Rights Without Remedies: Bundled Causation and the Legislative-Branch Whistleblower Gap

Employees of the Library of Congress are protected by statute against reprisal for reporting to the Library's Inspector General (5 U.S.C. § 407(c), applied through 2 U.S.C. § 185(d)(1)), and against reprisal for opposing discrimination under the Congressional Accountability Act (2 U.S.C. § 1317). Only the second protection has a forum and a remedy. This article analyzes that asymmetry with formal tools and uses Dines v. Office of Congressional Workplace Rights (Fed. Cir. No. 2025-1657, affirmed without opinion under Rule 36) as a worked example drawn solely from public decisions. The article proves four results. (1) A right–remedy model shows that ordinary disclosures to an Inspector General fall into a statutory remedial gap, and that a prohibition without an enforcement channel has no deterrent effect in a Becker-type enforcement model. (2) A structural-causal non-identification theorem shows that when an employer states its reason as an undifferentiated aggregate, such as "disruptive behavior," that contains protected conduct, a finding that the reason was legitimate and genuine does not establish whether the protected conduct was a but-for cause. The question is settled exactly by a finding that the unprotected conduct alone would have produced the same decision. (3) When employers can bundle reasons and adjudicators accept bundled reasons with probability π, the expected sanction for reprisal falls by the factor (1 − π), bundling becomes a dominant framing for employers, and reporting is chilled. (4) After an affirmance without opinion, the probability that winning the question presented changes the outcome is bounded by the weakest alternative ground, including forfeiture. Public data illustrate the institutional setting: Supreme Court filings fell from 8,857 in the 2006 Term to 3,856 in the 2024 Term; in forma pauperis petitions fell by about two thirds; and Rule 36 judgments account for about 41% of Federal Circuit decisions in appeals from post-grant patent proceedings. The Board of the Office of Congressional Workplace Rights has recommended legislative-branch whistleblower protection in at least seven reports to Congress since 2006 without enactment. The article argues for adopting that recommendation on the model of 5 U.S.C. § 1221(e), whose clear-and-convincing defense is precisely the counterfactual the formal analysis identifies, and for express disaggregation findings by adjudicators in the meantime. Disclosure: the author has assisted the petitioner in the case discussed, without compensation. The article is not legal advice. Prepared for submission to Legal Research & Analysis.