The Whistleblower Protection Act (WPA): A Legal Overview

The Whistleblower Protection Act (WPA):

A Legal Overview

December 30, 2024

Congressional Research Service

https://crsreports.congress.gov

R48318

SUMMARY

The Whistleblower Protection Act (WPA):

A Legal Overview

The Whistleblower Protection Act of 1989 (WPA or the Act) protects most federal civil

service employees who disclose government illegality, waste, and corruption from

adverse personnel actions. The WPA, which amended the Civil Service Reform Act of

1978, prohibits retaliation against federal employees who act as whistleblowers. The

WPA was amended by the Whistleblower Protection Enhancement Act in 2012.

R48318

December 30, 2024

Jimmy Balser

Legislative Attorney

The employment retaliation protections of the WPA are available only when certain elements are satisfied. To

trigger the application of the protections, an individual must be a covered employee under the Act, the covered

employee must make a protected disclosure, and a personnel action must have been taken because of that

protected disclosure.

In general, the WPA covers current employees, former employees, and applicants for employment to positions in

the executive branch of the government. The WPA protects a disclosure of information that a covered employee

reasonably believes evidences behavior of “a violation of any law, rule, or regulation” or “gross mismanagement,

a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” The

WPA prohibits employees with authority over government personnel from retaliating against a whistleblower by

taking, failing to take, or threatening to take a personnel action, including a decision regarding a promotion, pay

or benefits, removal, suspension, or any other significant change in duties, responsibilities, or working conditions,

among other actions.

Whistleblower retaliation is a prohibited personnel practice that is investigated by the U.S. Office of Special

Counsel (OSC or Special Counsel). Individuals may bring an allegation that a personnel action has been taken in

retaliation for whistleblowing to OSC for investigation. If the Special Counsel finds evidence of whistleblower

retaliation prohibited by the WPA, the findings of the investigation and recommendations are reported to the Merit

Systems Protection Board (MSPB or the Board) and to the agency that engaged in the prohibited personnel

practice. OSC may further petition the MSPB for corrective action if the agency fails to correct it on its own. A

covered employee has the right to file an appeal with the MSPB if OSC terminates the investigation or fails to

respond to the complaint (“individual right of action”) or as an affirmative defense to certain personnel actions,

such as termination, which are appealable to the MSPB (“otherwise appealable actions”). If the covered employee

or OSC proves to the Board that a protected disclosure was a contributing factor in the personnel action, the

Board has the authority to order corrective action for the whistleblower and to discipline retaliating personnel.

Appeals of final decisions or orders by the MSPB regarding claims under the WPA can be brought in federal

court.

This report provides a legal overview of the WPA, including discussions of the federal agencies and government

employees covered by the WPA, the types of disclosures that are protected under the WPA, the personnel actions

prohibited by the WPA, the investigation and adjudication procedures of the Special Counsel and the MSPB, and

selected considerations for Congress.

Congressional Research Service

The Whistleblower Protection Act (WPA): A Legal Overview

Contents

History ............................................................................................................................................. 1

Overview of the WPA...................................................................................................................... 4

Covered Positions Under the WPA.................................................................................................. 5

Agencies Covered by the WPA ................................................................................................. 6

Applicants for Employment and Former Employees ................................................................ 8

Protected Disclosures ...................................................................................................................... 8

Content of Disclosures ............................................................................................................ 10

Disclosure Audiences and Exceptions..................................................................................... 12

Disclosures to OSC ................................................................................................................. 15

Personnel Actions .......................................................................................................................... 16

Establishment of a WPA Retaliation Claim ................................................................................... 17

Investigations and Corrective Action ............................................................................................ 18

Actions by OSC on Whistleblower Retaliation Claims .......................................................... 19

Investigations .................................................................................................................... 20

Recommendations for Corrective and Disciplinary Action .............................................. 21

Whistleblower Appeals to the MSPB ...................................................................................... 22

Individual Rights of Action (IRA) .................................................................................... 23

“Otherwise Appealable Actions”: Appeals to the MSPB Under Chapter 77 of Title

5 ..................................................................................................................................... 24

Considerations for Congress.......................................................................................................... 25

Contacts

Author Information........................................................................................................................ 26

Congressional Research Service

The Whistleblower Protection Act (WPA): A Legal Overview

History

The Whistleblower Protection Act of 1989 (WPA or the Act) provides protections for most federal

employees who disclose government illegality, waste, corruption, and other misconduct;

specifically, the WPA protects these employees from adverse personnel actions taken in

retaliation for their whistleblowing activity.1 Although some whistleblower protections for federal

employees existed in federal law prior to the enactment of the WPA, congressional supporters of

the WPA recognized that these laws “did not go far enough in [their] protection for

whistleblowers.”2

Whistleblower protections for federal government employees in America date back as early as the

Revolutionary War. The Second Continental Congress enacted the first whistleblower protection

legislation in the United States in 1778.3 After this initial passage, and for many years thereafter,

whistleblower legislation provided little more than a limited recognition of a right without any

dedicated procedures for enforcement.

Prior to the enactment of the Pendleton Civil Service Reform Act (The Pendleton Act)4 in 1883,

generally, “federal employment was regarded as an item of patronage, which could be granted,

withheld, or withdrawn for whatever reasons might appeal to the responsible executive hiring

officer.”5 However, the assassination of President Garfield in 1881 by a dissatisfied officeseeker—who believed that the President had played a significant role in refusing his

appointment—triggered a shift in federal government employment from a patronage to a meritbased civil service through the Pendleton Act of 1883.6

According to the Office of Personnel Management (OPM), the Pendleton Act’s establishment of a

merit-based civil service “ushered in a new era and created a competitive civil service, which

emphasized an applicant’s relative level of qualifications for the position being sought, after fair

and open competition.”7 Compared with today’s federal personnel laws, the Pendleton Act was

limited in its application—focusing almost exclusively on entry into the service, without covering

other personnel actions, such as promotion and removal.8

1 Whistleblower Protection Act of 1989, P.L. 101-12, 103 Stat. 16. The requirements for a protected disclosure under

the Act are primarily codified at 5 U.S.C. §§ 2302(b)(8), (9).

2 135 Cong. Rec. 564 (1989) (statement of Sen. Carl Levin, citing “two separate surveys in 1980 and 1983 [that] found

that an astonishing 70 percent of the Federal employees with knowledge of fraud, waste, and abuse did not report it and

that the percentage of employees who did not report government wrongdoing because of fear of reprisal rose

dramatically from 20 percent in 1980 to 37 percent in 1983”).

3 11 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1778, at 732 (Worthington Chauncey Ford ed. 1908) (“Resolved,

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the

earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by

any officers or persons in the service of these states, which may come to their knowledge.”); see also S.Res. 202 (113th

Congress (2013-2014)): A Resolution Designating July 30, 2013, as “National Whistleblower Appreciation Day.”

4 Pendleton Act of 1883, ch. 27, 22 Stat. 403 (amended 1978).

5 Arnett v. Kennedy, 416 U.S. 134, 148 (1974).

6 Id. at 148–49.

7 Office of Personnel Management, Annual Performance Report: Fiscal Year 2020, January 2021,

https://www.opm.gov/about-us/reports-publications/agency-archive/2021-annual-performance-report.pdf#page=7 (last

visited Dec. 6, 2024).

8 Arnett, 416 U.S. at 149 (“While the Pendleton Act is regarded as the keystone in the present arch of Civil Service

legislation, by present-day standards it was quite limited in its application. It dealt almost exclusively with entry into

the federal service, and hardly at all with tenure, promotion, removal, veterans’ preference, pensions, and other subjects

addressed by subsequent Civil Service legislation. The Pendleton Act provided for the creation of a classified Civil

(continued...)

Congressional Research Service

1

The Whistleblower Protection Act (WPA): A Legal Overview

In 1896, the McKinley Administration promulgated a rule under the Pendleton Act prohibiting the

removal of a federal employee from the competitive service without “just cause” and written

rationale.9 However, as the Supreme Court later observed, “while job tenure [in the federal civil

service] was [] accorded protection [by the rule], there were no administrative appeal rights for

action taken in violation of this rule, and the courts declined to judicially enforce it.”10 In 1912,

Congress passed the Lloyd-La Follette Act, amended and codified at Title 5, Section 7211, of the

U.S. Code, which guaranteed the right of federal employees to communicate with members of

Congress.11

Subsequent laws expanded and reformed the civil service system, but the modern framework

governing the rights of most federal workers comes from the Civil Service Reform Act of 1978

(CSRA).12 The CSRA “was designed to replace an ‘outdated patchwork of statutes and rules’ that

afforded employees the right to challenge employing agency actions in district courts across the

country.”13 This patchwork had resulted in “wide variations in the kinds of decisions ... issued on

the same or similar matters” within different federal courts regarding the rights of federal

employees.14 Against this backdrop, the CSRA created “a comprehensive system for reviewing

personnel action taken against federal employees.”15 The CSRA created the Merit Systems

Protection Board (MSPB or the Board), an independent agency, to review challenges of certain

agency decisions regarding federal employees. The CSRA also created the Office of Special

Counsel (OSC or Special Counsel), which investigates and prosecutes allegations of prohibited

personnel practices.16 The CRSA included protections for government whistleblowers, including

employment protections for disclosing illegal conduct, gross mismanagement, gross wasting of

funds, or actions presenting substantial dangers to health and safety.17

The CSRA was deemed by some legal observers to be insufficient in protecting whistleblowers.18

Later, in passing the WPA, Congress observed that reforms to the CSRA were needed “to

Service, and required competitive examination for entry into that service. Its only provision with respect to separation

was to prohibit removal for the failure of an employee in the classified service to contribute to a political fund or to

render any political service. For 16 years following the effective date of the Pendleton Act, this last-mentioned

provision of that Act appears to have been the only statutory or regulatory limitation on the right of the Government to

discharge classified employees.”).

9 Id. at 149 n.19 (“No removal shall be made from any position subject to competitive examination except for just cause

and upon written charges filed with the head of the Department or other appointing officer, and of which the accused

shall have full notice and an opportunity to make defense.”) (citing Fifteenth Report of the Civil Service Commission,

at 70 (1897–1898)).

10 Id. at 150.

11 Pub. L. No. 62-336, § 6, 37 Stat. 539, 555 (1912); 5 U.S.C. § 7211 (“The right of employees, individually or

collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to

a committee or Member thereof, may not be interfered with or denied.”).

12 See Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1111. For further background on the CSRA, consult

CRS Report R44803, The Civil Service Reform Act: Due Process and Misconduct-Related Adverse Actions, by Jared P.

Cole (2017).

13 Elgin v. Dep’t of the Treasury, 567 U.S. 1, 13–14 (2012) (quoting United States v. Fausto, 484 U.S. 439, 444–45

(1988)).

14 Fausto, 484 U.S. at 445 (internal citations omitted).

15 Id. at 455.

16 See 5 U.S.C. § 1212. Federal regulations implementing the OSC authorities in the WPA can be found in 5 C.F.R.

§§ 1800–1899 (2022).

17 See 92 Stat. 1111.

18 See Patricia Price, An Overview of the Whistleblower Protection Act, 2 Fed. Circuit B.J. 69–70 (1992) (“Even though

the [CSRA] included protections for whistleblowers, it was primarily enacted as a relief measure for Federal agencies

(continued...)

Congressional Research Service

2

The Whistleblower Protection Act (WPA): A Legal Overview

strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to

help eliminate wrongdoing within the Government[.]”19

Enacted in 1989, the WPA expanded existing whistleblower provisions from the CSRA and

created new protections in Title 5 of the U.S. Code, which includes the federal civil service

statutes. The WPA’s sponsor, Senator Carl Levin, stated at the time that “[p]rotecting

whistleblowers is one of the simplest and one of the most effective means available to us to

reduce the cost and improve the functioning of our Federal Government.”20 Among its reforms,

the WPA enhanced the independence, authorities, and responsibility of the Special Counsel in

investigating retaliation against whistleblowers; provided whistleblowers with a private right of

action before the MSPB; and eased the burden on employees to prove retaliation for

whistleblowing.21

In 2012, Congress amended the WPA through the Whistleblower Protection Enhancement Act

(WPEA).22 The WPEA broadened the WPA in several ways, including providing protections for

employees exercising “any appeal, complaint, or grievance right” with regard to a prohibited

personnel action,23 clarifying that certain actions by employees in making a disclosure shall not

remove the protections of the WPA24 and requiring that agency nondisclosure agreements include

a specific statement informing employees of their rights.25

Although, as discussed further herein, the WPA excludes some particular categories of federal

employees, other whistleblower protection statutes provide protection in various contexts.26 For

example, whistleblower protections for intelligence community employees may be found in the

to enable them to hire and fire employees more easily.”) (citing Lisiecki v. Federal Home Loan Bank Board, 769 F.2d

1558, 1563 (Fed. Cir. 1985) (“The stated purpose of the Reform Act, however, was to give agencies greater ability and

more flexibility to remove or to discipline employees who engage in misconduct ... or whose work performance is

unacceptable.”), cert. denied, 106 S.Ct. 1514 (1986)); See also 2 MANUAL ON EMPLOYMENT DISCRIMINATION AND CIVIL

RIGHTS ACTIONS IN THE FEDERAL COURTS, MEDCRA § 10:3 (Charles R. Richey, 2023) (“When it became apparent that

the procedures under the CSRA were not systematically effective, Congress changed them by enacting the

Whistleblower Protection Act[.]”).

19 5 U.S.C. § 1201 note (Whistleblower Protection; Congressional Statement of Findings and Purpose).

20 135 Cong. Rec. 565 (1989).

21 Supra note 1.

22 Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112–199, 126 Stat. 1465–1476.

23 See 5 U.S.C. § 2302(b)(9).

24 See id. § 2302(f)(1):

A disclosure shall not be excluded from subsection (b)(8) because—(A) the disclosure was made to a supervisor

or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by

subsection (b)(8)(A)(i) and (ii); (B) the disclosure revealed information that had been previously disclosed; (C) of

the employee’s or applicant’s motive for making the disclosure; (D) the disclosure was not made in writing; (E)

the disclosure was made while the employee was off duty; (F) the disclosure was made before the date on which

the individual was appointed or applied for appointment to a position; or (G) of the amount of time which has

passed since the occurrence of the events described in the disclosure.

An amendment in 2017 added Subparagraph (F) and redesignated former Subparagraph (F) as (G). See National

Defense Authorization for Fiscal Year 2018, Pub. L. No. 115–91, § 1097(c)(1)(B)(i), 131 Stat. 1283 (2017).

25 See 5 U.S.C. § 2302(b)(13).

26 For a detailed compilation of whistleblower protection statutes involving public- and private-sector employees, see

CRS Report R46979, Compilation of Federal Whistleblower Protection Statutes, by Andrea M. Muto (2024).

Congressional staff may obtain additional guidance for working with whistleblowers and sector-specific fact sheets,

among other resources, from the Whistleblower Ombuds. See Office of Whistleblower Ombuds, Resource Library,

https://whistleblower.house.gov/resources/all-resources (last visited Nov. 8, 2024).

Congressional Research Service

3

The Whistleblower Protection Act (WPA): A Legal Overview

Intelligence Community Whistleblower Protection Act, among other authorities.27 Members of

the armed forces are covered by the Military Whistleblower Protection Act.28 Additionally, some

legislative branch employees, such as congressional staff, have disclosure protections under the

Congressional Accountability Act, which prohibits intimidation of or reprisal against a covered

employee for reporting certain misconduct, such as an unsafe workplace or discrimination.29

Overview of the WPA

Congress’s stated purpose in enacting the WPA was to strengthen and improve whistleblower

protections for federal employees by “mandating that employees should not suffer adverse

consequences as a result of prohibited personnel practices[.]”30 In practical terms, the WPA’s

protections from retaliation are available only when certain elements are satisfied. To trigger the

application of the WPA, an employee must be in a covered position and a prohibited personnel

action must have been taken against the federal employee because of the individual’s protected

disclosure.31

OSC receives and investigates complaints of prohibited personnel actions arising under the WPA.

It has the authority to take such actions as it deems appropriate, such as petitioning the MSPB to

stay proceedings or to take corrective actions, and seeking disciplinary action against employees

who have allegedly engaged in retaliation.32 In accordance with the procedures described in this

report, the MSPB may order such corrective action as it considers appropriate if the Special

Counsel or the employee demonstrates that the disclosure was a contributing factor in the

personnel action.33 Additionally, the WPA provides an individual right of action for individuals to

seek review of a whistleblower reprisal case by the MSPB if OSC terminates its related

investigation or if 120 days have elapsed since the individual first sought corrective action from

OSC.34 An employee or applicant for employment may also include allegations of a prohibited

personnel practice as an affirmative defense in an appeal to the MSPB of adverse agency actions

made appealable under any law, rule, or regulation.35

Section 2302(b) of Title 5 of the U.S. Code contains the primary elements of a protected

disclosure and a prohibited personnel practice under the WPA.36 Section 2302(b) prohibits a

federal employee “who has authority to take, direct others to take, recommend, or approve any

27 See Title VII of the Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105–272, §§ 701–702, 112 Stat.

2396, codified in 5 U.S.C. App. § 3 § 8H, 50 U.S.C. § 3033, and 50 U.S.C. § 3517. See also CRS Report R45345,

Intelligence Community Whistleblower Provisions: A Legislative History, by Michael E. DeVine (2024).

28 See 10 U.S.C. § 1034.

29 See 2 U.S.C. § 1317; see also Office of Whistleblower Ombuds, Legislative Branch Whistleblowing Fact Sheet,

https://whistleblower.house.gov/sites/evo-subsites/whistleblower-evo.house.gov/files/

Legislative_Branch_Whistleblower_Fact_Sheet.pdf (last visited Nov. 8, 2024).

30 5 U.S.C. § 1201 note (Whistleblower Protection; Congressional Statement of Findings and Purpose).

31 See, e.g., Briley v. Nat’l Archives & Recs. Admin., 236 F.3d 1373, 1378 (Fed. Cir. 2001) (“To establish a prima

facie case of retaliation for whistleblowing activity, an employee must show both that she engaged in whistleblowing

activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8) and that the protected disclosure was a

contributing factor in a personnel action.”). See also Mikhaylov v. Dep’t of Homeland Sec., 62 F.4th 862, 867 (4th Cir.

2023).

32 5 U.S.C. §§ 1211–1215.

33 Id. § 1214(b)(4), 1221(e). See also Mikhaylov, 62 F.4th at 864.

34 5 U.S.C. §§ 1214(a)(3), 1221. See also Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370 (Fed. Cir. 2016).

35 5 U.S.C. § 7701(c)(2)(B). See also Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012).

36 See 5 U.S.C. § 2302(b).

Congressional Research Service

4

The Whistleblower Protection Act (WPA): A Legal Overview

personnel action” from engaging in specified “prohibited personnel practices.”37 Section

2302(b)(8) states that an employee with such authority shall not

take or fail to take, or threaten to take or fail to take, any personnel action against any

employee or applicant for employment because of—

(A) any disclosure of information by an employee or applicant which the employee or

applicant reasonably believes evidences—

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is

not specifically required by Executive order to be kept secret in the interest of

national defense or the conduct of foreign affairs[.]38

Additionally, Sections 2302(b)(8)(B) and (C), respectively, provide protections from retaliation

for any such disclosures to OSC or to the Inspector General (IG) of an agency (or other employee

designated by the agency head to receive disclosures) or to Congress or a committee.39

In addition to the prohibitions in Paragraph 8, Paragraph 9 of Section 2302(b) prohibits retaliation

against an employee or applicant for exercising his or her legal rights in relation to a protected

disclosure.40 In other words, while Paragraph 8 provides protection for disclosures, Paragraph 9

protects activities related to making disclosures, such as filing complaints, testifying, or

cooperating with investigators.41 For example, Section 2302(b)(9)(A) states that an employee

with authority over personnel shall not retaliate against an employee or applicant for employment

because of his or her “exercise of any appeal, complaint, or grievance right granted by any law,

rule or regulation” for either remedying a violation of Section 2302(b)(8) or otherwise.42

Covered Positions Under the WPA

The protections afforded by the WPA are available only to individuals who are employed in or are

applicants for federal civil service positions in agencies not exempted by the Act.43 In general, a

37 Id. In addition to retaliation against government whistleblowers, 5 U.S.C. § 2302 proscribes other activities known

collectively as “prohibited personnel practices” or PPPs. “Prohibited personnel practices (PPPs) are employmentrelated activities that are banned in the federal workforce because they violate the merit system through some form of

employment discrimination, retaliation, improper hiring practices, or failure to adhere to laws, rules, or regulations that

directly concern the merit system principles.” See U.S. Office of Special Counsel, Prohibited Personnel Practices

Overview, https://osc.gov/Services/Pages/PPP.aspx#tabGroup16 (last visited Nov. 8, 2024).

38 5 U.S.C. § 2302(b)(8)(A). See also Mikhaylov, 62 F.4th at 864.

39 5 U.S.C. § 2302(b)(8)(B). See also Ayers v. Dep’t of Army, 123 M.S.P.R. 11, 17 (M.S.P.B. Nov. 2, 2015).

The WPA provides protections from employment retaliation if such a disclosure to Congress is not classified or, “if

classified—(I) [it] has been classified by the head of an agency that is not an element of the intelligence community (as

defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and (II) [it] does not reveal intelligence

sources and methods.” See 5 U.S.C. § 2302(b)(8)(C).

40 5 U.S.C. § 2302(b)(9). See also Whitmore, 680 F.3d at 1364.

41 See 5 U.S.C. § 2302(b)(9).

42 Id. Also, Section 2302(b)(9)(B)–(D) provides protection from retaliation for testifying for or otherwise lawfully

assisting any individual in the exercise of whistleblower rights, cooperating with or disclosing information to OSC or

an IG, or refusing to obey an order that would require the individual to violate a law, rule, or regulation.

43 5 U.S.C. § 2302(a)(2)(A) (Prohibited personnel actions may not be taken “with respect to an employee in, or

applicant for, a covered position in an agency and in the case of an alleged prohibited personnel practice described in

(continued...)

Congressional Research Service

5

The Whistleblower Protection Act (WPA): A Legal Overview

“covered position”44 means (1) any position in the competitive service,45 (2) a career appointee

position in the Senior Executive Service,46 or (3) a position in the excepted service.47 Coverage is

not extended to any position “excepted from the competitive service because of its confidential,

policy-determining, policy-making, or policy-advocating character” or any position excluded by

the President based on a determination that it is “necessary and warranted by conditions of good

administration.”48

Agencies Covered by the WPA

An “agency” for purposes of the WPA is defined as an “executive agency and the Government

Publishing Office.”49 An “executive agency” under Title 5 means “an Executive department, a

Government corporation, and an independent establishment.”50 Accordingly, the WPA does not

cover employees of or applicants to the judicial and legislative branches with the exception of the

Government Publishing Office, which is specifically listed.51 Similarly, the WPA does not cover

employees of or applicants to government contractors.52

subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of

title 31”).

44 5 U.S.C. § 2302(a)(2)(B).

45 The “competitive service,” sometimes referred to as the “classified civil service” or “classified service,” consists of

all civil service positions in the executive branch, except (1) positions that are specifically excepted from the

competitive service by or under statute; (2) positions to which appointments are made by nomination for confirmation

by the Senate, unless the Senate otherwise directs; and (3) positions in the Senior Executive Service. The competitive

service also includes civil service positions not in the executive branch that are specifically included by statute and

positions in the District of Columbia government that are specifically included by statute. See generally 5 U.S.C. §

2102.

46 The “Senior Executive Service” consists generally of agency positions that are classified above GS-15 pursuant to 5

U.S.C. § 5108 or in level IV or V of the Executive Schedule in which an employee engages in specified activities, such

as directing the work of an organizational unit or exercising important policymaking or executive functions. See 5

U.S.C. § 3132(a)(2). See also CRS In Focus IF11743, The Senior Executive Service: An Overview, by Maeve P. Carey

(2021).

47 The “excepted service,” sometimes referred to as the “unclassified civil service” or “unclassified service,” consists of

those civil service positions that do not confer competitive status. 5 U.S.C. § 2103(a). See also OFF. OF PERSONNEL

MGMT., Types of Hires, https://www.opm.gov/policy-data-oversight/hiring-information/types-of-hires/ (last visited

Nov. 12, 2024).

48 5 U.S.C. § 2302(a)(2)(B). See also Stanley v. Gonzales, 476 F.3d 653, 655 (9th 2007) (referring to the Attorney

General’s reclassification of the United States Trustee position due to its “confidential, policy-determining, policymaking, or policy-advocating character” and exempting such employees from administrative review of adverse

employment decisions under 5 U.S.C. § 7511).

49 5 U.S.C. § 2302(a)(2)(C).

50 5 U.S.C. § 105. “Government corporation” is defined as “a mixed-ownership Government corporation and a wholly

owned Government corporation.” See 31 U.S.C. § 9101.

51 See Hartman v. Merit Sys. Prot. Bd., 77 F.3d 1378, 1381 (Fed. Cir. 1996) (“Federal courts are not ‘an Executive

agency’ under Title 5”). See also Semper v. United States, 100 Fed. Cl. 621, 628–29 (2011).

OSC provides a list of entities and agencies for which OSC cannot generally obtain corrective action, including privatesector employers, federal contractors, state or local government employers, federal legislative or judicial branch

employers, and various excepted executive branch agencies. See U.S. Office of Special Counsel, Who Can File a

Prohibited Personnel Practices Complaint?, https://osc.gov/Services/Pages/PPP-WhoCanFile.aspx (last visited Nov. 4,

2024).

52 But see Abernathy v. Dep’t of the Army, 2022 MSPB 37, at *2–3 (M.S.P.B. Nov. 15, 2022) (holding that the Board

had jurisdiction to consider a contractor employee’s whistleblower reprisal claim even though he was not a federal

employee, because he was an applicant denied employment with a federal agency).

Whistleblower rights for employees of federal contractors and grantees are generally codified at 41 U.S.C. § 4712.

(continued...)

Congressional Research Service

6

The Whistleblower Protection Act (WPA): A Legal Overview

Additionally, the WPA carves out specific government entities from the definition of “agency” in

Title 5, Section 2302, of the U.S. Code.53 The Act explicitly does not apply to individuals

employed by (1) the Federal Bureau of Investigation,54 the Central Intelligence Agency, the

Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security

Agency, the Office of the Director of National Intelligence, and the National Reconnaissance

Office; (2) any executive agency or unit thereof the principal function of which is the conduct of

foreign intelligence or counterintelligence activities, as determined by the President, provided that

the determination be made prior to a personnel action; or (3) the Government Accountability

Office.55

The Board has made several decisions interpreting the WPA’s definitions of agencies and

employees in Title 5, Section 2302, of the U.S. Code. For example, the Board has found that the

Smithsonian Institution is an “independent establishment” of the federal government and

therefore is a covered agency for purposes of the WPA.56 The Board has found that the United

States Postal Service does not fall under the definition of “agency” in the WPA due to the

agency’s exclusion from the definition of “independent establishment” in Title 5, Section 104, of

the U.S. Code.57 While uniformed members of the military are in positions outside of the federal

civil service defined by Title 5 and are therefore excluded from the WPA,58 Department of

Defense civilian employees of agencies may be covered if the agencies have not been explicitly

exempted by the President or a lawful delegate as principally conducting “foreign intelligence or

counterintelligence activities.”59 National Guard technicians, as employees for both state national

guards and employees of the federal government, have been deemed as employed “in an agency,”

but their coverage under the WPA is restricted by the National Guard Technicians Act.60

Section 4712(a)(1) provides that an employee of a contractor or grantee “may not be discharged, demoted, or otherwise

discriminated against as a reprisal for disclosing” information that the employee reasonably believes is evidence of

gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health

or safety, or a violation of law, rule, or regulation related to a Federal contract. Similar whistleblower rights and

procedures for Department of Defense and National Aeronautics and Space Administration contractors and grantees are

codified at 10 U.S.C. § 4701.

53 5 U.S.C. § 2302(a)(2)(C)(i)–(iii).

54 See id. § 2303 (providing “[a]ny employee of the Federal Bureau of Investigation who has authority to take, direct

others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take

a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure

of information ... ”).

55 The definition of “agency” in 5 U.S.C. § 2302(a)(2)(C) also excludes government corporations with regard to other

prohibited personnel actions; however, the exclusion does not apply in cases involving prohibited personnel practices

against whistleblowers. See id. § 2302(a)(2)(C)(i).

56 See Pessa v. Smithsonian Inst., 60 M.S.P.R. 421 (M.S.P.B. Jan. 4, 1994).

57 See Booker v. Merit Sys. Prot. Bd., 982 F.2d 517, 519 (Fed. Cir. 1992).

58 See 5 U.S.C. § 101 (“the ‘civil service’ consists of all appointive positions in the executive, judicial, and legislative

branches of the Government of the United States, except positions in the uniformed services”).

59 See Czarkowski v. Merit Sys. Prot. Bd., 390 F.3d 1347 (Fed. Cir. 2004) (holding that the exemption determination in

5 U.S.C. § 2302(a)(2)(C)(ii)(II) can be made only by the President or his lawful delegate and “therefore the Board

cannot impute determinations of exempted units to the President, or his delegate, by interpreting documentary evidence

that may tend to show that an agency principally functions as an intelligence unit” with regard to Department of the

Navy Office of Special Projects employee).

60 See Ockerhausen v. State of N.J. Dept. of Military Veterans Affairs, 52 M.S.P.R. 484, 488–89 (M.S.P.B. Jan. 24,

1992); see also Singleton v. Merit Sys. Prot. Bd., 244 F.3d 1331, 1334 (Fed. Cir. 2001). For additional information

regarding the dual status of National Guard technicians, see CRS Legal Sidebar LSB11005, Supreme Court Holds That

Federal Labor Relations Authority Has Jurisdiction to Regulate State National Guards, by Jimmy Balser (2023).

Congressional Research Service

7

The Whistleblower Protection Act (WPA): A Legal Overview

Applicants for Employment and Former Employees

As previously described, the WPA does not apply only to current employees at a covered agency.

The statute specifically refers to protected disclosures as those made “by an employee or

applicant.”61 Mere nonselection for a position may be retaliation under the WPA because the

statute prohibits a federal agency from “tak[ing] or fail[ing] to take” a personnel action.62 Courts

have found that nonselection of an applicant for a position for which a job posting is ultimately

taken down may qualify as retaliation under the statute.63

Former employees can also invoke the WPA.64 While Title 5, Section 2302, of the U.S. Code

refers only to employees and applicants for employment, provisions regarding the authority of the

Special Counsel to investigate whistleblower claims and the WPA’s individual right of action

refer to “former employees.”65 The Board has held that an individual need not be an employee or

applicant for a covered position at the time a protected disclosure was made in order to qualify for

WPA protection.66

Protected Disclosures

The WPA generally protects disclosures of information that a covered employee “reasonably

believes” evidence behavior of “a violation of law, rule, or regulation” or “gross mismanagement,

a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health

or safety.”67 Whether an individual had such a reasonable belief is determined by an objective

test.68 A belief that wrongdoing has occurred is a “reasonable belief” when “a disinterested

observer with knowledge of the essential facts known to and readily ascertainable by the

employee could reasonably conclude” that the agency’s actions evidence wrongdoing as defined

by the WPA.69

A protected “disclosure” under the WPA is defined as “a formal or informal communication or

transmission[.]”70 A disclosure does not include “a communication concerning policy decisions

that lawfully exercise discretionary authority” unless the disclosing employee reasonably believes

that the disclosure evidences “a violation of law, rule, regulation” or “gross mismanagement, a

61 5 U.S.C. § 2302(b)(8), (9).

62 See Ruggieri v. Merit Sys. Prot. Bd., 454 F.3d. 1323 (Fed. Cir. 2006); see also King v. Dep’t of the Army, 570 Fed.

Appx. 863, 865 (11th Cir. 2014) (applying the WPA to an applicant).

63 See Ruggieri, 454 F.3d. 1323.

64 See 5 U.S.C. § 1221(a); see also 5 U.S.C. § 1213.

65 For example, 5 U.S.C. § 1221(a) states that “an employee, former employee, or applicant for employment may ... as

a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D),

seek corrective action from the Merit Systems Protection Board.”

66 See Abernathy, 2022 MSPB 37 at *3 (citing Board precedent that, at the time of making a disclosure, an individual

need not be an employee or applicant for employment at the agency that eventually took the alleged retaliatory

employment action in order to qualify for protection under the WPA); see also Guzman v. Off. of Pers. Mgmt., 53 F.

App’x 927, 929 (Fed. Cir. 2002) (holding that an individual was not an employee or applicant for employment both

when she made the disclosure and when OPM allegedly took, or failed to take, a personnel action with respect to her,

and thus the administrative judge correctly held that she had no cause of action under the WPA).

67 5 U.S.C. § 2302(b)(8)(A).

68 Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328 (Fed. Cir. 2020).

69 5 C.F.R. § 1209.4(f) (1990); see also Edenfield v. Dep’t of Veterans Affs., 54 F.4 th 1357, 1359 (Fed. Cir. 2022).

70 5 U.S.C. § 2302(a)(2)(D).

Congressional Research Service

8

The Whistleblower Protection Act (WPA): A Legal Overview

gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or

safety.”71

Recognizing that “it is critical that employees know that the protection for disclosing wrongdoing

is extremely broad,” in passing the WPEA in 2012, Congress broadened and clarified the

circumstances in which disclosures would still be protected despite variations in the methods of

disclosure.72 For example, the WPEA amended Section 2302(b)(8) by broadening protections to

any disclosures of information an employee reasonably believes evidences “any violation of any

law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety.”73 The WPEA also clarifies that, so

long as a disclosure is otherwise covered by the Act, the WPA’s protections continue to apply

even when

•

•

•

•

•

•

•

the disclosure was made to a supervisor or individual who participated in the

activity that is the subject of the disclosure;

the disclosure reveals information that has been previously disclosed;

the employee’s motive for making the disclosure is questionable;

the disclosure was not made in writing;

the disclosure was made while the employee was off duty;

the disclosure was made before the date on which the individual was appointed

or applied for appointment to a position; or

time has passed since the occurrence of the events described in the disclosure.74

Some of these statutory clarifications in the WPEA were specifically aimed at altering the legal

outcomes of prior case holdings regarding the scope of protected disclosures. For example, the

clarification found in Title 5, Section 2302(f)(1)(A), of the U.S. Code—that the disclosure may be

made to a supervisor or to a person who participated in the activity at issue—reacted to the U.S.

Court of Appeals for the Federal Circuit’s holding in Huffman v. Office of Personnel

Management.75 In Huffman, the court had held that “[w]hen an employee reports or states that

there has been misconduct by a wrongdoer to the wrongdoer, the employee is not making a

‘disclosure’ of misconduct.”76 Subsequent to the WPEA, courts have recognized the holding in

Huffman as superseded by statute.77

In another example of a clarification made by the WPEA in response to caselaw, Title 5,

Section 2302(f)(1)(B), of the U.S. Code states that a disclosure shall not be excluded from

71 Id.

72 P.L. 112-199, 126 Stat. 1465–1476 (2012). See also S. REP. NO. 112–155, at 4–5 (2012), as reprinted in 2012

U.S.C.C.A.N. 589 (“Despite the clear legislative history and the plain language of the 1994 amendments, the Federal

Circuit and the MSPB have continued to undermine the WPA’s intended meaning by imposing limitations on the kinds

of disclosures by whistleblowers that are protected under the WPA. [The Whistleblower Protection Enhancement Act

of 2012] makes clear, once and for all, that Congress intends to protect ‘any disclosure’ of certain types of wrongdoing

in order to encourage such disclosures.”).

73 See Mudd v. Dep’t of Veterans Affs., 120 M.S.P.R. 365, 369 n.3 (M.S.P.B. Nov. 19, 2013) (emphasis added).

74 5 U.S.C. § 2302(f)(1). A disclosure that evidences “censorship related to research, analysis, or technical information”

is also protected to the same extent as other disclosures under the Act. See id. § 2302 note (P.L. 112-199, § 110(a)(3),

126 Stat. 1465, 1471 (2012)) (defining the phrase “censorship related to research, analysis, or technical information” to

mean “any effort to distort, misrepresent, or suppress research, analysis, or technical information.”).

75 Huffman v. Off. of Pers. Mgmt., 263 F.3d 1341 (Fed. Cir. 2001).

76 Id. at 1350.

77 See, e.g., Nasuti v. Merit Sys. Prot. Bd., 504 Fed. App’x. 894, 896 (Fed. Cir. 2013).

Congressional Research Service

9

The Whistleblower Protection Act (WPA): A Legal Overview

protection because “the disclosure revealed information that had been previously disclosed.”78

The Senate report for the WPEA declared that Congress’s intent in enacting this amendment was

to correct a Federal Circuit decision, Meuwissen v. Department of Interior, which held that

disclosures of information already known are not protected by the WPA.79 According to the

report, the amendment was necessary because the holding in Meuwissen was “contrary to

congressional intent” and the court “wrongly focused on whether or not disclosures of

wrongdoing were protected, instead of applying the very broad protection required by the plain

language of the WPA.”80 The report stated that “[t]he merits of these cases, instead, should have

turned on the factual question of whether personnel action at issue in the case occurred ‘because

of’ the protected disclosure.”81 Courts have acknowledged that the WPEA superseded the holding

in Meuwissen specific to disclosures of information already known.82

Content of Disclosures

The WPA generally protects employees from retaliation for disclosures of information that an

employee reasonably believes evidences behavior falling into one of two categories: (1) a

violation of any law, rule, or regulation or (2) gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health or safety.83 With regard to

the first category of disclosures—a violation of any law, rule, or regulation—an employee must

have a reasonable belief that any law, rule, or regulation was violated.84 This requirement does not

mean that a law, rule, or regulation must have actually been violated,85 nor does a whistleblower

have to show definitive proof of a violation.86 Moreover, an employee need disclose only what he

or she reasonably believes is a potential—not necessarily completed—violation to be protected by

the WPA.87 According to the Board, the potential wrongdoing must only be “real and

immediate.”88 The Board reasoned that requiring a violation of law, rule, or regulation to occur

before the employee could make a protected disclosure under the WPA would force employees

either to disclose imminent violations without the WPA’s protection or to wait for a violation to

occur and risk being held responsible.89

On the other hand, disclosures of “trivial violations” or “minor or inadvertent miscues occurring

in the conscientious carrying out of a federal official or employee’s assigned duties” do not

constitute protected disclosures.90 Furthermore, an employee who discloses only “general

78 5 U.S.C. § 2302(f)(1)(B).

79 See Meuwissen v. Dep’t of the Interior, 234 F.3d 9, 14 (Fed. Cir. 2000).

80 See S. REP. NO. 112–155, at 5 (2012), as reprinted in 2012 U.S.C.C.A.N. 589.

81 Id.

82 See, e.g., Daniels v. Merit Sys. Prot. Bd., 832 F.3d. 1949, 1055 (9th Cir. 2016).

83 5 U.S.C. § 2302(b)(8)(A).

84 See Langer v. Dep’t of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001).

85 Edenfield, 54 F.4th at 1361.

86 See Delgado v. United States Dep’t of Just., 979 F.3d 550, 555 (7th Cir. 2020) (“[A] whistleblower need not assert

that he has definitive proof of a violation of law, such that he is confident that all innocent explanations can be

refuted.”).

87 See Reid v. Merit Sys. Prot. Bd., 508 F.3d 674, 678 (Fed. Cir. 2007) (stating that “[t]he government is far better

served by having the opportunity to prevent illegal, wasteful, and abusive conduct than by notice that it may only act to

reduce the adverse consequences from such conduct that has already occurred”).

88 Id. (citing Ward v. Dep’t of the Army, 67 M.S.P.R. 482, 488–89 (M.S.P.B. May 10, 1995)).

89 See id. (stating that such a result would undermine congressional intent to encourage whistleblowing).

90 See Langer, 265 F.3d at 1266 (citing Herman v. Dep’t of Justice, 193 F.3d 1375 (Fed. Cir. 1999), in determining that

(continued...)

Congressional Research Service

10

The Whistleblower Protection Act (WPA): A Legal Overview

philosophical or policy disagreements with agency decisions or actions” is not protected by the

WPA.91

The second category of protected disclosures involves information a covered employee

reasonably believes constitutes “gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health or safety.”92 Each of these four

concepts may be distinct but may also overlap.93 Similar to the first category, a disclosure of gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific

danger to public health or safety must amount to more than just a mere difference of opinion on

policy between an employee and an agency.94

Disclosures of “gross mismanagement” (as distinguished from disclosures of violations of law)

are related to policies that may be lawful but problematic.95 The Board has described gross

management as “a management action or inaction that creates a substantial risk of significant

adverse impact on the agency’s ability to accomplish its mission.”96 Prior to the 2012

amendments in the WPEA, courts described situations of gross mismanagement as occurring

when policies are technically lawful but “when reasonable people could not debate the error in

the policy.”97 However, Congress indicated a concern that such an interpretation could cause

confusion because it “could be read to require proof that the alleged misconduct actually

occurred.”98 Therefore, the Board has clarified that a disclosure is protected as long as an

employee has a reasonable belief that the disclosed information evidences gross mismanagement

(or one of the other kinds of misconduct listed in the WPA) and does not simply reflect a policy

disagreement.99

The Board has explained that a disclosure of a “gross waste of public funds” is a “more than

debatable expenditure that is significantly out of proportion to the benefit reasonably expected to

a disagreement relating to IRS handling of pink envelopes to designate mails that are intended only for the addressee to

open did not constitute a protected disclosure).

91 See O’Donnell v. Merit Sys. Prot. Bd., 561 F. App’x. 926, 930 (Fed. Cir. 2014) (citing S. REP. NO. 112–155, at 7

(2012), as reprinted in 2012 U.S.C.C.A.N. 589).

92 5 U.S.C. § 2302(b)(8)(A)(ii). See also Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1370 (Fed. Cir. 2020)

93 See Chambers v. Dep’t of the Interior, 515 F.3d 1362, 1362–68 (Fed. Cir. 2008) (stating that the Board, in assessing

whether an employee disclosure reasonably evidenced a substantial and specific danger to public health or safety,

improperly blended concepts of gross mismanagement and risk to public safety).

94 See Fisher v. Env’t Prot. Agency, 108 M.S.P.R. 296, 303 (M.S.P.B. Mar. 6, 2008).

95 Chambers, 515 F.3d at 1368. See also Hessami, 979 F.3d at 1370.

96 Fisher, 108 M.S.P.R. at 303.

97 See White v. Dep’t of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004).

98 See Webb v. Dep’t of Interior, 122 M.S.P.R. 248 (M.S.P.B. Jan. 13, 2015); see also S. REP. NO. 112–155, at 10 n.37

(2012), as reprinted in 2012 U.S.C.C.A.N. 589. The Senate committee report for the WPEA also stated that

there should be no additional burdens imposed on the employee beyond those provided by the statute, and that this

test—that the disclosure is protected if the employee had a reasonable belief it evidenced misconduct—must be

applied consistently to each kind of misconduct and each kind of speech covered under section 2302(b)(8).

The Committee notes that the requirement that the employee need show only reasonable belief applies, as well, in

determining whether the narrow exception for policy disputes, added by S. 743, applies. In other words, if an employee

has a reasonable belief that the disclosed information evidences the kinds of misconduct listed in section 2302(b)(8),

rather than a policy disagreement, the disclosure is protected.

Id. at 10–11.

99 See Webb, 122 M.S.P.R. at 252–53 (“Based on the foregoing, consistent with congressional intent, we clarify [Board

precedent] to emphasize that if an employee has a reasonable belief that the disclosed information evidences the kinds

of misconduct listed in section 2302(b)(8), rather than a policy disagreement, it is protected.”)

Congressional Research Service

11

The Whistleblower Protection Act (WPA): A Legal Overview

accrue to the government.”100 The Board has also defined an “abuse of authority” as an “arbitrary

or capricious exercise of power by a federal official or employee that adversely affects the rights

of any person or that results in personal gain or advantage to himself or to preferred other

persons.”101

To determine whether an individual has disclosed a danger to public health and safety that is

sufficiently “substantial and specific,” the Board is guided by several factors, including (1) the

likelihood that harm will result from the danger; (2) when the alleged harm may occur; and (3)

the nature of the harm (i.e., the potential consequences).102 The Federal Circuit has stated that the

first two factors “affect the specificity of the alleged danger, while the nature of the harm—the

potential consequences—affects the substantiality of the danger.”103 As the court observed, other

forms of misconduct (e.g., gross mismanagement) may also constitute dangers to public safety,

such as in the context of federal law enforcement policy, but the factors above apply only to

assessing the danger.104 Additionally, the Board has not narrowly interpreted the term “public” in

the statute to limit the coverage of this provision to the public at large and has included

disclosures that apply to a specific class of individuals, even within the government.105

Disclosure Audiences and Exceptions

The WPA protects disclosures made to any audience, as long as disclosure of the underlying

information is not “specifically prohibited by law” or the information disclosed is not

“specifically required by Executive order to be kept secret in the interest of national defense or

the conduct of foreign affairs.”106 As such, the WPA protects those non-excepted disclosures made

not only to traditional government whistleblower audiences, but also to audiences outside of the

government, such as the news media.107

Additionally, the statutory exceptions to the WPA’s broad disclosure protections have been

interpreted narrowly. In Department of Homeland Security v. MacLean, the Supreme Court

addressed whether “Sensitive Security Information” prohibited from disclosure by agency

regulation was “specifically prohibited by law.”108 In determining that these disclosures were not

excepted by the WPA, the Court held that, “when Congress used the phrase ‘specifically

prohibited by law’ instead of ‘specifically prohibited by law, rule, or regulation,’ it meant to

exclude rules and regulations.”109 In addition, the Court held that even where there is a statutory

prohibition to disclosure, to qualify for an exception under the WPA, such a prohibition must be

specific so as not to leave any discretion to the agency.110

100 Stevens v. Merit Sys. Prot. Bd., 678 F. App’x 1014, 1017 (Fed. Cir. 2017) (citing Van Ee v. E.P.A., 64 M.S.P.R.

693, 698 (M.S.P.B. Oct. 24, 1994)).

101 Id. (citing Ramos v. Dep’t of the Treasury, 72 M.S.P.R. 235, 241 (M.S.P.B. Nov. 7, 1996)).

102 Chambers v. Dep’t of Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010).

103 Chambers, 515 F.3d at 1369. See also Hessami, 979 F.3d at 1370.

104 Chambers, 515 F.3d at 1368–69.

105 See Woodworth v. Dep’t of the Navy, 105 M.S.P.R. 456, 463–64 (M.S.P.B. Apr. 10, 2007).

106 5 U.S.C. § 2302(b)(8)(A).

107 See, e.g., Chambers, 602 F.3d at 1379 (affirming prior decision in part that disclosures to the Washington Post by

former chief of U.S. Park Police were covered by the WPA).

108 Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383 (2015).

109 See id. at 394–95.

110 Id. at 397 (rejecting the government’s contention that information “specifically prohibited” from disclosure in

Section 2302(b)(8)(A) was analogous to information “specifically exempted” from disclosure by statute under the

(continued...)

Congressional Research Service

12

The Whistleblower Protection Act (WPA): A Legal Overview

Even when the narrow statutory exceptions apply, the WPA provides protections for

whistleblowing disclosures to appropriate audiences. The WPA specifically protects any

disclosure to the Special Counsel or to the IG of an agency or another employee designated by the

head of the agency to receive such disclosures, regardless of whether the disclosures are

prohibited by law or the information is required to be kept secret by Executive Order.111

Finally, Section 2302(b)(8)(C) protects “any disclosure to Congress (including any committee of

Congress) by any employee of an agency or applicant for employment at an agency of

information” that is not classified. If the information is classified, the section protects disclosures

to Congress if the information “has been classified by the head of an agency that is not an element

of the intelligence community”112 and “does not reveal intelligence sources and methods.”113 In

addition to the WPA, several other statutory provisions address the disclosure or furnishing of

information by federal employees to Congress. The Lloyd-La Follette Act, recodified at

Section 7211 of the U.S. Code, explicitly states that agencies cannot prevent or prohibit

employees from communicating with Congress.114 Congress also regularly includes

whistleblower provisions in the annual federal government appropriations law.115 Entities and

personnel exempted from coverage under the WPA may have a dedicated statutory right to make

a disclosure to a member of Congress or congressional committee.116

Freedom of Information Act in Title 5, Section 552(B)(3), of the U.S. Code, because an agency may still retain

discretion to release information exempt under FOIA).

111 5 U.S.C. § 2302(b)(8)(B). For additional information on IGs in the federal government, including their structure,

functions, and related issues for Congress, consult CRS Report R45450, Statutory Inspectors General in the Federal

Government: A Primer, by Ben Wilhelm (2023).

112 “Intelligence Community,” as defined by Section 3 of the National Security Act of 1947, includes the Office of the

Director of National Intelligence; the Central Intelligence Agency; the National Security Agency; the Defense

Intelligence Agency; the National Geospatial-Intelligence Agency; the National Reconnaissance Office; other offices

within the Department of Defense for the collection of specialized national intelligence through reconnaissance

programs; the intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Space Force, the Coast

Guard, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Department of Energy; the

Bureau of Intelligence and Research of the Department of State; the Office of Intelligence and Analysis of the

Department of the Treasury; the Office of Intelligence and Analysis of the Department of Homeland Security; and

“such other elements of any department or agency as may be designated by the President, or designated jointly by the

Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence

community.” See 50 U.S.C. § 3003.

113 5 U.S.C. § 2302(b)(8)(C).

114 Pub. L. No. 62-336, § 6, 37 Stat. 539, 555 (1912) (“The right of persons employed in the civil service of the United

States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to

either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.”). For more

information on the history of the Lloyd-La Follette Act, see Louis Fisher, Invoking Executive Privilege: Navigating

Ticklish Political Waters, 8 WM. & MARY BILL OF RIGHTS J. 583, 623–25 (2000).

115 See, e.g., Further Consolidated Appropriations Act, 2024, P.L. 118-47, div. B, tit. VII, §§ 713 (2024) (“No part of

any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or

employee of the Federal Government, who prohibits or prevents, or attempts or threatens to prohibit or prevent, any

other officer or employee of the Federal Government from having any direct oral or written communication or contact

with any Member, committee, or subcommittee of the Congress ... ”). See also U.S. GOV’T ACCOUNTABILITY OFFICE,

GAO-15-303SO, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW: ANNUAL UPDATE OF THE THIRD EDITION, at 4-39 (3d

ed., March 2015) (“Since 1998, annual appropriations acts each year have contained a government-wide prohibition on

the use of appropriated funds to pay the salary of any federal official who prohibits or prevents another federal

employee from communicating with Congress.”).

116 See, e.g., 41 U.S.C. § 4712 (providing whistleblower protections for most federal contractors, subcontractors, and

grantees, prohibits reprisal for disclosing to “[a] Member of Congress or a representative of a committee of

Congress.”).

Congressional Research Service

13

The Whistleblower Protection Act (WPA): A Legal Overview

Notwithstanding the existence of these statutory provisions, the executive branch has long taken

the view that agency officials have the authority to control rank-and-file employees’ ability to

disclose information directly to Congress.117 The courts have at times been reluctant to resolve the

tension between the presidential interest in control of executive branch employees and

communications and Congress’s authority to obtain information.118 To further clarify Congress’s

intent in protecting disclosures even where they may be in conflict with agency policies, the

WPEA prohibits an agency from implementing or enforcing a nondisclosure agreement that does

not contain the following statement: “These provisions are consistent with and do not supersede,

conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing

statute or Executive order relating to (1) classified information, (2) communications to Congress,

(3) the reporting to an IG of a violation of any law, rule, or regulation, or mismanagement, a gross

waste of funds, an abuse of authority, or a substantial and specific danger to public health or

safety, or (4) any other whistleblower protection.”119

The Supreme Court has recognized First Amendment protections for disclosures by government

employees that must be balanced with the federal government’s interest in regulating employees’

words and actions.120 When employees speak in the course of their official duties, they are

generally speaking on behalf of the government, and the government can accordingly control

their speech.121 However, in Pickering v. Board of Education, the Supreme Court emphasized that

when public employees speak as citizens, they do not completely “relinquish the First

Amendment rights they would otherwise enjoy” to discuss public issues, including matters related

to the offices where they work.122 The Court said that to analyze the constitutionality of a

restriction on an employee’s speech, a reviewing court should balance the interests of the

employee, “as a citizen, in commenting upon matters of public concern,” against “the interest of

the State, as an employer, in promoting the efficiency of the public services it performs through

its employees.”123 Therefore, in some cases, the First Amendment may protect whistleblowers

against retaliation when they speak about government misconduct.124 However, when a

government employee exposing governmental inefficiency and misconduct does so in furtherance

of his or her official duties, the Court has held that restricting employee speech under such

circumstances does not infringe the First Amendment.125 As such, the First Amendment will not

always cover a federal employee’s speech, even when the employee perceives the speech to be a

117 See Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, 28 Op. O.L.C.

79 (2004), available at https://www.justice.gov/sites/default/files/olc/opinions/2004/05/31/op-olc-v028-p0079.pdf.

118 For a discussion of the tension between executive privilege and congressional oversight authority and relevant

caselaw, refer to CRS Report RL30240, Congressional Oversight Manual, coordinated by Ben Wilhelm, Todd Garvey,

and Christopher M. Davis (2022).

119 See 5 U.S.C. § 2302(b)(13).

120 Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

121 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“When a citizen enters government service, the citizen by necessity

must accept certain limitations on his or her freedom. Government employers, like private employers, need a

significant degree of control over their employees’ words and actions; without it, there would be little chance for the

efficient provision of public services.”)

122 See Pickering, 391 U.S. at 568.

123 Id.

124 See, e.g., Hufford v. McEnaney, 249 F.3d 1142, 1150 (9 th Cir. 2001) (“[A]n employer who discharges an employee

in retaliation for legitimate whistleblowing does so in violation of the employee’s clearly established First Amendment

rights.”)

125 See Garcetti, 547 U.S. at 421–22 (distinguishing a federal employee expressing his views in a memorandum to his

supervisor pursuant to his official duties from the expressions made by the speaker in Pickering, “whose letter to the

newspaper had no official significance.”).

Congressional Research Service

14

The Whistleblower Protection Act (WPA): A Legal Overview

protected whistleblower disclosure, leaving whistleblowers who do not meet the parameters of

the WPA limited legal recourse against retaliation.

Disclosures to OSC

In addition to investigating retaliation claims, OSC also serves as a secure channel to directly

receive disclosures of wrongdoing. Congress stated in its passage of the WPA that the primary

role of OSC is to protect employees, especially whistleblowers, from prohibited personnel

practices; that OSC shall act in the interests of employees who seek assistance; and that while

disciplining those who commit prohibited personnel practices may be used as a means by which

to help accomplish that goal, the protection of individuals who are the subject of prohibited

personnel practices remains the paramount consideration.126 To accomplish this purpose, the WPA

made OSC an independent agency from the MSPB and established new authorities and

responsibilities, including procedures for disclosures of information about violations of laws and

regulations, gross mismanagement, wastes of funds, abuses of authority, and specific dangers to

the public health and safety.127

The WPA requires that whenever the Special Counsel receives information describing a

disclosure,128 within 45 days the Special Counsel shall determine whether there is a substantial

likelihood that the information discloses either (1) a violation of any law, rule, or regulation or (2)

gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger

to public health and safety.129 If the Special Counsel makes a positive determination, the Special

Counsel must promptly transmit the information with respect to which the determination was

made to the appropriate agency head and require that the agency head conduct an investigation

and submit a written report of the results to the Special Counsel within 60 days (or a longer

period agreed to by the Special Counsel).130 These reports, reviewed and signed by the agency

head, must include

(1) a summary of the information with respect to which the investigation was initiated; (2)

a description of the conduct of the investigation; (3) a summary of any evidence obtained

from the investigation; (4) a listing of any violation or apparent violation of any law, rule,

or regulation; and (5) a description of any action taken or planned as a result of the

investigation, such as changes in agency rules, regulations, or practices; the restoration of

any aggrieved employee; disciplinary action against any employee; and referral to the

Attorney General of any evidence of a criminal violation.131

The Special Counsel is required to review the agency’s report and submit it to the President and

the congressional committees with jurisdiction over the agency involved with the disclosure.132

The identity of the complaining employee may not be disclosed without the employee’s consent,

unless the Special Counsel determines that disclosure is necessary to avoid imminent danger to

126 Supra note 1.

127 Id.

128 This includes whistleblower information described in U.S. Code, Title 5, Section 2302(b)(8), Subparagraphs (A) and

(B), but not Subparagraph (C), relating to other disclosures to Congress. See 5 U.S.C. § 1213(a).

129 Id. § 1213.

130 Id. § 1213(c)(1). The Special Counsel may require an agency head to conduct an investigation and submit a written

report only if the information was transmitted to the Special Counsel by (1) an employee, former employee, or

applicant for employment in the agency which the information concerns; or (2) an employee who obtained the

information in connection with the performance of the employee’s duties and responsibilities. See id. § 1213(c)(2).

131 Id. § 1213(d).

132 Id. § 1213(e)(3).

Congressional Research Service

15

The Whistleblower Protection Act (WPA): A Legal Overview

health and safety or an imminent criminal violation.133 If the Special Counsel does not make a

positive determination that there is substantial likelihood of a violation, the Special Counsel may

transmit the information to the agency head only with the consent of the individual who disclosed

the information.134 In addition, if the Special Counsel receives the information from an individual

other than an employee, a former employee, an applicant for employment in the agency that the

information concerns, or an employee who obtained the information acting within the scope of

employment, the Special Counsel has discretion over the decision to transmit the information to

the appropriate agency head.135

The Special Counsel is required to publish records of its investigations—subject to confidentiality

requirements and other provisions of law requiring that information be kept secret in the interest

of national defense or the conduct of foreign affairs.136

Personnel Actions

The WPA prohibits a government employee with authority over personnel from taking or failing

to take a “personnel action” because of a protected disclosure made by a covered employee.137

The term “personnel action” encompasses a wide range of actions by an agency, including

(1) an appointment; (2) a promotion; (3) an action under chapter 75 of title 5, U.S. Code,

or other disciplinary or corrective action; (4) a detail, transfer, or reassignment; (5) a

reinstatement; (6) a restoration; (7) a reemployment; (8) a performance evaluation under

chapter 43 of title 5, U.S. Code; (9) 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; (10) a decision to order psychiatric testing or examination; (11) the

implementation or enforcement of any nondisclosure policy, form, or agreement; and (12)

any other significant change in duties, responsibilities, or working conditions. 138

The list covers a broad range of personnel-related activity and includes the catch-all provision of

“any other significant change in duties, responsibilities, or working conditions,” as distinguished

from routine changes.139 However, courts have repeatedly held that a denial or revocation of a

security clearance is not a covered “personnel action” and is therefore outside of the Board’s

jurisdiction.140 The Federal Circuit has also held that personnel investigations are outside the

scope of personnel actions authorized for relief under the WPA, since Congress intentionally

excluded them from the list of qualifying personnel actions specified in Section 2302(a)(2)(A).141

133 Id. § 1213(h).

134 Id. § 1213(g)(2).

135 Id. § 1213(g)(1).

136 Id. § 1219. The Office of Special Counsel publishes “Public Files” online at https://osc.gov/PublicFiles (last visited

Nov. 11, 2024).

137 5 U.S.C. § 2302(a)(2)(A).

138 Id. § 2302(a)(2)(A).

139 See Jones v. Merit Sys. Prot. Bd., 103 F.4th 984, 1005 (4th Cir. 2024).

140 See, e.g., Hesse v. Dep’t of State, 217 F.3d 1372 (Fed Cir. 2000) (citing Dep’t of the Navy v. Egan, 484 U.S. 818

(1988)). See also Campbell v. McCarthy, 952 F.3d 193, 204–05 (4th Cir. 2020).

Adverse actions under Chapter 75 of Title 5 of the U.S. Code include removals, suspensions, reductions in grade or

pay, and furloughs. See id. §§ 7501–7543.

141 See Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 955–56 (Fed. Cir. 2020) (holding employee failed to establish

that an allegedly retaliatory investigation for whistleblowing activities created a hostile work environment so as to

(continued...)

Congressional Research Service

16

The Whistleblower Protection Act (WPA): A Legal Overview

An employee may receive fees and costs incurred due to an agency investigation “if such

investigation was commenced, expanded, or extended in retaliation for the disclosure ... that

formed the basis of the corrective action.”142

Establishment of a WPA Retaliation Claim

As discussed above, to bring a successful claim for retaliation under the WPA, a covered

employee must have made a qualifying protected disclosure that subjected the individual to a

personnel action. For such a claim to prevail before the Board, in addition to establishing the

previously discussed elements, the employee must establish by a preponderance of the evidence

that a protected disclosure was also a contributing factor in an adverse personnel action.143 A

“contributing factor” is defined as one that “affects an agency’s decision to threaten, propose,

take, or not take a personnel action with respect to the individual making the disclosure.”144

Furthermore, courts have stated that a “contributing factor” means “any factor which, alone or in

connection with other factors, tends to affect in any way the outcome of the decision.”145 In other

words, to prevail on the merits of a WPA retaliation claim before the MSPB, a proponent must

show by a preponderance of the evidence that the acting official took the personnel action

because of the protected disclosure in part or in whole.146

The employee may prove to the Board that a protected disclosure was a contributing factor in a

personnel action by means of circumstantial evidence, “such as evidence that—(A) the official

taking the personnel action knew of the disclosure or protected activity; and (B) the personnel

action occurred within a period of time such that a reasonable person could conclude that the

disclosure or protected activity was a contributing factor in the personnel action.”147 This

qualify as a personnel action under the catch-all provision for significant changes to working conditions); but see

Manivannan v. Dep’t of Energy, 42 F.4th 163, 173 (3d Cir. 2022) (holding that “extreme circumstances,” such as

placing an employee on leave and beginning removal proceedings, resulting from an internal investigation constituted a

significant change in working conditions, thus qualifying as a personnel action under the statute).

142 5 U.S.C. § 1214.

143 5 U.S.C. § 1214(b)(4)(B); see also Flynn v. Sec. & Exch. Comm’n, 877 F.3d 200, 204 (4 th Cir. 2017) (“When a

whistleblower claims an agency took an impermissible personnel action, the Merit Systems Protection Board evaluates

the case using a burden-shifting framework. First, the employee must establish a prima facie case by demonstrating

four facts: ‘(1) the acting official has the authority to take, recommend, or approve any personnel action; (2) the

aggrieved employee made a protected disclosure; (3) the acting official used his authority to take, or refuse to take, a

personnel action against the aggrieved employee; and (4) the protected disclosure was a contributing factor in the

agency’s personnel action.’ The petitioner bears the burden of proof by a preponderance of the evidence. If the

petitioner establishes a prima facie case, the burden shifts to the agency to show ‘by clear and convincing evidence that

it would have ... taken ... the same personnel action in the absence of the disclosure.’ ”) (internal citations omitted)

(citing Chambers v. Dep’t of Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010)).

144 5 C.F.R. § 1209.4(d).

145 See Marano v. Dep’t of Just., 2 F.3d 1137, 1140 (Fed. Cir. 1993) (quoting the legislative history of the WPA).

146 See Murray v. UBS Securities, LLC, 601 U.S. 23, 28 (2024) (holding that a Sarbanes-Oxley Act provision based on

the WPA framework requires an employee must prove that their disclosure was a contributing factor in the personnel

action, but need not prove that the employer acted with “retaliatory intent.”). In Murray, the Court cited the

congressional record for the proposition that in passage of the WPA’s contributing factor requirement, “[t]he

framework was meant to relieve whistleblowing employees of the ‘excessively heavy’ burden’ under then-existing law

of showing that their protected activity was a ‘“significant”, “motivating”, “substantial”, or “predominant”’ factor in

the adverse personnel action, and it reflected a determination that ‘[w]histleblowing should never be a factor that

contributes in any way to an adverse personnel action.’” Id. (citing 135 Cong. Rec. 5032, 5033 (1989) (Explanatory

Statement on S. 20, 101st Cong., 1st Sess. (1989))).

147 5 U.S.C. § 1221(e)(1).

Congressional Research Service

17

The Whistleblower Protection Act (WPA): A Legal Overview

provision, sometimes known as the “knowledge/timing test,” amended the WPA to clarify the

circumstances by which such evidence can establish that a disclosure was a contributing factor.148

Once a whistleblower has established by a preponderance of the evidence that a disclosure was a

contributing factor in the personnel action taken against them, the burden then shifts to the agency

to demonstrate by clear and convincing evidence that it would have taken the same personnel

action against the whistleblower even in the absence of the protected disclosure.149 “Clear and

convincing evidence,” a higher burden than a preponderance of evidence, is the “measure or

degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations

sought to be established.”150

In determining whether an employing agency has shown by clear and convincing evidence that it

would have taken the same personnel action in the absence of whistleblowing, relevant factors

may include the strength of the agency’s evidence in support of its personnel action, the existence

and strength of any motive to retaliate on the part of agency officials who were involved in the

personnel action, and evidence that the agency takes similar actions against employees who are

not whistleblowers but who are otherwise similarly situated.151 The Board does not view these

factors as discrete elements, but instead weighs the factors together to determine if the evidence is

clear and convincing as a whole.152 As further discussed below, if the agency cannot carry its

burden of proof by clear and convincing evidence, the Board “shall order such corrective action

as the Board considers appropriate.”153

Investigations and Corrective Action

One federal court has described the WPA as a “procedural obstacle course” for employees who

invoke its protections.154 Covered employees have different options for bringing retaliation claims

depending on the nature of the personnel action underlying the claim. For most personnel actions,

the procedures to claim retaliation under the WPA are divided into two stages: an investigatory

stage conducted by the Special Counsel and an adjudicatory stage before the MSPB. First, an

individual brings a claim to the Special Counsel that a personnel action has been taken, or is to be

taken, in retaliation for whistleblowing.. The Special Counsel then conducts an investigation of

the complaint.155 If the Special Counsel finds a prohibited personnel practice, then the Special

Counsel must report the determination—along with any findings or recommendations for

corrective action to be taken—to the MSPB, the agency involved, and OPM.156 After a reasonable

148 See Kewley v. Dep’t of Health & Hum. Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998) (discussing the legislative

history of the “knowledge/timing” test).

149 5 U.S.C. § 1214(b)(4)(B)(ii); See also 5 C.F.R. § 1209.7 (2013).

150 5 C.F.R. § 1209.4(e).

151 See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). See also Mikhaylov, 62 F.4th at 869 (examining

the factors from Carr having been adopted by the MSPB and several circuits).

152 See Elder v. Department of the Air Force, 124 M.S.P.R. 12, 42 (M.S.P.B. 2016). See also Siler v. Env’t Prot.

Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (citing Miller v. Dep’t of Just., 842 F.3d 1252 (Fed. Cir. 2016)

(“Though an agency need not introduce evidence of every Carr factor to prove its case, the ‘risk associated with having

no evidence on the record’ for a particular factor falls on the government”)).

153 5 U.S.C. § 1221(e)(1).

154 See Delgado, 979 F.3d at 553.

155 5 U.S.C. § 1214(a)(1)(A).

156 Id. § 1214(b)(2)(B). The Special Counsel may also report such determinations, findings, and recommendations to

the President.

Congressional Research Service

18

The Whistleblower Protection Act (WPA): A Legal Overview

period of time, if the agency does not act to correct the prohibited personnel practice, OSC may

petition the Board for corrective action on the employee’s behalf.157

In addition to this procedure initiated by the Special Counsel, the WPA provides for two other

avenues to bring an action as an appeal to the MSPB. First, if the Special Counsel does not find a

prohibited personnel practice, or if the Special Counsel fails to respond to the complaint in a

timely manner, the whistleblower is considered to have exhausted his or her administrative

remedy and can bring an “individual right of action” appeal before the MSPB.158 Second, without

first filing a claim with OSC, a covered employee who has been subjected to “an otherwise

appealable action,”159 such as termination of employment, may file an appeal directly with the

MSPB and is entitled to include a whistleblower retaliation claim as an affirmative defense to the

adverse personnel action.160

Once a case is with the MSPB (as a result of a Special Counsel petition, an individual right of

action, or an otherwise appealable action), if the MSPB finds evidence of retaliation, it may then

order such corrective action as it considers appropriate.161 Appeals of final decisions or orders by

the MSPB regarding claims under the WPA162 can be brought in the U.S. Court of Appeals for the

Federal Circuit or any court of appeals of competent jurisdiction.163

Actions by OSC on Whistleblower Retaliation Claims

If a covered employee believes that he or she has been subject to a prohibited personnel practice

in retaliation for a whistleblowing activity as described above, he or she may file a complaint

with OSC.164 When an individual submits a complaint, the Special Counsel has authority to

respond in several ways, including (1) requiring agency investigations and reports;165 (2)

requesting a stay from the MSPB for any personnel action pending an investigation;166 (3)

157

Id. § 1214(b)(2)(C).

158 Id. § 1221.

159 5 C.F.R. § 1201.3(a) (1989).

160 5 U.S.C. § 7701. Alternatively, a member of a collective bargaining unit subjected to a covered personnel action in

retaliation for protected whistleblowing may instead elect to pursue a remedy through a grievance under the agreement.

See Agoranos v. Dep’t of Justice, 119 M.S.P.R. 498 (M.S.P.B. June 7, 2013). The grievance procedures in 5 U.S.C.

§ 7121(g) provide such employees the option to pursue a negotiated grievance remedy, elect an appeal to the MSPB

under 5 U.S.C. § 7701, or seek corrective action from OSC. See also 5 C.F.R. § 1209.2(d) (2013).

161 The MSPB will order corrective action if it finds that the Special Counsel has demonstrated that a disclosure was a

contributing factor in the personnel action which was taken or is to be taken against the individual. See 5 U.S.C.

§ 1214(b)(4)(B)(i).

162 The WPEA temporarily extended judicial review of final MSPB decisions in whistleblower cases to “any court of

appeals of competent jurisdiction.” See P.L. 112-199, 126 Stat. 1469 (2012). The expansion was permanently

authorized by the All Circuit Review Act. See P.L. 115-195, 132 Stat. 1510 (2018).

163 5 U.S.C. § 7703(b)(1)(B); see also Baca v. Dep’t of the Army, 983 F.3d 1131, 1137 (10 th Cir. 2020) (“The Court of

Appeals for the Federal Circuit generally has jurisdiction over final decisions by the MSPB, 5 U.S.C. § 7703(b)(1)(A),

with two exceptions. First, an appeal that also challenges an adverse employment action based upon a claim of

prohibited discrimination (termed a ‘mixed case’) must be appealed to the appropriate federal district court. Second, a

petition for judicial review of: [A] final order or final decision of the [MSPB] that raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in [5 U.S.C.] section 2302(b) other than practices

described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C) or (D) shall be filed in the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent jurisdiction.”) (internal citations omitted).

164 5 C.F.R. §§ 1800.1–1800.4 (2022). See also Sabbagh v. Dep’t of Army, 110 M.S.P.R. 13 (M.S.P.B. Sept. 9, 2008)

(discussing aspects of OSC filing and investigation process).

165 5 U.S.C. § 1213(c).

166 Id. § 1214(b)(1).

Congressional Research Service

19

The Whistleblower Protection Act (WPA): A Legal Overview

seeking “corrective action” by the agency;167 (4) petitioning the Board for corrective action if,

after a reasonable period of time, the agency does not act to correct the prohibited personnel

practice;168 and (5) seeking “disciplinary action” against officers and employees who have

committed prohibited personnel practices.169

Investigations

The WPA requires that the Special Counsel shall receive any allegation of a prohibited personnel

practice and investigate the allegation to the extent necessary to determine whether there are

reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be

taken.170 Within 15 days of receiving an allegation of a prohibited personnel practice, the Special

Counsel must provide written notice to the person who made the allegation that the allegation has

been received.171

At least every 60 days throughout its investigation, OSC must give notice of the status of the

investigation to the individual who brought the allegation.172 Within 240 days of receiving the

allegation, the Special Counsel must make a determination regarding whether there are

reasonable grounds to believe that the prohibited personnel practice has occurred, exists, or is to

be taken.173 If the Special Counsel determines that such reasonable grounds exist and require

corrective action, the Special Counsel shall report the determination, together with any findings

and recommendations, to the MSPB, the agency involved, and to OPM.174 OSC also refers select

cases to OSC’s Alternative Dispute Resolution (ADR) Unit, which may conduct voluntary

mediation between OSC, the employing agency, and the employee.175

167 Id. § 1214(b)(2)(B). See also Special Couns. v. Dep’t of Interior, 68 M.S.P.R. 537, 538 (M.S.P.B. Sept. 7, 1995)

(discussing OSC process recommending corrective action to the agency and then petitioning the Board).

168 5 U.S.C. § 1214(b)(2)(C).

169 Id. § 1215.

170 Id. § 1214(a)(1)(A). See also Sabbagh, 110 M.S.P.R. at 18.

In addition to the authority to investigate an allegation, the Special Counsel may, in the absence of an allegation,

conduct an investigation for the purpose of determining whether there are reasonable grounds to believe that a

prohibited personnel practice (or a pattern of prohibited personnel practices) has occurred, exists, or is to be taken. See

5 U.S.C. § 1214(a)(5).

171 5 U.S.C. § 1214(a)(1)(B)(i). Additionally, the notice shall include the name of a person at the Office of Special

Counsel who shall serve as a contact with the person making the allegation. Id. § 1214(a)(1)(B)(ii).

172 Id. § 1214(a)(1)(C)(ii). The Special Counsel shall also, within 90 days after providing initial notice of receipt of the

allegations if the investigation has not been terminated, notify the person who made the allegation of the status of the

investigation and any action taken.

173 Id. § 1214(b)(2)(A)(i). If the Special Counsel is unable to make the required determination within the 240-day

period and the person submitting the allegation of a prohibited personnel practice agrees to an extension of time, the

determination shall be made within such additional period of time as shall be agreed upon between the Special Counsel

and the person submitting the allegation. See id. § 1214(b)(2)(A)(ii). See also Krape v. Dep’t of Def., 87 M.S.P.R. 126,

131 (M.S.P.B. Oct. 18, 2000) (“The agency contends on review that it has been informed by OSC that the appellants

had ‘agreed to allow the OSC to indefinitely extend the OSC investigation past the 240-day statutory deadline imposed

on OSC for completion of its investigations.’ ”)

174 5 U.S.C. § 1214(b)(2)(B).

175 See Alternative Dispute Resolution Process, OFF. OF SPECIAL COUNS., https://osc.gov/Services/Pages/ADROurProcess.aspx (last visited Nov. 11, 2024) (“If the ADR Unit determines that a case is a good candidate for

mediation, an OSC ADR Specialist contacts the complainant and the employing agency to invite them to participate in

the mediation program. If both parties agree, OSC will assign mediators who will work with the parties to prepare for

and schedule a mediation. If a party chooses not to mediate, the case will be returned to the appropriate OSC

investigation unit for further action.”).

Congressional Research Service

20

The Whistleblower Protection Act (WPA): A Legal Overview

If the Special Counsel decides to terminate an investigation, a written status report—including the

proposed findings and legal conclusions—must be provided to the individual who made the

allegation.176 As explained below, such a termination, or a failure to meet the 240-day deadline,

can be appealed to the MSPB in an individual right of action appeal.177

Recommendations for Corrective and Disciplinary Action

As discussed above, 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 to the MSPB, the agency involved, and

OPM.178 If the agency does not act to correct the prohibited personnel practice within a

reasonable period, the Special Counsel may petition the MSPB for corrective action.179 When

OSC brings cases before the MSPB, the cases are sometimes referred to as OSC “original

jurisdiction” cases.180 Corrective action ordered by the MSPB may include the individual being

placed as nearly as possible in the position the individual would have been in had the prohibited

personnel practice not occurred; reimbursement for attorney’s fees; back pay and related benefits;

medical costs incurred; travel expenses; any other reasonable and foreseeable consequential

damages; and compensatory damages (including interest, reasonable expert witness fees, and

costs).181

Additionally, any employee who has committed a prohibited personnel practice; violated the

provisions of any law, rule, or regulation; engaged in other misconduct within the jurisdiction of

the Special Counsel; or knowingly and willfully refused or failed to comply with an order of the

MSPB can be subject to disciplinary action under the WPA.182 Proceedings for disciplinary action

176 If the Special Counsel terminates an investigation, the Special Counsel shall provide a written statement notifying

the person who made the allegation, which includes a summary of relevant facts ascertained by the Special Counsel;

the reasons for terminating the investigation; and a response to any comments submitted by the person who made the

allegation. See 5 U.S.C. § 1214(a)(2)(A). OSC guidance states that the Special Counsel will generally issue a

preliminary determination letter before closing the complaint, with a 10-day period for the complainant to respond. See

Fact Sheet: How Complaints Are Received and Processed, OFF. OF SPECIAL COUNS., https://osc.gov/documents/ppp/

processing%20complaints%20of%20ppps/how%20complaints%20are%20received%20and%20processed.pdf (last

visited Nov. 11, 2023).

Additionally, OSC can terminate an investigation within the first 30 days of receiving a complaint and without further

inquiry if (1) the same allegation, based on the same set of facts and circumstances, had previously been made by the

individual and investigated by the Special Counsel, or had previously been filed by the individual with the Merit

Systems Protection Board; (2) the Special Counsel does not have jurisdiction to investigate the allegation; or (3) the

individual knew or should have known of the alleged prohibited personnel practice on or before the date that is three

years before the date on which the Special Counsel received the allegation. See 5 U.S.C. § 1214(a)(6).

177 See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993).

178 5 U.S.C. § 1214(b)(2)(B). A report by the MSPB in 2008 stated that “[t]ypically, OSC obtains corrective action

through negotiation between the complainant and the agency.” See MERIT SYS. PROT. BD., WHISTLEBLOWER

PROTECTIONS FOR FEDERAL EMPLOYEES: A REPORT TO THE PRESIDENT AND THE CONGRESS OF THE UNITED STATES BY

THE U.S. MERIT SYSTEMS PROTECTION BOARD 43 (2008).

179 5 U.S.C. § 1214(b)(2)(C).

180 Procedures for original jurisdiction cases, which will first be heard by an administrative judge and may be appealed

by either party to the Board, may be found in 5 C.F.R. §§ 1201.121–1201.148 (1989).

181 Id. § 1214(g). See also King v. Dep’t of Air Force, 119 M.S.P.R. 663 (M.S.P.B. Aug. 14, 2013).

Additionally, any corrective action ordered to resolve a prohibited personnel practice may include fees, costs, or

damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced,

expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective

action. See id. § 1214(h). Procedures for Special Counsel complaints requesting corrective actions by the Board may be

found in 5 C.F.R. §§ 1201.128–1201.133.

182 5 U.S.C. § 1215(a)(1).

Congressional Research Service

21

The Whistleblower Protection Act (WPA): A Legal Overview

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.183 If a violation is found, the

Board may impose disciplinary actions such as removal, reduction in grade, debarment from

federal employment for a period not to exceed five years, suspension, reprimand, an assessment

of a civil penalty, or any combination of these actions.184

Upon application by the Special Counsel, 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.185 Unless the member determines

that a stay would be inappropriate under the facts and circumstances involved, it will be ordered

within three days of the application.186 The MSPB may extend the stay after the employing

agency has had an opportunity to comment on the appropriateness of such an extension.187 A stay

may be terminated by the MSPB at any time, except that it may not be terminated if notice and an

opportunity for oral or written comments are not provided to the Special Counsel and the

individual on whose behalf the stay was ordered.188

Judicial review of any final order or decision by the MSPB may be obtained by an employee,

former employee, or applicant for employment adversely affected by the order or decision.189

Previously, appellate jurisdiction for federal whistleblower claims lay exclusively with the

Federal Circuit, unless the case was a “ ‘mixed case’ ... alleging both a prohibited personnel

action and discrimination.”190 In 2012, Congress in the WPEA created the option of seeking

review for whistleblower appeals before the Federal Circuit or any court of appeals of competent

jurisdiction.191

Whistleblower Appeals to the MSPB

In addition to the process whereby OSC seeks action by the MSPB, the WPA provides two

additional routes for employees to appeal to the Board.192 First, the WPA created an individual

183 Id.

184 Id. § 1215(a)(3). The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, P.L. 115-73, 131 Stat. 1235,

enacted several reforms to the WPA, including disciplinary procedures for supervisors based on retaliation against

whistleblowers and responsibilities for agency heads to inform new hires of whistleblower rights and procedures.

Procedures for disciplinary actions sought by the Special Counsel may be found in 5 C.F.R. §§ 1201.122–1201.127. An

employee subject to a final Board decision imposing disciplinary action under 5 U.S.C. § 1215 may generally obtain

judicial review of the decision in the United States Court of Appeals for the Federal Circuit. 5 C.F.R. § 1201.127.

185 5 U.S.C. § 1214(b)(1)(A). See also Special Couns., 68 M.S.P.R. at 537–38.

186 5 U.S.C. § 1214(b)(1)(A).

187 Id. §§ 1214(b)(1)(B), (C). See also Special Couns., 68 M.S.P.R. at 538.

188 Id. § 1214(b)(1)(D). Procedures for Special Counsel requests for stays may be found in 5 C.F.R. §§ 1201.134–

1201.136.

189 5 U.S.C. § 1214(c). A federal court will affirm a Board decision unless the petitioner establishes under 5 U.S.C. §

7703(c) that it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. See

Koyen v. Office of Personnel Management, 973 F.2d 919, 922 (Fed. Cir. 1992).

190 Supra note 163. See also Mikhaylov, 62 F.4th at 870 n.5.

191 See 5 U.S.C. § 7703(b)(1)(B). See also Flynn, 877 F.3d at 203 (“Congress made this change, in part, due to

displeasure with how the Federal Circuit handled whistleblower cases”) (citing S. REP. NO. 112-155, at 1–2 (2012)

(“Unfortunately, federal whistleblowers have seen their protections diminish in recent years, largely as a result of a

series of decisions by the United States Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over

many cases brought under the Whistleblower Protection Act (WPA). Specifically, the Federal Circuit has wrongly

accorded a narrow definition to the type of disclosure that qualifies for whistleblower protection.”)).

192 See Baca, 983 F.3d at 1137. See also Zachariasiewicz v. Dep’t of Just., 48 F.4 th 237, 242–43 (4th Cir. 2022).

Congressional Research Service

22

The Whistleblower Protection Act (WPA): A Legal Overview

right of action to appeal to the MSPB after an individual has exhausted his or her claim before

OSC.193 Second, individuals subject to certain adverse employment actions have the option to

appeal directly to the MSPB, where an employee may raise whistleblowing as a defense to

agency action.194

Individual Rights of Action (IRA)

Individuals may seek review of a whistleblower reprisal case by the MSPB if the Special Counsel

notifies the individual that it has terminated its related investigation or if 120 days have elapsed

since the individual first sought corrective action from the Special Counsel.195 For an individual

filing a whistleblower appeal after first filing a complaint with OSC, the appeal must be filed

within 65 days of the date of the OSC notice advising that the Special Counsel will not seek

corrective action, or within 60 days after the date the individual receives the OSC notice,

whichever is later.196

In an IRA appeal, in addition to the elements that must be proven in a whistleblower claim

generally, the employee must also prove that claims of whistleblower retaliation with OSC have

been exhausted by a preponderance of the evidence.197 After exhausting remedies before OSC, an

individual alleging a violation of the WPA in an IRA must demonstrate to the Board that he or she

made a protected disclosure and that the disclosure was a contributing factor in the agency’s

decision to take or fail to take a personnel action.198 To merely establish the Board’s jurisdiction

over a claim for individual right of action appeal, the employee’s burden is not a preponderance

of the evidence, but only to make nonfrivolous allegations that the employee made a protected

disclosure that was a contributing factor to the personnel action taken or proposed.199 The Board

193 5 U.S.C. § 1221.

194 Id. at § 7701(a). OSC has stated in guidance that, “in deciding whether to appeal an adverse action to the MSPB or

instead to file a PPP complaint [with OSC] arising from an adverse action, it is important to consider that in an IRA

appeal [arising out of the OSC complaint], the only issues before the Board are those listed in 5 U.S.C. § 1221(e), i.e.,

whether the appellant has demonstrated that whistleblowing or other protected activity was a contributing factor in one

or more covered personnel actions.” See The U.S. Office of Special Counsel’s Role in Protecting Whistleblowers and

Serving as a Safe Channel for Government Employees to Disclose Wrongdoing, OFF. OF SPECIAL COUNS.,

https://osc.gov/Documents/PPP/OSC%27s%20Role/

OSC%E2%80%99s%20Role%20in%20Protecting%20Whistleblowers%20and%20Serving%20as%20a%20Safe%20C

hannel%20for%20Government%20Employees%20to%20Disclose%20Wrongdoing.pdf (last visited Dec. 17, 2024).

195 5 U.S.C. §§ 1221, 1214(a)(3).

196 See 5 C.F.R. § 1209.5 (1990). This filing deadline for an IRA differs from deadlines for most appeals to the MSPB,

requiring in most types of cases that an appeal must be filed within 30 calendar days of the effective date of the action,

if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later. See 5 C.F.R.

§ 1201.22(b)(1) (1989).

197 See Knollenberg v. Merit Sys. Prot. Bd., 953 F.2d 623, 625 (1992) (summarizing requirements in 5 U.S.C. §

1214(a)(3)(A) and 5 C.F.R. § 1209.5(a): “[O]nly if the Office of Special Counsel terminates its investigation without

action or does not commit to pursuing corrective action within 120 days, may one appeal to the board under section

1221(a)”). See also Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 926 (7 th Cir. 2018) (interpreting the employee’s

burden of exhausting the claim before OSC in § 1214(a)(3) to require only that an employee sought corrective action

“by presenting the OSC with sufficient information to permit a legally sophisticated reader to understand his charge of

retaliation and to investigate it further.”).

198 See Cahill, 821 F.3d 1370. The individual right of action in Section 1221 applies to employees who have alleged a

prohibited personnel practice described in Section 2302(b)(8) or Section 2302(b)(9)(A)(i), (B), (C), or (D). The

provision does not cover prohibited personnel actions described in Title 5, Section 2302(b)(9)(A)(ii), of the U.S. Code,

describing prohibited personnel actions taken because of the exercise of any appeal, complaint, or grievance right

granted by any law, rule, or regulation not dealing with whistleblower disclosures. See Young v. Merit Sys. Prot. Bd.,

961 F.3d 1323, 1329 (Fed. Cir. 2020).

199 See Johnston, 518 F.3d at 909 (quoting Stoyanov v. Dep’t of the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007) (citing

(continued...)

Congressional Research Service

23

The Whistleblower Protection Act (WPA): A Legal Overview

may consider only issues brought before OSC,200 but the Board may not rely on OSC’s

termination of an investigation or other determination in its decision.201

The WPA provides several remedies for individuals who prevail in an IRA.202 An individual may

be reinstated to the position he or she would have occupied had the prohibited personnel practice

not occurred.203 Back pay and related benefits, medical costs, travel expenses, and any other

reasonable and foreseeable consequential damages may also be awarded.204 In all cases,

corrective action includes awarding attorneys’ fees.205

“Otherwise Appealable Actions”: Appeals to the MSPB Under Chapter 77 of

Title 5

Chapter 77 of Title 5 deals, in part, with the appellate procedures of the MSPB, including rights

of employees, and applicants for employment, to appeal to the Board.206 Title 5, Section 7701, of

the U.S. Code states that “an employee, or applicant for employment, may submit an appeal to the

Merit Systems Protection Board from any action which is appealable to the Board under any law,

rule, or regulation.”207 Therefore, an individual subject to certain adverse employment actions

(including removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs

of 30 days or less)208 may directly submit an appeal to the MSPB without first going before

OSC.209

During an appeal, an appellant may raise whistleblowing as an affirmative defense or as an

assertion by the appellant that, if proven, constitutes a defense to the agency action.210 Analysis of

a whistleblower defense follows the burden-shifting scheme previously discussed.211 If the

employee establishes by a preponderance of evidence that a protected disclosure was a

contributing factor to an adverse personnel action, the agency must refute the allegations by a

showing of clear and convincing evidence that it would have taken the same action in the absence

of the disclosure.212 As previously discussed, an employee aggrieved by a final order or decision

by the MSPB may obtain judicial review.213

Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc))). See also 5 C.F.R. § 1201.57

(2015).

200 See Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992). Furthermore, Board regulations state that “in

an individual right of action appeal ... the appellant may not raise affirmative defenses, such as claims of discrimination

or harmful procedural error. In an IRA appeal that concerns an adverse action under 5 U.S.C. § 7512, the agency need

not prove its charges, nexus, or the reasonableness of the penalty, as a requirement under 5 U.S.C. § 7513(a), i.e., that

its action is taken ‘only for such cause as will promote the efficiency of the service.’” 5 C.F.R. § 1290.2(c) (1995).

201 See Delgado, 880 F.3d at 924 (citing 5 U.S.C. §§ 1221(f), 1214(b)(2)(E)).

202 5 U.S.C. § 1221(g)(1)(A).

203 Id. § 1221(g)(1)(A)(i).

204 Id. § 1221(g)(1)(A)(ii).

205 Id. § 1221(g)(1)(B).

206 See id. § 7701(a).

207 Id.

208 Id. § 7512.

209 Id. § 7701. See also Baca, 983 F.3d at 1137.

210 See, e.g., Carr, 185 F.3d at 1322.

211 See id.

212 Id.

213 5 U.S.C. § 7703(a)(1); see also Judicial Review, U.S. MERIT SYS. PROT. BD., https://www.mspb.gov/appeals/

review.htm (last visited Dec. 9, 2024).

Congressional Research Service

24

The Whistleblower Protection Act (WPA): A Legal Overview

Considerations for Congress

In passing the WPEA in 2012, Congress stated that the amendments to the WPA would strengthen

the rights of and protections for federal whistleblowers in part by overturning narrow

interpretations of the protections afforded in the Act.214 However, not all personnel actions—even

if they are taken in response to whistleblowing activity—are covered by the Act. For example, a

revocation of a security clearance is not a personnel action within the jurisdiction of the MSPB.215

Additionally, while an employee may recover “fees, costs, or damages reasonably incurred due to

an agency investigation of the employee,” a retaliatory internal investigation into an employee’s

conduct is not itself a personnel action prohibited by the Act.216 If Congress wishes to provide

additional protections for federal whistleblowers, Congress may add to the list of personnel

actions prohibited in retaliation against employees.217 Congress may also extend the protections

of the WPA to executive branch employees not covered by the WPA, or to employees outside of

the executive branch. Alternatively, Congress may narrow the investigatory or enforcement

jurisdiction over personnel actions or employees by OSC or the MSPB.

Congress may also consider alternative remedies under the Act. For example, prior to the

enactment of the WPEA, the Board was not authorized to award compensatory damages for

violations.218 In other whistleblower statutes, Congress has enacted reward or “bounty” provisions

to encourage whistleblowers to come forward.219 Congress may also consider punitive, or

exemplary, damages, to further punish whistleblower retaliation and deter such conduct.220

The protections of the WPA are primarily enforced by the MSPB. Typically, the MSPB consists of

three Board members, each appointed by the President with the advice and consent of the

Senate.221 Between January 7, 2017, and March 3, 2022, the Board did not have a quorum of two

members.222 Due to the lack of a quorum, the Board was unable to perform its review functions,

including issuing final decisions in cases when an initial decision issued by an administrative

judge has been appealed to the full Board.223 In addition to the thousands of pending appeals, the

Board was unable to promulgate new regulations in response to any legislative changes involving

the MSPB. In September, the MSPB issued an interim final rule updating its adjudicatory and

operational regulations, including modifying the authority of a lone Board member to take certain

actions, when the Board is unable to act, and additional responsibilities for administrative

214 See S. REP. NO. 112–155 (2012), as reprinted in 2012 U.S.C.C.A.N. 589.

215 Hesse v. Dep’t of State, 217 F.3d 1372, 1380 (Fed. Cir. 2000) (citing Egan, 484 U.S. at 530–31, for proposition that

“unless Congress specifically provides otherwise, the Merit Systems Protection Board is not authorized to review

security clearance determinations or agency actions based on security clearance determinations”).

216 5 U.S.C. § 1214(h).

217 Id. § 2302(a).

218 See King, 119 M.S.P.R. 663.

219 The Dodd-Frank Wall Street Reform and Protection Act requires the SEC to pay awards to whistleblowers who

voluntarily provide the SEC with information about securities law violations. See 15 U.S.C. § 78u-6; 17 C.F.R.

§ 240.21F-3 (2011).

220 See, e.g., 42 U.S.C. § 300j–9(i)(2)(B)(ii).

221 5 U.S.C. § 1201.

222 Frequently Asked Questions About the Lack of Quorum Period and Restoration of the Full Board, U.S. MERIT SYS.

PROT. BD., https://www.mspb.gov/New_FAQ_Lack_of_Quorum_Period_and_Restoration_of_the_full_board.pdf (last

visited Nov. 26, 2024).

223 Id.

Congressional Research Service

25

The Whistleblower Protection Act (WPA): A Legal Overview

judges.224 To address a potential lack of quorum in the future, Congress could choose to reform

the MSPB in various ways, such as by codifying the reforms in the Board’s interim final rule,

increasing the number of appointees to the Board, or lengthening appointments.

Author Information

Jimmy Balser

Legislative Attorney

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

224 Organization and Procedures, 89 Fed. Reg. 72957 (Sept. 9, 2024) (amended 5 C.F.R. Parts 1200, 1201, 1203, and

1209). The constitutionality of the MSPB’s structure of administrative judges ratified by the Board was upheld by the

Federal Circuit in 2022. See McIntosh v. Dep’t of Def., 53 F.4th 630 (Fed. Cir. 2022).

Congressional Research Service

R48318 · VERSION 1 · NEW

26