Congress again ponders the next round of whistleblower reform

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A bill from the House Oversight and Reform Committee would fix what members see as holes in the legal protections for whistleblowers. Among other things, it would give whistleblowers who claim retaliation access to jury trials if the Merit Systems Protection Board drags its feet. With analysis, whistleblower attorney Debra D’Agostino joined Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Debra, good to have you back.

Debra D’Agostino: Good to be here.

Tom Temin: And what is wrong with whistleblower protection law as it stands now that this bill seeks to fix?

Debra D’Agostino: Well, I think that this bill does seek to fit several loopholes and the existing law that became apparent under the Trump administration. And so I think some of what we’re seeing now is sort of like what happened after Nixon left office is a sort of reflex to fix what we saw going wrong, and that certainly includes whistleblower protection.

Tom Temin: Well, what did go wrong?

Debra D’Agostino: Well, so for example, one of the things that this bill proposes to do is to clarify that no federal government employee, including the president or vice president of the United States, could retaliate against a federal employee for sharing information with Congress, for example. So I think the existing law that we have today on the books never contemplated that a president or vice president may partake in retaliation. But I think, as we all saw, over the last four years that did happen, especially with those testifying before Congress, and so it became apparent that some strengthening of that part of the law was needed. There’s also been no Merit Systems Protection Board in place for several years now. And that’s also created some problems for whistleblowers in particular. So the current situation is that because there’s no board, there are administrative judges at the MSPB hearing whistleblower cases, but the right to appeal further becomes very limited. So one of the most exciting things that I think this bill does is allow whistleblower facing retaliation to file a claim in US District Courts alleging whistleblower retaliation, if they don’t have an MSPB decision in our hands within 180 days, or 240 days for more complex actions. And that’s a huge paradigm shift, and I think great news for federal employees.

Tom Temin: Yeah, I guess it’s important to make the distinction here between the agency deciding on the merits of what the whistleblower alleges in blowing the whistle and what happens to the whistleblower as a result of blowing the whistle. The retaliation, that seems to be the end of things that need the protection the most, not the actual raising of issues by whistleblowers. Is that a fair way to put it?

Debra D’Agostino: Definitely, those are two very different functions. So oftentimes, offices of inspectors general that agencies are actually investigating the protected disclosures made or looking into whether there was a violation of law, gross mismanagement, or waste, abuse of authority. The other category would be substantial and specific danger to public health or safety, which also became an issue given COVID. So there are entities established to actually look into the protected disclosures, but the protections for those who made the protected disclosures need to be strengthened. And so that’s what this bill targets.

Tom Temin: And there’s also another provision, and this is from the summary provided by the committee itself, extending Title 5 protections to non career Senior Executive Service employees, public health service officers, or applicants, and to the National Oceanic and Atmospheric Administration’s commissioned officer corps. That seems significant, by taking it beyond people actually in Title 5.

Debra D’Agostino: Yes, that is certainly significant. I think that there is recognition that these folks doing important work, again, particularly this came to light in handling this pandemic, there needs to be stronger protection for these folks. And there’s some loopholes in the existing law that leaves some of these folks without protection. So this bill certainly aims to close some of those gaps that currently exist. And it’ll be interesting to see where this committee goes,. They’ve come out and they’ve been pretty aggressive. The past administration was looking to narrow Title 5 coverage, narrow Title 5 rights. I anticipate over these next few years, we’re going to see an expansion of that.

Tom Temin: Well, I imagine both sides politically would want to have this because they both hope that the whistle will be blown on the other guys.

Debra D’Agostino: Exactly. Whistleblower Protection is something that’s always had bipartisan support. Thank goodness. There were actually some laws that came out under the Trump administration to strengthen some whistleblower protections. For example, the law at the VA was designed hypothetically to strengthen whistleblower protections. I think we saw that there were some flaws in that as well, but that was the goal. So yes, traditionally, whistleblower protection has certainly had bipartisan support. The champions on the Hill for whistleblower protection are both parties. So hopefully this bill actually has a good chance of becoming law.

Tom Temin: We’re speaking with attorney Debra D’Agostino, founding partner of the Federal Practice Group. And in the last couple of years, I guess we have some months of the Biden administration, but then in the prior four years of the Trump. What is it you’re seeing from your practice standpoint?

Debra D’Agostino: I don’t know that we’ve seen a drastic change yet in terms of the clients that would come through my firm’s door, for example, but there’s certainly a very obvious shift from Biden’s first days when he rolled back Trump’s executive orders that affected federal employees, and just in his first week, made a very sort of pro-labor, pro-employees stance. I suspect that’s going to be, federal employees will feel that if they aren’t feeling that already.

Tom Temin: There’s a difference between pro-union and pro-employee too. I mean, that distinction, I believe, needs to be maintained also – wouldn’t you say?

Debra D’Agostino: That’s definitely true. Certainly, the rights collide in many cases, many federal employees are in unions and have rights through that avenue. They also have rights, for example, through Title 5. And so whistleblowers, for example, right now, if they’re facing something like the removal, they may choose to take that to the union, grieve it, go to arbitration. They may choose to go to the MSPB and seek that right. So again, one of the exciting options that this bill would present to federal employees would be the option to go to court, which federal employees right now have under Title 7. So for example, if they’re facing race discrimination, gender discrimination, or other forms of discrimination. But federal employee whistleblowers have not had the right to go to court. It’s strange, because other whistleblowers, corporate whistleblowers, for example, do have more rights than federal employee whistleblowers. Federal employees are often in a very good position to be blowing the whistle on things that really matter to the public. And so anyone should have the right to a jury trial, should have all that comes with the right to seek a jury trial, it really should be federal employees. So hopefully, that change does come. And I think that that will really shift the ground in terms of how agencies even contemplate taking retaliatory action. I suspect that even the threat of a jury trial will make some officials stop before they do something that either is retaliatory or could be perceived as retaliatory.

Tom Temin: So therefore, if this bill should become law, and it’s got a long way to go yet, because there’s something called the Senate and so forth, but there’s been good support for whistleblowers there too – you would expect then that more whistleblowing cases might come to bear because of a lack of fear or lessened fear of retaliation.

Debra D’Agostino: Well, I think that will be interesting to see. I do feel like there was a hush under this past administration. And I think there was a chilling effect after there was some very apparent retaliatory moves made at some of the highest levels of government. And I certainly don’t have statistics at the ready, but it was very much the feeling that that retaliation was causing a harsh and causing whistleblowers to second guess whether or not they should blow the whistle, which isn’t good for any of us, right, not good for taxpayers. If the whistle needs to be blown, hopefully it’s getting blown. So yeah hopefully whistleblowers if they know they have the right to go to court, the right to be before a jury, will feel emboldened to come forward, if they are seeing things that, my goodness, should be brought to the attention of some official or an Office of Inspector General that can look into it.

Tom Temin: Attorney Debra D’Agostino is founding partner of the Federal Practice Group. Thanks so much for joining me.

Debra D’Agostino: Thanks for having me.

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