The Whistleblower Protection Act: An Overview

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

This report discusses the federal statutory protections contained within the Whistleblower
Protection Act (WPA) for federal employees who engage in “whistleblowing,” that is, making a
disclosure evidencing illegal or improper government activities. The protections of the WPA
apply to most federal executive branch employees and become applicable where a “personnel
action” is taken “because of” a “protected disclosure” made by a “covered employee.” Generally,
whistleblower protections may be raised within four forums or proceedings: (1) employee appeals
to the Merit Systems Protection Board of an agency’s adverse action against an employee, known
as “Chapter 77” appeals; (2) actions instituted by the Office of Special Counsel; (3) individually
maintained rights of action before the Merit Systems Protection Board (known as an individual
right of action, or IRA); and (4) grievances brought by the employee under negotiated grievance
procedures.
On March 9, 2007, the House Committee on Oversight and Government Reform reported H.R. ^th
985 (110 Cong.) H.Rept. 110-42, the Whistleblower Protection Enhancement Act of 2007, which
would amend the WPA by providing protections for certain national security, government
contractor, and science-based agency whistleblowers, and by enhancing the existing
whistleblower protections for all federal employees.

Introduction and Background..........................................................................................................1
Essential Elements Triggering Application of the Whistleblower Protection Act (WPA)...............2
Covered Employees..................................................................................................................2
Protected Disclosures................................................................................................................2
Any Disclosure of Information...........................................................................................3
Reasonable Belief...............................................................................................................3
Subject Matter of Disclosure..............................................................................................4
Disclosures to Members of Congress..................................................................................4
Personnel Actions......................................................................................................................5
Nexus Between a Protected Disclosure and a Personnel Action...............................................6
Other Protected Activities................................................................................................................7
Forums Where Whistleblower Protections May Be Raised............................................................7
“Chapter 77” Appeals................................................................................................................7
Actions by the Office of Special Counsel (OSC)......................................................................8
In vestigations ...................................................................................................................... 9
Corrective Actions..............................................................................................................9
Disciplinary Actions..........................................................................................................10
Intervention ........................................................................................................................ 11
St ays .......................................................................................................................... ......... 11
Individual Right of Action (IRA).............................................................................................11
Negotiated Grievance Procedures...........................................................................................12
Summary of the Whistleblower Protection Enhancement Act of 2007 (H.R. 985, 110^th
Congress) .................................................................................................................................... 12
Author Contact Information..........................................................................................................13

The Whistleblower Protection Act (WPA) provides statutory protections for federal employees
who engage in “whistleblowing,” that is, making a disclosure evidencing illegal or improper
government activities. The protections of the WPA apply to most federal executive branch
employees and become applicable when a “personnel action” is taken “because of” a “protected
disclosure” made by a “covered employee.” Generally, whistleblower protections may be raised
within four forums or proceedings: (1) employee appeals to the Merit Systems Protection Board
of an agency’s adverse action against an employee, known as “Chapter 77” appeals; (2) actions
instituted by the Office of Special Counsel; (3) individually maintained rights of action before the
Merit Systems Protection Board (known as an individual right of action, or IRA); and (4)
grievances brought by the employee under negotiated grievance procedures.
When Congress first enacted the Whistleblower Protection Act (WPA) in 1989, it stated that the
intent of the legislation was to:
^s^t^reng^t^h^eⁿ^aⁿ^{d i}^m^prov^{e prot}^ectⁱ^oⁿ^f^o^{r t}^h^{e ri}^g^h^t^s^of^F^e^deral^e^m^p^l^o^y^ees^{, t}^o^prev^ent^repri^s^al^s^,
^an^{d to h}^e^{lp eli}^mⁱⁿ^a^t^e^w^r^oⁿ^g^doiⁿ^g^wⁱ^t^hⁱⁿ^th^{e G}^o^v^e^rⁿ^m^eⁿ^t^by^—⁽¹⁾^m^aⁿ^d^a^tⁱⁿ^g^t^h^at^em^p^l^oy^ee^s
^s^h^{ould n}^o^{t s}^u^ff^{er adv}^e^rs^{e con}^s^equ^eⁿ^ces^as^{a re}^su^l^t^of^prohⁱ^bⁱ^t^e^{d pers}^onⁿ^e^l^practⁱ^ces^;^an^d⁽²⁾
^es^tablis^hⁱ^ng^{... th}^at^w^h^{ile dis}^cⁱ^p^lin^ing^t^h^os^e^w^h^{o co}^m^m^{it proh}^{ibited pers}^onⁿ^e^l^p^r^a^c^tⁱ^c^e^s^m^a^y
^{be u}^s^{ed a}^s^a^m^e^aⁿ^s^b^y^w^h^ic^{h to h}^e^{lp acco}^m^p^lis^h^t^h^at^g^o^{al, t}^h^e^protection^ofⁱⁿ^dividu^als^w^h^o¹
^{are t}^h^{e s}^u^bj^ect^of^prohⁱ^bⁱ^t^e^{d p}^e^rs^onⁿ^e^l^practⁱ^ces^re^m^aⁱⁿ^s^t^h^e^param^oun^t^consⁱ^d^eratⁱ^oⁿ^.
The operative statutory protections of the WPA are embodied in its definition of “prohibited
personnel practices”:
^{§ 230}^{2. Pr}^ohⁱ^bⁱ^t^ed^p^ers^onⁿ^e^l^p^r^acti^ces
^{(b) A}ⁿ^y^e^m^pl^o^y^ee^w^h^o^h^a^s^a^u^t^h^ori^t^y^t^o^t^a^k^e^{, di}^rect^ot^h^e^r^s^t^o^t^a^k^e^{, reco}^m^m^eⁿ^d^{, or approv}^e
^any^pers^onn^{el actio}ⁿ^,^s^h^a^{ll n}^o^t^,^wⁱ^t^h^res^p^{ect to s}^u^c^h^auth^orit^y^—^...
⁽⁸⁾^tak^e^o^r^f^a^{il to}^tak^e^{, o}^r^th^r^e^aten^to^tak^e^o^r^f^a^{il to}^ta^k^e^{, a p}^e^r^s^oⁿⁿ^e^{l act}^ioⁿ^wⁱ^t^h^r^e^sp^{ect to}
^any^e^m^plo^y^{ee or applican}^{t f}^o^r^e^m^plo^y^m^e^{nt becau}^s^e^of—
⁽^A⁾^an^y^dⁱ^sc^lo^su^r^e^o^fⁱⁿ^f^o^r^m^atioⁿ^b^y^aⁿ^e^m^plo^y^{ee or applican}^t^w^h^ic^h^t^h^{e e}^m^plo^y^{ee or}
^applican^t^reas^on^abl^y^believ^e^s^ev^iden^ce^s^—⁽ⁱ⁾^a^vⁱ^ol^a^tⁱ^oⁿ^o^f^aⁿ^y^l^a^w^,^ru^l^e^,^o^r^r^e^g^u^l^a^tⁱ^oⁿ^,^o^r⁽ⁱⁱ⁾
^g^r^os^s^mⁱ^s^m^aⁿ^a^g^e^m^eⁿ^{t, a}^g^r^os^s^w^a^s^t^{e o}^f^fun^d^s^,^an^ab^u^s^{e o}^f^au^th^orit^y^,^{or a s}^u^bs^tan^t^{ial an}^d
^s^p^eci^fⁱ^{c dang}^{er t}^o^pu^blⁱ^c^h^eal^t^h^{or s}^a^f^e^t^y^{, i}^f^su^c^h^di^s^c^l^o^su^{re i}^sⁿ^o^t^s^p^eci^fi^cal^l^y^prohⁱ^bⁱ^t^e^{d b}^y
^la^w^an^d^{if s}^u^c^hⁱⁿ^f^o^r^m^atioⁿⁱ^sⁿ^o^{t s}^p^eci^fⁱ^call^y^req^u^{ired b}^y^E^x^ecu^ti^v^e^{Order to be}^k^e^pt^s^ecret
ⁱⁿ^th^{e i}ⁿ^ter^e^s^t^o^fⁿ^a^tioⁿ^a^{l d}^e^f^eⁿ^s^{e o}^r^th^{e co}ⁿ^d^u^c^{t o}^f^f^o^r^eⁱ^gⁿ^a^f^f^a^ir^{s; o}^r
⁽^B⁾^an^y^dⁱ^sclo^s^u^r^e^to^th^{e Sp}^e^c^{ial Co}^uⁿ^{sel, o}^r^to^th^{e I}ⁿ^sp^ec^to^r^Gen^e^r^a^{l o}^f^an^ag^eⁿ^c^y^o^r
^an^oth^e^{r e}^m^plo^y^{ee des}ⁱ^gⁿ^a^ted^by^t^h^e^h^{ead of}^th^{e a}^g^en^c^y^to^receiv^e^s^u^c^h^dis^c^los^u^res^,^of
ⁱⁿ^f^o^r^m^atioⁿ^w^h^ic^h^th^{e e}^m^p^l^o^y^{ee o}^r^a^p^p^lican^{t r}^eas^on^abl^y^believ^e^s^eviden^ces^—(i)^a^vⁱ^o^l^a^tⁱ^oⁿ
^o^f^an^y^la^w^,^r^u^{le, o}^r^r^e^g^u^l^atioⁿ^,^o^r⁽ⁱⁱ⁾^g^r^o^ss^mⁱ^s^m^aⁿ^a^g^e^m^eⁿ^{t, a}^g^r^o^ss^w^a^ste^o^f^f^uⁿ^d^s^,^aⁿ^a^b^u^s^e²
^of^au^t^h^ori^t^y^,^{or a s}^u^bs^t^aⁿ^tⁱ^a^l^aⁿ^{d s}^p^eci^fⁱ^{c dang}^{er t}^o^pu^blⁱ^c^heal^t^h^{or s}^a^f^e^t^y^;

¹^{5 U}^.^S^.^C^.^{§ 1}²⁰¹^nt.
²^{5 U}^.^S^.^C^.^{§ 2}³⁰²⁽^b⁾⁽⁸⁾^.

In order to trigger the protections of the WPA, a case must contain the following elements: a ³
personnel action that was taken because of a protected disclosure made by a covered employee.
Although anyone may disclose whistleblowing information to the Special Counsel for referral to
the appropriate agency, the Special Counsel may order an investigation and require a report from
the head of the agency only if the information is received from a “covered employee.” In
addition, with few exceptions, prohibited personnel practices apply only to covered employees.
Hence, as a threshold matter, it is important to note which federal employees are statutorily
covered.
Generally, current employees, former employees, or applicants for employment to positions in the
executive branch of government in both the competitive and the excepted service, as well as ⁴
positions in the Senior Executive Service, are considered covered employees. However, those
positions that are excepted from the competitive service because of their “confidential, policy-⁵
determining, policy-making, or policy-advocating character,” and any positions exempted by the
President based on a determination that it is necessary and warranted by conditions of good ⁶
administration, are not protected by the whistleblower statute. Moreover, the statute does not ⁷
apply to federal workers employed by the Postal Service or the Postal Rate Commission, the
Government Accountability Office, the Federal Bureau of Investigation, the Central Intelligence ⁸
Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the
National Security Agency, and any other executive entity that the President determines primarily ⁹
conducts foreign intelligence or counter-intelligence activities.
“[A]ny disclosure of information” that a covered employee “reasonably believes” evidences “a
violation of any law, rule, or regulation” or evidences “gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health or safety” is
protected on the condition that the disclosure is not prohibited by law nor required to be kept ¹⁰
secret by Executive Order. Moreover, “any disclosure” made to the Special Counsel or to the

³^Id^.
⁴⁵^U.S^.^C.^§²³⁰²^(a)(2^)(B).
⁵⁵^U.S^.^C.^§²³⁰²^(a)(2^)(B)(i)^.
⁶⁵^U.S^.^C.^§²³⁰²^(a)(2^)(B)(ii)^.
⁷^{5 U}^.^S^.^C^.^{§ 2}¹⁰⁵⁽^e⁾^.
⁸^T^h^{e Cen}^t^ral^Im^a^g^er^y^O^f^fⁱ^ce^w^a^s^exe^m^p^t^ed^f^r^o^m^co^ver^a^g^e^wⁱ^t^h^t^h^{e p}^a^{ssage o}^f^t^h^{e 1}⁹⁹⁴^W^P^A^am^en^d^m^en^t^s^.^T^h^e
^agen^c^y^{was ren}^a^m^e^d^t^h^{e “Nat}ⁱ^o^nal^Im^a^g^er^{y an}^d^M^a^p^pⁱⁿ^{g A}^g^en^c^y^{” w}ⁱ^t^h^t^h^{e p}^a^{ssage o}^f^t^h^{e Nat}ⁱ^oⁿ^a^l^Def^eⁿ^s^e
^A^u^thor^iz^a^tion^A^c^{t f}^o^r^Fis^c^a^l^Y^e^a^r¹⁹^97.^P^.^L^.¹^04-²⁰^1,^§¹¹²²⁽^b)⁽¹⁾^.
⁹⁵^U.S^.^C.^§²³⁰²^(a)(2^)(C).
¹⁰⁵^U.S^.^C.^§²³⁰²^(b⁾⁽⁸^)(A^).

Inspector General of an agency or another employee designated by the head of the agency to
receive such disclosures, which the employee “reasonably believes” evidences “a violation of any
law, rule, or regulation,” or evidences “gross mismanagement, a gross waste of funds, an abuse of ¹¹
authority, or a substantial and specific danger to public health or safety” is also protected. ¹²
Agency heads are required to inform their employees of these protections.
The WPA expressly provides that “any disclosure of information” is protected. With enactment of ¹³
the WPA, Congress amended its statutory predecessor, the Civil Service Reform Act (CSRA). In
so doing, it changed the phrase “a disclosure” to “any disclosure,” emphasizing the point that the
courts, the OSC, and the MSPB should not erect barriers to disclosures that will limit the ¹⁴
necessary flow of information from employees with information of government wrongdoing. In
the Committee Report accompanying the WPA legislation, the Senate specifically criticized a

1986 decision by the U.S. Court of Appeals for the Federal Circuit, Fiorello v. Department of ¹⁵

Justice, where an employee’s disclosures were found not to be protected because the employee’s ¹⁶
“primary motivation” was not for the public good, but rather was for personal reasons. The
court reached this conclusion despite a lack of any indication in the Civil Service Reform Act that ¹⁷
employee motives were relevant to deciding whether a disclosure is protected.
Following enactment of the WPA in 1989, case law did not reflect the statutory expansion of “a
disclosure” to “any disclosure.” This lack of responsiveness by the courts and the MSPB was one
factor prompting Congress in 1994 to amend the whistleblower statute. As the House report
accompanying the 1994 amendments notes:
^P^e^rh^ap^{s th}^e^m^o^{st tro}^u^b^lⁱⁿ^g^p^r^eced^en^{ts in}^v^o^l^v^{e th}^{e B}^o^ard^’^{s in}^ab^ilit^y^to^uⁿ^d^e^r^s^t^aⁿ^d^t^h^a^t^“^aⁿ^y^”
^me^aⁿ^s^“aⁿ^y^.^”^T^h^e^W^P^{A p}^r^o^t^e^c^t^s^“aⁿ^y^”^dⁱ^s^c^l^o^s^u^re^eviden^ciⁿ^g^a^reas^on^able^belief^of^s^p^ecifⁱ^ed
^mⁱ^s^c^oⁿ^du^{ct, a corn}^ers^t^on^{e to}^w^h^ic^h^t^h^{e MSP}^B^re^m^aⁱⁿ^s^blⁱ^nd.^T^h^{e on}^l^y^re^s^t^ri^ctⁱ^ons^{are f}^o^r
^clas^sⁱ^fⁱ^{ed i}ⁿ^f^o^r^m^a^tion^or^m^a^te^{rial th}^{e releas}^{e of}^w^h^ic^hⁱ^s^s^p^e^c^if^icall^y^proh^{ibited b}^y^s^t^at^u^t^e.
^E^m^p^l^o^y^ees^m^u^{st d}ⁱ^sclo^{se t}^h^{at t}^y^p^e^o^fⁱⁿ^f^o^r^m^atioⁿ^t^h^r^o^u^g^h^coⁿ^f^id^en^{tial c}^h^anⁿ^e^l^s^to^m^aⁱⁿ^t^aⁱⁿ¹⁸
^protection^;^oth^e^r^wⁱ^s^{e t}^h^{ere are n}^o^ex^ception^s^.
For a disclosure to be protected, an employee must have a “reasonable belief” that the
information is true. This is substantially a good faith requirement. In theory, the actual veracity of ¹⁹
any disclosure does not affect whether a disclosure is protected. In addition, for those

¹¹⁵^U.S^.^C.^§²³⁰²^(b⁾⁽⁸^)(B).
¹²^{5 U}^.^S^.^C^.^{§ 2}³⁰²⁽^c⁾^.
¹³^Cⁱ^v^{il Se}^r^v^ic^e^R^e^f^o^r^m^A^c^{t of}¹⁹⁷^8,^P.L^.^95-⁴⁵^4,⁹²^Sta^t^.¹¹¹⁴^.
¹⁴^S.R^e^pt.¹⁰⁰^-⁴¹³⁽¹⁹⁸⁸⁾^a^t^13.
¹⁵⁷⁹⁵^F.^2d¹⁵⁴⁴⁽^F^e^d^.^Cⁱ^r^.¹⁹⁸⁶⁾^.
¹⁶^S.R^e^pt.¹^00-⁴¹^{3 (}¹⁹⁸⁸⁾^a^t¹³^.
¹⁷^Id^.
¹⁸^H^.^R^e^pt.¹⁰^3-⁷^{69 (}¹⁹⁹⁴⁾^a^t¹⁸^.
¹⁹^S.R^e^pt.¹^00-⁴¹^{3 (}¹⁹⁸⁸⁾^a^t¹²^.

disclosures enumerated under section 2302(b)(8)(A) that do not have to be kept confidential, the ²⁰
statute does not specify to whom the disclosures must be made in order to qualify as protected.
The statutory language of the whistleblower protections requires the disclosure to (a) evidence (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; and (b) not be
prohibited by law or Executive Order, except when the disclosure is made to the Special Counsel
or to the Inspector General of an agency or another employee designated by the head of the ²¹
agency to receive such disclosures.
The WPA limits evidence of mismanagement to only “gross” mismanagement. As explained in
the accompanying Senate report,
^W^h^{ile t}^h^e^Co^m^mⁱ^{ttee i}^s^coⁿ^c^e^rⁿ^e^d^ab^o^u^{t i}^m^p^r^o^vⁱⁿ^g^t^h^{e p}^r^o^t^ectioⁿ^o^f^w^h^is^tleb^l^o^w^er^{s, it}^is
^als^o^con^cern^e^{d abou}^t^t^h^{e exh}^a^u^s^ti^v^e^ad^mⁱⁿⁱ^s^t^rati^v^e^aⁿ^{d j}^u^dicⁱ^{al re}^m^e^dies^prov^{ided un}^{der S.}
^{508 t}^h^at^cou^l^{d be u}^s^{ed by}^e^m^p^l^oy^ee^s^w^h^o^h^a^v^e^m^a^{de di}^s^c^l^o^su^res^of^t^rⁱ^vⁱ^a^l^m^a^t^t^ers^.^C^S^RA
^sp^e^cⁱ^fic^a^l^l^y^e^s^ta^b^lⁱ^s^he^d^a^d^e^miⁿⁱ^{mis sta}ⁿ^d^a^r^d^fo^r^dⁱ^sc^lo^sur^e^s^a^ffe^c^tin^g^th^e^w^a^s^t^e^of^fun^d^s^b^y
^defⁱⁿⁱ^ng^su^c^h^di^s^c^l^o^su^res^a^s^prot^ect^{ed on}^l^yⁱ^f^t^h^e^yⁱⁿ^v^o^l^v^{ed “a g}^r^os^s^w^a^s^t^{e of fun}^d^s^.^{” U}ⁿ^der
^S^.^{508, t}^h^{e C}^o^m^mⁱ^t^t^{ee es}^t^a^blⁱ^s^h^e^s^{a s}ⁱ^mⁱ^l^a^{r de}^mⁱⁿⁱ^mⁱ^{s s}^t^an^{dard f}^o^{r di}^s^c^l^o^s^u^res^o^f²²
^mⁱ^s^m^an^ag^em^en^t^by^p^r^o^t^e^c^tⁱⁿ^g^t^h^em^on^ly^if^th^eyⁱⁿ^v^o^l^v^e^“^g^ro^s^s^mⁱ^s^m^aⁿ^ag^em^eⁿ^t^.^”
Moreover, whistleblowing disclosures that are made public must not contain information the
disclosure of which is prohibited by law or which is prohibited by an Executive Order in the ²³
interest of national defense or the conduct of foreign affairs. Disclosures that are otherwise
“protected” disclosures may be made, however, regardless of statutory Executive Order secrecy
requirements, to the Special Counsel or to an Inspector General of an agency or to an employee ²⁴
designated by the agency head to receive disclosures.
The WPA expressly provides that the statute is “not to be construed to authorize ... the taking of ²⁵
any personnel action against an employee who discloses information to the Congress.” With this
provision of the law, Congress sought to protect its right to receive even “confidential”
information from federal employees, without employee fear of reprisals:
^T^h^{e p}^r^o^v^isioⁿ^{is i}ⁿ^teⁿ^d^ed^to^m^a^k^e^clear^th^at^b^y^p^l^aciⁿ^g^li^m^ita^tioⁿ^s^oⁿ^t^h^e^kⁱⁿ^d^s^o^f
ⁱⁿ^f^o^r^m^atioⁿ^an^y^e^m^p^l^o^y^ee^m^a^y^p^u^b^licl^y^dⁱ^sclo^se^wⁱ^th^o^u^t^su^f^f^erⁱⁿ^g^r^e^p^r^{isal, t}^h^er^{e i}^sⁿ^o^t
ⁱⁿ^teⁿ^t^to^li^m^{it t}^h^{e in}^f^o^r^m^a^tioⁿ^an^e^m^p^l^o^y^ee^m^a^y^p^r^o^v^id^{e to}^C^oⁿ^g^r^es^{s o}^r^to^au^th^o^r^{ize r}^e^p^r^isal
^ag^ai^ns^t^{an e}^m^pl^o^y^ee^f^o^{r prov}ⁱ^dⁱⁿ^{g i}ⁿ^f^o^r^m^a^tⁱ^{on t}^o^C^oⁿ^g^r^e^s^s^.^F^o^{r ex}^a^m^p^l^{e, 18 U}^.^S^.^C^.¹⁹⁰⁵

²⁰^Id^.
²¹^{2 U}^.^S^.^C^.^§2³⁰²⁽^b)⁽⁸⁾⁽^A⁾^.
²²^S.R^e^pt.¹^00-⁴¹^3,^sup^r^a^a^t¹²^.
²³^{5 U}^.^S^.^C^.^{§ 2}³⁰²⁽^b⁾⁽⁸⁾^.
²⁴^Id^.
²⁵^{5 U}^.^S^.^C^.^{§ 2}³⁰²⁽^b⁾^.^S^{ee a}^l^so^{5 U.}^{S.C. §}⁷²¹¹^,^prov^id^ing^tha^t^aⁿ^e^m^ploy^e^e^{is g}^u^a^r^aⁿ^te^e^d^the^rig^h^{t t}^o^f^r^e^e^l^y^pe^tition^or
^f^u^rnⁱ^s^hⁱⁿ^f^o^rm^atⁱ^oⁿ^t^o^Con^g^ress,^{a M}^e^m^b^{er o}^f^Coⁿ^g^ress,^{a co}^mmⁱ^t^t^ee,^o^r^{a M}^e^m^b^{er t}^h^ereo^f^.

^p^r^o^h^ib^{its p}^u^b^{lic d}ⁱ^sclo^su^r^e^o^fⁱⁿ^f^o^r^m^atioⁿⁱⁿ^v^o^l^vⁱⁿ^g^tr^a^d^e^s^e^cr^e^t^s^.^Th^a^t^s^t^a^t^u^t^e^d^o^e^sⁿ^o^t^a^p^p^l^y
^t^o^t^r^an^smⁱ^t^t^a^l^{of su}^c^hⁱⁿ^f^o^r^m^atⁱ^oⁿ^b^y^{an ag}^eⁿ^c^y^t^o^C^ong^res^s^.^S^ectⁱ^oⁿ^2302(b)(8^{) of}^t^hⁱ^s^ac^t
^w^o^u^l^{d n}^o^t^prot^ect^{an e}^m^pl^o^y^{ee ag}^aiⁿ^s^t^repri^s^al^f^o^{r pu}^blⁱ^c^di^s^c^l^o^s^u^{re of su}^{ch s}^t^at^u^t^ori^l^y
^p^r^o^t^ectedⁱⁿ^f^o^r^m^a^tioⁿ^,^b^u^{t it is}ⁿ^o^{t to}^b^eⁱⁿ^f^e^r^r^ed^th^{at an}^e^m^p^l^o^y^e^eⁱ^s^sⁱ^mⁱ^l^a^r^l^y^uⁿ^-^p^r^o^t^e^c^t^e^dⁱ^f
^su^c^h^dⁱ^sclo^s^u^r^e^is^m^a^d^e^to^th^{e ap}^p^r^o^p^rⁱ^{ate u}ⁿ^{it o}^f^t^h^{e Co}ⁿ^g^r^e^{ss. Neit}^h^e^r^{title I}ⁿ^o^r^an^y^o^t^h^e^r
^p^r^o^v^isioⁿ^o^f^t^h^{e act}^sh^o^u^ld^b^e^coⁿ^s^tr^u^e^d^as^li^m^itiⁿ^gⁱⁿ^aⁿ^y^wa^y^t^h^{e r}ⁱ^g^h^{ts o}^f^e^m^p^l^o^y^{ees to}²⁶
^com^m^uni^cat^e^wⁱ^t^h^{or t}^e^s^tⁱ^f^y^b^e^f^o^{re C}^ong^res^s^.
The WPA protects employees from reprisals in the form of an agency taking or failing to take a
“personnel action.” This encompasses a broad range of actions by an agency having a negative or
adverse impact on the employee. The statute specifically defines the term “personnel action” to
include 11 areas of agency activity:
⁽²⁾^Fo^r^th^{e p}^u^r^p^o^s^{e o}^f^th^{is sect}^ioⁿ^—
^(A^{) “}^p^ers^oⁿⁿ^e^l^action^”^m^eans^—
⁽ⁱ^{) an}^appoiⁿ^t^m^e^nt^;
⁽ⁱⁱ⁾^{a p}^r^o^m^o^tioⁿ^;
⁽ⁱⁱⁱ⁾^an^actioⁿ^uⁿ^d^e^r^ch^ap^ter⁷⁵^o^f^th^{is tit}^{le o}^r^o^t^h^e^r^dⁱ^scip^lin^ar^y^o^r^co^r^r^ectiv^{e actio}ⁿ^;
⁽ⁱ^v⁾^{a d}^e^{tail, tr}^an^s^f^er^{, o}^r^r^eassigⁿ^m^eⁿ^t;
^(v^{) a rei}ⁿ^s^t^at^e^m^eⁿ^t^;
⁽^vⁱ⁾^{a r}^e^sto^r^atioⁿ^;
⁽^vⁱⁱ⁾^{a r}^e^e^m^p^l^o^y^m^eⁿ^t;
⁽^vⁱⁱⁱ⁾^{a p}^e^r^f^o^r^m^aⁿ^{ce e}^v^al^u^a^tioⁿ^uⁿ^d^e^r^ch^ap^ter⁴³^o^f^th^{is title}^;
^(ix⁾^{a decis}ⁱ^on^con^cernⁱⁿ^g^pa^y^,^ben^e^fⁱ^t^s^{, or aw}^ards^{, or con}^cernⁱ^ng^edu^cat^ion^{or train}ⁱ^ng
ⁱ^f^t^h^{e ed}^u^catⁱ^{on or t}^r^aiⁿⁱ^ng^ma^y^reas^on^abl^y^{be e}^x^pect^{ed t}^o^l^{ead t}^o^{an appoi}ⁿ^t^m^eⁿ^t^,
^prom^otⁱ^oⁿ^,^perf^or^m^aⁿ^{ce ev}^a^l^uatⁱ^oⁿ^,^{or ot}^h^e^{r act}ⁱ^oⁿ^des^c^ri^{bed i}ⁿ^t^hⁱ^s^su^bparag^r^aph^;
^(x^{) a deci}^sⁱ^on^t^o^order^psy^c^hⁱ^a^t^ri^{c t}^e^s^tⁱⁿ^g^{or ex}^a^mⁱⁿ^atⁱ^oⁿ^;^a^nd
^(x^{i) any}^ot^h^e^{r s}ⁱ^gⁿⁱ^fⁱ^caⁿ^t^c^h^ang^eⁱⁿ^du^ties^,^res^pons^ibilitie^s^,^or^w^o^rkⁱⁿ^g^coⁿ^d^ition^s^;
^wⁱ^t^h^res^p^ect^t^o^aⁿ^e^m^pl^o^y^eeⁱⁿ^{, or appl}ⁱ^can^t^f^o^{r, a cov}^e^{red pos}ⁱ^tⁱ^{on i}ⁿ^aⁿ^a^g^en^c^y^{, a}ⁿ^{d i}ⁿ^t^h^e
^cas^{e of}^an^al^l^e^g^e^{d proh}ⁱ^bⁱ^t^e^{d p}^e^rs^onⁿ^e^l^practⁱ^{ce des}^c^ri^{bed i}ⁿ^s^u^bs^ectⁱ^oⁿ^(b)(8),^an^em^pl^oy^e^e
^{or applican}^{t f}^o^{r e}^m^plo^y^m^eⁿ^t^{in a Gov}^e^rnm^eⁿ^t^corporation^as^defⁱⁿ^e^{d i}ⁿ^s^ectioⁿ^{9101 of}^title²⁷
^31.

²⁶^H^.^R^e^pt.^95-¹⁷^{17 (}^C^onf^e^r^eⁿ^c^e^R^e^por^t)⁽¹⁹⁷⁸⁾^,^re^prin^te^{d i}ⁿ¹⁹⁷⁸^U.S^.^C^ODE^C^ONG^.^&^A^D^.^N^EW^S²⁸⁶¹^.
²⁷⁵^U.S^.^C.^§²³⁰²^(a)(2^)(A^).

The final category, (xi), of covered personnel actions was intended to embrace significant actions
or changes that, in relation to an employee’s overall duties, responsibilities, or working
conditions, are inconsistent with his or her professional qualifications, training, grade, or rank.
The conference report accompanying WPA provided a detailed discussion of the types of actions
that may fall within or be excluded from the final category of personnel actions:
^T^o^b^e^c^o^v^e^r^e^d^uⁿ^d^er^th^{is p}^r^o^v^isioⁿ^{a p}^e^r^s^oⁿⁿ^e^{l actio}ⁿ^m^u^{st b}^e^sigⁿⁱ^f^ican^{t, b}^u^{t it}ⁿ^eedⁿ^o^{t b}^e
^ex^{pected to res}^u^{lt i}ⁿ^{a redu}^ct^ionⁱⁿ^pa^y^{or g}^r^{ade. It}^m^u^s^t^als^o^{be in}^con^sⁱ^s^teⁿ^t^wⁱ^t^h^an
^e^m^plo^y^ee^’^s^s^a^lar^y^{or g}^r^{ade le}^{vel. T}^h^u^s^,^f^o^{r e}^x^a^m^ple,^{if an i}ⁿ^divⁱ^du^al^is^c^u^rren^tl^y^e^m^plo^y^ed
^an^d^assⁱ^gⁿ^ed^d^u^tie^{s o}^r^r^e^sp^oⁿ^si^b^{ilities co}ⁿ^s^is^ten^t^wⁱ^t^h^t^h^{e i}ⁿ^dⁱ^vⁱ^d^u^al^’^s^p^r^o^f^essⁱ^oⁿ^{al tr}^aiⁿⁱⁿ^g
^{or qu}^alⁱ^fⁱ^catⁱ^oⁿ^s^f^o^{r t}^h^{e j}^{ob, i}^t^w^o^u^l^{d cons}^tⁱ^t^u^t^{e a}^pers^onn^el^actⁱ^oⁿⁱ^f^t^h^eⁱⁿ^di^vⁱ^du^al^w^e^re
^det^aⁱ^l^e^{d, t}^r^an^s^f^{erred, or}^rea^s^sⁱ^gⁿ^e^{d s}^o^t^h^at^t^h^{e e}^m^pl^o^y^ee’^sⁿ^e^w^ov^eral^l^dutⁱ^e^s^or
^r^e^sp^oⁿ^sib^ilitie^s^w^e^r^eⁱⁿ^coⁿ^s^ist^eⁿ^t^wⁱ^th^t^h^eⁱⁿ^dⁱ^vⁱ^d^u^al^’^s^p^r^o^f^e^s^sⁱ^oⁿ^a^l^t^r^aⁱⁿⁱⁿ^g^o^r^q^u^a^lⁱ^fⁱ^c^a^tⁱ^oⁿ^s^.
^Or^{, if}^aⁿⁱⁿ^dⁱ^vⁱ^d^u^al^h^o^ldⁱⁿ^g^d^ecisioⁿ^m^a^kⁱⁿ^g^r^e^sp^oⁿ^sib^ilit^ies^o^r^su^p^e^r^vⁱ^s^o^r^y^a^u^th^o^r^it^y^f^o^uⁿ^d
^th^at^s^u^c^h^res^pons^ibilitie^s^{or auth}^orit^y^w^e^{re redu}^{ced s}^o^th^at^{the e}^m^plo^y^ee^’^s^re^s^pon^sⁱ^bilit^ies
^w^e^r^eⁱⁿ^c^o^nsi^s^t^e^nt^wⁱ^t^h^hi^{s o}^r^he^r^sa^l^a^r^y^o^r^gr^a^d^e^l^e^ve^l^,^s^u^c^h^aⁿ^a^c^tⁱ^o^{n c}^o^ul^d^c^o^nstⁱ^t^ut^e^a
^p^e^r^s^oⁿⁿ^e^{l actio}ⁿ^wⁱ^t^hⁱⁿ^th^e^m^e^anⁱⁿ^g^o^f^t^h^{is s}^u^b^s^ectioⁿ^.^T^h^{is is n}^o^{t in}^teⁿ^d^ed^toⁱⁿ^ter^f^er^e^wⁱ^t^h
^m^aⁿ^a^g^e^m^eⁿ^t^’^s^auth^orit^y^{to a}^s^sⁱ^gⁿⁱⁿ^dividu^alsⁱⁿ^accordan^ce^wⁱ^t^h^av^ailable^w^o^rk^{, th}^e
^p^r^io^r^{ities o}^f^th^{e a}^g^eⁿ^c^y^{, a}ⁿ^d^t^h^{e n}^eed^{s o}^f^th^{e a}^g^eⁿ^c^y^f^o^rⁱⁿ^dⁱ^vⁱ^d^u^als^wⁱ^th^p^a^r^tic^u^l^ar^s^k^ill^{s o}^r
^to^estab^lish^s^u^p^e^r^v^iso^r^y^r^e^latioⁿ^s^hⁱ^p^s^{. Mo}^r^e^o^v^er^{, it is th}^{e o}^v^er^{all n}^a^tu^r^e^o^f^th^{e in}^dⁱ^vⁱ^d^u^al^’^s
^r^e^sp^oⁿ^sib^ilitie^{s an}^d^d^u^tie^{s th}^at^{is th}^{e cr}^itical^f^acto^r^{. T}^h^{e m}^e^r^e^f^{act t}^h^{at a p}^a^r^ticu^l^ar^asp^{ect o}^f
^aⁿⁱⁿ^dⁱ^vi^d^u^a^l^{’s j}^o^b^a^ssi^gⁿ^m^eⁿ^t^ha^{s b}^e^eⁿ^c^h^a^nge^d^w^o^ul^d^no^t^c^o^nstⁱ^t^ut^e^a^p^e^r^s^o^nne^l^a^c^tⁱ^o^n,
^wⁱ^t^h^o^u^t^s^o^m^e^sh^o^wⁱⁿ^{g t}^h^a^t^t^h^{ere h}^a^s^beeⁿ^{a si}^gnⁱ^fⁱ^c^aⁿ^tⁱ^m^p^act^as^des^c^ri^{bed abov}^{e on}^t^h^e²⁸
^o^v^er^{all n}^a^t^u^r^e^o^r^q^u^alit^y^o^f^hⁱ^s^r^e^sp^oⁿ^sib^{ilities o}^r^d^u^tie^s.
The WPA changed the CSRA’s definition of prohibited reprisals against whistleblowers in such a
manner that personnel actions taken “because of” protected conduct are prohibited, rather than
personnel actions taken “as a reprisal for” protected conduct, as the original statute provided. The
amendment was made because the phrase, “as a reprisal for” had been interpreted to require a ²⁹
showing of an improper, retaliatory motive on the part of the acting official. Indeed, two ³⁰
disciplinary action cases decided prior to the enactment of the WPA, Starrett v. Special Counsel ³¹
and Harvey v. M.S.P.B., required employees to show proof of the acting official’s state of mind.
These cases stand for the proposition that reprisal will not be found even if an agency’s actions
against an employee were based on factors arising from protected whistleblowing activities, so
long as the agency officials were motivated by valid management reasons and not by any intent to ³²
“punish” the employee. With the definition of “because of,” Congress intended that a showing
of the official’s state of mind is no longer required. As stated in the Senate report accompanying
the WPA legislation, “[r]egardless of the official’s motives, personnel actions against employees ³³
should quite simply not be based on protected activities such as whistleblowing.” The WPA also

²⁸^H^.^R^e^pt.^95-¹⁷^{17 (}^C^onf^e^r^eⁿ^c^e^R^e^por^t)⁽¹⁹⁷⁸⁾^a^t¹^28,¹^29-¹³^0,^re^pr^inte^{d i}ⁿ¹⁹⁷⁸^U^.^S.^C^ODE^C^ONG^.^&^A^D^.^N^EW^S²⁸⁶^1.
²⁹^S.R^e^pt.¹^00-^{13 (}¹⁹⁸⁸⁾^.
³⁰⁷⁹²^F.^2d¹²⁴⁶⁽⁴^th^Cⁱ^r^.¹⁹⁸⁶⁾^.
³¹⁸⁰²^F.^2d⁵³^{7 (}^D^.^C^.^Cⁱ^r^.¹⁹⁸⁶⁾^.
³²^S.R^e^pt.¹^00-⁴¹^{3 (}¹⁹⁸⁸⁾^a^t¹⁵^.
³³^Id^.^a^t¹⁶^.

expanded the CSRA definition of prohibited reprisal against whistleblowers to include “threats to ³⁴
take or fail to take” a personnel action against a whistleblower.

The WPA also expressly protects employees from prohibited personnel practices taken because
they engaged in activities that are often related to whistleblowing, including testifying for others ³⁵
or lawfully assisting others exercise any appeal, complaint, or grievance right; cooperating with ³⁶
or disclosing information to an Inspector General or Special Counsel; or for refusing to obey an ³⁷
order that would violate the law. In addition, employees are also protected from prohibited
personnel practices taken because they exercised any appeal, complaint, or grievance right ³⁸
granted by any law, rule, or regulation.

There are four general forums or proceedings where whistleblower protections may be raised: (A)
in employee appeals to the Merit Systems Protection Board (MSPB) of an agency’s adverse ³⁹
action against the employee, known as “Chapter 77” appeals; (B) in actions instituted by the ⁴⁰⁴¹
Office of Special Counsel (OSC); (C) in individual rights of action; and (D) in grievances ⁴²
brought by the employee under negotiated grievance procedures. As a result of the 1994 WPA
amendments, an aggrieved employee affected by a prohibited personnel action is precluded from ⁴³
choosing more than one of the above remedies.
The MSPB is authorized to hear and rule on appeals by employees regarding agency actions ⁴⁴
affecting the employee and which are appealable to the Board by law, rule, or regulation. Types
of agency actions against employees that are appealable to the MSPB and in which an employee
may raise the defense of reprisal for whistleblowing as a “prohibited personnel practice” include
adverse actions against the employee for “such cause as will promote the efficiency of the

³⁴^Id^.
³⁵⁵^U.S^.^C.^§²³⁰²^(b⁾⁽⁹^)(B).
³⁶⁵^U.S^.^C.^§²³⁰²^(b⁾⁽⁹^)(C).
³⁷⁵^U.S^.^C.^§²³⁰²^(b⁾⁽⁹^)(D).
³⁸⁵^U.S^.^C.^§²³⁰²^(b⁾⁽⁹^)(A^).
³⁹^{5 U}^.^S^.^C^.^{§ 7}⁷⁰¹^.
⁴⁰^{5 U}^.^S^.^C^.^§§¹²^11-¹²¹⁵^.
⁴¹^{5 U}^.^S^.^C^.^{§ 1}²²¹^.
⁴²^{5 U}^.^S^.^C^.^{§ 7}¹²¹^.
⁴³^Se^e⁵^U.^S.C.^§⁷¹²¹^(g⁾⁽²^).
⁴⁴⁵^U.^S.^C^.^§⁷⁷⁰¹^,⁵^U.^S.^C^.^§¹²^05.

service” (generally referred to as conduct-based adverse actions),⁴⁵ and performance-based ⁴⁶
adverse actions against employees for “unacceptable performance.” In such appeals, an
agency’s decision and action will not be upheld if the employee “shows that the decision was ⁴⁷
based on any prohibited personnel practice described in section 2302(b) of this title.” If the
MSPB finds that an employee or applicant for employment has prevailed in an appeal, the
employee or applicant may be provided with interim relief, pending the outcome of any petition ⁴⁸
of review. Moreover, the Special Counsel may not intervene in a “Chapter 77” appeal without ⁴⁹
the consent of the individual bringing the appeal.
The WPA established the OSC as an agency independent from the MSPB.⁵⁰ Its primary
responsibilities, however, have remained essentially the same as set forth in its statutory
predecessor, the CSRA. With the goal of protecting employees, former employees, and applicants
for employment from prohibited personnel practices, the OSC has the duty to receive allegations ⁵¹
of prohibited personnel practices and to investigate such allegations, as well as to conduct an
investigation of possible prohibited personnel practices on its own initiative, absent any ⁵²
allegation.
The Special Counsel has several avenues available through which to pursue allegations,
complaints, and evidences of reprisals for whistleblowing activities, including (1) requiring
agency investigations and agency reports concerning actions the agency is planning to take to ⁵³
rectify those matters referred; (2) seeking an order for “corrective action” by the agency before ⁵⁴
the MSPB; (3) seeking “disciplinary action” against officers and employees who have ⁵⁵
committed prohibited personnel practices; (4) intervening in any proceedings before the MSPB,
except that in cases where an individual has brought an individual right of action (IRA) under ⁵⁶
Section 1221 or a Chapter 77 appeal, the OSC must first obtain the individual’s consent; and (5) ⁵⁷
seeking a stay from the MSPB for any personnel action pending an investigation.

⁴⁵^{5 U}^.^S^.^C^.^{§ 7}⁵¹³⁽^a⁾^.^Se^e^{5 U.S}^.^C.^{§ 7}⁵¹³^(d)^a^s^{to a}^p^pe^a^l^a^b^ility^un^de^{r §}⁷⁷^01.
⁴⁶^{5 U}^.^S^.^C^.^{§ 4}³⁰³⁽^a⁾^.^Se^e^{5 U}^.^S^.^C^.^{§ 4}³⁰³⁽^e⁾^a^s^{to a}^ppe^a^l^a^b^ili^ty^{to th}^e^MS^P^B^un^de^r^§⁷⁷⁰¹^.
⁴⁷⁵^U.S^.^C.^§⁷⁷⁰¹^(c)(2^)(B).
⁴⁸⁵^U.S^.^C.^§⁷⁷⁰¹^(b⁾⁽²^)(A^).
⁴⁹⁵^U.S^.^C.^§¹²¹²^(c)(2^).
⁵⁰^{5 U}^.^S^.^C.^{§ 1}²¹¹^(a^{). T}^h^is^s^e^c^tioⁿ^e^s^ta^blis^he^{d t}^h^e^O^f^fⁱ^c^e^of^Spe^cⁱ^a^l^Couns^e^l^(O^{SC), a}ⁿ^{d pr}^ov^ide^d^tha^t^{it w}^{ill be}^he^a^d^e^d
^b^y^t^h^{e S}^p^eci^al^Co^un^sel^an^{d h}^a^{ve a j}^u^dⁱ^ci^al^l^yⁿ^o^t^{ed o}^f^fⁱ^ci^al^se^al^.^T^h^{e S}^eⁿ^a^t^e^rep^o^r^t^st^at^{es t}^h^at^al^t^h^o^u^g^h^t^h^e^M^S^P^B^aⁿ^d
^the^O^S^C^ha^{d “}^s^e^p^a^r^a^t^e^d^the^m^s^e^lve^s^a^d^mⁱ^nis^t^r^a^tiv^e^l^y^{in 1984}^,”^the^w^h^is^tle^blow^e^r^le^gⁱ^s^l^a^{tion “}^c^o^m^p^l^e^te^s^this^pr^oc^e^s^s^by
^e^s^ta^blis^hing^t^h^e^O^S^C^a^s^aⁿⁱ^nde^pe^nde^nt^a^g^eⁿ^cy^.”^S.R^e^{pt. 1}^00-⁴¹^{3 a}^t¹⁸^{. M}^o^r^e^ov^e^r^{, the}^s^t^a^t^ute^pr^ov^id^e^s^tha^t^the^S^p^e^cⁱ^a^l
^C^ouns^e^l^,^a^p^p^oⁱⁿ^te^d^by^the^P^r^e^s^ideⁿ^{t, w}^{ith t}^h^e^a^d^vⁱ^c^e^a^{nd c}^o^ns^eⁿ^t^of^the^Se^na^te^{, m}^a^y^only^be^r^e^m^o^v^e^d^f^r^o^m^of^fⁱ^c^e^f^o^r
^“ⁱ^ne^f^f^ic^ie^ncy^,^ne^g^l^ec^{t of}^duty^,^or^m^a^lf^e^a^s^aⁿ^c^e^{in of}^fⁱ^c^e^.^”^{5 U}^.^S.C^.^{§ 1}²¹¹⁽^b⁾^.
⁵¹⁵^U.S^.^C.^§¹²¹²^(a)(2^).
⁵²⁵^U.S^.^C.^§¹²¹⁴^(a)(5^).
⁵³^{5 U}^.^S^.^C^.^{§ 1}²¹³⁽^c⁾^.
⁵⁴^{5 U}^.^S^.^C^.^{§ 1}²¹⁴⁽^b⁾⁽²⁾^.
⁵⁵^{5 U}^.^S^.^C^.^{§ 1}²¹⁵⁽^b⁾^.
⁵⁶^{5 U}^.^S^.^C^.^{§ 1}²¹²⁽^c⁾^.
⁵⁷^{5 U}^.^S^.^C^.^{§ 1}²¹²⁽^b⁾⁽¹⁾^.

Within 240 days of receipt of a complaint, the OSC must make a determination as to whether
there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, ⁵⁹
or is to be taken. If a positive determination is made and the information was sent to the Special
Counsel by an employee, former employee, applicant for employment, or an employee who ⁶⁰
obtained the information acting within the scope of employment, the Special Counsel must
transmit the information to the appropriate agency head and require that the agency head conduct ⁶¹
an investigation and submit a written report. The identity of the complaining employee may not
be disclosed without such individual’s consent, unless the Special Counsel determines that
disclosure is necessary to avoid imminent danger to health and safety or an imminent criminal ⁶²
violation. The Special Counsel then reviews the reports as to their completeness and the ⁶³
reasonableness of the findings and submits the reports to Congress, the President, the ⁶⁴⁶⁵
Comptroller General, and the complainant.
If the Special Counsel does not make a positive determination, however, he or she may only ⁶⁶
transmit the information to the agency head with the consent of the individual. Further, if the
Special Counsel receives the information from some source other than the ones described above,
he or she may transmit the information to the appropriate agency head who shall inform the ⁶⁷
Special Counsel of any action taken. In any case evidencing a criminal violation, however, all ⁶⁸
information is referred to the Attorney General and no report is transmitted to the complainant.
Throughout its investigation, the OSC must give notice of the status of the investigation to the
individual who brought the allegation. The 1994 WPA amendments changed the period of this ⁶⁹
notification from 90 to 60 days. In addition, no later than 10 days before the termination of an
investigation, a written status report including the proposed findings and legal conclusions must ⁷⁰
be made to the individual who made the allegation of wrongdoing.
If in any investigation the Special Counsel determines that there are “reasonable grounds to
believe” a prohibited personnel practice exists or has occurred, the Special Counsel must report

⁵⁸^In^addⁱ^tⁱ^oⁿ^t^oⁱⁿ^vestⁱ^g^atⁱⁿ^{g w}^h^et^h^e^{r p}^r^ohⁱ^bⁱ^t^e^d^p^e^rsoⁿⁿ^e^l^actⁱ^oⁿ^s^{have b}^een^t^a^ken^b^ecau^{se o}^f^p^r^o^t^ect^ed
^w^h^istle^blow^ing^disc^losure^{s, t}^h^e^W^P^A^a^l^so^ch^{arges t}^h^{e OS}^{C w}ⁱ^t^h^inv^e^stig^a^ting^w^h^e^t^he^{r the}^r^e^{is a}^“^s^ubsta^ntia^l
^lik^e^lihoo^d”^tha^t^w^h^istle^blow^ing^dⁱ^sc^losure^{s e}^v^ideⁿ^c^e^vⁱ^ola^tio^{ns of}^a^la^w^,^rule^{or re}^g^u^la^tion^.^Se^e⁵^U.S^.^C^.^§1²¹³⁽^b⁾^.
⁵⁹⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽²^)(A^)(i).
⁶⁰⁵^U.S^.^C.^§¹²¹³^(c)(2^).
⁶¹⁵^U.S^.^C.^§¹²¹³^(c)(1^).
⁶²^{5 U}^.^S^.^C^.^{§ 1}²¹³⁽^h⁾^.
⁶³⁵^U.S^.^C.^§¹²¹³^(e)(2^).
⁶⁴⁵^U.S^.^C.^§¹²¹³^(e)(3^).
⁶⁵⁵^U.S^.^C.^§¹²¹³^(e)(1^).
⁶⁶⁵^U.S^.^C.^§¹²¹³^(g⁾⁽²^).
⁶⁷⁵^U.S^.^C.^§¹²¹³^(g⁾⁽¹^).
⁶⁸^{5 U}^.^S^.^C^.^{§ 1}²¹³⁽^f⁾^.
⁶⁹⁵^U.S^.^C.^§¹²¹⁴^(a)(1^)(C)(ii)^.
⁷⁰⁵^U.S^.^C.^§¹²¹⁴^(a)(1^)(D).

findings and recommendations, and may include recommendations for corrective action, to the
MSPB, the agency involved, the Office of Personnel Management and, optionally, to the ⁷¹
President. If the agency does not act to correct the prohibited personnel practice, the Special ⁷²
Counsel may petition the MSPB for corrective action. The MSPB, before rendering its decision,
is required to provide an opportunity for oral or written comments by the Special Counsel, the
agency involved and the Office of Personnel Management, and for written comments by any ⁷³
individual who alleges to be the victim of the prohibited personnel practices.
The WPA made it easier for a complainant to prove retaliation for whistleblowing in a corrective
action before the MSPB. The Special Counsel need only prove by a preponderance of the
evidence that the disclosure was a “contributing factor” in the personnel action, instead of a ⁷⁴
“significant factor.” In addition, once the MSPB renders a final order or decision of corrective
action, complainants have the right to judicial review in the U.S. Court of Appeals for the Federal ⁷⁵
Circuit.
In what is probably the most significant change from its statutory predecessor, the CSRA, the
WPA increased the standard by which an agency must prove its affirmative defense that it would
have taken the personnel action even if the employee had not engaged in protected conduct. Once
the complainant’s prima facie case of reprisal has been established by showing that the
whistleblowing was a contributing factor in the personnel action, the government is required to
demonstrate by “clear and convincing evidence” that it would have taken the same personnel ⁷⁶
action even in the absent of such disclosure. Under the CSRA, the government’s standard of
proof was a “preponderance of the evidence.” “Clear and convincing evidence,” although a lesser
standard than the criminal standard of “beyond a reasonable doubt,” is greater than
“preponderance of the evidence.”
Proceedings for disciplinary action against an officer or employee who commits a prohibited
personnel practice may be instituted by the Special Counsel by filing a written complaint with the ⁷⁷⁷⁸
MSPB. After proceedings before the MSPB or an administrative law judge, if violations are
found, the MSPB may impose any of various disciplinary actions, including removal, reduction in
grade, debarment from federal employment for a period not to exceed five years, suspension, ⁷⁹
reprimand, or an assessment of civil fines up to $1,000. In addition, the agency involved may be ⁸⁰
held responsible for reasonable attorney’s fees. In the case of presidentially appointed and
Senate confirmed employees in “confidential, policy-making, policy-determining, or policy-
advocating” positions, the complaint and the statement of facts, along with any response from the

⁷¹⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽²^)(B).
⁷²⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽²^)(C).
⁷³^{5 U}^.^S^.^C^.^{§ 1}²¹⁴⁽^b⁾⁽³⁾^.
⁷⁴^{5 U}^.^S^.^C^.^§1²¹⁴⁽^b)⁽⁴⁾⁽ⁱ⁾^.
⁷⁵^{5 U}^.^S^.^C^.^{§ 1}²¹⁴⁽^c⁾^.
⁷⁶⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽⁴^)(B).
⁷⁷⁵^U.S^.^C.^§¹²¹⁵^(a)(1^).
⁷⁸⁵^U.S^.^C.^§¹²¹⁵^(a)(2^)(C).
⁷⁹⁵^U.S^.^C.^§¹²¹⁵^(a)(3^).
⁸⁰⁵^U.S^.^C.^§¹²⁰⁴^(m⁾⁽¹^).

employee, are to be presented to the President for disposition in lieu of the presentation to the ⁸¹
Board. The OSC may recommend, to the appropriate federal agency head, disciplinary action
against members of the uniformed services or contractor personnel who have engaged in a ⁸²
prohibited personnel practice against a federal employee.
As a matter of right, the Special Counsel may intervene or otherwise participate in any
proceedings before the MSPB, except that in cases where an individual has brought an individual
right of action (IRA) under Section 1221 or a Chapter 77 appeal, the OSC must first obtain the ⁸³
individual’s consent.
Upon application by the OSC, a member of the MSPB may “stay” or postpone, for 45 days,
pending an investigation, a personnel action that the Special Counsel has reasonable grounds to
believe constitutes a prohibited personnel practice, unless the member determines that a stay ⁸⁴
would not be appropriate under the circumstances. If no MSPB member acts within three days ⁸⁵
of the OSC application, the stay becomes effective. After the employing agency has had an ⁸⁶
opportunity to comment on the appropriateness of extending a stay, the MSPB may extend it. A
stay may be terminated by the MSPB at any time, except that a stay may not be terminated by the
MSPB on its own motion or on the motion of an agency, unless notice and opportunity for oral or
written comments are first provided to the Special Counsel and the individual on whose behalf
the stay was ordered; or on a motion of the Special Counsel, unless notice and opportunity for
oral or written comments are first provided to the individual on whose behalf the stay was ⁸⁷
ordered.
The WPA provides that an employee, former employee, or applicant for employment has the
independent right to seek review of whistleblower reprisal cases by the MSPB 60 days after the ⁸⁸
OSC closes an investigation or 120 days after filing a complaint with the OSC. As a result of the
IRA statutory provisions, a greater number of employees, including probationers, temporaries,
and excepted service, have a method of appeal to the MSPB for whistleblower reprisals that was ⁸⁹
not previously available under the CSRA. In addition, retired employees are not barred from ⁹⁰
instituting this type of appeal. If the employee is the prevailing party before the MSPB, based

⁸¹^{5 U}^.^S^.^C^.^{§ 1}²¹⁵⁽^b⁾^.
⁸²^{5 U}^.^S^.^C^.^§1²¹⁵⁽^c⁾⁽¹⁾^.
⁸³^{5 U}^.^S^.^C^.^{§ 1}²¹²⁽^c⁾^.
⁸⁴⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽¹^)(A^)(i),(ii).
⁸⁵^{5 U.S}^.^C.^{§ 1}²¹⁴^(b)(^1)(A^)(iii).
⁸⁶⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽¹^)(B),(C).
⁸⁷⁵^U.S^.^C.^§¹²¹⁴^(b⁾⁽¹^)(D).
⁸⁸^{5 U}^.^S^.^C^.^{§ 1}²²¹⁽^a⁾^.
⁸⁹^Se^e^{5 U}^.^S.C^.^{§ 7}⁷⁰¹^.
⁹⁰^{5 U}^.^S^.^C^.^{§ 1}²²¹⁽^j⁾^.

on the finding of a prohibited personnel practice, or if the employee is the prevailing party in an
appeal to the MSPB, regardless of the basis of the decision, the WPA provides several remedies.
These may include placing the individual, as nearly as possible, in the position the individual
would have been in had the prohibited personnel practice not occurred, awarding back pay and
related benefits, recompensing medical costs incurred, travel expenses, or any other reasonable ⁹¹
and foreseeable consequential charges. In all cases, corrective action includes awarding ⁹²
attorneys’ fees. As a result of the 1994 WPA amendments, the MSPB findings can be based on ⁹³
circumstantial evidence. Moreover, the Special Counsel may not intervene in an individual right ⁹⁴
of action without the consent of the individual bringing the appeal.
Beyond the statutory provisions of the WPA, the fourth general forum where the defense or claim
of reprisal for whistleblowing activities may be raised is a grievance proceeding initiated by an
employee pursuant to a grievance procedure that was negotiated through collective bargaining ⁹⁵
between the employee’s agency and the employee union representing employees of the agency.
The federal statutory provisions for grievance procedures note that certain actions that may be
pursued either in a grievance proceeding or by other statutory means, such as discrimination
complaints referenced under 5 U.S.C. § 2302(b)(1) or appeals of adverse actions for “conduct” or ⁹⁶⁹⁷
“performance,” may only be pursued in one forum or the other, but not through both.
Selection of the negotiated procedure does not, however, prejudice the right of an aggrieved
employee to request that the MSPB review the final decision in the case of any personnel action
that could have been appealed to the Board; or, where applicable, to request that the Equal
Employment Opportunity Commission (EEOC) review a final decision in any other matter
involving a complaint of discrimination of the type prohibited by any law administered by the ⁹⁸
EEOC.

On February 12, 2007, Representatives Waxman, Platts, Van Hollen, and T. Davis introduced ^th
H.R. 985 (110 Cong.), the Whistleblower Protection Enhancement Act of 2007, which on March
9, the House Committee on Oversight and Government Reform reported with amendments
(H.Rept. 110-42), and placed on the legislative calendar.

⁹¹⁵^U.S^.^C.^§¹²²¹^(g⁾⁽¹^)(A^)(i),(ii).
⁹²⁵^U.S^.^C.^§¹²²¹^(g⁾⁽¹^)(B).
⁹³⁵^U.S^.^C.^§¹²²¹^(e)(1^).
⁹⁴⁵^U.S^.^C.^§¹²¹²^(c)(2^).
⁹⁵^{5 U}^.^S^.^C^.^{§ 7}¹²¹^.
⁹⁶^{5 U}^.^S^.^C^.^§§⁴³⁰³^aⁿ^d⁷⁵¹²^.
⁹⁷⁵^U.S^.^C.^§⁷¹²¹^(d⁾^,^(e).
⁹⁸^{5 U}^.^S^.^C^.^{§ 7}¹²¹⁽^d⁾^.

H.R. 985 would amend the WPA to extend whistleblower protections to federal employees who
specialize in national security issues. While current law expressly exempts employees of certain
agencies relating to national security, Section 10 of the bill extends whistleblower protections to
employees of the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency,
and the National Reconnaissance Office and “any other Executive agency, or element or unit
thereof, determined by the President ... to have as its principal function the conduct of foreign
intelligence or counterintelligence activities.” Likewise, Section 11 of the bill would extend
whistleblower protections to employees of companies with government contracts.
Current law defines “disclosures” covered by the WPA to include information evidencing an
abuse of authority. Section 13 of the bill would extend WPA protections to employees of science-
based agencies by providing that “abuse of authority” includes “any action that compromises the
validity or accuracy of federally funded research and analysis” and “the dissemination of false or
misleading scientific, medical, or technical information.”
Section 3 of the bill would clarify that “any” disclosure regarding waste, fraud, or abuse means
that the WPA applies to such disclosures “without restriction as to time, place, form, motive,
context, or prior disclosure” and includes formal and informal communication. Section 4 of the
bill would provide that an employee covered by the WPA can rebut the presumption that a federal
official performed his or her duties in accordance with the law by providing substantial evidence
to the contrary. In addition, Section 9 of the bill would provide that such covered employees may
bring an action for de novo review in the appropriate U.S. district court if the Merit Systems
Protection Board (MSPB) does not take action on their claims within 180 days.
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