# Whistleblower Protections Under Federal Law: An Overview

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR42727

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 13, 2012
- **Citation:** R42727

## Text

Whistleblower Protections Under Federal
Law: An Overview
(name redacted)
Legislative Attorney
(name redacted)
Legislative Attorney
September 13, 2012

Congressional Research Service
7-....
www.crs.gov
R42727

CRS Report for Congress
Prepared for Members and Committees of Congress

Whistleblower Protections Under Federal Law: An Overview

Summary
Legal protections for employees who report illegal misconduct by their employers have increased
dramatically since the late 1970s when such protections were first adopted for federal employees
in the Civil Service Reform Act of 1978. Since that time, with the enactment of the
Whistleblower Protection Act of 1989, Congress has expanded such protections for federal
employees. Congress has also established whistleblower protections for individuals in certain
private-sector employment through the adoption of whistleblower provisions in at least 18 federal
statutes. Among these statutes are the Sarbanes-Oxley Act, the FDA Food Safety Modernization
Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
In general, claims for relief under the 18 federal statutes follow a similar pattern. Complaints are
typically filed with the Secretary of Labor, and an investigation is conducted. Following the
investigation, an order is issued by the Secretary, and a party aggrieved by the order is generally
permitted to appeal the Secretary’s order to a federal court. However, because 18 different statutes
are involved in prescribing whistleblower protections, some notable differences exist. For
example, under the Department of Defense Authorization Act of 1987, individuals employed by
defense contractors who engage in whistleblowing activities file complaints with the Inspector
General rather than the Secretary of Labor. Under some of the statutes, including the Commercial
Motor Vehicle Safety Act and the Dodd-Frank Act, the Secretary’s preliminary order will become
a final order if no objections are filed within a prescribed time period.
This report provides an overview of key aspects of the 18 selected federal statutes applicable to
individuals in certain private-sector industries. It focuses on the protections provided to
employees who believe they have been subject to retaliation, rather than on how or where alleged
misconduct should be disclosed. In addition, the report also includes an overview of the
Whistleblower Protection Act. While state law may also provide whistleblower protections for
employees, this report focuses only on the aforementioned federal statutory provisions.

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Whistleblower Protections Under Federal Law: An Overview

Contents
Clean Air Act (CAA) ....................................................................................................................... 1
Commercial Motor Vehicle Safety Act (CMVSA) .......................................................................... 2
Comprehensive Environmental Response Compensation and Liability Act of 1980
(CERCLA).................................................................................................................................... 3
Department of Defense Authorization Act of 1987 ......................................................................... 4
Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) ........................ 4
Energy Reorganization Act of 1974 (ERA) ..................................................................................... 6
Fair Labor Standards Act of 1938 (FLSA) ...................................................................................... 7
FDA Food Safety Modernization Act (FDA Modernization Act).................................................... 8
Federal Mine Safety and Health Act (FMSHA) .............................................................................. 8
Federal Water Pollution Control Act of 1972 (FWPCA) ................................................................. 9
Longshore and Harbor Workers’ Compensation Act (LHWCA) ................................................... 10
Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) ....................................... 10
Occupational Safety and Health Act of 1970 (OSH Act).............................................................. 11
Safe Drinking Water Act (SDWA) ................................................................................................. 11
Sarbanes-Oxley Act of 2002 (SOX) .............................................................................................. 12
Solid Waste Disposal Act (SWDA) ............................................................................................... 12
Surface Mining Control and Reclamation Act (SMCRA) ............................................................. 13
Toxic Substances Control Act (TSCA) .......................................................................................... 14
Whistleblower Protection Act (WPA)............................................................................................ 15
Covered Employees................................................................................................................. 15
Protected Disclosures .............................................................................................................. 16
Personnel Actions .................................................................................................................... 16
Forums Where Whistleblower Protections May Be Raised .................................................... 17
Employee Appeals to the MSPB Under Chapter 77.......................................................... 17
Actions by the Office of Special Counsel (OSC).............................................................. 18
Individual Right of Action (IRA) ...................................................................................... 21

Contacts
Author Contact Information........................................................................................................... 22

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Whistleblower Protections Under Federal Law: An Overview

L

egal protections for employees who report illegal misconduct by their employers have
increased dramatically since the late 1970s when such protections were first adopted for
federal employees in the Civil Service Reform Act of 1978. Since that time, with the
enactment of the Whistleblower Protection Act of 1989, as amended, Congress has expanded
such protections for federal employees. Congress has also established whistleblower protections
for individuals in certain private-sector employment through the adoption of whistleblower
provisions in at least 18 other industry-specific federal statutes. For example, in 2002, Congress
passed the Sarbanes-Oxley Act (SOX) in response to corporate scandals that occurred in the late
1990s and early 2000s. SOX established new civil protections for employees who report concerns
about alleged fraud upon shareholders. More recently, Congress passed the FDA Food Safety
Modernization Act (FDA Modernization Act), which prohibits entities engaged in food
manufacturing, processing, and related activities from discharging or otherwise discriminating
against an employee for providing information related to any violation or act that the employee
reasonably believes to be a violation of the Federal Food, Drug, and Cosmetic Act.1

This report provides an overview of whistleblower provisions in 19 selected federal statutes.
While state law may also provide whistleblower protections for employees, this report focuses on
relevant federal statutory provisions. The report does not discuss the qui tam and whistleblower
provisions of the False Claims Act that permit private citizens with knowledge of fraud against
the federal government to sue on its behalf and receive a portion of the recovered proceeds. For
discussion of the False Claims Act, see CRS Report R40785, Qui Tam: The False Claims Act and
Related Federal Statutes, by (name redacted).

Clean Air Act (CAA)
The CAA prohibits an employer from discharging or otherwise discriminating against any
employee with respect to his or her compensation, terms, conditions, or privileges of employment
because the employee (1) commenced or is about to commence a proceeding under the CAA or a
proceeding for the administration or enforcement of any requirement imposed by the CAA; (2)
testified or is about to testify in any such proceeding; or (3) assisted or participated or is about to
assist or participate in any manner in such a proceeding.2 Any employee who believes that he or
she has been discharged or otherwise discriminated against in violation of the CAA may, within
30 days after such violation occurs, file a complaint with the Secretary of Labor. Upon receipt of
the complaint, the Secretary will conduct an investigation and within 30 days of the receipt of
such complaint, shall notify the complainant and the alleged violator with the results of the
investigation. Within 90 days of receipt of the complaint, the Secretary shall issue an order either
providing relief or denying the complaint. If the Secretary determines that a violation has
occurred, the Secretary will order the person who committed such violation to (1) take affirmative
action to abate the violation, and (2) reinstate the complainant to his or her former position with
compensation, including back pay, terms, conditions, and privileges of employment. The
Secretary may order the payment of compensatory damages to the complainant. If an order is
issued, at the request of the complainant, the Secretary will assess against the person against
whom the order is issued a sum equal to the aggregate amount of all costs and expenses,

1
2

P.L. 111-353, 124 Stat. 3885.
42 U.S.C. § 7622(a).

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including attorneys’ and expert witness fees, reasonably incurred by the complainant in bringing
the complaint.3
Any person adversely affected or aggrieved by an order issued under the CAA’s whistleblower
provisions may obtain review of the order in the U.S. court of appeals for the circuit in which the
violation allegedly occurred. The petition for review must be filed within 60 days from the
issuance of the Secretary’s order, and the commencement of proceedings shall not, unless ordered
by the court, operate as a stay of the Secretary’s order. An order by the Secretary is not subject to
judicial review in any criminal or other civil proceeding. When a person has failed to comply
with an order, the Secretary may file a civil action in the U.S. district court in which the violation
occurred and the district courts shall have
jurisdiction to grant all appropriate relief,
The Secretary may file a civil action in the U.S. district
including injunctive relief, as well as
court in which the violation occurred when a person has
compensatory and exemplary damages.4 Any
failed to comply with an order.
person on whose behalf an order was issued
may commence a civil action against the person to whom such order was issued to require
compliance, and the appropriate U.S. district court shall have jurisdiction, without regard to the
amount in controversy or citizenship of the parties. In issuing any final order, the court may
award costs of litigation, including reasonable attorney and expert witness fees, to any party
whenever the court determines it is appropriate.5

Commercial Motor Vehicle Safety Act (CMVSA)
The CMVSA prohibits employers from discharging, disciplining, or discriminating against an
employee regarding pay, terms, or privileges of employment because the employee filed a
complaint or instituted a proceeding related to a violation of a commercial motor vehicle safety
regulation, standard, or order, or has testified or will testify in such proceeding. Additionally, any
employee who refuses to operate a vehicle because the operation violates a regulation, standard,
or order related to commercial motor vehicle safety or health, or has a reasonable apprehension of
serious injury because of the vehicle’s unsafe condition, is likewise protected from such
retaliatory action.6
An employee alleging discharge, discipline, or discrimination in violation of the CMVSA may
file a complaint with the Secretary of Labor within 180 days after the alleged violation occurred.
Within 60 days of receiving the complaint, the Secretary will conduct an investigation, decide
whether the complaint has merit, and notify the complainant and the person alleged to have
committed the violation of the findings. If the Secretary determines that it is reasonable to believe
that the violation occurred, the Secretary will include in the findings a preliminary order for
relief. Within 30 days of receiving notice of the Secretary’s findings, the complainant and person
alleged to have committed the violation may file objections to the findings or preliminary order
and request a hearing on the record, although the filing of objections does not stay a reinstatement
ordered in the preliminary order. If a hearing is not requested within 30 days, the preliminary
3

42 U.S.C. § 7622(b).
42 U.S.C. § 7622(d).
5
42 U.S.C. § 7622(e).
6
49 U.S.C. § 31105(a).
4

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order is final and not subject to judicial review. A hearing shall be conducted expeditiously, and
not later than 120 days after the end of the hearing, the Secretary will issue a final order. Before
the final order is issued, the proceeding may be ended by settlement agreement by the Secretary,
the complainant, and the person alleged to have committed the violation. If the Secretary
determines that a violation of this provision occurred, he or she can order the person alleged to
have committed the violation to (1) take affirmative action to abate the violation; (2) reinstate the
complainant to the former position with the same pay and terms and privileges of employment;
and (3) pay compensatory damages, including back pay. Upon request by the complainant, the
Secretary may assess against the person against whom the order is issued the costs, including
attorneys’ fees, reasonably incurred by the complainant in bringing the complaint.7
Within 60 days after an order is issued, a person adversely affected may file a petition for review
in the U.S. court of appeals for the circuit in which the violation occurred or the person resided on
the date of the violation. The review will be heard and decided expeditiously and an order is not
subject to judicial review in a criminal or other civil proceeding. If a person fails to comply with
an order issued under this provision, the Secretary will bring a civil action to enforce the order in
the U.S. district court for the judicial district in which the violation occurred.8

Comprehensive Environmental Response
Compensation and Liability Act of 1980 (CERCLA)
CERCLA, also known as the “Superfund” Act, prohibits an employer from firing or in any other
way discriminating against, or causing to be fired or discriminated against, any employee because
that employee provided information to a state or the federal government; filed, instituted, or
caused to be filed or instituted any proceeding under the statute; or has testified or will testify in a
proceeding resulting from the administration or enforcement of the statute.9 Any employee who
believes that he or she has been terminated or otherwise discriminated against by any person in
violation of CERCLA’s whistleblower provisions may, within 30 days, apply to the Secretary of
Labor for a review of the termination or alleged discrimination. Upon receipt of such application,
the Secretary will institute an investigation and upon receiving the investigation report, make
findings of fact. If the Secretary finds that a violation occurred, she will issue a decision,
incorporating an order, requiring the party committing the violation to take such affirmative
action to abate the violation as the Secretary deems appropriate, including reinstatement to the
former position with compensation. If she finds no violation, the Secretary will issue an order
denying the application. An order issued by the Secretary is subject to judicial review.10 When an
order is issued under this provision, at the request of the applicant, a sum equal to the aggregate
amount of all costs and expenses, including attorneys’ fees, will be assessed against the person
committing such violation.11

7

49 U.S.C. § 31105(b).
49 U.S.C. § 31105(c), (d).
9
42 U.S.C. § 9610(a).
10
42 U.S.C. § 9610(b).
11
42 U.S.C. § 9610(c).
8

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Department of Defense Authorization Act of 1987
The Department of Defense Authorization Act of 1987 prohibits defense contractors from
discharging, demoting, or otherwise discriminating against an employee as a reprisal for
disclosing to a Member of Congress, an authorized official of an agency, or the Department of
Justice information relating to a substantial violation of law related to a contract, including the
competition for or negotiation of a contract.12 Any person who believes that he or she has been
subject to a prohibited reprisal may submit a complaint to the Inspector General (IG), who is
required to investigate the complaint unless the IG determines that the complaint is frivolous.
Upon completion of the investigation, the
Defense contractor employees who engage in
IG will submit a report of the findings of
whistleblowing activities file complaints with the Inspector
the investigation to the individual, relevant
General (IG) rather than the Secretary of Labor.
contractor, and the head of the agency.13 If
the agency head determines that a
contractor has subjected a person to a prohibited reprisal, the agency head may take one or more
of the following actions: (1) order the contractor to abate the reprisal; (2) order the contractor to
reinstate the person to the position that the person held before the reprisal, together with
compensation, including back pay, employment benefits, and other applicable terms and
conditions of employment; (3) order the contractor to pay the complainant an amount equal to the
aggregate amount of all costs and expenses, including attorneys’ and expert witnesses’ fees, that
were reasonably incurred by the complainant.14 If a person fails to comply with such an order, the
agency head will file an action for enforcement in the U.S. district court for the district in which
the reprisal occurred. The court may grant appropriate relief, including injunctive relief, as well as
compensatory and exemplary damages.15 Within 60 days after the order is issued, any person
adversely affected or aggrieved by such an order may obtain review in the U.S. court of appeals
for a circuit in which the reprisal occurred.16

Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act)
The Dodd-Frank Act established several new whistleblower protections for individuals employed
in the financial services industry. Section 748 of the Dodd-Frank Act, for example, amended the
Commodity Exchange Act (CEA) to prohibit employers from discharging or otherwise
discriminating against an individual for providing information related to a violation of the CEA to
the Commodity Futures Trading Commission (CFTC) or for assisting in any investigation or
judicial or administrative action of the CFTC based upon or related to such information. An
individual who alleges a termination or other discrimination in violation of the CEA provisions
may bring an action in the appropriate district court of the United States. If the individual is a
federal employee, he or she must bring the action in accordance with Section 1221 of Title 5, U.S.
12

10 U.S.C. § 2409(a).
10 U.S.C. § 2409(b).
14
10 U.S.C. § 2409(c)(1).
15
10 U.S.C. § 2409(c)(2).
16
10 U.S.C. § 2409(c)(3).
13

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Code.17 An individual who prevails in a whistleblower action will be awarded reinstatement, back
pay with interest, and compensation for any special damages sustained as result of the discharge
or discrimination, including litigation costs and reasonable attorney’s fees.
Section 922 of the Dodd-Frank Act amended the Securities Exchange Act of 1934 to add a new
Section 21F that prohibits employers from discharging or otherwise discriminating against an
individual for (1) providing information related to a violation of the securities laws to the
Securities and Exchange Commission (SEC); (2) initiating, testifying in, or assisting in any
investigation or judicial or administrative
action of the SEC based upon or related to
An individual who prevails in an action under Section 21F
will be awarded two times the amount of back pay
such information; or (3) making disclosures
otherwise owed.
that are required by SOX, the Securities
Exchange Act of 1934, or any other law
subject to the SEC’s jurisdiction. An individual who alleges a termination or other discrimination
in violation of these provisions may bring an action in the appropriate district court of the United
States. An individual who prevails in a whistleblower action under Section 21F will be awarded
reinstatement, two times the amount of back pay otherwise owed to the individual, with interest,
and compensation for litigation costs, expert witness fees, and reasonable expenses.
Section 1057 of the Dodd-Frank Act prohibits employers engaged in providing consumer
financial products or services, and employers that provide a material service in connection with
the provision of such products or services, from terminating or in any other way discriminating
against a covered employee because the employee has (1) provided, caused to be provided, or is
about to provide or cause to be provided, information relating to a violation of Title X of the
Dodd-Frank Act or any other provision of law that is subject to the jurisdiction of the Bureau of
Consumer Financial Protection (Bureau) to the employer, the Bureau, or a state, local, or federal
government authority or law enforcement agency; (2) testified or will testify in any proceeding
resulting from the administration or enforcement of Title X of the Dodd-Frank Act or any other
provision of law that is subject to the jurisdiction of the Bureau; (3) filed, instituted, or caused to
be filed or instituted any proceeding under any federal consumer financial law; or (4) objected to
or refused to participate in any activity that the employee reasonably believed to be in violation of
any law subject to the jurisdiction of, or enforceable by, the Bureau.18
An employee who believes that he or she has been discharged or otherwise discriminated against
in violation of the Section 1057 whistleblower provisions may file a complaint with the Secretary
of Labor within 180 days of the alleged violation. Within 60 days after receiving the complaint,
the Secretary will initiate an investigation and determine whether there is reasonable cause to
believe that the complaint has merit. The Secretary will notify the complainant and the person
alleged to have committed the violation of her determination in writing. If the Secretary
concludes that there is reasonable cause to believe that a violation has occurred, she will also
issue a preliminary order that provides relief. Either party may file objections to the Secretary’s
findings or order and request a hearing within 30 days after receiving her notification. If a hearing
is not requested in the 30-day period, the preliminary order shall be deemed a final order that is
not subject to judicial review.19
17

See P.L. 111-203, § 748, 124 Stat. 1376, 1739 (2010).
P.L. 111-203, § 1057(a), 124 Stat. 1376, 2031 (2010). The term “covered employee” is defined to include “any
individual performing tasks related to the offering or provision of a consumer financial product or service.”
19
P.L. 111-203, § 1057(c)(2)(C), 124 Stat. 1376, 2032-33 (2010).
18

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If a hearing is conducted, the Secretary is required to issue a final order providing relief or
denying the complaint within 120 days after the date of the hearing’s conclusion. If the Secretary
determines that a violation has occurred, she may order the person who committed the violation
to take affirmative action to abate the violation, order the reinstatement of the complainant to his
or her former position with compensation, including back pay, and order the payment of
compensatory damages. At the request of the complainant, the Secretary will also assess against
the person who committed the violation a sum equal to the aggregate amount of all legal costs
and expenses reasonably incurred. Any person adversely affected or aggrieved by a final order
may seek review of the order in the U.S. court of appeals for the circuit in which the violation
allegedly occurred or the circuit in which the complainant resided on the date of such violation. If
the Secretary fails to issue a timely final order, the complainant may seek de novo review in the
appropriate district court of the United States having jurisdiction.

Energy Reorganization Act of 1974 (ERA)
The ERA prohibits employers from discharging or otherwise discriminating against any employee
who (1) notified his or her employer of an alleged violation of the ERA or the Atomic Energy Act
of 1954 (AEA); (2) refused to engage in any unlawful practice under the ERA or AEA, if the
employee identified the alleged illegality to the employer; (3) testified before Congress or at any
federal or state proceeding regarding any provision of the ERA or AEA; (4) commenced a
proceeding under the ERA or AEA; (5) testified or is about to testify in any such proceeding; or
(6) assisted or participated or is about to assist or participate in a proceeding to carry out the
purposes of the ERA or AEA.20 Any employee who believes that he or she has been discharged or
otherwise discriminated against in violation of the ERA’s whistleblower provisions may, within
180 days after such violation occurs, file a complaint with the Secretary of Labor alleging such
discharge or discrimination. Upon receipt of a complaint, the Secretary will complete an
investigation within 30 days. Within 90 days of receiving the complaint, the Secretary will, unless
the proceeding is terminated due to a settlement, issue an order either providing relief or denying
the complaint. Upon the conclusion of a public hearing and the issuance of a recommended
decision that the complaint has merit, the Secretary will issue a preliminary order providing relief,
but may not order compensatory damages pending a final order.
If the Secretary determines that a violation has occurred, she will order the person who committed
such violation to (1) take affirmative action to abate the violation, and (2) reinstate the
complainant to his former position together with compensation, including back pay, terms,
conditions, and privileges of his or her employment. The Secretary may order the person who
committed the violation to provide compensatory damages to the complainant. If an order is
issued, the Secretary, at the request of the complainant, will assess a sum equal to the aggregate
amount of all costs and expenses, including attorneys’ and expert witness fees, reasonably
incurred by the complainant. The Secretary will dismiss a complaint and not conduct an
investigation unless the complainant has
The Secretary will dismiss a complaint and not conduct an
made a prima facie showing that the
investigation unless the complainant has made a prima facie
protected action by the employee was a
showing that the protected action was a contributing factor
contributing factor in the unfavorable
in the alleged unfavorable personnel action.
personnel action alleged in the complaint.
Notwithstanding a finding by the Secretary that the complainant has made the required prima
20

42 U.S.C. § 5851(b).

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facie showing, no investigation shall be conducted if the employer demonstrates, by clear and
convincing evidence, that it would have taken the same unfavorable personnel action in the
absence of such behavior. Relief may not be ordered if the employer demonstrates by clear and
convincing evidence that it would have taken the same unfavorable personnel action in the
absence of such behavior.21
Any person adversely affected by an order issued under the ERA’s whistleblower provisions may
obtain review of the order in the U.S. court of appeals for the circuit in which the violation
allegedly occurred. A petition for review must be filed within 60 days of the issuance of the
Secretary’s order. Review shall conform to chapter 7 of Title 5, U.S. Code, and the
commencement of proceedings under this provision shall not, unless ordered by the court, operate
as a stay of the Secretary’s order.
An order by the Secretary shall not be subject to judicial review in any criminal or other civil
proceeding. Whenever a person fails to comply with an order issued under this provision, the
Secretary may file a civil action in the U.S. district court for the district in which the violation
occurred. In actions brought under this provision, the district courts shall have jurisdiction to
grant all appropriate relief, including injunctive relief and compensatory and exemplary damages.
Any person on whose behalf an order was issued may commence a civil action against the person
to whom such order was issued to require compliance with such order; the appropriate U.S.
district court shall have jurisdiction, without regard to the amount in controversy or citizenship of
the parties; and in issuing any final order under this subsection, the court may award costs of
litigation, including reasonable attorney and expert witness fees.22

Fair Labor Standards Act of 1938 (FLSA)
The FLSA prohibits employers from discharging or otherwise discriminating against an employee
because such employee filed a complaint or instituted any proceeding under the statute, testified
or is about to testify in any such proceeding, or served or is about to serve on an industry
committee.23 Employers who willfully violate the FLSA’s anti-retaliation provisions may be fined
up to $10,000 and imprisoned up to six months. Employers who retaliate against employees in
violation of this provision shall be liable for legal and equitable relief, including, without
limitation, reinstatement, the payment of lost wages, and an additional equal amount as liquidated
damages. An action may be maintained against any employer, including a public agency, in any
federal or state court of competent jurisdiction by any one or more employees. The court shall, in
addition to any judgment awarded, allow
reasonable attorneys’ fees to be paid to the
Willful violations of the FLSA’s anti-retaliation provisions
plaintiff, as well as the costs of the action. An
could result in fines up to $10,000 and imprisonment up
employee loses his or her right to file a
to six months.
complaint under this provision once the
Secretary of Labor files a complaint against the employer.24

21

Id.
42 U.S.C. § 5851(c).
23
29 U.S.C. § 215(a)(3).
24
29 U.S.C. § 216(b).
22

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FDA Food Safety Modernization Act (FDA
Modernization Act)
The FDA Modernization Act amended the Federal Food, Drug, and Cosmetic Act to prohibit an
entity engaged in the manufacture, processing, packing, transporting, distribution, reception,
holding, or importation of food from discharging or otherwise discriminating against an employee
with respect to the individual’s compensation, terms, conditions, or privileges of employment
because the employee (1) provided, caused to be provided, or is about to provide or cause to be
provided information relating to a violation of the Federal Food, Drug, and Cosmetic Act to the
employer, the federal government, or the attorney general of a state; (2) testified or is about to
testify in a proceeding concerning the violation; (3) assisted or participated or is about to assist or
participate in a proceeding concerning the violation; or (4) objected to, or refused to participate in
any activity that the employee believed to be in violation of the Federal Food, Drug, and
Cosmetic Act.25
An individual who believes that he or she has been discharged or otherwise discriminated against
in violation of the relevant whistleblower provisions may file a complaint with the Secretary of
Labor within 180 days after the date on which the violation occurs.26 Within 60 days of receiving
the complaint, the Secretary will initiate an investigation and determine whether there is
reasonable cause to believe that the complaint has merit. If the Secretary determines that
reasonable cause exists, she will accompany her findings with a preliminary order that requires
the person who committed the violation to take affirmative action to abate the violation, to
reinstate the complainant to his or her former position with compensation, and to provide
compensatory damages. The person alleged to have committed the violation or the complainant
may file objections to the findings or the preliminary order and request a hearing. A final order
must be issued by the Secretary within 120 days after the date of the hearing’s conclusion. If the
Secretary fails to issue a timely final decision, the complainant may seek de novo review in the
appropriate district court of the United States with jurisdiction

Federal Mine Safety and Health Act (FMSHA)
The FMSHA prohibits an employer from discharging an employee or applicant for employment
because the individual (1) filed or made a complaint under or related to the FMSHA; (2) is the
subject of medical evaluations and potential transfer; (3) instituted or testified in any proceeding
under or related to the FMSHA; or (4) exercised any statutory right afforded by the FMSHA.27
Employees and applicants who believe that they have been discharged, interfered with, or
otherwise discriminated against in violation of this prohibition may file a complaint with the
Secretary of Labor within 60 days after the alleged violation. Upon receipt of the complaint, the
Secretary will forward a copy to the respondent and within 15 days of receiving the complaint,
the Secretary will institute an investigation as she deems appropriate. If the Secretary determines
that the complaint was not brought frivolously, the Federal Mine Safety and Health Review
Commission will order the immediate reinstatement of the miner pending a final order. If the
25

21 U.S.C. § 1012(a).
21 U.S.C. § 1012(b)(1).
27
30 U.S.C. § 815(c)(1).
26

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Secretary determines that the FMSHA’s whistleblower provisions have been violated, she will
immediately file a complaint with the
Commission, with service upon the alleged
If the Secretary determines that the complaint was not
brought frivolously, the Federal Mine Safety and Health
violator and miner, proposing an order
Review Commission will order the immediate reinstatement
granting appropriate relief. The
of the miner pending final order.
Commission shall afford an opportunity for
a hearing and shall issue an order affirming,
modifying, or vacating the Secretary’s proposed order, or directing other appropriate relief. The
Commission retains the authority to require a person committing a violation to abate the violation
as the Commission deems appropriate, including the rehiring or reinstatement of the miner to his
or her former position with back pay and interest.28
Within 90 days of receiving a complaint, the Secretary will notify the miner about whether a
violation occurred. If the Secretary determines that the FMSHA’s whistleblower provisions were
violated, the complainant shall have the right to file an action in his or her own behalf before the
Commission. The Commission shall afford an opportunity for a hearing and shall issue an order,
granting such relief as it deems appropriate. Whenever an order is issued sustaining a
complainant’s charges, a sum equal to the aggregate amount of all costs and expenses, including
attorneys’ fees, will be assessed against the person who committed the violation. Any person
adversely affected by such an order may obtain review in any U.S. court of appeals for the circuit
in which the violation is alleged to have occurred or in the U.S. Court of Appeals for the D.C.
Circuit.29

Federal Water Pollution Control Act of 1972
(FWPCA)
The FWPCA prohibits an employer from firing or otherwise discriminating against an employee,
or causing such firing or discrimination, because the employee has filed, instituted, or caused to
be filed or instituted any proceeding under the FWPCA, or has testified or is about to testify in
any proceeding resulting from the administration or enforcement of the FWPCA.30 Any employee
who believes that he or she has been fired or discriminated against in violation of this provision
may, within 30 days after such alleged violation occurs, apply to the Secretary of Labor for a
review. Upon receipt of such application, the Secretary will institute an investigation as he or she
deems appropriate. Upon receiving the report of such investigation, the Secretary will make
findings of fact; if she finds that such violation did occur, the Secretary will issue a decision,
incorporating an order and findings, requiring the party committing such violation to take such
affirmative action to abate the violation, including the rehiring or reinstatement of the employee
with compensation. If the Secretary finds that there was no such violation, she will issue an order
denying the application; such order shall be subject to judicial review in the same manner as
orders and decisions are subject to judicial review under 33 U.S.C. §§ 1251 et seq. Whenever an
order is issued, at the request of the applicant, a sum equal to the aggregate amount of all costs
and expenses, including attorneys’ fees, determined to have been reasonably incurred by the
applicant, will be assessed against the person committing the violation.
28

30 U.S.C. § 815(c)(2).
30 U.S.C. § 816.
30
33 U.S.C. § 1367(a).
29

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Longshore and Harbor Workers’ Compensation Act
(LHWCA)
The LHWCA prohibits an employer from discharging or otherwise discriminating against an
employee who claims or attempts to claim compensation from the employer, or testifies or is
about to testify against the employer in a proceeding under the statute. Any employer who
violates this provision will be liable for a penalty of not less than $1,000 nor more than $5,000. If
such penalties are not paid, they may be recovered in a civil action brought in the appropriate
U.S. district court. Any employee that is
discriminated against under the statute’s
If the employee ceases to be qualified to perform
whistleblower provisions shall be restored to his
the duties of employment, the employee will not be
or her employment and shall be compensated for
restored to his or her position and will not be
compensated for any wage loss.
any loss of wages arising from the
discrimination, provided that if the employee
ceases to be qualified to perform the duties of employment, he or she shall not be entitled to such
restoration and compensation. The employer and not his insurance carrier shall be liable for such
penalties and payments, and any provision in an insurance policy undertaking to relieve the
employer from the liability for such penalties and payments shall be void.31

Migrant and Seasonal Agricultural Worker
Protection Act (MSAWPA)
The MSAWPA prohibits employers from intimidating, threatening, restraining, coercing,
blacklisting, discharging, or in any manner discriminating against any migrant or seasonal
agricultural worker because such worker has, with just cause, filed a complaint or instituted, or
caused to be instituted, any proceeding under the statute’s anti-retaliation provisions.
Additionally, any employee who has testified or is about to testify in any such proceeding or
justifiably exercises any right or protection afforded by MSAWPA is protected from retaliatory
action.32 An employee who believes, with just cause, that he or she has been discriminated against
in violation of the relevant provisions may file a complaint with the Secretary of Labor within
180 days of the violation. As she deems appropriate, the Secretary will institute an investigation
and, upon determining that a violation has occurred, will bring an action in any appropriate U.S.
district court. In any such action, the U.S. district court will have jurisdiction, for cause shown, to
restrain the violation and order all appropriate relief, including reinstatement with back pay or
damages.33

31

33 U.S.C. § 948a.
29 U.S.C. § 1855(a).
33
29 U.S.C. § 1855(b).
32

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Occupational Safety and Health Act of 1970
(OSH Act)
The OSH Act prohibits employers from discharging or in any manner discriminating against an
employee because such employee filed a complaint or instituted or caused to be instituted a
proceeding under the OSH Act, or is about to testify in any such proceeding. Additionally, any
employee who has testified or is about to testify in any such proceeding or exercises any right or
protection afforded by the OSH Act is protected from retaliatory action. An employee who
believes that he or she has been discharged or otherwise discriminated against in violation of the
OSH Act may file a complaint with the Secretary of Labor alleging such discrimination within 30
days. Upon receipt of such complaint, the Secretary will institute an investigation as she deems
appropriate. If the Secretary determines that a violation has occurred, she will bring an action in
any appropriate U.S. district court. The U.S. district court shall have jurisdiction, for cause
shown, to restrain the violation and order all appropriate relief including reinstatement with back
pay.34

Safe Drinking Water Act (SDWA)
The SDWA prohibits employers from firing, or in any other way discriminating against, or
causing to be fired or discriminated against, any employee because such employee filed,
instituted, or caused to be filed or instituted any proceeding under the SDWA or has testified or is
about to testify in any proceeding resulting from the administration or enforcement of the SDWA.
Any employee who believes that he or she has been fired or otherwise discriminated against in
violation of the SDWA may, within 30 days after such alleged violation occurs, apply to the
Secretary of Labor for a review. Upon receipt of such application, the Secretary will initiate an
investigation as she deems appropriate. Upon receiving the report of such investigation, the
Secretary will make findings of fact; if she finds that such violation did occur, the Secretary will
issue a decision, incorporating an order and findings, requiring the party committing such
violation to take such affirmative action to abate the violation, including the rehiring or
reinstatement of the employee with compensation. If the Secretary finds that there was no such
violation, she will issue an order denying the application; such order is subject to judicial review
in the same manner as orders and decisions are subject to judicial review under 42 U.S.C. §§
6901 et seq. Whenever an order is issued, at the request of the applicant, a sum equal to the
aggregate amount of all costs and expenses, including attorneys’ fees, determined to have been
reasonably incurred by the applicant shall be assessed against the person who committed the
violation.35
Any employee or employer adversely affected or aggrieved by an order may obtain review of the
order in the U.S. court of appeals for the circuit in which the violation allegedly occurred. Within
60 days of the issuance of the order, the petition for review must be filed and review shall
conform to 5 U.S.C. §§ 701 et seq. An order of the Secretary shall not be subject to judicial
review in any criminal or other civil proceeding. Whenever a person has failed to comply with an
order, the Secretary will file a civil action in the U.S. district court for the district in which the
34
35

29 U.S.C. § 660(c).
42 U.S.C. § 300j-9(i)(1),(2).

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violation occurred. In actions brought under the SDWA’s whistleblower provisions, the district
courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and
compensatory and exemplary damages.36

Sarbanes-Oxley Act of 2002 (SOX)
SOX prohibits publicly traded companies, including any subsidiaries or affiliates whose financial
information is included in the consolidated financial statements of such companies, and nationally
recognized statistical rating organizations from discharging, demoting, suspending, threatening,
harassing, or in any other manner discriminating against an employee because such employee
provided information, caused information to be provided, otherwise assisted in an investigation,
or filed, testified, or participated in a proceeding regarding any conduct that the employee
reasonably believes is a violation of SOX, any SEC rule or regulation, or any federal statute
relating to fraud against shareholders, when the information or assistance is provided to a federal
regulatory or law enforcement agency, any Member or committee of Congress, or a person with
supervisory authority over the employee or investigative authority for the employer, regarding
any violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1344 ( bank fraud), 1348
(securities fraud against shareholders), or any SEC rule or regulation, or of any federal law
regarding fraud against shareholders.37 Any employee who alleges such wrongful discharge or
other discrimination may file a complaint with the Secretary of Labor, using procedures set forth
in 49 U.S.C. § 42121(b). In the absence of delay resulting from an employee’s bad faith, the
employee may seek de novo review in the appropriate U.S. district court, if the Secretary of Labor
does not issue a final decision within 180 days. An action must be commenced within 180 days
after the date on which the violation occurs.38
A prevailing employee may be awarded all relief necessary to make the individual whole,
including reinstatement with pre-discrimination seniority status, back pay with interest, and
compensation for any special damages incurred as a result of the discrimination, including
litigation costs, expert witness fees, and
reasonable attorneys fees, and to leave
An employee prevailing in a whistleblower action may be
the employee with all rights, privileges,
awarded all relief necessary to make the individual whole.
or remedies under federal or state law
or any collective bargaining agreement.39

Solid Waste Disposal Act (SWDA)
The SWDA prohibits employers from firing, or in any other way discriminating against, or
causing to be fired or discriminated against, any employee because such employee filed,
instituted, or caused to be filed or instituted any proceeding under the SWDA, or has testified or
is about to testify in any proceeding resulting from the administration or enforcement of the

36

42 U.S.C. § 300j-9(i)(3),(4).
18 U.S.C. § 1514A(a).
38
18 U.S.C. § 1514A(b)(2)(D).
39
18 U.S.C. § 1514A(c), (d).
37

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SWDA.40 Any employee who believes that he or she has been fired or otherwise discriminated
against in violation of the SWDA’s whistleblower provisions may, within 30 days after such
alleged violation occurs, apply to the Secretary of Labor for a review. Upon receipt of such
application, the Secretary will institute an investigation as she deems appropriate. Following the
receipt of the investigation report, the Secretary will make findings of fact; if she finds that a
violation did occur, the Secretary will issue a decision, incorporating an order and findings,
requiring the party committing such violation to take such affirmative action to abate the
violation, including the rehiring or reinstatement of the employee with compensation. If the
Secretary finds no violation, she will issue an order denying the application; such order shall be
subject to judicial review in the same manner as orders and decisions are subject to judicial
review under 42 U.S.C. §§ 6901 et seq.41 Whenever an order is issued, at the request of the
applicant, a sum equal to the aggregate amount of all costs and expenses, including attorneys’
fees, to have been reasonably incurred by the applicant, will be assessed against the person who
committed the violation.42

Surface Mining Control and Reclamation Act
(SMCRA)
The SMCRA prohibits employers from discharging or in any other way discriminating against or
causing to be fired or discriminated against any employee because such employee has filed,
instituted, or caused to be filed or instituted any proceeding under this provision. Additionally,
any employee who has testified or is about to testify in any such proceedings is protected from
such retaliatory action.43 An employee who believes that he or she has been fired or otherwise
discriminated against in violation of the SMCRA’s whistleblower provisions may, within 30 days,
apply to the Secretary of Labor for a review of such firing or alleged discrimination. Upon receipt
of such complaint, the Secretary will initiate an investigation as she deems appropriate. If the
Secretary determines that a violation occurred, she will issue a decision incorporating the findings
of fact and an order requiring the party committing the violation to take such affirmative action to
abate the violation as the Secretary deems appropriate, including the rehiring or reinstatement of
the employee with compensation. If the Secretary finds that no violation occurred, she shall issue
a finding. Orders issued by the Secretary shall be subject to judicial review in the same manner as
other orders and decisions of the Secretary are subject to judicial review under the SMCRA.44
Whenever an order is issued to abate a violation, at the request of the applicant, a sum equal to
the aggregate amount of all costs and expenses, including attorney’s fees, determined to have
been reasonably incurred by the applicant in connection with the institution and prosecution of
such proceedings, shall be assessed against the person who committed the violation.45

40

42 U.S.C. § 6971(a).
42 U.S.C. § 6971(b).
42
42 U.S.C. § 6971(c).
43
30 U.S.C. § 1293(a).
44
30 U.S.C. § 1293(b).
45
30 U.S.C. §1293(c).
41

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Toxic Substances Control Act (TSCA)
The TSCA prohibits employers from discharging or otherwise discriminating against any
employee with respect to compensation, terms, conditions, or privileges of employment because
the employee has (1) commenced, caused to be commenced, or is about to commence or cause to
be commenced a proceeding under the TSCA; (2) testified or is about to testify in any such
proceeding; or (3) assisted or participated or is about to assist or participate in such a proceeding
46
or in any other action to carry out the purposes of the TSCA. Any employee who believes that
he or she has been discharged or otherwise discriminated against by any person in violation of the
TSCA’s whistleblower provisions may, within 30 days after such alleged violation occurs, file a
complaint with the Secretary of Labor. Upon receipt of such a complaint, the Secretary will
conduct an investigation and within 30 days of the receipt of such complaint, the Secretary will
complete such investigation. Within 90 days of receiving the complaint, the Secretary will, unless
the proceeding is terminated due to a settlement, issue an order either providing relief or denying
the complaint. The Secretary may not enter into a settlement terminating a proceeding on a
complaint without the participation and consent of the complainant. If the Secretary determines
that a violation of this provision has occurred, the Secretary will (1) order the person who
committed such violation to take affirmative action to abate the violation; (2) order such person to
reinstate the complainant to the complainant’s former position together with the compensation,
including backpay, terms, conditions, and privileges of the complainant’s employment; (3) order
compensatory damages; and (4) where appropriate, order exemplary damages. Whenever an order
is issued, at the request of the applicant, a sum equal to the aggregate amount of all costs and
expenses, including attorneys’ fees, will be assessed against the person who committed the
47
violation. Any employee or employer adversely affected or aggrieved by an order may obtain
review of the order in the U.S. court of appeals for the circuit in which the violation allegedly
occurred. The petition for review must be filed within 60 days of the issuance of the order. Such
review must conform to 5 U.S.C. §§ 701 et seq. Whenever a person has failed to comply with an
order, the Secretary will file a civil action in the U.S. district court for the district in which the
violation was found to occur. In actions brought under the TSCA’s whistleblower provisions, the
district courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and
48
compensatory and exemplary damages.

46

15 U.S.C. § 2622(a).
15 U.S.C. § 2622(b).
48
15 U.S.C. § 2622(c),(d).
47

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Whistleblower Protection Act (WPA)
The WPA49 generally provides protections for federal employees who make disclosures
evidencing illegal or improper government
To trigger protections under the WPA, a case must
activities. In order to trigger the protections of
contain the following elements, as defined under the
the WPA, a case must contain the following
act:
elements: a “personnel action” that was taken
•
A personnel action
because of a “protected disclosure” made by a
“covered employee.”
•
A protected disclosure
•

A covered employee

Covered Employees
Although anyone may disclose whistleblowing information for referral to the appropriate agency,
an investigation and report from the head of that agency is required only if the information is
received from a “covered employee.” In addition, with few exceptions, prohibited personnel
practices apply only to covered employees. Therefore, as a threshold matter, it is important to
note which federal employees are statutorily covered.
Generally, current employees, former employees, or applicants for employment to positions in the
executive branch of government and the Government Printing Office, in both the competitive and
the excepted service, as well as positions in the Senior Executive Service, are considered covered
employees.50 However, those positions that are excepted from the competitive service because of
their “confidential, policy-determining, policy-making, or policy-advocating character,”51 and any
positions exempted by the President based on a determination that it is necessary and warranted
by conditions of good administration,52 are not protected by the whistleblower statute.
Moreover, the statute does not apply to federal workers employed by the U.S. Postal Service or
the Postal Rate Commission,53 the Government Accountability Office, the Federal Bureau of
Investigation,54 the Central Intelligence Agency, the Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National Security Agency, and any other executive entity that
the President determines primarily conducts foreign intelligence or counter-intelligence
activities.55 Agency heads are required to inform their employees of these protections.56

49

P.L. 101-12, 103 Stat. 16; P.L. 103-424, 108 Stat. 4361 (codified, as amended, in various sections of Title 5 U.S.C.).
5 U.S.C. § 2302(a)(2)(B).
51
5 U.S.C. § 2302(a)(2)(B)(i).
52
5 U.S.C. § 2302(a)(2)(B)(ii).
53
5 U.S.C. § 2105(e).
54
Another provision of federal law prohibits personnel practices in the FBI as a reprisal for a disclosure of information
to the Attorney General or his or her designee that the employee reasonably believes evidences “(1) a violation of any
law, rule, or regulation, or (2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.” 5 U.S.C. § 2303(a)(1),(2).
55
5 U.S.C. § 2302(a)(2)(C).
56
5 U.S.C. § 2302(c).
50

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Protected Disclosures
Any disclosure of information that a covered employee reasonably believes evidences “a
violation of any law, rule, or regulation” or evidences “gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health or safety” is
protected on the condition that the disclosure is not prohibited by law nor required to be kept
secret by executive order in the interest of national defense or foreign affairs.57 Moreover, any
disclosure made to the Special Counsel or to the Inspector General of an agency or another
employee designated by the head of the agency to receive such disclosures, which the employee
reasonably believes evidences “a violation of any law, rule, or regulation,” or evidences “gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific
danger to public health or safety” is also protected.58 In addition, the WPA expressly provides that
the statute is not to be interpreted as “authoriz[ing] the withholding of information from the
Congress or the taking of any personnel action against an employee who discloses information to
the Congress.”59

Personnel Actions
The WPA protects employees from reprisals in the form of an agency taking or failing to take a
“personnel action.” This encompasses a broad range of actions by an agency having a negative or
adverse impact on the employee. The statute specifically defines the term “personnel action” to
include 11 areas of agency activity:
(i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of this title or other
disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;
(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under chapter 43 of
this title; (ix) a decision concerning pay, benefits, or awards, or concerning education or
training if the education or training may reasonably be expected to lead to an appointment,
promotion, performance evaluation, or other action described in this subparagraph; (x) a
decision to order psychiatric testing or examination; and (xi) any other significant change in
duties, responsibilities, or working conditions.60
57

5 U.S.C. § 2302(b)(8)(A).
5 U.S.C. § 2302(b)(8)(B).
59
5 U.S.C. § 2302(b). Based on the legislative history regarding this provision of the WPA, it appears that Congress
sought to protect its right to receive even “confidential” information from federal employees, without employee fear of
reprisals:
The provision is intended to make clear that by placing limitations on the kinds of information any
employee may publicly disclose without suffering reprisal, there is not intent to limit the
information an employee may provide to Congress or to authorize reprisal against an employee for
providing information to Congress. For example, 18 U.S.C. 1905 prohibits public disclosure of
information involving trade secrets. That statute does not apply to transmittal of such information
by an agency to Congress. Section 2302(b)(8) of this act would not protect an employee against
reprisal for public disclosure of such statutorily protected information, but it is not to be inferred
that an employee is similarly un-protected if such disclosure is made to the appropriate unit of the
Congress. Neither title I nor any other provision of the act should be construed as limiting in any
way the rights of employees to communicate with or testify before Congress. H.Rept. 95-1717
(Conference Report) (1978), reprinted in 1978 U.S. CODE CONG. & ADMIN. NEWS 2861.
See also 5 U.S.C. § 7211, providing that an employee is guaranteed the right to freely petition or furnish
information to Congress, a Member of Congress, a committee, or a Member thereof.
60
5 U.S.C. § 2302(a)(2)(A).
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The WPA also expressly protects employees from prohibited personnel practices taken because
they engaged in activities that are often related to whistleblowing, including exercising any
appeal, complaint, or grievance right granted by law, rule, or regulation; testifying for others or
lawfully assisting others in any such appeal, complaint, or grievance right; cooperating with or
disclosing information to an agency Inspector General or the Special Counsel; or for refusing to
obey an order that would be in violation of law.61

Forums Where Whistleblower Protections May Be Raised
Under the WPA, there are three general forums or proceedings where whistleblower protections
may be raised: (A) in employee appeals to the Merit Systems Protection Board (MSPB) of an
agency’s adverse action against the employee under chapter 77;62 (B) in actions instituted by the
Office of Special Counsel (OSC);63 and
(C) in individual rights of action.64
Under the WPA, whistleblower protections may be raised in
three general forums or proceedings:
Beyond the statutory provisions of the
WPA, the defense or claim of reprisal for
(1) Employee appeals to the MSPB under chapter 77
whistleblowing might also be raised in a
(2) Actions instituted by the Office of Special Counsel
grievance proceeding initiated by an
(3) Individual rights of action
employee pursuant to a grievance
procedure that was negotiated through
collective bargaining between the employee’s agency and the employee union.65 An aggrieved
employee affected by a prohibited personnel action is precluded from choosing more than one of
the above remedies.66

Employee Appeals to the MSPB Under Chapter 77
The MSPB is authorized to hear and rule on appeals by employees regarding agency actions
affecting the employee and that are appealable to the Board by law, rule, or regulation.67 Types of
agency actions against employees that are appealable to the MSPB and in which an employee
may raise the defense of reprisal for whistleblowing as a prohibited personnel practice include
adverse actions against the employee for “such cause as will promote the efficiency of the
service” (generally referred to as conduct-based adverse actions),68 and performance-based
adverse actions against employees for “unacceptable performance.”69 In such appeals, an
agency’s decision and action will not be upheld if the employee “shows that the decision was
based on any prohibited personnel practice described in section 2302(b) of this title.”70 If the
MSPB finds that an employee or applicant for employment has prevailed in an appeal, the
61

5 U.S.C. § 2302(b)(9).
5 U.S.C. § 7701.
63
5 U.S.C. §§ 1211-1215.
64
5 U.S.C. § 1221.
65
5 U.S.C. § 7121.
66
5 U.S.C. § 7121(g)(2).
67
5 U.S.C. § 7701, 5 U.S.C. § 1205.
68
5 U.S.C. § 7513(a).
69
5 U.S.C. § 4303(a).
70
5 U.S.C. § 7701(c)(2)(B).
62

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employee or applicant may be provided with interim relief, pending the outcome of any petition
of review.71 Moreover, the Special Counsel may not intervene in an appeal under chapter 77
without the consent of the individual bringing the appeal.72

Actions by the Office of Special Counsel (OSC)
The WPA established the OSC as an agency independent from the MSPB.73 Its primary
responsibilities, however, have remained essentially the same as set forth in its statutory
predecessor, the Civil Service Reform Act (CSRA). With the goal of protecting employees,
former employees, and applicants for employment from prohibited personnel practices, the OSC
has the duty to receive allegations of prohibited personnel practices and to investigate such
allegations,74 as well as to conduct an investigation of possible prohibited personnel practices on
its own initiative, absent any allegation.75
The Special Counsel has several avenues available through which to pursue allegations,
complaints, and evidences of reprisals for whistleblowing activities, including (1) requiring
agency investigations and agency reports concerning actions the agency is planning to take to
rectify those matters referred;76 (2) seeking an order for “corrective action” by the agency before
the MSPB;77 (3) seeking “disciplinary action” against officers and employees who have
committed prohibited personnel practices;78 (4) intervening in any proceedings before the MSPB,
except that in cases where an individual has brought an individual right of action (IRA) under
Section 1221 or an appeal to the MSPB under chapter 77, the OSC must first obtain the
individual’s consent;79 and (5) seeking a stay from the MSPB for any personnel action pending an
investigation.80

Investigations81
Within 240 days of receipt of a complaint, the OSC must make a determination as to whether
there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists,

71

5 U.S.C. § 7701(b)(2)(A).
5 U.S.C. § 1212(c)(2).
73
5 U.S.C. § 1211(a). It provides that the Office of Special Counsel (OSC) will be headed by the Special Counsel and
have a judicially noted official seal. The Senate report states that although the MSPB and the OSC had “separated
themselves administratively in 1984,” the whistleblower legislation “completes this process by establishing the OSC as
an independent agency.” S.Rept. 100-413 at 18. Moreover, the statute provides that the Special Counsel, appointed by
the President, with the advice and consent of the Senate, may only be removed from office for “inefficiency, neglect of
duty, or malfeasance in office.” 5 U.S.C. § 1211(b).
74
5 U.S.C. § 1212(a)(2).
75
5 U.S.C. § 1214(a)(5).
76
5 U.S.C. § 1213(c).
77
5 U.S.C. § 1214(b)(2).
78
5 U.S.C. § 1215(b).
79
5 U.S.C. § 1212(c).
80
5 U.S.C. § 1212(b)(1).
81
In addition to investigating whether prohibited personnel actions have been taken because of protected
whistleblowing disclosures, the WPA also charges the OSC with investigating whether there is a “substantial
likelihood” that whistleblowing disclosures evidence violations of a law, rule or regulation. 5 U.S.C. §1213(b).
72

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or is to be taken.82 If a positive determination is made and the information was sent to the Special
Counsel by an employee, former employee, applicant for employment, or an employee who
obtained the information acting within the scope of employment,83 the Special Counsel must
transmit the information to the appropriate agency head and require that the agency head conduct
an investigation and submit a written report.84 The identity of the complaining employee may not
be disclosed without such individual’s consent, unless the Special Counsel determines that
disclosure is necessary to avoid imminent danger to health and safety or an imminent criminal
violation.85 The Special Counsel then reviews the reports as to their completeness and the
reasonableness of the findings86 and submits the reports to Congress, the President, the
Comptroller General,87 and the complainant.88
If the Special Counsel does not make a positive determination, however, he or she may only
transmit the information to the agency head with the consent of the individual.89 Further, if the
Special Counsel receives the information from some source other than the ones described above,
he or she may transmit the information to the appropriate agency head, who shall inform the
Special Counsel of any action taken.90 In any case where the subject of the whistleblowing
disclosure evidences a criminal violation, however, all information is referred to the Attorney
General and no report is transmitted to the complainant.91
At least every 60 days throughout its investigation, the OSC must give notice of the status of the
investigation to the individual who brought the allegation.92 In addition, no later than 10 days
before the termination of an investigation, a written status report including the proposed findings
and legal conclusions must be made to the individual who made the allegation of wrongdoing.93

Corrective Actions
If in any investigation the Special Counsel determines that there are “reasonable grounds to
believe” a prohibited personnel practice exists or has occurred, the Special Counsel must report
findings and recommendations, and may include recommendations for corrective action, to the
MSPB, the agency involved, the Office of Personnel Management (OPM) and, optionally, to the
President.94 If the agency does not act to correct the prohibited personnel practice, the Special
Counsel may petition the MSPB for corrective action.95 The MSPB, before rendering its decision,
is required to provide an opportunity for oral or written comments by the Special Counsel, the
82

5 U.S.C. § 1214(b)(2)(A)(i).
5 U.S.C. § 1213(c)(2).
84
5 U.S.C. § 1213(c)(1).
85
5 U.S.C. § 1213(h).
86
5 U.S.C. § 1213(e)(2).
87
5 U.S.C. § 1213(e)(3).
88
5 U.S.C. § 1213(e)(1).
89
5 U.S.C. § 1213(g)(2).
90
5 U.S.C. § 1213(g)(1).
91
5 U.S.C. § 1213(f).
92
5 U.S.C. § 1214(a)(1)(C)(ii).
93
5 U.S.C. § 1214(a)(1)(D).
94
5 U.S.C. § 1214(b)(2)(B).
95
5 U.S.C. § 1214(b)(2)(C).
83

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agency involved, and the OPM, and for written comments by any individual who alleges to be the
victim of the prohibited personnel practices.96
The WPA made it easier for a complainant to prove retaliation for whistleblowing in a corrective
action before the MSPB. The Special Counsel need only prove by a preponderance of the
evidence that the disclosure was a “contributing factor” in the personnel action, instead of a
“significant factor.”97 In addition, once the MSPB renders a final order or decision of corrective
action, complainants have the right to judicial review in the U.S. Court of Appeals for the Federal
Circuit.98
In what is probably the most significant change from its statutory predecessor, the CSRA, the
WPA increased the standard by which an agency must prove its affirmative defense that it would
have taken the personnel action even if the employee had not engaged in protected conduct. Once
the complainant’s prima facie case of reprisal has been established by showing that the
whistleblowing was a contributing factor in the personnel action, the government is required to
demonstrate by “clear and convincing evidence” that it would have taken the same personnel
action even in the absence of such disclosure.99 Under the CSRA, the government’s standard of
proof was a “preponderance of the evidence.” “Clear and convincing evidence,” although a lesser
standard than the criminal standard of “beyond a reasonable doubt,” is greater than
“preponderance of the evidence.”

Disciplinary Actions
Proceedings for disciplinary action against an officer or employee who commits a prohibited
personnel practice may be instituted by the Special Counsel by filing a written complaint with the
MSPB.100 After proceedings before the MSPB or an administrative law judge,101 if violations are
found, the MSPB may impose any of various disciplinary actions, including removal, reduction in
grade, debarment from federal employment for a period not to exceed five years, suspension,
reprimand, or an assessment of civil fines up to $1,000.102 In addition, the agency involved may
be held responsible for reasonable attorney’s fees.103 In the case of presidentially appointed and
Senate confirmed employees in “confidential, policy-making, policy-determining, or policyadvocating” positions, the complaint and the statement of facts, along with any response from the
employee, are to be presented to the President for disposition in lieu of the presentation to the
Board.104

96

5 U.S.C. § 1214(b)(3).
5 U.S.C. §1214(b)(4)(i).
98
5 U.S.C. § 1214(c).
99
5 U.S.C. § 1214(b)(4)(B).
100
5 U.S.C. § 1215(a)(1).
101
5 U.S.C. § 1215(a)(2)(C).
102
5 U.S.C. § 1215(a)(3).
103
5 U.S.C. § 1204(m)(1).
104
5 U.S.C. § 1215(b).
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Intervention
As a matter of right, the Special Counsel may intervene or otherwise participate in any
proceedings before the MSPB, except that in cases where an individual has brought an individual
right of action (IRA) under Section 1221, discussed below, or an appeal to the MSPB under
chapter 77, the OSC must first obtain the individual’s consent.105

Stays
Upon application by the OSC, a member of the MSPB may stay or postpone, for 45 days, pending
an investigation, a personnel action that the Special Counsel has reasonable grounds to believe
constitutes a prohibited personnel practice, unless the member determines that a stay would not
be appropriate under the circumstances.106 If no MSPB member acts within three days of the OSC
application, the stay becomes effective.107 After the employing agency has had an opportunity to
comment on the appropriateness of extending a stay, the MSPB may extend it.108 A stay may be
terminated by the MSPB at any time, except that a stay may not be terminated by the MSPB on
its own motion or on the motion of an agency, unless notice and opportunity for oral or written
comments are first provided to the Special Counsel and the individual on whose behalf the stay
was ordered; or on a motion of the Special Counsel, unless notice and opportunity for oral or
written comments are first provided to the individual on whose behalf the stay was ordered.109

Individual Right of Action (IRA)
The WPA provides that an employee, former employee, or applicant for employment has the
independent right to seek review of whistleblower reprisal cases by the MSPB no more than 60
days after notification is provided to such employee that the investigation was closed or 120 days
after filing a complaint with the OSC.110 As a result of the IRA statutory provisions, a greater
number of employees, including probationers, temporaries, and those in the excepted service,
have a method of appeal to the MSPB for whistleblower reprisals that was not previously
available under the CSRA.111 In addition, retired employees are not barred from instituting this
type of appeal.112
If the employee is the prevailing party before the MSPB, based on the finding of a prohibited
personnel practice, or if the employee is the prevailing party in an appeal to the MSPB, regardless
of the basis of the decision, the WPA provides several remedies. These may include placing the
individual, as nearly as possible, in the position the individual would have been in had the
prohibited personnel practice not occurred, awarding back pay and related benefits, recompensing
medical costs incurred, travel expenses, or any other reasonable and foreseeable consequential

105

5 U.S.C. § 1212(c).
5 U.S.C. § 1214(b)(1)(A)(i),(ii).
107
5 U.S.C. § 1214(b)(1)(A)(iii).
108
5 U.S.C. § 1214(b)(1)(B),(C).
109
5 U.S.C. § 1214(b)(1)(D).
110
5 U.S.C. §§ 1221, 1214(a)(3).
111
5 U.S.C. § 7701.
112
5 U.S.C. § 1221(j).
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charges.113 In all cases, corrective action includes awarding attorneys’ fees.114 The MSPB findings
can be based on circumstantial evidence.115 Moreover, the Special Counsel may not intervene in
an individual right of action without the consent of the individual bringing the appeal.116

Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

113

5 U.S.C. § 1221(g)(1)(A)(i),(ii).
5 U.S.C. § 1221(g)(1)(B).
115
5 U.S.C. § 1221(e)(1).
116
5 U.S.C. § 1212(c)(2).
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR42727. Public record. Not legal advice.