shaw bransford & roth case law update

Congress Enacts Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

On October 26, 2017, the Dr. Chris Kirkpatrick Whistleblower Protection Act (“the Act”) of 2017, was enacted. Dr. Kirkpatrick, a clinical psychologist at a VA Medical Center who complained that his patients were often too affected by medication to treat properly, committed suicide in 2015 after he was removed during his probationary period.

The new legislation creates a requirement for the head of any agency to refer to the Office of Special Counsel (“OSC”) any instance “in which the head of the agency has information indicating” that an employee of the agency committed suicide after making a protected whistleblower disclosure.

The Act also amends existing statutory law to include a fourteenth “prohibited personnel practice,” making it illegal to “access the medical record of another employee or an applicant for employment as part of, or otherwise in furtherance of, [other prohibited personnel practices]” described in the statute’s statement of the prior thirteen prohibited personnel practices.

Another notable aspect of the Act is an amendment to 5 U.S.C. chapter 75 that requires agency heads to discipline any supervisor who is found to have committed one of three specific personnel practices: the eighth (whistleblower retaliation), ninth (retaliation for the exercise of an appeal, grievance, or complaint), or fourteenth (accessing the medical records of another employee in furtherance of a prohibited personnel practice). The new legislation also sets statutory requirements for the type of discipline, establishing a requirement that the head of the agency propose a minimum of a 3-day suspension for a first offense of one of the three prohibited personnel practices listed above. For the second offense, if there is one, the new legislation requires that an agency head propose the employee’s removal.

The Act also provides those employees (both permanent and probationary) who request and obtain a stay of a personnel action they believe is motivated by retaliatory intent to receive “priority” in a request for a transfer.

OSC, the federal agency tasked with investigating whistleblower disclosures and instance of alleged whistleblower retaliation, issued a statement applauding Congress for a measure that, according to OSC, “fills gaps in current protections, enhances accountability for whistleblower retaliation, and increases awareness of whistleblower protections.” OSC noted in its statement that the act requires new supervisors “to receive training on responding to whistleblower retaliation complaints,” and that the Act “enhances agencies’ obligations to provide information to employees on whistleblower protections.”

The Act reserves additional requirements for the Department of Veterans Affairs, requiring the Secretary to “develop a plan to prevent access to the medical records of employees of the Department of Veterans Affairs by employees of the Department who are not authorized to access such records,” and to submit that plan to Congress within 180 days of the enactment of the Act.

Read the full Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

Read OSC’s Statement on the Act



This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.






Posted in Case Law Update

Tags: MSPB, whistleblower, FBI



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