§ 6.9.4.1 OVERVIEW AND ELEMENTS OF FEDERAL WHISTLEBLOWER PROTECTION CLAIMS.

• Jurisdiction: Arizona

§ 6.9.4.1 Overview and Elements of Federal Whistleblower Protection Claims. This subchapter only deals with the whistleblower rights of federal employees or, in some cases, federal contractors. The First Amendment rights of other governmental employees, such as state or county, are dealt with elsewhere in this handbook.⁷⁴ The Whistleblower Protection Act (WPA) provides protection to applicants, employees, contractors and employees of contractors⁷⁵ of federal government agencies⁷⁶ or government corporations (as defined in 31 U.S.C. §9101) if making disclosures revealing government wrongdoing,⁷⁷ when the following conditions are met: (1) the disclosure is protected whistleblowing activity under 5 U.S.C. § 2302(b)(8);⁷⁸ (2) the disclosure was a contributing factor in the personnel action;⁷⁹ and (3) the agency cannot establish by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure.⁸⁰

In 2012, Congress enacted the Whistleblower Protection Enhancement Act (WPEA), which expanded whistleblower protections to federal employees. The WPA had excluded many categories from whistleblower protection, including employees who (1) were not the first person who disclosed given misconduct, (2) had made a disclosure to a co-worker, (3) had made a disclosure to a supervisor, (4) had disclosed the consequences of a policy decision, or (5) blew the whistle while carrying out job duties.⁸¹

The WEPA changed all of that by amending the meaning of "disclosure" under the WPA.⁸² The WPEA specifically forbids exclusion of the following disclosures from the statute's protection: (1) disclosures made to the wrongdoer, (2) disclosures that were previously disclosed; (3) employee's or applicant's motive for making the disclosure; (4) disclosures not made in writing; (5) disclosures that were made while the employee was off duty; or (6) disclosures of the amount of time that has passed since the occurrence of the events described in the disclosure.⁸³ Under the WPEA, in contrast to the WPA, an employee may file an individual right of action, and the MSPB will have jurisdiction over the appeal, if the prohibited personnel action is due to a disclosure covered by either § 2302(b)(8) or § 2302(b)(9)(A)(i). The WPEA also expanded judicial review to all circuits, with this provision of the law scheduled to "sunset" five years later.⁸⁴

Though the WPA provides protection for disclosures⁸⁵ pertaining to "any law, rule or regulation,"⁸⁶ a single "trivial" violation does not invoke the coverage of the WPA.⁸⁷ According to the legislative history of the WPA, the intent of Congress was only to protect disclosures when they relate to a "substantial and specific danger to public health or safety."⁸⁸ Similarly, "The WPA was enacted to protect employees who report genuine infractions of law, not to encourage employees to report arguably minor and inadvertent miscues occurring in the conscientious carrying out of one's assigned duties."⁸⁹ Though a series of trivial violations may in some cases be sufficient to fall under the ambit of...