Monday, December 19, 2016

Congress Enhances Whistleblower Protections for Contractors and Military Service Members

Congress just passed two bills making significant improvements in whistleblower protections, one for government contractors and another for military service members.

In 2013, Congress included in that year’s National Defense Authorization Act (“NDAA”) a pilot program for whistleblower protection for employees of federal contractors. In mid-December 2016, the Senate made that pilot program permanent with additional provisions.

The original pilot program allowed whistleblowers to report retaliation to the Inspector General (IG) of the federal agency that issued the affected contract.  This plan has the advantage of assuring that the IGs would also learn about whatever the whistleblower blew the whistle on.

The IG could investigate and order relief for the whistleblower, including reinstatement, backpay, compensatory damages and attorney’s fees. 41 U.S.C. § 4712(c)(1). The various IGs reacted unevenly as they did not have adequate training or additional resources for this new responsibility. Whistleblowers who did not get a final order from the IG within 210 days could bring their claims to federal court.

Whistleblowers only had to show that their protected activity was a “contributing factor” in the adverse action. To defeat the claim, the employer would have to show, by “clear and convincing evidence,” that they would have taken the same adverse action even without the protected activity. 41 U.S.C. § 4712(c)(6). The pilot program utilized the same analysis as the Whistleblower Protection Enhancement Act (WPEA), 5 U.S.C. § 1221(e)(2), and dovetails with the False Claims Act, 31 U.S.C. § 3730(h), which allows direct access to federal court and double backpay, but does not explicitly provide for compensatory damages.

In S. 795, passed in December 2016, Congress made the pilot program permanent.  It also expanded coverage to include employees of subgrantees.  Previously, the Department of Education IG had taken the position that the 2013 coverage of “contractors, subcontractors and grantees” excluded coverage of subgrantees. That position is no longer viable.  Congress also added protection for whistleblowers employed through personal service contracts.

The 2017 NDAA, S. 2943, improves the Military Whistleblower Protection Act (MWPA), 10 U.S.C. § 1034. It is also waiting for President Obama’s signature. The MWPA has long been viewed as weak protection for service members who report wrongdoing.  It depends on the Defense Department’s IG (DoDIG) to conduct investigations and leaves service members at the mercy of their harassers during the long investigations.

Section 531 of the 2017 NDAA makes it unlawful to change a whistleblower’s duties to those that are “not commensurate with the member’s grade” or to launch an investigation against the whistleblower (a protection federal civilian employees do not have). In a novel addition, the bill requires superiors to respond to complaints of harassment and retaliation. Superior officers will thus be forced to protect whistleblowers under their command, or face sanctions themselves.

The new bill also permits the IG to make a preliminary determination that a retaliation complaint has merit, and report it to the Secretary for “appropriate” action. This may provide interim relief to whistleblowers who face immediate hardship. The IG will also have to make reports about the investigation every 180 days.

As before, service members can use IG findings of retaliation to seek corrections to military records, including discharges.

DoDIG will be required to establish standards for whistleblower investigations and training investigators. DoDIG may benefit from reading OSHA’s Whistleblower Investigations Manual.

Section 536 of the 2017 NDAA requires the Comptroller General of the United States to make a report on the effectiveness of the MWPA. The report will compare results under the MWPA with the civilian WPA and assess the effectiveness of the DoDIG. The report must also disclose incidents of retaliation against whistleblowers within the DoDIG. This last provision telegraphs that Congress has heard reports of such retaliation at DoDIG and is not happy about it.

While the 2017 NDAA does not fundamentally change the structure of decision-making for military whistleblowers (such as allowing jury trials in federal court), it does add provisions to expand the scope of protection, permit faster responses, and add layers of accountability and reporting. A future Congress could use this information to assess whether the whistleblower protection program can encourage service members to use official channels to raise their concerns. An increase in leaks to the media by military personnel would indicate a lack of trust in the military’s whistleblower protection program.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Thursday, December 15, 2016

Trump’s non-disclosure agreements could violate the Whistleblower Protection Enhancement Act

Josh Marshall reported last week in Talking Points Memo that president-elect Trump has been requiring prospective transition team employees to sign “non-disclosure agreements” or NDAs. Mr. Marshall writes, “There are probably a number of reasons why such contracts would either violate federal law or be unenforceable. (Lawyers with relevant government experience, please chime in.)”

Indeed, the 2012 Whistleblower Protection Enhancement Act (WPEA) makes it unlawful for any federal employee who has authority to take, direct others to take, recommend, or approve any personnel action to:
implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement 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 Inspector General 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. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”
5 U.S.C. § 2302(b)(13)
If any transition official is already on the government payroll and is implementing or enforcing NDAs that omit the required text, that would be a violation. If the transition team is collecting NDAs now that omit the required text, then it would be unlawful for the Trump Administration to enforce them.

The Whistleblower Protection Act (WPA) already protects the rights of most federal employees to make lawful disclosures about:
(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[.] 
5 U.S.C. § 2302(b)(8)(A)
Covered federal employees also have protection for:
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation ***
(B) testifying for or otherwise lawfully assisting any individual ***;
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to violate a law;
5 U.S.C. § 2302(b)(9)
On this last point, the House of Representatives recently passed the Follow the Rules Act, HR 6186, which would also protect federal employees who refuse to violate any rule or regulation.  The bill was waiting for action by the Senate, but will now have to be re-introduced.

Congress intended the WPA to provide broad protection for federal employees who stand up to protect taxpayers, the environment, or the integrity of the law.  An administration interested in draining the swamp will depend on whistleblowers to finish the job.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Monday, December 12, 2016

Federal Circuit finds strength in the “clear and convincing” protection for whistleblowers

Recently, the U.S. Court of Appeals for the Federal Circuit issued an important decision in the case of whistleblower Troy Miller. What is particularly notable about the new decision is that two judges were willing to look past the normal deferential standard of review on factual issues and hold that the government failed to show, by “clear and convincing” evidence, that the agency would have reassigned Mr. Miller even if he never made what all the judges agreed were protected disclosures.

Mr. Miller worked as the Superintendent of Industries at a federal prison in Beaumont, Texas (pictured). He oversaw a prison factory that produced ballistic helmets primarily for military use. His supervisor was the Warden, Jody Upton. Mr. Miller worked on the Warden’s Executive Staff, and he filled in as Associate Warden when Warden Upton was away.

On October 7, 2009, Mr. Miller disclosed to Warden Upton and other officials that he was concerned about mismanagement of funds. On December 15, 2009, agents from the Office of Inspector General (OIG) conducted a scheduled site visit. Warden Upton asked Mr. Miller to stay away from the prison that day. 

On December 16, 2009, Mr. Miller returned to the prison and discovered that the factory had shipped some helmets made with defective Kevlar. Mr. Miller said, “there’s a U.S. Marine’s life at the end of this helmet, period. And it is my responsibility as a superintendent of industries when I see anything that is wrong, to report it immediately and to stop production.” Mr. Miller asked that the factory be closed pending an investigation of potential sabotage.

Within hours of the Kevlar disclosure, Warden Upton reassigned Mr. Miller so that he would no longer serve as Superintendent of Industries. For the next four years, Mr. Miller monitored inmate phone calls, wiped tables, shredded documents and worked the night shift in the special housing unit (SHU). Needless to say, he no longer served on the Executive Staff or filled in for Warden Upton. After the helmet production ended, Mr. Miller’s job was to sit on a couch. That assignment lasted for eight months.

Warden Upton claimed that someone at OIG said that Mr. Miller would be a subject of the investigation and might interfere with it, but he could not remember who at OIG said this or when it was said. Warden Upton agreed that putting Mr. Miller in these positions was “absolutely” a waste of his talents.

Mr. Miller filed a complaint under the Whistleblower Protection Act (WPA) that covers federal employees. An administrative judge agreed that Mr. Miller’s disclosures about the financial misconduct and the sabotage were protected disclosures.  The judge further held that these disclosures contributed to Mr. Miller’s reassignment (the timing – within hours -- is hard to ignore). However, the judge also held that the agency proved by “clear and convincing evidence” that it would have reassigned Mr. Miller even if he had not made the protected disclosures. The Merit Systems Protection Board (MSPB) affirmed this decision.

In its decision on review of Mr. Miller’s appeal, the Federal Circuit panel reiterated what it said in Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012):
“Clear and convincing evidence” is a high burden of proof for the Government to bear. It is intended as such for two reasons. First, this burden of proof comes into play only if the employee has established by a preponderance of the evidence that the whistleblowing was a contributing factor in the action—in other words, that the agency action was “tainted.” Second, this heightened burden of proof required of the agency also recognizes that when it comes to proving the basis for an agency’s decision, the agency controls most of the cards …. [I]t is entirely appropriate that the agency bear a heavy burden to justify its actions.
The Court could have noted that Congress found that too many whistleblowers were losing their cases and Congress needed a higher win rate to encourage whistleblowers to come forward. The high standard would require that prospective whistleblowers (and their advocates) could see in the public record that strong evidence is required to permit adverse actions against whistleblowers.

The court’s decision in Miller is more remarkable for its treatment of the standard governing its review of MSPB decisions. The law requires the court to affirm the MSPB if its decision is supported by “substantial evidence.”  Unlike “preponderant evidence,” which is defined as the degree of evidence sufficient to show that a contested fact is more likely true than not, “substantial evidence” is defined as the degree of evidence sufficient to show that a contested fact might be true, even if others would disagree. See 5 C.F.R. § 1201.56(c). “Substantial evidence” is normally a deferential standard that leads to affirming a large majority of agency decisions. However, the court here noted that the “clear and convincing” standard governing review of the evidence by the Board is interrelated with the “substantial evidence” the reviewing court must find.

In its key holding, the court majority stated, “We hold that no reasonable factfinder could find Warden Upton’s conclusory testimony about how OIG directed him to be strong evidence of independent causation.” The court added, “The Government’s evidence is weak, particularly when considered in light of the record evidence endorsing Mr. Miller’s character.”

The court considered that the IG investigation itself arose from Mr. Miller’s own disclosure, that the government had no corroboration for the Warden’s testimony, and that the government had no contemporaneous documentation to explain why it was reassigning Mr. Miller. The court emphasized that it was not altering the Board’s finding that the Warden’s testimony was credible, only that it was not the strong evidence required by the WPA. The court noted that retaliatory motive can be found in “agency officials who were involved in the decision,” not just the employee’s direct supervisor.

On the common issue of comparing the agency’s treatment of the whistleblower with its treatment of other employees, the court took a broad view. It would not limit this consideration to just the Beaumont, Texas, facility, but rather considered whether any other employees involved in IG investigations around the country were treated the same way. Yet again, the government provided no such evidence. “The burden lies with the Government[,]” the court correctly stated.

One judge wrote a concurring opinion suggesting that if one accepts the Warden’s testimony, then it was really the OIG that made the decision to reassign Mr. Miller. It was not Mr. Miller’s duty to show what was the OIG’s real motive.  Once he established that his whistleblowing was a “contributing factor,” it was the government’s burden to present “clear and convincing evidence.” Here, the government presented only the Warden’s testimony about what the OIG said, and that was not enough.

One judge dissented, claiming that the majority failed to “cite to a single piece of affirmative evidence that Mr. Miller was reassigned for whistleblowing.” This judge was apparently looking for an agency official to admit that the reassignment was because of the whistleblowing. However, as the majority noted, once the MSPB found that the whistleblowing was a “contributing factor” (a finding the government did not contest) the burden of coming forward with evidence to rebut that finding shifted to the government.  An absence of evidence cannot overcome that a disclosure was a “contributing factor.”

The dissenting judge concluded:
I have never heard of such an application of the substantial evidence standard that rejects uncontradicted, truthful testimony in favor of unfounded speculation about what might have happened or what more the agency should have done.
This conclusion fails to acknowledge that Mr. Miller had already established that his protected activities were a “contributing factor” for his reassignment. That is the standard Congress established in the WPA for whistleblowers to meet. The dissent apparently believes that as long as a supervisor can deny retaliation and there is no direct and contradictory evidence, the Agency has met its burden of supporting the adverse action against the whistleblower.  However, that is not the standard Congress set in the WPA.

This decision will be useful to federal employee whistleblowers, and also to other whistleblowers who have claims under any of a dozen federal laws that have copied the same “clear and convincing” standard imposed on disclosures that are a contributing factor in an employment action. These laws protect workers in the nuclear, transportation, corporate compliance, food, pipeline, consumer product and consumer finance industries, and employees raising concerns under the Affordable Care Act.

The case is Miller v. Dep't of Justice, No. 2015-3149, 2016 WL 7030359 (Fed. Cir. Dec. 2, 2016).

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Tuesday, December 6, 2016

Can Seeing A Therapist Block Your Security Clearance?

On November 16, 2016, National Intelligence Director James Clapper, issued Revised Instructions for Completing Question 21, Standard Form 86, “Questionnaire for National Security Positions,” ES 2013-00242.  Once the new Section 21 is made part of the SF-86, applicants for security clearances will face a different set of questions than in the past under Section 21 Psychological and Emotional Health.

The new Section 21, soon to be part of the SF-86, will comprise five questions.  They ask whether the applicant has:
  1. Been declared mentally incompetent by a court or administrative agency;
  2. Been ordered to consult with a mental health professional by a court or administrative agency;
  3.  Been hospitalized for a mental health condition;
  4. Been diagnosed by a physician or other health professional with specifically listed diagnoses; and/or
  5. A mental or other health condition that substantially adversely affects judgment, reliability or trustworthiness. 
The focus now is on the condition.  In the past, applicants were asked whether they had “consulted with a health care professional regarding an emotional or mental health condition.”  The mere act of consulting with a therapist or other mental health professional served as a stand-in for determining the existence of a mental health condition for purposes of the security clearance background investigation.  That question is now gone, replaced by questions asking for a diagnosis or conclusions reached by a court, or doctor, regarding a mental health condition.  DNI Clapper explains that, “These questions shift the focus from whether an individual has sought treatment to whether an individual has a condition that may affect his or her eligibility for access to classified information (security clearance) or for eligibility to hold a sensitive position.”  The change is intended to remove any concerns that applicants may have that seeking mental health treatment might “negatively impact their ability to receive a security clearance.”  DNI Clapper is emphatic,
I want to make clear that an individual’s decision to seek mental health treatment and/or counseling will not, in and of itself, adversely impact his or her ability to obtain or maintain a national security position, or alone form the basis for a denial or revocation of a security clearance.
The Preamble to the policy also states clearly, “Seeking or receiving mental health care for personal wellness and recovery may contribute favorably to decisions about your recovery.”  It remains to be seen whether seeking mental health care may now even become a “mitigating factor” in clearance decisions, as seeking therapy for alcohol addiction mitigates concerns regarding alcohol use.  See Adjudicative Guidelines ¶ 23(b-d).

Adjudicators are already admonished that “No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.” (Adjudicative Guidelines, ¶ 27).  And see, EO 12968 ¶ 3.1(e) currently in effect:
No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling.  Such counseling can be a positive factor in eligibility determinations.  However, mental health counseling, where relevant to the adjudiction of access to classified information, may justify further inquiry to determine whether the (general eligibility criteria) are satisfied, and mental health may be considered where it directly relates to those standards.
The effort to ensure that security clearance adjudication proved no bar to clearance holders seeking mental-health treatment has been ongoing for some time before this most recent revision.

How the new questions will be used as part of the investigatory and adjudicatory process will not be clear for some time.  We will want to watch especially the last of the five new questions, which asks the applicant to self-assess whether a mental health condition “substantially adversely affects judgment, reliability or trustworthiness” and report only those that do rise to this “substantially adversely” standard.   The applicant’s self-assessment here would seem to create a mine-field of risks.  Except in extreme cases, how is an applicant to know whether his/her judgment, reliability or trustworthiness is “substantially adversely” affected by a mental health condition?  And what will be the penalty for misjudging this reporting standard?

Certainly, revisions to Section 21 make it no longer necessary for a person seeking counseling for a minor mental health problem to disclose that counseling on the SF-86.  But it is difficult to know now the risks to an applicant with some, but not substantial, mental health issues.   Just where will the line will be drawn – and how enforced, for the “substantially and adversely” standard for reporting mental health conditions on the SF-86?

This blog was written by Mary Kuntz.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at