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Congress Wants to Expand Protections for Whistleblowers

But does Trump?

by Mike Pearl
May 5 2017, 7:36pm

Photo by Chip Somodevilla/Getty Images

On May 1, a bill quietly passed in the House of Representatives called HR 657, or the "Follow the Rules Act." While that may sound like a law proposed by Representative Ned Flanders (R – Springfield), the bill, if it became law, would actually be a critical new tool for protecting whistleblowers who spot the federal government doing something wrong—particularly federal employees being forced to break the law. The bill would need to pass the Senate and be signed by President Donald Trump before becoming a law.

Trump normally places a lot of weight on loyalty, and he's denounced leakers before—a few months ago he said leakers would be forced to "pay a big price." And Attorney General Jeff Sessions is apparently looking to bring charges against Wikileaks's Julian Assange. But though the administration is hostile to leaks, it may not be as opposed to whistleblowers who don't publicly humiliate higher-ups: Trump signed an executive order last month designed to encourage whistleblowing that would expose problems with the Office of Veteran's Affairs.

To get a handle on how these new whistleblower protections might shape up, I called up Michael Kohn, a lawyer who is also the co-founder and President of the National Whistleblower Center and the author of two books on whistleblowing law. He told me why the government—especially Congress—sometimes loves whistleblowers, and why the Whistleblower Protection Act keeps needing to be tweaked.

VICE: Why is Congress so friendly toward this type of federal whistleblower?
Michael Kohn: It's whistleblowers who have historically provided essentially all the information Congress needs to do their job, and they understand that. As a result, they've been willing to provide whistleblower protections. The laws they pass, when you read them, are very strong, very powerful. The problem is that in the harsh treatment the courts are given in interpreting the law. But Congress has stepped up to the plate repeatedly and strengthened the law. It's been getting stronger and stronger as time goes on.

To be clear, whistleblowing often involves leaking, right?
Well, removing documents and having proof of your allegations is a critical aspect of whistleblowing. Protecting yourself and the manner in which you do it is critical, so that is where you really need some legal assistance.


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What kind of whistleblowers would be included in these new protections?
Under the Whistleblower Protection Act, not all employees are guaranteed protections. Higher-level managerial employees are not covered by the WPA. Generally speaking, if you're in the national security field, you're also excluded and don't have protections under the WPA. For the remainder of the federal workforce, they're by and large covered.

And what's being changed?
This recent bill was reversing an attempt by the federal circuit to cut back on the scope of protected activity, making it clear now that you can't be retaliated against if you refuse to obey an order from your boss or employer that would require the whistleblower to break a rule, law, or regulation. So, prior to that, if you were instructed to violate and you refused to, then you would not have had protections. Now that the law has been amended to correct that oversight or misinterpretation, you would have that type of protection.

Am I wrong to think any interpretation of the law in the past that required people to break rules was sort of insane?
That had been in the long history of WPA—there's been a lot of insanity like that over the years.

What kind of insanity?
Initially, before Congress corrected the act again, if you reported to your supervisor who was the wrongdoer then you were fired, because reporting to the wrongdoer was not considered a disclosure. So over time the law has been strengthened significantly, and it's really reflected what Congress had originally intended the law to be. The protections are now broader than they've ever been.

Other than that, is there a reasonably good system in place to protect federal whistleblowers?
You have to go into the MSPB—Merit Systems Protection Board—and file your claim. The MSPB judges can be hostile towards whistleblowers, and in the cases I have litigated within MSPB, the judges were hostile to my clients. So that's a problem.

What happens when you try and defend clients in these cases?
The process in which you have to follow is very detailed, and very hard to meet the deadlines and prevail. However, if you're diligent and you have to do your discovery early in the case, and you cross all the I's and dot all the T's, the end result can be very good, [and] the burden falls on the federal government to demonstrate that they would have removed the employer or taken the adverse action. They have to show clear and convincing evidence that they would have done it. It is the clear and convincing evidence standard that provides the highest level of protection for a whistleblower, because if the government can't come up with clear and convincing evidence, they lose.

What actually happens when the whistleblower wins and the government loses?
Well, the whistleblower would get an order reinstated, or have the adverse action reversed. So currently, you file with the MSPB, an administrative judge is assigned to your case, you litigate before the administrative judge, and if they rule for you, then the agency can appeal that rule against you, and you can appeal. Both those appeals are filed with the MSPB. So, now you have to file your appeal to MSPB but there is nobody on the board currently to rule on it. We have no idea on when those positions are going to be filled. So it could be six months, which means if you won your case, you've got to order a reinstatement that the government filed an appeal, you just have to wait another six months before you can even docket your appeal, essentially. So right now, whistleblowers are particularly vulnerable because there's no one sitting in the MSPB to rule for you.

This conversation has been edited for length and clarity.

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