President signs whistleblower-protection bill

Wednesday, November 28, 2012

WASHINGTON — President Barack Obama signed legislation yesterday that affords greater protection to federal employees who expose fraud, waste and abuse in government operations.

Capping a 13-year effort by supporters of whistleblower rights, the new law closes loopholes created by court rulings that had removed protections for federal workers. One loophole specified that whistleblowers were protected only when they were the first to report misconduct.

The whistleblower law makes it easier to punish supervisors who try to retaliate against workers.

The federal official who investigates retaliation, Special Counsel Carolyn Lerner, said her office “stands ready to implement these important reforms, which will better ensure that no employee suffers retaliation for speaking out against government waste or misconduct.”

The new legislation, however, would go beyond restoring protections to expand whistleblower rights and clarify certain protections. For example, whistleblowers could challenge the consequences of government policy decisions.

Specific protections would be given to certain employees, including government scientists who challenge censorship. Workers at the Transportation Security Administration, who provide airport security, would be covered under the law for the first time.

The law also would clarify that whistleblowers have the right to communicate with Congress.

To stop illegal retaliation, the bill would make it easier to discipline anyone who punishes a whistleblower — by making it easier to prove that a retaliatory action is wrong.  Also, the Office of Special Counsel, which was established to protect federal employees, will no longer be liable for attorney fees of government managers if the office does not prevail in a disciplinary action.

The new law suspends the Federal Circuit Court of Appeals’ sole jurisdiction to review decisions in whistleblower cases.

The law’s supporters said the court consistently narrowed protections and ruled for whistleblowers only three times in 229 cases between October 1994 and May 2012. A review by all federal circuit courts was added as a two-year experiment.

Tom Devine, legal director of the Government Accountability Project, said, “This reform took 13 years to pass because it can make so much difference against fraud, waste and abuse. Government managers at all levels made pleas and repeatedly blocked the bill through procedural sabotage.”

Devine, whose organization represents whistleblowers, said the bill, the Whistleblower Protection Enhancement Act (S. 743), sailed through Congress once some senators who previously worked in secret to block a vote dropped their opposition.

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