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MSPB: What is the Whistleblower Protection Act?

MSPB: What is the Whistleblower Protection Act?

Over the coming weeks, we will be posting a series of articles about Whistle-blower reprisal appeals before the MSPB. Whistle-blower appeals are some of the more difficult cases to bring before an Administrative Judge of the MSPB, for many reasons.

This post, the second in the thread, will generally discuss the Whistle-blower Protection Act: what it is, and what it is supposed to do.

The next post, “Are you a whistle-blower” will discuss what sort of disclosures a federal employee must make before they are considered a “whistle-blower”.

For our purposes, a whistleblower is an employee or former employee of a government agency who reports misconduct to people or entities that have the power and presumed willingness to take corrective action. Over the last 100 years, as the Federal government has grown larger, and as the Executive Branch engages in more and more mischief, Congress has passed a variety of laws meant to protect those that disclose the Executive Branch’s mischief. One of those laws is the Whistleblower Protection Act.

A federal agency violates the Whistleblower Protection Act, 5 U.S.C. § 1221(e) if it takes or fails to take (or threatens to take or fail to take) a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

Many Federal employees confuse the WPA with the NO-FEAR Act, which is a bit of a misnomer. The primary purpose of the NO-FEAR Act is to require federal agencies to pay awards for discrimination and retaliation out of their own budgets., rather than out of the government’s general Treasury Fund.

The NO-FEAR Act, passed into law by Bush the Younger in 2002, has no provisions to protect employees who make protected disclosures of government waste, fraud, or abuse. Instead, Section 202 of the NO-FEAR Act only requires that Executive Branch Agencies notify all federal employees and applicants for employment about their rights under federal law, specifically, their rights and remedies under various anti-discrimination and anti-retaliation laws.

Most Federal employees don’t know that the NO-FEAR Act does nothing to provide them with any greater protection. I have seen many federal employees try to allege that their Agency violated “NO-FEAR” by discriminating against them or retaliating. Very generally speaking, the only way that an Agency can violate NO-FEAR is by not reimbursing the General Treasury Fund as the Act requires or by failing to notify employees of their rights and remedies as stated above (I cannot think of a fact scenario, at this point in time, where an employee could successfully argue violation of the notice provisions of the NO-FEAR Act – even if they could, there is no independent remedy under NO-FEAR). For that reason, I often call the NO-FEAR Act the “NO-TEETH” Act.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

Eric Pines, a lawyer with the Law Offices of Eric L. Pines, PLLC, has handled whistle-blower reprisal appeals before the Merit Systems Protection Board (MSPB). It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case, particularly in a whistle-blower reprisal appeal. If you think you are a whistle-blower, and you think that your Agency may have retaliated against you because of that, contact the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.