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Editor: Mike Bothwell
Profession: Qui Tam Attorney

Category: Legislative Updates

A review of all whistleblower decisions by the Federal Circuit from October 1994 to October 2007, conducted by the Government Accountability Project (GAP), confirmed the feeling of many attorneys who work in the arena of the Federal Whistleblower Protection Act: that the Federal Circuit has a record of hostility to such cases...

As reported in the National Law Journal, the GAP review showed federal whistleblowers had a record of 2 wins and 183 losses during the thirteen year period, according to Thomas Devine, legal director of the study's author, the Government Accountability Project (GAP). As a result, it is speculated that Congress may soon eliminate the sole jurisdiction of the U.S. Court of Appeals for the Federal Circuit over whistleblower appeals.

Although normally associated with patents, the Federal Circuit has exclusive subject matter jurisdiction over appeals under the Federal Whistleblower Protection Act. The Whistleblower Protection Act ("WPA") was originally passed in 1989, and was intended to provide a means for civil service employees to challenge retaliation and disclose waste, fraud and abuse. Unlike many other whistleblower provisions, the WPA allows employees to seek intervention by the Office of Special Counsel; access to an administrative legal proceeding; and, ultimately, access to the Federal Circuit to hear appeals of board decisions.

Over the more-than-a-decade of jurisprudence as the sole court of appeals for such claims, the Federal Circuit "has carved out so many loopholes and exceptions to the definition of protected disclosure, it's almost impossible to qualify now," says Adam Miles, legislative director of GAP. These loopholes exist despite Congress making two efforts by legislation, in 1985 and 1994, to tighten the language of the federal law in response to certain decisions.

Despite these efforts by Congress, Federal Circuit rulings currently exclude what attorneys in this area call the most common situations in which whistleblower disclosures are made. For example, there is no protection if the disclosures are made to co-workers, supervisors or others in the chain of command, or those suspected of wrongdoing. There is no protection if the disclosure is made in the course of doing one's job, and there is no protection if the disclosure challenges illegal or improper agency policies. Moreover, in a pivotal ruling in 1999, the court held that employees must not only "reasonably believe" their disclosure evidences wrongdoing, as the act states, but also must overcome a presumption that the government "acts in accordance with the law" and prove the stated misconduct with undeniable, incontrovertible evidence.

The Federal Circuit has proven even more hostile to those federal employees who seek protection for exercising their First Amendment rights through the same process of the WPA. According to labor scholar Paul Secunda of the University of Mississippi School of Law, who recently conducted the first comprehensive analysis of all Federal Circuit and Merit Systems Protection Board cases involving federal employees' First Amendment claims. Secunda found that not a single such claim filed has been successful on the merits. "The message that federal employees seem to be receiving is that their First Amendment claims will not be treated seriously," Secunda concluded.

Perhaps heralding Congress' third attempt to provide protection to whistleblowers, both houses of Congress have recently passed similar bills that would reverse some of the most egregious rulings of the Federal Circuit, and GAP and similar groups report that there is strong support for sending a bill to the president early this year. House Bill 985 permits multicircuit review of whistleblower appeals, while Senate Bill similarly would allow multicircuit review for a five-year period. Either bill, if passed, also would reverse the U.S. Supreme Court decision of Garcetti v. Ceballos, 126 S. Ct. 1951, which held that government employees had no First Amendment protection for disclosures of wrongdoing made in the course of their jobs. Moreover, the House bill, which is broader than the Senate bill in some respects, would permit district court jury trials in certain cases. It also expands protection to other groups, such as national security workers.

GAP, the author of the WPA study, is a a 30-year-old nonprofit, public interest group that advocates on behalf of strong whistleblower protections.