The Whistleblower Protection Act—the modern legal shelter for federal whistleblowers—was last strengthened by Congress in 1994. Since then, the U.S. Court of Appeals for the Federal Circuit—currently the only appeals court that can hear government whistleblower cases—has single-handedly changed the meaning of whistleblower protections. When the Federal Circuit rules on a case, it often creates new standards that whistleblowers must abide by in order to be protected under the law. Below are some of the most frequently cited legal precedents, which critics argue, have made it nearly impossible for federal employees to blow the whistle. Laws currently circulating the House and Senate seek to overturn many of these precedents:
John D. Horton alleged retaliation after complaining to his boss about misconduct in the office. The Federal Circuit said that while misconduct may have occurred, Horton was not protected from retribution because he spoke out to his boss, who he also alleged was involved in the misconduct. The Court said that the purpose of the law is “to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it, either directly by management authority, or indirectly as in disclosure to the press.” This precedent has been criticized for encouraging employees to first go outside of their chain of command, instead of raising concerns internally.
Willis was not protected from retaliation after uncovering wrongdoing, because uncovering wrongdoing was part of his day-to-day job responsibilities. The Federal Circuit said that even if Willis suffered retaliation for speaking out, he did nothing “for the benefit of the public good” and “did no more than carry out his required everyday job responsibilities.” Critics argue this precedent could subject government employees like meat inspectors or law enforcement officials—whose job it is to uncover wrongdoing—to retaliation if what they uncover is unpopular with managers of political appointees.
Meuwissen was not protected from retaliation because while what he spoke out about may have been unlawful, it was a common practice at his agency. The Federal Circuit said that “ a disclosure that is publicly known is not a disclosure.” The purpose of the law, the court said, is to “protect employees who possess knowledge of wrongdoing that is concealed or not publicly known, and who step forward to help uncover and disclose that information.” Critics argue this precedent dissuades employees from coming forward if others already know about the wrongdoing.
Kenneth D. Huffman v. Office of Personnel Management, August 2001
The Huffman case codified precedents set earlier in Horton and in Willis, saying that the employee cannot prove retaliation after blowing the whistle as part of his job duties or to the alleged wrongdoer himself.
White faced retaliation after he blew the whistle on gross financial mismanagement at his agency. While his allegations were eventually proven, the Federal Circuit ruled White was not protected because the allegations were “debatable by reasonable people.” This decision softened a related decision whereby the employee must have “irrefragable proof” of gross mismanagement. Critics argue this precedent requires that whistleblowers come forward with an unrealistic and unattainable level of proof.
Garcetti v. Ceballos, May 2006
This U.S. Supreme Court decision regarding a state employee’s case codified the precedent set in Willis whereby an employee is not protected from retaliation if he blows the whistle during the course of his normal job duties. As such, Garcetti limits the degree of public employees’ free speech rights while they are on the job.