresponded with S. 743RS:
Currently, the Board does not have the authority to grant summary judgment in a whistleblower case, even when there is no genuine issue as to any material fact and the moving party would be entitled to prevail as a matter of law. In its 2006 reauthorization request, the Board requested authority to grant motions for summary judgment in order to help it speed case processing.112 To assist the Board with prompt adjudication of WPA claims, section 118 of S. 743 authorizes the MSPB to consider and grant summary judgment motions in WPA cases that involve major personnel actions, subject to a five-year sunset. In considering a motion for summary judgment, the MPSB should use the standards set forth in Federal Rule of Civil Procedure 56. That is, the Board shall determine, examining the evidence and pleadings before it and viewing the evidence in the light most favorable to the non-moving party, whether any genuine issue of material fact exists. This five-year period will allow Congress to evaluate the impact of this provision on the cases heard by the MSPB and any impact on the WPA protections for federal whistleblowers.
As you can see, Congress did speak about the specific issue at hand, summary judgment authority, noting that the Board currently does not possess it.
Recall that, under Chevron, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Here Congress’ intent is clear: the Board does not currently possess the authority to grant summary judgment. It may have been silent or ambiguous about jurisdictional elements and burdens of proof generally, but not with regards to summary judgment authority. Ergo, while the Board may promulgate regulations to clarify or implement jurisdictional elements and burdens of proofs and enjoy deference, it may not extend its rulemaking authority to grant itself summary judgment authority, something which Congress was clear it did not possess.
The Board is currently accepting comments from the public about this and other issues. The filing deadline is Monday, December 9, 2013. Anyone interested may submit a comment by emailing email@example.com. Further instructions may be found here. Submitted comments will be made available for inspection here.
The Intelligence Authorization Act for Fiscal Year 2014, recently voted out of the Senate Select Committee on Intelligence, contains provisions for protecting intelligence community (IC) federal employees who blow the whistle about waste, fraud, and abuse. A close look at the legislation, however, reveals that it does not protect disclosures made to the Office of Special Counsel.
Currently, IC employees may make confidential disclosures to OSC, which, depending on the subject matter, might be subject to immediate referral to the relevant congressional committees and the National Security Advisor. Such disclosures, though confidential, are not protected because protections from terminations or security clearance revocations for IC employees do not currently exist. In creating such protections, however, the legislation passed by the Senate Intelligence committee notably omitted OSC from the list of approved recipients:
SEC. 601. PROTECTION OF INTELLIGENCE COMMUNITY WHISTLEBLOWERS.
“(b) IN GENERAL.—Any employee of an agency who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of an intelligence community element as a reprisal for a disclosure of information by the employee to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, the head of the employing agency (or an employee designated by the head of that agency for such purpose), the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee, which the employee reasonably believes evidences—
“(1) a violation of any law, rule, or regulation; or
“(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
A similar provision in the legislation for protection against security clearance revocation omits the Special Counsel:
SEC. 602. REVIEW OF SECURITY CLEARANCE OR ACCESS DETERMINATIONS.
“(j) RETALIATORY REVOCATION OF SECURITY CLEARANCES AND ACCESS DETERMINATIONS.— “(1) IN GENERAL.—Agency personnel with authority over personnel security clearance or access determinations shall not take or fail to take, or threaten to take or fail to take, any action with respect to any employee’s security clearance or access determination because of—
‘‘(A) any disclosure of information to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose) or the head of the employing agency (or employee designated by the head of that agency for such purpose) by an employee that the employee reasonably believes evidences—
“(i) a 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;
“(B) any disclosure to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee reasonably believes evidences—
“(i) a 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;
These provisions are modeled after 5 U.S.C. 2302(b)(8), commonly known as the Whistleblower Protection Act, which provides:
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—
(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—
(i) any violation (other than a violation of this section) 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;
While 5 U.S.C. 2302(b)(8) is inapplicable to IC employees, 5 U.S.C. 1213(a)(2), which is worded almost identically, is what allows such employees to make disclosures to the Special Counsel.
Importantly, the Intelligence Authorization Act explicitly notes that some existing rights would be preserved–those affecting the whistleblower protections for FBI employees. However, the explicit reference to preserving one pre-existing law but not another implies the abandonment of the other.
‘‘(d) EXISTING RIGHTS PRESERVED.—Nothing in this section shall be construed to— “(1) preempt or preclude any employee, or applicant for employment, at the Federal Bureau of Investigation from exercising rights currently provided under any other law, rule, or regulation, including section 2303; “(2) repeal section 2303; or “(3) provide the President or Director of National Intelligence the authority to revise regulations related to section 2303, codified in part of the Code of Federal Regulations.”.
The bottom line is this: will IC employees lose any protection they might have under this law should they (continue to) make disclosures to the Special Counsel? Will they be subject to termination, loss of security clearance, or other personnel actions? If the law currently allows OSC to accept classified disclosures from IC employees, what accounts for its exclusion from the Intelligence Authorization Act?