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What’s Wrong With The Senate Whistleblower Bill? - Part 3


August 20, 2009. Today the National Whistleblower Legal Defense and Education Fund released the third in a series of twelve blog posts examining specific weaknesses in the Senate version of the Whistleblower Protection Enhancement Act of 2009.


By Stephen M. Kohn

On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.

This post is the third in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.


S. 372 has been promoted as creating a virtual revolution in federal employee whistleblower rights. Supporters specifically point to the provisions that permit employees to bring a case in federal court before a jury.

But are these claims justified?

In the first post we pointed out that an insidious change in the definition of protected activity would result in numerous cases being dismissed. In the second post we pointed out that most employee whistleblowers could never bring a case in federal court because the types of retaliation they suffered (including poor job assignments, hostile work environments, retaliatory performance reviews) do not qualify for removal to federal court.

In addition, hundreds of thousands of other federal employees are barred from filing in federal court. Specifically, employees in various law enforcement and intelligence agencies are barred from filing in federal court, even if their cases have no relationship to any actual national security issue.

Who’s left? Even if you happen to be one of the “lucky ones” whose case is eligible for a jury trial, will you ever actually have your case heard in front of a jury of your peers?

The answer is no.

S. 372 contains a provision that says if the Merits Systems Protection Board can complete the adjudication of your case in 270 days you have no right to go to court. This will open the door for the MSPB to create procedures that force the adjudication of claims within the Congressionally mandated time-period, and effectively block access to federal court. See Section 117(a)(k)(3)(B).

Under the new “reformed” law, employees who already have difficulty finding attorneys will have to find a good attorney who can immediately come up to speed on the merits of the case and have the resources necessary to fund a complex lawsuit that to be completed within the time period. Analyzing all the documents in such a case, learning all the facts, interviewing the witnesses can take considerable time. Lawyers will be very reluctant to commit to a full hearing on the merits in such a rushed procedure.

Unfortunately, this is not even the worst part of it. The worst part is that if the MSPB completes the hearing within 270 days the whistleblower has no right to go to federal court and seek a jury trial.

What if you are one of the “lucky” ones, and the railroad just doesn’t come in on time? Here is the true injustice of this law. After spending 270 days on rushed and expensive proceedings before the MSPB you finally get the right to file a new lawsuit in federal court. But guess what happens? You have to start new – you have to file a new complaint, you may have to file new discovery, you have to file new motions and ultimately you have to spend the time and money on a whole new trial. The costs have doubled and you had no choice but to waste the first 270 days of your case. We note with some irony that this also increases the costs to all parties. Those who want to limit whistleblower rights as a matter of judicial economy should take note that S.372 adds a layer of procedures for everyone.

We are extremely disappointed that S. 372 did not adopt a procedure proven to work well under other employee retaliation laws. For example, under Title VII a federal employee can start a lawsuit with a request for “counseling.” The employee does not have to file a formal lawsuit and start any such 270-day clock.

Instead, the employee simply seeks informal counseling, and the agency, the employee and the EEOC attempt to reach a settlement. Obviously, an attempt to promote and reach a settlement at an early stage is fairer to all parties. However, if there is no settlement, the employee has the right to file an informal complaint, and the agency’s EEO office conducts an investigation during the next 180 days. This investigation provides cost-free discovery for the employee, as the EEO-investigation is required to interview witnesses and obtain documentary evidence. At the end of the 180 days, the employee learns the results of the investigation and then has a choice, he or she can either file for an administration hearing before the EEOC or can file directly in U.S. District Court and request a jury trial.

Even if the employee chooses for the administrative approach, he or she still can seek removal of the case to federal court if the employee does not like the manner in which the administrative process is unfolding.

These procedures are already in place in every federal agency. The General Accounting Office has determined that these provisions could be made applicable to employee whistleblower cases at all federal agencies, including national security agencies.

The right to a jury trial in the U.S. Constitution. State and local government employees have the right to a jury trial under the Stimulus Bill. Federal contractors have the right to a jury trial. Terrorists housed in Guantanamo Bay have the right to have their claims heard in federal court! Any federal employee (including national security related employees) who alleges discrimination because of their age, sex, race, religion or disability has a right to file a claim in federal court and have their case heard by a jury. We have procedures that work to make this right work in a reasonable manner for all parties. Yet the Senate refuses to adopt a real framework to allow Federal Employees a right to a jury trial.

Americans need to ask the Senators why they refuse to fully protect federal employee whistleblowers. If the Senate wants credit for federal employee jury trial access – they need to make it real!


 federal employee
 national security
 s. 372
 jury trials

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