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Environmental Whistleblowing in the Federal Government

Monday, March 13, 2017
Michael D. Kohn

Michael D. Kohn

Partner, Kohn, Kohn & Colapinto, LLP

Stephen M. Kohn

Stephen M. Kohn

Partner, Kohn, Kohn & Colapinto, LLP

With the change in the administration there is renewed interest in whistleblower protections by federal employees. Federal employees who are troubled by what is occurring within their agency should take a moment to better understand their rights and consult with lawyers who are knowledgeable about these complex laws before taking action that could result in adverse employment actions. What turns out to be protected or not protected may surprise you. The starting point to understand federal employee whistleblower rights and some things to watch out for are outlined below.

1.  Environmental Laws: Federal employees who raise concerns regarding a violation of CERCLA, the CAA, the Safe Drinking Water Act, and the Solid Waste Disposal Act are protected from retaliation under the employee protection provisions found in all four of these statutes. The protections and discovery rights under these statutes often prove to be broader and more effective than the federal Whistleblower Protection Act (WPA). But be careful, as these laws have an extremely short 30-day statute of limitations. Complaints under these statutes are to be filed with the U.S. Department of Labor. The procedures governing these laws are set forth in 29 C.F.R. Parts 18 and 24. In addition to these four statutes, the nuclear safety whistleblower law found in the Energy Reorganization Act covers NRC and DOE employees. It has a 180-day statute of limitations and permits cases to be removed to federal court if they are not decided within one year.

2.  Whistleblower Protection Act:  The WPA is the principal law protecting federal employee whistleblowers. Federal employees can make lawful disclosures that are not otherwise prohibited by law (e.g., not releasing classified information or Privacy Act protected documents) if the disclosure covers “any violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or (iii) a substantial and specific danger to public health or safety.” 5 U.S.C. §2302(a)(2)(D).

The Office of the Whistleblower Symbol

If employees believe that an agency action may violate an environmental law, rule, or regulation, they can blow the whistle on that suspected violation. Additionally, if any federal government actions could result in a “substantial and specific danger to the public health or safety,” those disclosures would also be protected. For example, the environmental catastrophe over contamination of the public water supply in Flint, Michigan, would likely present an opportunity for federal employees to disclose violations of law, rules, or regulations or a sufficient danger to public health and safety to warrant protection under the WPA.

However, the WPA excludes a disclosure “concerning policy decisions that lawfully exercise discretionary authority.”  Thus, a policy disagreement standing alone will not be entitled to protection if the Merit Systems Protection Board (MSPB) or federal court concludes that the dispute “is not debatable among reasonable people.” Chambers v. DOI, 602 F.3d 1370, 1374 (Fed. Cir. 2010).  Although this language may make it next to impossible to prevail on policy grounds alone, protections can nonetheless spring, for example, if a “health or safety statement involved a policy decision.”  Id. at 1376.

Where federal whistleblowers must file their WPA claims is also a complex issue.  If the retaliation constitutes a removal, a reduction in grade or pay, a suspension for more than 14 days, a furlough; or if the whistleblower is forced to undergo an involuntary resignation or retirement, then a complaint can be filed directly with the MSPB. It is important to understand that a whistleblower’s complaint can be dismissed with no further rights of appeal if it is not filed within 30 days of either the effective date of the adverse action or the date the employee is notified of the agency's decision.  See 5 C.F.R. §1201.22. After filing the complaint, be prepared to file discovery quickly because MSPB discovery deadlines run fast as do the deadlines to object to the agency’s failure to properly answer discovery.

Whistleblowers who are subject to a personnel action that is directly appealable to the MSPB can also file their complaints with the Office Special Counsel (OSC) but must still comply with the 30-day statute of limitations.  More importantly, adverse actions that are not directly appealable to the MSPB are actionable if the employee initiates the complaint with the OSC at any time. For example, a lost promotion, a reassignment, an adverse performance evaluation, lost training opportunities, a decision to order psychiatric testing or examination, or any other significant change in duties, responsibilities, or working conditions – none of which are directly appealable to the Board, can be filed with the OSC. Once remedies before the OSC are exhausted, the whistleblower can seek corrective action with the MSPB. The U.S. Office of Special Counsel has an informative webpage that should be visited to learn more about federal employee whistleblower rights and how to file a complaint with OSC. 

3.  Disclosures to the media or public. In MacLean v. Homeland Security, a federal employee whistleblower was protected from retaliation for providing information to the news media highly critical of his employer. His speech was protected because: (a) it met the requirements for a protected disclosure under the WPA; and (b) his leaks of non-classified information to the press did not violate a specific law.

4.  Communications with Congress or a Member of Congress: Federal law prohibits retaliation against federal employees who provide Members of Congress or their staff with whistleblower-related disclosures. 5 U.S.C. §7211. Congress has made it illegal for federal agencies to implement nondisclosure agreements that limit the right of employees to freely communicate with Congress. Lawful disclosures to Congress are also protected under the WPA.

5.  Mixed Cases: In some cases a whistleblower can obtain federal court jurisdiction if the adverse action was taken in retaliation for protected whistleblower activity and if there is also a cognizable Title VII discrimination claim, Age Discrimination claim, or a Fair Labor Standards Act claim. The simplest and fastest way to ensure that your “mixed case” gets into federal court is by complying with your agency’s equal employment opportunity office (EEO) filing requirements. In addition, you must explicitly identify that, in addition to your discrimination claims, you have elected to proceed with all of your Civil Service Reform Act claims, including your whistleblower rights, under the WPA. If the agency’s EEO rejects or refuses to investigate, your whistleblower claim is immaterial.  All that is required it that the claim was raised. The “mixed case” statutory trigger allowing the whistleblower to proceed to federal district court occurs the moment 120 days pass by without a final decision having been issued by the agency’s EEO office.  In the unlikely event that the agency complies meets the 120-day threshold, an additional opportunity presents itself when a final decision is issued, at which time the whistleblower will have 30 days to file a federal district court complaint on both the EEO and whistleblower claims.

Below are some helpful links:

Merit Systems Protection Board

Office of Special Counsel

KKC.com/federal-employees

This blog post is not a substitute for obtaining advice from an attorney. Every effort has been taken to ensure that the information in this post is accurate as of the date of publication, but legislatures can (and do) change the scope of legal protections, and courts often differ when interpreting legal rights. The circumstances surrounding every person’s individual case are unique. If you have a legal issue you should contact an attorney. 

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When is California going

When is California going after the Saudi Arabia government for Weapons of Mass Destruction in Clovis, Fresno, Carson, Kern, and Los Angeles. Now the Saudi princes company also owns a large steak in the ownership of CNN and FOX. So it is OK to dump Weapons of Mass Destruction???

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