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Federal Whistleblower Protections May Face Greatest Test Yet ­ Law360 1/26/2017 Federal Whistleblower Protections May Face Greatest Test Yet ­ Law360 Portfolio Media. Inc. | 111 West 19th Street, 5th floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] Federal Whistleblower Protections May Face Greatest Test Yet By Debra Katz and Aaron Blacksberg, Katz Marshall & Banks LLP Law360, New York (January 25, 2017, 5:41 PM EST) ­­ In its first days, the Trump administration has ordered media and social media blackouts at several federal agencies, including the U.S. Environmental Protection Agency, the U.S. Department of Agriculture, the U.S. Department of the Interior, and the U.S. Department of Health and Human Services. While these orders may turn out to be normal pains of transition we fear that may not be the case given the antipathy President Donald Trump and other administration officials have expressed toward climate change advocates and scientists. This may be the first salvo in a campaign to gag government employees, particularly scientists, and deter or outright prevent them from speaking out on matters of public importance. Debra S. Katz This moment provides an important opportunity for federal employees, along with members of the legal profession, media and general public, to become better acquainted with federal employee whistleblower protections. As discussed below, federal employees are legally protected from retaliation, under certain circumstances, for speaking to members of the media. And federal agencies who attempt to gag employees may violate the law in doing so. Overview of Federal Employee Whistleblower Protections Law Aaron D. Blacksberg The Whistleblower Protection Act (WPA) and the Whistleblower Protection Enhancement Act (WPEA) provide important employment retaliation protections to federal employees. The law, codified at 5 U.S.C. § 2302, protects most federal employees (or job applicants) from retaliation for any “disclosure” involving a “reasonable belief” of “any violation of any law, rule or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” A disclosure is simply defined as “a formal or informal communication or transmission.” There are a few important exceptions and nuances to how this law operates. First, the law does not apply to employees of most federal intelligence agencies, including the FBI and CIA. The law also allows the president to designate other exempt governmental agencies where “the principal function of which is the conduct of foreign intelligence or counterintelligence activities.” Second, and more importantly, the law establishes two categories of protected disclosures. The first category protects employees “for any disclosure” of the violations or concerns mentioned above, without reference to what entity the employee discloses. However, an employee is not protected under this category if she discloses information “specifically prohibited by law” or “required by executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” The U.S. Supreme Court recently clarified in U.S. Department of Homeland Security v. MacLean that the “specifically prohibited by law” exception only applies to prohibitions in statutes and not prohibitions in agency rules or regulations. The court applied this logic to a statute directing an agency to promulgate regulations on the topic, making clear how narrow this https://www.law360.com/articles/884906/print?section=employment 1/3 1/26/2017 Federal Whistleblower Protections May Face Greatest Test Yet ­ Law360 exception is. The other category of protected activity does not contain any exception for information prohibited by law or executive order, and only applies to disclosures an employee makes to certain specified entities. This provision protects employees for disclosures to the Office of Special Counsel (a government agency that investigates whistleblower claims), to an agency’s inspector general or to “another employee designated by the head of the agency to receive such disclosures.” Whistleblower Protections and Disclosing to the Media These provisions of the law provide federal employees with important protection from retaliation, even for disclosures to the news media. Such a disclosure must involve information covered by the statute — i.e., illegal activity; gross waste, fraud or abuse; or threats to public health or safety — and the information’s disclosure must not be in violation of a federal statute or executive order relating to national security or foreign affairs. A 2010 report by the Merit Systems Protection Board (MSPB), the government agency that adjudicates employment claims by federal employees, agreed that disclosure of this type of information to the media can be protected. Two recent high­profile cases involve protected disclosures to the media: Chambers v. Department of Interior and Department of Homeland Security v. MacLean. In Chambers, the whistleblower Theresa Chambers, the chief of the United States Park Police, disclosed safety concerns to a congressional staffer and to a Washington Post journalist. A federal appellate court ruled that at least one of her statements to the Washington Post — involving an increase in traffic accidents on the Baltimore­Washington Parkway — qualified as a protected disclosure for “evidencing a substantial and specific danger to public health or safety.” In MacLean, the whistleblower Robert MacLean, a federal air marshal, made a protected disclosure when he revealed to an MSNBC reporter that the Transportation Security Administration canceled several air marshal missions, and he was concerned that the cancelation was both illegal and posed grave risk to public safety. As we referenced above, the Supreme Court ruled that MacLean’s conduct did not involve a disclosure “prohibited by law” because the only prohibition came from a TSA regulation. There are a few earlier decisions from the MSPB that involve protected disclosures to the press. In one case, Special Counsel ex rel. Gayl v. Department of Navy, the whistleblower reported safety concerns about Marine Corps actions to the Washington Post, NPR and Washington Monthly. In another case, Diefenderfer v. Department of Transportation an Federal Aviation Administration employee made protected statements to the Seattle Post­Intelligencer about various flight safety concerns. And finally, in Arauz v. U.S. Department of Justice, the MSPB found that a whistleblower’s disclosures to Congress and to the Los Angeles Times about a suspected legal violation constituted protected activity. Whistleblower Protection Enhancement Act and the Anti­Gag Provision Just as federal employees have statutorily protected rights as whistleblowers, the law forbids federal agencies from taking certain actions that could deter or prevent employees from exercising those rights. Under the WPEA’s enhanced protections enacted in 2012, it is now unlawful for an agency to “implement or enforce any nondisclosure policy, form or agreement” without this precise language included: These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights or liabilities created by existing statute or executive order relating to (1) classified information; (2) communications to Congress; (3) the reporting to an inspector general of a violation of any law, rule or regulation, or mismanagement, a gross waste https://www.law360.com/articles/884906/print?section=employment 2/3 1/26/2017 Federal Whistleblower Protections May Face Greatest Test Yet ­ Law360 of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions and liabilities created by controlling executive orders and statutory provisions are incorporated into this agreement and are controlling. Though this language does not explicitly discuss reporting to the media, “any other whistleblower protection” includes the protections for those disclosures discussed here. Following the enactment of the WPEA, Sen. Chuck Grassley, R­Iowa, the chairman of the Senate Judiciary Committee and the author of this “anti­gag” provision, issued a report on federal agency compliance with this section of the law. Grassley looked at two main criteria to determine compliance — whether all relevant policies, forms and agreements contain the required language above, and whether the department website includes that same language and “a specific list of controlling executive orders and statutory provisions.” Several agencies have set up compliant pages on their web sites, including this example from the DOJ. Final Takeaways Federal employees are protected from retaliation when they speak out about a reasonable belief of illegality, serious government misconduct, and threats to public health and safety. Given the exceptions to those protections, whistleblowers and their counsel must understand their rights when reporting their concerns, particularly to members of the press. Federal employees must also be especially attuned to the language of any nondisclosure policy or gag order, since those policies are now illegal without the proper disclaimer language. Undoubtedly in response to recent news reports of these sorts of gag orders, the U.S. Office of Special Counsel issued a press release yesterday affirming the importance of the WPEA’s
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