The U.S. Senate unanimously passed the Whistleblower Protection Enhancement Act (S. 743) (“WPEA”) last week, a bill that builds on the Whistleblower Protection Act of 1989 (“WPA”). The WPA currently prohibits executive branch departments and agencies from taking retaliatory action against any employee who reports waste, fraud, abuse, or other wrongdoing at an agency. If approved by the U.S. House of Representatives, the legislation, introduced by Sen. Daniel Akaka (D Hawaii), would significantly expand whistleblower protections throughout the federal government.

In particular, the measure broadens whistleblower protections afforded to major intelligence agencies, including the Central Intelligence Agency (“CIA”), the Defense Intelligence Agency (“DIA”), and the National Security Agency (“NSA”), as well as the Transportation Security Administration (“TSA”). The measure also establishes a review process within the executive branch if a security clearance or access determination is allegedly denied or revoked as the result of a protected whistleblower’s disclosure. Furthermore, the bill makes clear that whistleblowers may disclose evidence of censorship of scientific or technical information under the same standards that apply to disclosures of other kinds of waste, fraud, and abuse.

Additionally, the bill:

  • Suspends the Federal Circuit’s sole jurisdiction over federal employee whistleblower cases for a period of five years, and permits jury trials in certain cases during the same period
  • Calls for the creation of a Whistleblower Protection Ombudsman to educate agency personnel about whistleblower rights
  • Strengthens review of agency personnel actions by the Merit Systems Protection Board by expanding its summary judgment authority in WPA cases
  • Provides the Office of Special Counsel with the independent right to file amicus briefs with federal courts in federal employee whistleblower cases
  • Clarifies that any disclosure of “gross waste or mismanagement, fraud, abuse or illegal activity” may fall under its protection, while disagreements over legitimate policy decisions do not

Although a similar measure, the Platts-Van Hollen Whistleblower Protection Enhancement Act (H.R. 3289), cleared the House Oversight and Government Reform Committee in November 2011, the future of the WPEA remains uncertain. Similar measures have failed to make the leap from legislation to law, going back as far as 2001. This has generally been attributed to concerns that such expanded whistleblower protections could compromise national security. For instance, an implied connection with 2010’s WikiLeaks controversy, which implicated a Department of Defense employee who leaked hundreds of classified government documents, sunk a nearly identical piece of legislation on the last day of the 111th Congress.