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Friday, April 15, 2011
Akaka’s Whistleblower Bill cited as example of Over-criminalization
By Heritage Foundation @ 10:00 PM :: 5180 Views :: Energy, Environment, National News, Ethics


"Overcriminalization" includes:

  1. Federalizing crime that properly belongs under state and local jurisdiction;
  2. Imposing criminal penalties upon persons who acted without criminal intent (mens rea);
  3. Applying criminal sanctions to conduct that historically has not been considered wrongful.

The Legislative Update Alert includes bills our researchers have indentified that add or expand federal criminal offenses or penalties, but it generally does NOT include bills involving drugs, firearms, or crimes of violence.
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S. 743: Whistleblower Protection Enhancement Act of 2011

Sponsor: Akaka (D - HI)

Official Title: A bill to amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.


  • 4/6/2011: Introduced in Senate
  • 4/6/2011: Referred to Senate Homeland Security and Governmental Affairs Committee


This bill would amend Chapter 23 of Title 5, U.S. Code, to pare back and eliminate many of the restrictions that have been read into the language of the Whistleblower Protection Act (WPA) by the U.S. Court of Appeals for the Federal Circuit and the Merit Systems Protection Board (MSPB).

In addition, S. 743 would expand the scope of the WPA to cover new groups of employee whistleblowers, including employees of the Transportation Safety Administration and various entities within the intelligence community. The bill would also make it easier for the MSPB to issue final orders imposing disciplinary action against individuals who commit a prohibited personnel practice.

Currently, the MSPB may punish violators by issuing orders permitting "removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000."

S. 743 would maintain that same penalty framework, but permit the MSPB to take disciplinary action against individuals who undertake a prohibited personnel practice where activities "protected under [5 U.S.C.] section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) [are] a significant motivating factor, even if other factors also motivated the decision ... to take, fail to take, or threaten to take or fail to take a personnel action."


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Akaka also fails for 11 years to get Whistleblower Bill Passed

Sen. Akaka has tried every year since 2000 to get Congress to strengthen federal law for government workers who draw attention to criminal or civil wrongdoing.

Akaka’s latest bill builds upon the 1989 Whistleblower Protection Act by adding provisions designed to encourage or empower federal employees to speak out.

For instance, the legislation would suspend the U.S. Federal Circuit Court of Appeals sole jurisdiction over federal employee whistleblower cases for a period of five years. Akaka added this section because the court has a reputation for ruling against federal whistleblowers who have endured retaliation for their actions. Instead, workers would be able to seek a jury trial anywhere in the country.

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