Blowing in the Wind

Answers for Federal Whistleblowers

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 3, Issue 2 along with a link to an electronic copy of the full form of the piece. 

(image by Jenna Ndjon)

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.

Find the full version of this article in PDF form here.

Robert McCarthy is a Former General Counsel at U.S. Section, International Boundary and Water Commission (USIBWC)

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