Whistleblower Protection Agency, Judge Clash Over Which Feds to Protect From Reprisal

Two agencies designed to protect federal whistleblowers are clashing over how to carry out that mission, with officials disagreeing on the best way to interpret a new law aimed at expanding rights for those employees.

Under previous statute, only federal workers who disclosed information about waste, fraud and abuse to their agencies’ inspector general or the independent Office of Special Counsel were entitled to whistleblower protections. Congress passed a law in 2018, however, that expanded those rights to individuals who brought their concerns to any agency component responsible for internal review. 

In one of the early test cases for the law, a Homeland Security Department employee sought restitution before the Merit Systems Protection Board after he said he faced retaliation for making a protected disclosure. Timothy Mohler, the DHS employee, brought concerns about a potential security violation to the Computer Security Incident Response Center within Customs and Border Protection. The center opened an investigation into the matter—that another employee left his personal identity verification card unattended at a workstation—that was eventually referred to CBP’s Internal Affairs. 

Mohler’s case claiming retaliation was rejected by an MSPB administrative judge because, the judge said, CBP’s computer security center investigates only internal complaints and issues rather than the whole agency. 

In a brief filed to MSPB, Henry Kerner and Louis Lopez, the top two officials at OSC, said the judge ignored the “unambiguous” language included in the 2018 whistleblower law update. It is self-evident, they wrote, that a component tasked with investigating computer security incidents is investigating “the agency from which those incidents arise.” 

“It is difficult, if not impossible, to see a meaningful distinction between investigating an agency’s internal complaints and issues and investigating the agency itself,” the OSC officials said. 

While MSPB judges in other instances have interpreted the law more broadly, the OSC leaders said the ruling in Mohler v. DHS could set a far-reaching precedent. A narrow interpretation, they said, could discourage employees from disclosing waste and wrongdoing at the component level out of fear they would not be protected. 

“If we are to make meaningful progress toward a more effective civil service, agencies must be able to depend on employees’ cooperation with their investigatory components to understand and remedy reports of violations and wrongdoing,” they said. 

OSC suggested MSPB spell out that an employee making a disclosure to any agency component with “formalized procedures for internal investigation or review” receive whistleblower protections. Such an approach would make clear to employees and agencies alike who is protected, the officials said. OSC asked MSPB’s central board to issue the clarification in its final decision on Mohler’s case, though such guidance could take time to produce. MSPB is currently operating without any of the presidentially appointed, Senate-confirmed members slated to comprise its three-person board. 

MSPB has not had a governing quorum on its board since 2017. As a result, it is unable to rule on the 2,500 cases currently pending before it and the agency cannot issue stays on personnel actions requested by OSC on behalf of whistleblowers who may be facing reprisal. House members sought to enable MSPB’s general counsel to issue the stays in the interim as part of the 2020 National Defense Authorization Act, but lawmakers ultimately declined to include the provision in the final version of the bill. 

Whistleblower advocates point to that legislative failure as one of many risks to whistleblowers in recent years, including an increasing number of supervisors not facing any discipline after being found guilty of retaliating against employees who made protected disclosures. President Trump and congressional Republicans have faced criticism for their treatment of an Intelligence Community whistleblower whose disclosure kicked off the president’s impeachment. On Thursday, Sen. Rand Paul, R-Ky., attempted to out the whistleblower’s rumored identity by including the name in a question he submitted at the president's impeachment trial in the Senate, but Supreme Court Chief Justice John Roberts—who is presiding over the trial—declined to read the name out loud.