William & Mary Policy Review, Vol. 3, p. 184, 2012
45 Pages Posted: 29 Jul 2012 Last revised: 31 Jul 2012
Date Written: July 28, 2012
Whistleblower protection laws have been on the books for over thirty years, encouraging United States Government employees to report fraud, waste, and abuse, while promising to protect them from retaliation. Unfortunately, the laws have become an unexpected minefield for the intrepid Federal employee who unknowingly risks his or her career by taking the promise of protection at face value. This article documents the nearly complete failure of whistleblower legislation either to curb government malfeasance through whistleblowers’ disclosures or to protect workers who act on the false promise of protection from reprisal. Whereas the author provides a brief guide to filing a whistleblower appeal with the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB), he demonstrates that both agencies have essentially nullified the Whistleblower Protection Act (WPA). The article shows that the MSPB has rejected the vast majority of whistleblower appeals that have come before it, as has the Federal Circuit Court of Appeals. The author argues that this ignominious record is a direct result of excessive judicial deference for initial decisions made by a large cadre of hearing examiners employed by the MSPB. The author demonstrates that MSPB’s self-styled “administrative judges” are a deceptive and inadequate substitute for “administrative law judges,” with none of the Congressionally-mandated qualifications and independence of the latter. The article concludes with support for legislative reforms, including a new proposal to eliminate or at least curb the dominant role of biased initial decision-makers.
Keywords: whistleblower, labor law, public employees, MSPB, merit system, administrative law
JEL Classification: K31
Suggested Citation: Suggested Citation
McCarthy, Robert John, Blowing in the Wind: Answers for Federal Whistleblowers (July 28, 2012). William & Mary Policy Review, Vol. 3, p. 184, 2012. Available at SSRN: https://ssrn.com/abstract=2119239