Pursuant to the Whistleblower Protection Enhancement Act (WPEA), signed by President Barack Obama in 2012, U.S. government employees have a statutory right to “blow the whistle” without suffering retaliation. The WPEA protects federal employees who disclose violations of laws, rules, or regulations and mismanagement, except when such disclosures are specifically prohibited by law or required by Executive order to “be kept secret in the interest of national defense or the conduct of foreign affairs.” An independent federal agency, the Office of Special Counsel, has the authority to investigate the “prohibited personnel practices” enumerated in the WPEA and also serves as a conduit for evaluating whistleblower disclosures.

Acting Attorney General Sally Quillian Yates was fired by President Trump just hours after she issued a letter instructing Justice Department attorneys not to present arguments in defense of the President's Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” Yates wrote,

“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution's solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.” (emphasis added)

After releasing her letter, Yates reportedly was hand-delivered a letter stating that “the president has removed you from the office of Deputy Attorney General of the United States,” and, soon after, the White House released a statement accusing Yates of “betray[ing] the Department of Justice by refusing to enforce a legal order.”

Under the WPEA, a protected disclosure includes a statement that a person in a “covered position” “believes . . . evidences any violation of any law, rule, or regulation . . .” Yates stated in her letter that, in her opinion, the Executive Order might be unlawful. Arguably, therefore, Yates’ letter met the WPEA’s requirement that a disclosure “evidence[]” what the whistleblower “reasonably believes” to be a violation of law. The WPEA, however, does not protect disclosures made by federal government officials who are “excepted from the competitive service because of [the] confidential, policy-determining, policy-making, or policy-advocating character” of their position. Given the Attorney General’s “policy making” responsibilities, this exception likely applies to Yates, precluding her from asserting the protections of the WPEA. This exclusion, however would not appear to apply to lower level employees of the Justice Department. Thus, if a qualifying federal employee, for example, an assistant U.S. attorney, had issued the same statement as Yates, and was fired as a result, he or she likely would have been able to argue that the termination amounted to unlawful retaliation.

Whether the current administration’s actions will trigger the WPEA’s whistleblower protections may become clear sooner rather than later. According to an article in the New York Times, White House Press Secretary Sean Spicer reportedly warned State Department employees earlier this week, in reference to the same Executive Order that was the subject of Yates' letter, that they “should either get with the program or they can go.” Given the WPEA’s protections, the suggestion that a federal employee needs to quit his or her job if the employee cannot “get with the program,” may very well fall within the anti-retaliation proscription of the WPEA. However, apparently undeterred by Spicer’s warning, or emboldened by the protections afforded them by the WPEA and their department’s own pro-whistleblower rules, just one day after Spicer’s warning, over 1,000 State Department employees signed a dissent letter criticizing the Executive Order.

It remains to be seen if the signatories to the dissent order or other federal employees who voice their concern about the legality of the new administration’s actions will suffer direct or indirect retaliation. Notwithstanding any clear violation of the WPEA’s whistleblower protections, certain government officials obviously believe that the new administration is in danger of inadvertently running afoul of the act’s protections. Thus, on January 25, 2017, the Office of Special Counsel issued a reminder to the new administration that the WPEA also contains “anti-gag provisions,” pursuant to which “agencies cannot impose nondisclosure agreements and policies that fail to include required language that informs employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy.” The OSC's press release also specifically noted that employees are “shield[ed]” “for blowing the whistle on any effort to 'distort, misrepresent, suppress' or otherwise censor any government 'research, analysis, or technical information' that the employee reasonably believes could, among other things, pose a substantial and significant threat to public health or safety or constitute a violation of law, rule, or regulation.” This reminder seemingly was issued in response to the Trump administration's reported efforts to limit information released by government scientists.

Laws protecting whistleblowers should be familiar to President Trump who repeatedly asserted during his campaign that his experience running companies made him qualified to run the country. But, whether to stifle dissent within a private company, like Trump's, is a much different calculation than whether to suppress differences of opinion within the federal civil service. In a private company, terminating a rogue employee – whether or not that employee is a protected whistleblower – may come down to an economic calculation. Far more is at stake when career civil servants, such as scientists, environmentalists, and even lawyers, cannot voice their opinions or share their research without fear of reprisal. And, while it may prefer to create an echo chamber within the federal workforce, by doing so, the new administration risks violating federal law.

From The Insider Blog:  White Collar Defense & Securities Enforcement.